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licensee has done the thing and incurred expense in reliance upon the license. The better authorities hold, however, that this view of the law rather springs from error than illustrates the growth of American law.1

Joint estates.

Joint estates, being those held by two or more, have suffered important changes. The tendency has been away from survivorship and toward the principle that on the death of a tenant his share should go to his heir and not to the survivor. This has in some cases resulted from statutes; in others, from the decision of courts.2 Thus, in Connecticut, in case of a conveyance to two or more, there is no survivorship of interest among the tenants. In most States, estates in coparcenary by which several heirs formerly held the estate of the ancestor, and estates in entirety, once the common estate where land was conveyed to husband and wife, are things of the past, both heirs and husbands and wives holding as tenants in common.1

Partition may be had of all kinds of joint estates, and if partition cannot be accomplished advantageously, there may be a sale and division of the proceeds, a mode of procedure unknown to the common law and early equity courts.5

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The right of the landlord to seize the tenant's goods for non-payment of rent, called the right of distress, has been abolished in many States, and where it still exists Rent. Distress. has been greatly modified. In some States, the

right was never recognized; in others, it was recognized originally but was subsequently abolished by statute. There has been throughout our history a tendency against it as a harsh measure and one giving an undue advantage to the landlord.6

1 American and English Encyclopædia of Law (2d ed.), vol. xviii. title Licenses."

2 American and English Encyclopædia of Law (2d ed.), vol. xvii. pp. 650, 657; vol. xi. p. 49.

3 Phelps v. Jepson, 1 Root's Reports (Conn.), 49.

4 Tiedeman on Real Property (2d ed.), secs. 241, 242.

5 Pomeroy's Equity Jurisprudence, sec. 1390.

American and English Encyclopædia of Law (2d ed.), vol. ix. p. 619.

At common law, the rent due for a certain rent period was an entire thing and could not be apportioned in case of the landlord's death. The statutes have, however, introduced a more equitable rule in this regard.1

It is unnecessary to refer here to the development of the law of mortgages, which has been a striking feature of the last two centuries, as this is fully described in Chapter VII.

As to trusts, also, the subject falls rather under the head of Equity than of real property. The estate of the beneficiary which was formerly not subject to liability for the debts of the owner may now be taken, a result in some States arising from statute, in others from judicial decision.2



An important development of the law has occurred in connection with easements. In England, the right to have light and air pass over the land of a neighbor unobstructed by any erection upon such land may be acquired by prescription, or, in other words, may arise from the mere fact that for a certain number of years there has been an unobstructed passage.

In this country, there has been a steady growth of the law away from this view, and almost universally now such a right cannot be acquired in that manner. The importance of this change in the law in this country, which is the home of the "sky-scraper," is apparent.3

In England, a right to have lateral support of buildings may be acquired by prescription, so that if, after the time has run, the neighbor excavates, he is liable to damages or may be prevented by injunction.

In this country, the courts have at last generally taken the position that no such prescriptive right can be obtained, and that the continuance of an erection that the neighbor

1 Kerr on Real Property, vol. i. p. 497; Stimson's American Statute Law, secs. 2027, 2028.

2 Tiedeman on Real Property, sec. 503; Davenport v. Lacon, 17 Connecticut Reports, 283.

8 See Century Digest, vol. xvii. p. 1758.

had no power to prevent will not operate to abridge his rights.1

The English Canons of Descent,2 which determined to whom land passed on the death of an intestate ancestor, have generally been held inapplicable to our condition and not a part of the American common law,3 although they are still important as aiding the courts in the construction of doubtful statutes. In their stead, the statutes have in each State prescribed in whom the title shall vest. In general, now male and female heirs stand upon an equality, and in no State does primogeniture prevail.

As to modes of conveyancing, there has been here, as in England, a steady and strong current in the direction of brevity and simplicity. While feoffment or the act of passing title by a symbolical delivery of a twig or turf is not unknown to our history, it has never been other than a most uncommon ceremony.



The present American deed is largely an invention to meet American needs. While some old feudal terms are retained, they are simply survivals from an old order of things.

