Law of Real Property: Being a Complete Compendium of Real Estate Law, Embracing All Current Case Law, Carefully Selected, Thoroughly Annotated and Accurately Epitomized, Volume 5

Emerson E. Ballard, Tilghman Ethan Ballard

Ballard Publishing Company, 1899

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Table of Contents

Index

ABSTRACTS AND ABSTRACTERS 1 Liability of abstracter 2 Abstracts as evidence ABUTTING OWNERS 3 Railroads in streets	17

Rights of railroads as against purchaser of abutting propertyLay ing additional tracks 5 Street railwayBridge over railroad track	18

Street railwayOrdinances and statutes	19

Elevated railroads	20

Shade treesInjury by telephone companyRemoval by city 9 Change of gradeMunicipal liabilityRule in Wisconsin	21

Change of gradeMunicipalityMeasure of damages	22

Change of gradeComplaint for damages	23

Change of gradeInjunction to restore 13 Change of gradeConstruction of statuteSpecial damages defined	24

Rescission by infant or insane personReturn of consideration INSURANCE	401

Statement of case reported	402

Insurance by life tenantRight to proceeds	403

Assignment of leases	404

of forfeitures	405

Change of ownershipLiens and incumbrances	406

Change of useIncrease of hazard	407

Vacant and unoccupied building	408

Statutory dedication of streetsOwnership of	25

Opening or widening roadsVacating streets ACKNOWLEDGMENTS 16 Necessity of acknowledgment and who may make	26

Who may take acknowledgments	27

Form and sufficiency of the certificate	28

Conclusiveness of the certificate	29

Proof by subscribing witness 22 Acknowledgments by married women ADVERSE POSSESSION 23 As to what constitutesGeneral principles	32

As to what constitutesParticular cases	33

Necessity of actual occupancy	34

Uncultivated lands held under conflicting patentsSufficiency of possession	35

Extent of possessionUnder deeds	36

Proof of adverse possessionSufficiency of 29 Title byElements necessary	37

Title byAs to necessity of good faith on the part of the claimant	39

Title byGood faithTacking possessions	42

Title byPayment of taxesTime necessary	43

Title byEasementsBurial lotsMunicipalities 34 Color of titleAs to what isNecessity	44

Adverse possession of highway	46

CotenantsLife tenants and remaindermenVendor and vendee 37 Landlord and tenantParental and filial relations	47

SECTIONS ALIENS	48

Property by descentConstruction of statutesInheritable blood ASSIGNMENTS FOR CREDITORS 39 Constitutionality of insolvency laws	49

What constitutesExecution 41 Presumption of acceptance by creditorsFiling notices of assign ment	50

Exempt property	51

Preference of creditors 44 Assignment as a conveyance of real estate in other states 45 Setting aside previous conveyances of insolvent	53

Miscellaneous notes	54

BONA FIDE PURCHASER	55

As to what constitutesGeneral principles 49 As to what constitutesParticular cases 50 Purging equitiesKnowledge to put one on inquiry	56

AgreementsFencesPresumptionsSurveys	57

Adverse possessionLappage of constructive possessions 53 Meander lines not considered as boundaries	59

Highwater mark as a boundary 55 Streets and ways as boundaries	60

Monuments control courses and distances	61

Title to cemetery lotRights of one using	62

CHARITABLE USES 58 Conveyances forDefiniteness required	64

Conveyances forValidity ofPerpetuities	65

Conveyances forCancellation of 61 Mortmain statutesWhen in force	66

Eleemosynary purposesWhat	67

Preventing diversionParties and remedies 64 Change of creedRights to property	68

COMMUNITY PROPERTY	76

Relief from fraudElection of remediesSufficiency of procf Statutes in restraint of contractsGambling contracts	78

As to what is a contract of saleRecovery of purchase money upon rescission	79

Construction of contracts	81

Time as the essence of the contract 73 Breach of land contractMeasure of damages	82

Breach of land contractLiquidated damages	83

FraudRepresentations as to amount quality or value 76 FraudStatements of opinion or intention	84

