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LOS



UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY




LAW LIBRARYj

OF
lOS ANGELES COUNTY



LAWUBRflRY

OF '

IBS mm mm



A TREATISE



ON



THE AMERICAN LAW



OF



REAL PROPERTY



BY

EMORY WASHBURN, LL.D.

BUSSEY PROFESSOK OF LAW IN HARVARD UNIVERSITY ; AUTHOR OF A TREATISB
ON THE AMERICAN LAW OF EASEMENTS AND SERVITUDES



SIXTH EDITION

BY

JOHN WURTS, M.A., LL.B.

PROFESSOR OF THF. LAW OF REAL PROPERTY IN THE YALE LAW SCHOOL
AUTHOR OF INDEX-DIGEST OF THE FLORIDA REPORTS



VOLUME I



BOSTON
LITTLE, BROWN, AND COMPANY

1902



T

v.f



Entered according to Act of Congress, in the year 1860, by

EMOKY WASHBUKN,

In the Clerk's Office of the District Court for the District of Massachusetts.
Entered according to Act of Congress, in the year 1864, by

EMORY WASHBUKN,

In the Clerk's Office of the District Court for the District of Massachusetts.
Entered according to Act of Congress, in the j'ear 1868, by

EMORY WASHBURN.

In the Clerk's Office of the District Court for the District of Massachusetts.
Entered according to Act of Congress, in the year 1876, by

EMORY WASHBURN,

In the Office of the Librarian of Congress, at Washington.

Copyright, 1886,
By Little, Brown, and Company.

Copyright, 1902,
By Little, Brown, and Company.



University Press :
John Wilson and Son, Cambridge, U.S. A-



TO THE HONORABLE

JUSTICES OF THE SUPREME JUDICIAL COURT

OF MASSACHUSETTS,

TO WHOSE LABORS I AM INDEBTKD FOR SO MUCH OF WHAT IS
VALUABLE IN THE WORK, I DEDICATE THIS UNPRE-
TENDINCJ EFFORT TO ELUCIDATE A DEPART-
MENT OF AMERICAN JURISPRUDENCE.

In doing this, I desire to add to the traditional veneration
for this Court which I have shared in common with the peo-
ple of the Commonwealth an expression of personal respect
for its members, which the long intercourse into which I have
been brought, since my admission to its bar, has served to
develop, and constantly to strengthen.

Within that time, every one of its members has been
changed. Men, the loved and the honored, have one after
another passed away in the fulness of their fame, and others
are now occupying their field of honorable labor ; but illus-
trious as are the names that stand out upon its records
among the great and good men of the Commonwealth, never
have its laws been more ably, faithfully, and acceptably
administered than by those who now occupy these seats of
justice.

To bear my humble tribute to the official and personal
qualities of the men who have in this field won and sus-
tained the united respect of an appreciative public, I sub-
scribe myself

Their obliged and obedient servant,

EMORY WASHBURN.
Cambridge, July, 1860.



6ll(b9l



PREFACE

TO THE SIXTH EDITION.



In the preparation of this edition of Washburn on Real
Property it was found advisable to take some liberties with
the original text. With few exceptions, the changes have
been made with a view to enhancing the practical utility of
the work rather than with any idea of improving the scientific
treatment of the subject, which has long been recognized as
most admirable. The division into books and sections has
been discarded. Valuable suggestions by Professor Alfred G.
Reeves have served as a guide in making the few important
rearrangements of the text. Slight changes in the wording
of the text are not indicated ; but all verbal changes of im-
portance, for the sake either of clearness or of brevity, and
all of the editor's original work, by way either of substitution
or of addition, are shown by brackets. In citing authorities,
great care has been used to include all the important de-
cisions, made since the last edition of the work, which are
in point. The editor is indebted to Mr. Charles Henry Har-
riman for a critical verification of every new case referred
to. The compilations of statutes were made in large part by
Messrs. Charles T. Lark and Edward H. Kelly.

J. W.

New IIavkn, Conn., February, 1902.



PREFACE

TO THE FOURTH EDITION.