In place of a large number of elaborate conveyances we have but two forms of deed in common use for passing title, -the warranty and quitclaim.

The warranty is the ordinary conveyance by which title is passed to one having no previous interest in the land. It is devised to operate according to circumstances in a number of possible ways, and thus does the work of a number of ancient conveyances. The distinctive feature the covenant of warranty was a new covenant, on breach of which damages might be recovered; and it was thus quite unlike the feudal warranty, which simply bound the warrantor to give the grantee other lands.4

1 Mitchell v. Rome, 49 Georgia Reports, 26; Sullivan v. Zeiner, 98 California Reports, 346; 20 Lawyers' Reports Annotated, 730 and note.

2 Davenport v. Lacon, 17 Connecticut Reports, 283; Blackstone's Commentaries, vol. ii. p. 208.

8 Kerr on Real Property, vol. i. p. 367.

Tiedeman on Real Property (2d ed.), secs. 856, 857.

The quitclaim deed was the successor of the release deed, which could be made only to one having an estate in the land. Statutes and judicial decisions have now given it the effect of a primary conveyance, and it is generally used whenever the grantor does not wish to warrant his title.1

The American deed was the result of the conditions peculiar to a new country where titles were simple and families young. There was not the same occasion for elaborate settlements and complicated estates as in England. That different conditions affected this result is seen by comparing the deeds of commonwealths settled by a wealthy and aristocratic people with those where conditions were different and landed estates were practically unknown. The simplicity in the conveyances gave rise in turn to differences in conveyancing practice, which reacted upon the substantive law itself and upon the lawyers as a class. Conveyancing has never, in this country, been a special branch of the profession, except to a very limited extent. While men's gifts differ, the average American lawyer, whatever his line of practice, has in all States been able to draw easily the average deed, and without special study, aptitude, or training, all but the very exceptional one. This has in turn produced a movement away from complication and technicality. Before the recent reforms, the English solicitor was paid for his deed according to its length, a custom which has never been the rule here. Finally the statutes have stepped in and provided certain short forms as sufficient while still allowing the use of the longer ones, often substituting the word "grant " for a number of terms, which, starting with a different meaning, have in the evolution of the law become synonymous, and declaring that short phrases, such as "with covenant of general warranty" and the like, shall be as effective as the much longer ones formerly in use. In New York, a gentle pressure towards brevity has been applied by way of a statute charging a disproportionately large record fee

1 American and English Encyclopædia of Law (2d ed.), vol. ix. p. 104.

for all deeds not in the short form, and in all States the record fee is based on the number of pages.

In a large portion of the country, the description of the premises conveyed has been greatly simplified by substituting references to the sections and portions of sections of surveyed land for natural land-marks.

In many States, the seal, once so important, has been abolished, and in others no witnesses are needed.

One of the most striking differences between the law of 1701 and that of 1901, so far as practical results are concerned, occurs in the methods employed for preserving the evidence of title of land and giving to the muniments of title the publicity so desirable for the protection of subsequent purchasers.

The English people have always had a strong prejudice against making public their conveyances. Land was something to be held in families from generation to generation, rather than the subject of bargain and sale. The history of a title frequently involved the private history of a family. The form of conveyance known as that by lease and release was invented in order that the enrolment required in the case of bargain and sale might be avoided. While land registers have existed in two counties, the decisions of the English courts have reduced their efficiency so that, in the words of Professor Pollock, "their chief function (besides providing a livelihood for a certain number of officers and clerks) is to be a nuisance to conveyancers.


As to the rest of England, registration of deeds is unknown. M. Jacques Dumas, in the Storrs course of lectures before Yale University in 1900, ascribed the fact that a great commercial nation has managed to do without a system regarded as so indispensable here, and of such obvious utility, to three causes, - the fact that there are few sales, the land being tied up by settlements; the fact that mortgages subsequent to the first are uncommon; and the opposition of pro


Land records.

1 American and English Encyclopædia of Law (2d ed.), vol. ix. p. 104.
2 Land Laws, p. 167.

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