Innocent misrepresentationsConcealment of facts	85

Rescission ofAs to what is a disaffirmance	87

As to the right of rescissionParticular cases	88

Rescission ofPlacing parties in statu	89

CORPORATIONS Limitations upon corporate holding of land and making of con tracts	90

SameForeign corporations Deeds and mortgages byPower to makeManner of execution	91

Ultra vires 88 MunicipalitiesRights of lessee of market stall 89 Municipalities and officersLiability for wrongs and assessments	93

MunicipalitiesLeasing of public property and public rights	94

Legislative power to authorize cities to divert public property to the use of railroadsConstruction of statutes	95

Personal covenants COVENANTS 94 Covenants running with the land	97

Covenants in conveyance by life tenant and reversioner 96 Covenants of warranty	98

Covenants against incumbrances	99

Breach of covenants 99 Breach of covenantsEviction 100 Measure of damages for breach of covenants	100

Breach of covenant of seisin 102 Measure of damages for breach of covenant of seisin	101

Miscellaneous notes CROPS AND EMBLEMENTS 104 Title to growing crops	102

Miscellaneous cases	103

CURTESY AND DOWER	104

Statement of case reportedPower of courts of equity to aid cred itors 107 Power of court of equity to sell a widows unassigned right of dower to pay ...	106

Subjecting unassigned dower to the payment of debts	108

Widows estate in unassigned dowerConveyances	109

Curtesy of husband	110

Dower in lands exchanged Construction of statute	112

Release of dower 111 Widows right of dowerLands in which it may be claimed	113

Jointure	115

Assignment of dower	116

Miscellaneous notes DANGEROUS PREMISES 117 Liability of owner when innocent	117

Liability of owner to those rightfully using	118

Implied invitations upon	119

Fall of buildingsLiability therefor	121

Contributory negligence	122

Liability of municipalities and officers DEDICATION	123

As to what constitutesGeneral principles	124

As to what constitutesParticular cases 126 As to what constitutesMaps and plats	125

Maps and plats not legally executed	126

Acceptance necessary 129 Revocation of a dedication of a platted street 130 Dedication of public parks	128

Nonuser of dedicated landsAs to when the public may be estopped from claiming the benefit of the dedication	129

As to what constitutes a conveyance	130

Failure of consideration 134 Alterations and filling blanks	131

Witnesses 136 Grantor and grantee	132

Delivery of deeds	133

Delivery as a part of the execution of a deed 139 Date of delivery and taking effect of deed	134

Delivery by recording	135

Delivery to third persons 142 Delivery to third persons to be delivered after grantors death	136

Delivery in escrow 144 Presumption of delivery from grantees possession of deed	139

Surrender and cancellation of deeds 146 Construction of deeds	140

Construction of particular deeds 148 Recitals in deeds	142

Restrictions upon alienation 150 Restrictions as to use of property	143

Restriction against using property for saloon purposes	144

Restrictions as to the erection of buildings	145

Cancellation of deeds for mistake	148

Cancellation of deed on account of grantors mental incapacity 156 Cancellation of deed for fraud 157 Cancellation of deed for fraudReturn of consi...	149

Cancellation of deed for undue influence 159 Concellation of deed for fraud and undue influenceFiduciary rela tionsBurden of proof	150

Quitclaim deedsBona fide purchaserPrior equities	152

Miscellaneous notes	153

162179 Form of deedsRecent constructions of and amendments made in the statutes of the several states and territories since the compil ations on this...	156

Miscellaneous definitions	158

Statement of case reported 182 Descent to next of kinProperty acquired from ancestorBlood of ancestor Statute construed	160

SameCases reviewed	161

Descent of Indian lands 185 Descent of lands acquired by giftStatute construed	164

Per capita or per stirpes	165

Adopted children 188 Rights of child adopted in one state to inherit lands in another state	167