To carry out the original purpose and design of the present
work renders it necessary to add to or modify its statements
and propositions, from time to time, to conform to the growth
and progress of the law. It was intended to give a connected
view of the law of Real Property as it prevails in the several
States and under the Federal government, so far as it could
be regarded American in its character. For this purpose, it
was not only necessary to collect and collate the decisions of
the State and Federal courts, but to make liberal reference
to English reports and accredited treatises, and from these to
form, so far as might be, a consistent and complete system of
this department of the law.

If successfully accomplished, two objects would be attained :
the profession and the student would be supplied with a work
that seemed to be needed for use ; and a process of assimila-
tion among the laws of the different States would thereby be
promoted, and the bonds of union between them gain strength
by an identity of domestic institutions and popular thought.

Judging from the manner in which the work has been re-
ferred to by the various courts, it is believed that it has not
wholly failed in either of these respects.

Since the publication of the last edition, some two thou-
sand cases have been decided by the courts, which bear
upon the subjects-matter of the work, by which, and other
causes, changes and modifications of sufficient magnitude and
importance in the existing rules of law have been wrought



Viii PREFACE TO THE FOURTH EDITION.

to call for an effort to collect and embody these into the work
as it had already been given to the public. An edition, there-
fore, which should embrace these cases, seemed to be a neces-
sity, and has accordingly been prepared. "Where these cases
were in effect a re-statement of well-considered points of law,
they have been referred to simply by name. But to such of
them as contained new points, or presented a principle already
familiar in an original or more elaborate form, have been as-
signed a more extended discussion and examination; and, in
so doing, a statement of the facts and circumstances of par-
ticular cases has, at times, been adopted, which might, perhaps,
seem, at first sight, more consistent with the idea of a digest
than a summary treatise. Where this has been done, it has
been for the purposes of illustration and explanation.

This accumulation of cases has arisen, in no small degree,
from the fact that the laws of the different States differ essen-
tially upon many subjects ; and it is often as important to cite
cases to show, that, upon a given point, the law of one State
is not like that of another, as it is to state what the law of
the former State, in fact, is. In this way, citations have often
been multiplied upon a single point, beyond what, at first
thought, might seem necessary or proper.

In the matter of the changes wrought by the legislation of
the States, new statutes are so frequent, and often so arbitrary,
and it is, at times, so difficult to get ready access to them, that,
if errors in this respect should be detected, the cause may, per-
haps, be accepted as an excuse. In collecting and digesting
the cases cited from the reports, liberal use, so far as they
extend, has been made of the " American Reports," — a selec-
tion made by Mr. Isaac Grant 'Thompson with excellent judg-
ment and discrimination ; while an earnest effort has been
made, from other sources, to make the examination and colla-
tion of these reasonably complete.

To give some idea of the topics upon which new or sub-
sidiary matter will be found in the following pages, there
may be mentioned, as among them, homestead exemption;
when and how far tenants may deny their landlords' titles ;
what force a landlord may apply in expelling a tenant; how
far tenants are liable to others for injuries arising from the



PREFACE TO THE FOURTH EDITION. IX

condition of the premises in their occupancy ; bow far tlie
tenant of one part of a dwelling-house can compel a tenant
of another part to join in making repairs; whether the sale
of growing trees and crops is within the 17th section of the
statute of frauds; how far absolute deeds can be shown, by
parol, to be only mortgages ; the order in which owners of
different parcels of mortgaged premises are chargeable in the
redemption thereof; the validity of deeds, blanks in which
have been filled after execution ; what American rivers come
under the category of navigable, and what are the boundary-
lines of lands bordering upon them, and what of lands bound-
ing by the sea, or by lakes and ponds ; the power of courts to
reform deeds, in order to correct mistakes ; how far erecting
and occupying up to division-fences affect the title to the
adjacent lands ; how far holding lands as partnership assets
is a conversion of the same " out and out ; " and how far one
holding an easement of way can release or exchange it by
parol.

