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THE LAW



OF



YENDORS AND PURCHASERS



OF EEAL PROPERTY.



FRANCIS BILLIARD,

AUTHOR OF THE LAW OF M0KT6AGES, ETC.



IN TWO VOLUMES.

VOL. L



BOSTON:
LITTLE, BROWN AND COMPANY.



M DCCC LVIH.



T



Entered according to Act of Congress, in the year 1858,

By Francis Hilliard,

in the Clerk's Office of the District Court of the District of Massachusetts.



RIVERSIDE, CAMBRIDGE:
PRINTED BY H. O. HOUGHTON AND COMPANT.



PREFACE.



Many years ago, I conceived the design of preparing
an extended view of The American Law of Real Property,
and accordingly compiled the Treatise or Abridgment,
the last edition of which bears that title. That work
was modelled substantially upon the approved Digest of
Mr. Cruise, which had long been used as the popular
text-book upon this subject. In the preface I took occa-
sion to remark, that, in consequence of the disuse of
many feudal doctrines, which our ancestors left behind
them in emigrating to this country; the gradual adap-
tation of our law to the republican institutions here
established ; and, above all, the numerous and various
statutory enactments in the different States of the
Union; — the English Law of Real Property and the
American Law of Real Property had come to be two
distinct systems, requiring, of course, to be stated and
explained in distinct elementary works.



iv PREFACE.

While the valuable Digest of Mr. Cruise had been
the approved manual of the American lawyer, upon those
branches of the general law of Real Property, which
alone he assumed to treat; another portion of this ex-
tensive subject was then, and has been ever since, occu-
pied by another work of equal merit and popularity,
to wit, Siigden on Vendors and PurcJmsers. The line of
division between these two works is very marked and
apparent. The former treats of the title to Real Prop-
erty ; the modes of acquiring such title, and the, inci-
dents, rights, and liabilities which appertain to it, after
it is acquired ; while the latter is restricted in plan,
though not always in execution, to executory/ contracts
of sale and purchase, by which, when carried out,
the title will of course be changed, but which in
themselves effect no such change. English law and
American law ^.re less divergent upon the latter than
upon the former class of subjects ; and indeed their
discrepancy in reference to mere executory contracts
concerning real property results chiefly from the differ-
ent rules which prevail as to real property itself. Thus
estates tail have been substantially abolished in the
United States ; and, although there is no legislation
immediately relating to contracts of sale and purchase,
which by way of title to the property sold involve the
nice points of entailment ; still the one change neces-
sarily involves the other, and upon both subjects alike
virtually supersedes those intricate and subtle distinc-



PREFACE.



tions, which have given occasion to so many decisions
in the English Courts. The same may be said of the
obsolete titles of Fine and Recovery, Tithes, Advoivson,
Copyhold, &c. ; and to some extent of those other numer-
ous subjects — such as Dower, Descent, Devise, Execution,
&c., — which have not themselves become obsolete in our
law, but the rules and principles of which have been so
extensively and vitally modified by American statute
and usage.

There are moreover many points of mere i^ractice, in
suits relating to the title of real property sold, more
especially suits in Equity ; which are peculiar to the
English Courts, and may well be very cursorily noticed
in an American treatise.

Upon the whole, therefore, I may state, that the
present work is designed to occupy the same ground
in American law, which has been so successfully occu-
pied in the English law by Sugden on Vendors and
Purchasers. I mean the same ground for mere practical
use ; for, as I shall presently explain, this is the pre-
vailing purpose of the book; and I do not profess to
have imitated the free discussion, independent criticism,
acute comparison of authorities, and flowing style of
expression, which have made that work so popular and
so worthy of the fame of its distinguished author.
Without, for the most part, undertaking to weigh and
balance conflicting decisions, or to pursue the fine
threads of distinction which run through opposing cases



VI PREFACE.

and opinions; I have endeavored to present in a com-
pact form the Icuv as it is, in the shape of the English
and American authorities ; usually accompanied, where
there is a serious conflict in the cases, with a general
expression of opinion as to the prevailing rule upon the
particular topic of discussion. It has always seemed to
me peculiarly impracticable, in an American text-book,
for the writer to advance any proposition of his own, as
in the nature of the " respoiisa prudentum " of the Roman
law ; or in other words as the law, authoritatively elim-



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