Bastards	168

Descent to surviving husband 191 Descent to surviving wifeStatutes construed	169

Conveyance by widow remarryingStatute construed	170

Widows quarantine	171

Advancements 195 Rights of creditors as against heirs	172

Miscellaneous notesStatutes construed	173

DESCRIPTION OF REAL ESTATE 197 Sufficiency ofGeneral principles	174

Sufficiency of particular descriptions	175

Construction of descriptions 200 Evidence to aid construction	176

Creation of by prescription	177

Creation of a highway by adverse useConstruction of statutes Creation of municipality	178

Creation by grant	179

Construction of grants of easements	180

Way of necessityImplied grand of 206 Abandonment or vacation of an easement	181

Washing away quicksand by a city sewer	183

Light and air EJECTMENT 211 As to when the action will	184

Sufficiency of the complaint	185

Defenses in ejectmentParticular cases	186

Equitable defensesVendee in possession under written contract	187

AnswerEquitable defensesInconsistent defenses 216 Practice in ejectmentParticular cases	188

ProofPlaintiffs titleDefendants possession	189

Proof Possessory title	190

Judgments in ejectment 220 Attorneys fees in actions of ejectment against a railway company Constitutional lawClass legislation	191

EMINENT DOMAIN	192

SameAs to what is a public use and how determined	194

Defect of parties waived	198

Condemnation in order to continue a use after expiration of license	199

Sufficiency of evidence on which to assess damages	201

What is a public usePower of legislature to decide 228 Constitutional lawLegislative power 229 Constitutional lawCreating Park Systems	203

As to the right of eminent domain	204

Police power distinguished from eminent domain 232 Taking property without due process of lawAssessments for	205

As to what may be takenRailroad lands	206

Additional servitudeStreet railwaysSewers	207

As to what is a taking	208

Compensation must precede the taking 237 Manner of determining amount of compensationDue process of	209

PracticeGeneral principles	210

326	211

Particular casesConstruction of statutes 240 Irregularities may be waived 241 Deposit of moneyEquitable rights	212

Practice where ownership may be in dispute 243 Measure of damagesGeneral principles	213

Market value as a test	214

Measure of damagesParticular cases	215

Measure of damagesConstruction of statutes 247 Measure of damagesImprovementsBenefits	216

Abutting owners rights as against a corporate easement 249 Condemnation for natural gas pipe lineElements of damages	218

SubrogationGeneral principles	219

SubrogationInsurer of titles 252 SubrogationHolder of invalid securities	220

Statement of case reported	221

Constitutional lawStatute authorizing condemnation of land	222

Equitable control of the rights of creditorsMarshaling securities 256 Relief from mistakesGeneral principles	223

Relief from mistakesParticular cases	224

Relief from mistakes negligently made 259 Relief from mistakes as to quantity of land	225

Relief from mistakes of	226

Equitable conversionParticular cases 262 Equitable conversion Devise or grant with direction to sell	227

Relief from forfeiture imposed by a condition precedent 264 Doing equity	230

ESTATES	231

Statement of case reported 267 Right to reenter for breach of condition subsequentNot a devis able estateOnly a grantors heirs can exercise after his d...	233

SameAuthorities collated and reviewed	235

Condition subsequentRunning with the land	239

Conveyance and devise of reverter or right to reenter for breach of condition	240

Forfeiture of estatesConfiscation by act of congress	241

Fee simple estate 273 Creation of fee simple estateStatutes construed	244

Estates tail Estates tailConversion into other estates	246

Creation of life estates	248

Conveyance of life estate	250

Conveyance of life estateRights of grantee assuming incumbrance Rights of life tenant and remainderman 275 276 Shelleys case 277 278 279 280	251

281	252

Liability of life tenant for taxes interest and repairs Future estates Expectant estatesConveyances	253

Limitations over Remainders	254

Vested and contingent remainders	255

Creation of vested remaindersParticular cases 288 Vesting of estates 289 Condition subsequentBreach	257

Condition subsequentConveyance in consideration of support	258

Perpetuities 292 Merger	261

Title by estoppelAfteracquired title	262

Recitals in deeds	263

Estoppel in paisGeneral principles	264

Estoppel in paisAccepting benefits 298 Silence when one should speak	265

Estoppels in pais Particular cases	266

Estoppels as applied to the publicBoundaries 301 Vendee estopped to dispute title of vendor	267