With such materials, and the space they necessarily occuy)y
in a work like this, it has been impossible to avoid expanding
it considerably beyond its previous limits in its present form.
But while it has been an aim in its composition to keep it
within the narrowest compass, its main purpose has been to
bring the work up to the present time, and to render it as
accurate and complete as could be done by personal effort
and attention.

Cambridge, March, 1876.



PKEFACE

TO THE FIRST VOLUME OF THE FIRST EDITION.



The circumstances under which this work is now offered
to the profession are briefly these : —

When called upon to state and illustrate to the classes of a
law school, collected from almost every State in the Union,
the leading principles of the Law of Real Property, the author
was led to believe that there was a want to be supplied by a
work, which, while it retained so much of the English common
and early statute law as applied to this country, should com-
bine with it, as a basis, the elements of American law as the
same had been developed in the legislation and judicial deci-
sions of the General and State governments, in order to form
as nearly as might be one homogeneous system.

A conviction of the need of such a work, in the nature of
an elementary treatise, strengthened with reflection, till the
result has been an attempt to achieve it in the present volumes.

That to do this required the subject to be treated in some
of its parts historically, and sometimes to refer to what had
become practically obsolete, every intelligent reader will
readily understand. The American statesman who should
content himself with studying the simple text of the Consti-
tution, without the light which English and Colonial history
throws upon its provisions, would find himself at a loss to
understand, or how to solve, many of the questions to which
the construction of that instrument has given and is giving
rise.

So the American lawyer would find still greater difficulty
in understanding that great unwritten body of principles which



Xii PREFACE TO FIRST VOLUME OF FIRST EDITION.

form the basis of the common law of nearly every State in
the Union, if he could not go back historically to the coming
in of the feudal system at the Conquest, read the charter of
Runnymede in the light of the circumstances which sur-
rounded it, and trace the gradual loosening of the bands
of tenure before and at the passage of the statute Quia
Emptor es.

If the early English common law had no other application,
a knowledge of it could not be dispensed with by a lawyer,
as a means of understanding the terms and phrases in modern
use, and as furnishing the elementary thoughts and opinions
which have been and still are being wrought into the expand-
ing and progressive systems of English and American juris-
prudence.

The English Law of Real Property has undergone surpris-
ing changes within the last thirty years, whereby a process of
assimilation in the systems of the two countries uJ3on this
subject has been going on, which is interesting to the Ameri-
can lawyer, and renders a knowledge of the laws of each the
more important in the courts of this country.

Here was presented one of the most difficult problems in
the prosecution of the present work. It seemed particularly
desirable that it should not exceed two volumes of convenient
size ; while to compress into that space all that should be said
of the English law, as well as of the statutes and decisions of
thirty-one different States and governments, each related to,
and yet independent of, the others, seemed, at first sight, an
impracticable undertaking. How far the difficulty has been
surmounted, the reader will determine.

It has been the intention of the writer to state no proposi-
tion as law which did not appear to be sustained by satisfac-
tory authority. So far as the same could reasonably be done,
those authorities have been cited. But, with all his precaution,
this could not fail to load his pages with references ; and he
has contented himself, not unfrequently, with citing an ele-
mentary work of received authority to sustain a proposition,
rather than to multiply the citations of cases which are to be
found, if desired, in the elementary work referred to. In
some instances, he has been obliged to rely upon the digest of



PREFACE TO FIRST VOLUME OF FIRST EDITION. XIU

a reported case ; but tliis has been done witli caution, espe-
cially when the point to be stated or illustrated seemed to be
new and doubtful. On the other hand, he has, in but a few
instances, undertaken to give digests of reported cases. lie
has endeavored to state principles fully and clearly, and only
for purposes of illustration has occupied space with a detail
of the facts in the cases cited.

One thing he has had in view in the arrangement and fill-
ing up of his plan ; and that was to satisfy the reader that the
Law of Real Property, as a system, Avas, in most respects,
symmetrical and complete. The popular notion, it is true,
is, that this branch of the law is inevitably dry, intricate, and
distasteful. But if its terms are less familiar, and its rules,
from the remoteness of their origin, seemingly more arbitrary
and artificial, and, as a whole, it is less flexible and easy to con-
form to the changing habits of a people than those of trade
and commerce and the mere personal relations of society, it
should not be forgotten, that, as a science, it altogether tran-
scends those in exactness and certainty, and that many even
of its subtleties disappear when the relations of its elements
have been ascertained by study and investigation.

It should not be forgotten that it lies at the foundation of
the English common law itself; that it was upon this sturdy
stock that the laws and institutions of trading, manufacturing,
commercial England were ingrafted, and are now in no small
degree dependent for their element of vitality.

Nor should it be overlooked, that with the Saxon love of
land, and the Norman love of dominion over the spot one
calls his own, the law which regulates and enforces the rights
of property in the soil will never cease to be of interest to a
people in whose veins this common blood is mingled.

It has, moreover, been the field in which the keenest intel-
lect and most profound learning of the best jurists of England
and our own country have found ample scope and employment
in grasping and analyzing its principles, mastering its subtle-
ties, and testing and applying its rules.

It is not surprising, therefore, that so many writers have,
from time to time, employed their best powers in the prepa-
ration of works embodying and illustrating the Law of Real



Xiv PREFACE TO FIRST VOLUME OF FIRST EDITION.

Property. Every age since Glanville has had its writers upon
this subject, and no period has been more prolific than the
present. No English treatise, of course, covers the same
ground as was proposed to be done in the present ; though it
would be doing injustice to the treatise of Mr. Joshua Wil-
liams, and the notes on leading cases by Mr. Tudor, among
the more recent of those works, if acknowledgment had not
been made, as if often is in these pages, for the aid they have
afforded in the preparation of this work. They will, more-
over, show the use which has been made of the earlier treatises
of Blackstone, Fearne, Cruise, Sanders, Flintoff, Sugden,
Butler, Crabb, Preston, Burton, and others already familiar
to the American lawyer. The work will show, besides, how
far he has availed himself of the labors of American authors,
whose aid, when resorted to, he has intended fully to ac-
knowledge.

This attempt to produce a new work upon a hackneyed
topic will not, it is hoped, render the writer obnoxious to the
charge of presumption in view of the eminent ability of those
who have gone before him. He hopes it may, at least, be
found to possess the merit of being adapted to the wants of
the American lawyer, as well as the American student ; and
if, in its composition, it is found to want the terseness and
directness which might be derived from a strict adherence, at
all times, to the use of technical terras and phrases, the reason
for it might be traced to a wish to present the propositions it
contains in language readily apprehended by the student.

Regarding the Law of Real Property as a system composed
of several parts, yet substantially complete in itself, he has
endeavored to arrange his topics with a due regard to their
natural order of sequence, in relation to each other.

The work is divided into three books : the first embracing
the nature and quantity of estates in corporeal hereditaments,
with their qualities and characteristics, which will be found
in the volume now published ; the second treating of incor-
poreal hereditaments, their nature and cliaracteristics ; and
the third, presenting in outline the titles by which real
property may be acquired and held, and the rules of its
transmission and transfer, will constitute a second volume.



PREFACE TO FIRST VOLUME OF FIRST EDITION. XV

It is subdivided into chapters, each intended to embrace a
separate and distinct subject, with a subdivision in some
cases into sections, with such a reference in the notes to the
American statutes as to give the reader a tolerably full idea
of the coincidence or diversity of the rules of the several
States upon those subjects therein treated of.

It aims, in brief, to provide a safe and convenient book of
reference to the lawyer ; while it furnishes an elementary
treatise for the use of the student, embracing what, in the
form of lectures, has been received with favor by successive
classes of the Law School, for which they were originally
prepared.

From the encouragement he has received from both lawyers
and students to undertake the work, he is induced to hope
that it will be found, in some measure, to supply the want in
which it originated.

Cambridge, July, 1860.



CONTENTS.