Estoppel as a rule of evidence EVIDENCE	268

Altered deedsAdmissibilityValidity 304 Parol evidenceNegotiationsCollateral contracts	269

Parol evidence to show true consideration	270

Parol evidenceParticular cases	271

Declarations affecting realty interests	272

Admissibility of opinionsProof of values	273

Documents and recordsWhat admissible	274

DocumentsAuthenticityExemplification 311 Nonexistence of an instrument of record	275

Proof of title	276

Competency of witnesses 314 Corporate actionCorporate existence	277

EXECUTION SALES 315 As to what real estate may be sold on execution	278

Exemption of property from execution saleInsurance money	279

Issue levy and return of execution	280

Notice of sale 319 Sales in parcels or in solido 320 Certificate of purchaseSheriffs deed	282

Title rights and liabilities of purchaser	283

Purchasers rights upon failure of title 324 Validity of salesSetting aside	285

Miscellaneous notes proceedsPurchasers title	286

EXECUTORS AND ADMINISTRATORS Power of executors and administrators 327 Rights as to possession and rents of decedents realty	287

Sale to pay debts 329 Sale to pay debtsPractice	289

Sale to pay debtsParties	290

Notice of sale	291

Title and rights of purchaser at an administrators sale 333 Validity of salesSetting aside	292

Collateral attack upon sales 335 Purchase by executor or administrator at his own sale	293

Miscellaneous notes 337 Partition fences FENCES	295

Fencing railroadsStatutes construed 339 Farm crossings over railroads	296

Miscellaneous notes	297

As to what constitutes a fixture	298

Right of tenant to remove fixtures	299

FORCIBLE ENTRY AND DETAINER 343 As to what constitutes forcible entry and detainer	300

Who may maintain the action	301

PracticeStatutes construed	303

FRAUDULENT CONVEYANCES 346 As to what constitutes a fraudulent conveyance	305

As to what constitutes insolvency	306

Trust deeds 349 Conveyances between near relatives	307

Marriage settlementsDeeds of husband to wife 351 Deeds of husband to wifeBurden of proof 352 Conveyance of land bought with wifes money	309

Voluntary conveyances	310

Gift by insolvent debtorSubsequent creditors	311

Preference of creditorsConstitutionality of statute	313

Taking mortgage upon property in excess of the amount of the debt	314

Taking mortgage to secure preexisting debt or in discharge of prior liens	315

Who may claim a homestead	325

In what lands a homestead may be claimed	326

Occupancy and use necessaryContiguous parcels 374 Amount of land claimedRural and urban homesteads	328

Selection and allotment of homestead 375	329

Sale or exchange of homesteadExemption of proceeds 377 Exemption of homestead from debts	330

Debts for which a homestead is liable	331

Rights of surviving husband wife and children	332

Abandonment loss or waiver of homestead	334

Conveyance and incumbrance of homestead	336

Sale and conveyance of exempted realty	358

Conveyances in fraud of marital rights	359

Setting asidePartiesPleading	360

As to who is creditor	361

Setting asidePractice and remedies	362

Setting aside fraudulent conveyancesRecovery of value of lands from fraudulent granteeStatute of limitationsJury trialCom petency of witnesses	363

Exhausting legal remedies	364

Removal of fraudulent conveyances as obstructions to an execution sale of land	365

Setting asideProof necessary	366

Badges of fraud	367

Setting asideBurden of proof	368

Fraudulent conveyances binding on the parties	369

Equitable relief to the grantee	370

Methods of taking waterPumping 418 Conveyance of water rights	371

Appropriation of watersStatutes of Idaho construed 420 Construction of statutes	372

Actions and adjudications concerning water rightsJudgment Power of court	373

Water rights on public lands	374

Miscellaneous notes	375

Appraisement JUDICIAL SALES 425 Confirmation and conveyance	376

Title and rights of purchaser	377

Purchasers liability upon failure to complete his purchase 428 Control by courtSetting aside 429 Agreement to set asideValidity	378