CHAPTER PAGE

I. Nature and Classification of Real Property ... 1

TI. Feudal Tenures, Seisin, etc 37

III. Estates in Fee-simple 60

IV. Estates Tail 83

V. Estates for Life 102

VI. Estates for Life — Estovers 116

VII. Estates for Life — Emblements 120

VIII. Estates for Life — Waste 128

IX. Estates by Curtesy ' . . 144

X. Dower — Nature and History of Dower .... 164

XI. Dower — Of what a Widow is dowable .... 167

XII. Dower — Requisites of Dower 182

XIII. Dower — How lost or barred 207

XIV. Dower — Assignment of Dower 230

XV. Dower — Nature of the Estate in Dower . . . . 256

XVI. Dower — Provisions in Lieu of Dower .... 279

XVII. Instates during Coverture 292

XVI I L Homestead Rights 306

XIX. Estates for Years 342

XX. Estates for Years — How created 355

XXI. Estates for Years — Of Conditions in Leases . . 377
XXII. Estates for Years — Of Covenants in Leases . . 393
XXIII. Estates for Years — Of Assignment and Sub-
tenancy 414

VOL. I. — 6



CONTENTS.



CHAPTER PAGE

XXIV. Estates for Years — Of Rent, Eviction, Destruc-
tion and Use of the Premises .... 429
XXV. Estates for Years — Of Surrender, Merger, etc. 451
XXVI. Estates for Years — Lessee estopped to deny

Lessor's Title 459

XXVII. Estates for Years — Contracts for Farming on

Shares 472

XXVIII. Estates for Years — How Terms pass upon

Lessee's Death 475

XXIX. Estates at Will 476

XXX. Estates from. Year to Year 496

XXXL Tenancies at Sufferance 509

XXXII. Licenses 518

XXXIII. Estates in Joint-tenancy 528

XXXIV. Coparcenary 536

XXXV. Tenancy in Common 538

XXXVI. Partnership Estates 553

XXXVII. Joint Mortgages 560

XXXVIII. Estates in Entirety 562

XXXIX. Partition 567



TABLE OF CASES CITED.



[References are to sections, unless otherwise indicated.]



A.



Abbey Plomest. Assoc, v. Willard,

47 Cal. 614 756, 757

Abbot V. Bayley, 6 Pick. 89 2102

i;. Curran, 98 N. Y. 665 1123

Abbott V. Abbott, 51 Me. 575 189,

2294, 2320, 2344

V. Abbott, 53 Me. 360 2315

V. Allen, 14 Johns. 248 2381

V. Alsdorf, 19 Mich. 157 2180

V. Cromartie, 72 N. C. 292 748

V. Berry, 46 N. H. 369 921

V. Bradstreet, 3 Allen, 587 1538,

1544
V. Butler, 59 N. H. 317 1265

V. Holway, 72 Me. 298 1383, 2243,

2264

V. Hurd, 7 Blackf. 510 2226, 2272

V. Jenkins, 10 Serg. & R. 296 1616

V. Mills, 3 Vt. 521 1905

V. Stewartstown, 47 N. H. 228 1236

V. Upton, 19 Pick. 434 1120

Abby V. Billups, 35 Miss. 618 686

Abeel v. RadclifE, 13 Johns. 297 1464

Abell V. Brown, 55 Md. 222 1435

V. Cross, 17 Iowa, 176 2062

Abercrombie v. Baldwin, 15 Ala.

363 883

V. Redpath, 1 Iowa, 111 702

V. Riddle, 3 Md. Ch. Dec. 320 241

Abingdon's Case, Palm. 264 473

Abington v. N. Bridgewater, 23

Pick. 175 2345

Abraham v. Twigg, Cro. Eliz. 478

1300, 1358, 1806
Academy v. Smith, 54 Penn. St.

130 1138

Academy of Music v. Hackett, 2

Hilton, 217 659, 660, 730

Ace. Death Insur. Co. v. Mackenzie,

10 C. B. N. s. 870 748, 756

Acer V. Westcott, 46 N. Y. 384 2215
Ackerman v. Lyman. 20 Wis. 454 827
Ackla V. Ackla, 6 Penn. St. 228 1121
Acland u. Gaisford, 2 Madd. 28 1153
Ackland v. Lutley, 9 Ad. & E. 879 609,
811, 1416



Ackley v. Drgert, 33 Barb. 176 1900
Ackroyd v. Smith, 10 C. B. 164 1205
Acocks V. Philips, 5 Hurlst. & N.

183 659

Acquaknock Water Co. v. Watson,

29 N. J. Eq., 366 1284

Acton V. Blundell, 12 M. & W. 324 1290

V. Doolev, 6 .Mo. App. 323 1902

Adair v. Lett, 3 Hill, 182 313, 328, 330

Adam v. Ames Iron Co., 24 Conn.

230 919, 924

V. Briggs Iron Co. 7 Cush. 361 21,

880, 927, 1318

V. Kerr, 1 Bos. & P. 360 2132

Adams y. Adams, 6 Q. B. 860 220,1416,

1454, 1610

V. Adams, 14 Allen, 65 1199

V. Andrews, 15 Q. B. 296 845

V. Beadle, 47 Iowa, 439 15

V. Bigelow, 128 Mass. 365 1069

V. Brown, 7 Cush. 220 1111, 1149,

1159
u. Bncklin, 7 Pick. 121 1129,1195
V. Butts, 9 Conn. 79 486

V. Conover, 87 N. Y. 422 2383

V. Conover, 22 Hun (N. Y.),

424 2401

V. Corriston, 7 Minn. 462 1045, 1065
V. Cuddy, 13 Pick. 460 2214, 2331
V. Freeman, 12 Johns. 408 836

V. Frotiiiugham, 3 Mass. 352 878,
929, 2043, 2294
r. Frye, 3 Met. 109 2165

V. Gibney, 6 Binsi. 6-56 668 1>

V. Goddard, 48 Me. 212 736

V. Guerard. 29 Ga. 651 1427, 1605
V. Guioe, 30 Miss. 397 1877

V. Hill, 29 N. H. 202 395, 410, 1141
V. Interstate B. & L. Assn., 119

Ala. 97 9

V. Logan , 6 Mon. 1 75 329, 335, 2031
V. McKesson, 53 Penn. St. 83 822
V. Marshall, 138 Mass. 228 1248,

1299

V. Medsker, 25 W. Va. 127 2120

V. Palmer, 51 Me. 478 536, 2050,

2052, 2053

V. Parker, 12 Gray, 53 1051



XX



TABLE OF CASES CITED.
[References are to sections, unless otherwise indicated.]



Adams V. Paynter, 1 Coll. 530 1176

V. Pease, 2 Conn. 481 '2334, 2336

V. Robertson, 37 111. 45 1074

V. Rockwell, 16 Wend. 285 1895,

1903

V. Ross, 30 N. J. 505 147, 1181,

1545, 1616, 2109, 2371, 2372,

2400

V. Saratoga & W. R. R. Co. 11

Barb. 434 2341

V. Savage, 2 Ld. Raym. 854 618
V. Savage, 2 Salk. 679 1340, 1302,
1374, 1393, 1623
V. Smith, Breese, 221 15

V. Steer, Cro. Jae. 210 2287

V. Stevens, 49 Me. 362 982, 2290
V. Van Alstyne, 25 N. Y. 232 1305
V. Walker, 34 Conn. 466 1293

V. Wheeler, 10 Pick. 199 1083

Addison v. Hack, 2 Gill, 221 844, 848,

1313
Adsit V. Adsit, 2 Johns. Ch. 448 512,

514
^tna Ins. Co. v. Tyler, 16 Wend.

385 1039, 1156

Agricult. Bk. v. Rice, 4 How. 225

2101, 2103
Agricult., etc. Assoc, v. Brewster,

51 Tex. 257 1460

Ahearn v. Bellman, 4 Exch. Div.

201 809

Ahrend v. Ordiorne, 118 Mass. 261 1028

Aiken v. Alb. R. R., 26 Barb. 289 675



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