Setting aside sales for inadequacy of price	379

Guardians salesPractice 432 Guardians salesDescription of land in petition	380

Conveyance and incumbrance of homesteadNecessity of joint Conveyance of husband and wife	382

Conveyance of homestead between husband and wife	383

Miscellaneous notes	384

Antenuptial contracts	385

Deeds of separation	386

Conveyances between husband and wife	387

Deed to husband and wifeEstate conveyed	388

Estates by entireties	389

Inchoate interests	390

Effect of divorce on real property rights	391

Divorce proceedingsAlimony	392

Miscellaneous notes	393

Occupying claimants	394

Improvements by purchasers and mortgagees	395

Improvements by tenants	396

Improvements by cotenants	397

Miscellaneous notes INFANTS AND INSANE PERSONS	398

Validity of deeds of infants and insane persons	399

Judicial sale of infants lands	400

Condition against subsequent insuranceInvalidity of subsequent policy	409

Waiver of conditions of forfeiture	410

Insurance by mortgagee	411

Mortgagee clause and construction thereof	412

Electing to repairLiability of insurer	413

Constitutionality of irrigation statutesLegislative control	414

AppropriationWhat constitutesAbandonment	415

Equities of married women as against creditors of the husband	419

MECHANICS LIENS	426

Labor on mining claimStatutes construed	433

518	440

an elevator	455

Lien statementAllegation as to ownership of the property	456

Enforcement of lienAmendments	464

Enforcement of lienPersonal judgment	465

Enforcement of lienAttorneys fees	466

Enforcement of lienEvidencePresumptionsVariances 543 Enforcement of lienMarshaling securitiesRights of holder of mortgage	467

Enforcement of lienMiscellaneous notes 545 Miscellaneous notes	468

MINES	471

Constitutionality of statutes regulating mining operations 548 Mining partnerships	473

Mining leases 550 Oil and gas leasePower of court of equity to compel operations underConstruction	474

Oil and gas leaseConstruction of stipulations as to default 552 Rights of life tenants	477

Separate ownership of surface estate and mineral estateTrust relations	479

Miscellaneous notes MORTGAGES 555 What constitutes a mortgageValidity	481

Personal liability of mortgagor for debt not necessary	482

Equitable mortgages 558 Construction of mortgages	483

Title and right to possession	484

After acquired property 561 Mortgage to secure advances	485

Deeds construed as mortgages	486

Action to declare deed a mortgageSufficiency of proof 564 Priority of mortgages	488

Purchase money mortgagePriority	489

Assumption of mortgages	490

Assumption of mortgageSurety relation of mortgagorExtensions Depreciation of property 569 Assignment of mortgages	493

Recording assignmentPayment to mortgagee after assignment	494

Payment release and satisfaction	496

Authority to receive paymentAgents	498

Release by mistake or without authority	499

Penalty for failure to enter satisfactionStatutes construed 575 Strict foreclosure 576 Breach authorizing foreclosure	500

Mortgage to secure agreement to support mortgageePlace of per formanceBreach	501

Foreclosure proceedingsGeneral principlesPractice 579 Complaint in foreclosure prodeedings	504

Parties to foreclosure proceedings 581 Parties to foreclosure proceedingsGrantees and other lienholders Trustee in trust deed	505

Defenses to foreclosure proceedings	507

Usury as a defense to foreclosure proceedings	508

Statute of limitations 585 Judgment in foreclosure proceedingsConclusivenessCollateral attack	509

Allowance of attorneys fees in foreclosure proceedings 588 Appointment of receiver in foreclosure proceedings	512

Counterclaims and crossbills in foreclosure proceedings 590 Adjudication of adverse claims of third parties in foreclosure pro ceedings	513

Foreclosure against deceased mortgagorFiling claim against estate	514

Rights of prior incumbrancers	515

Rights of junior incumbrancers	516

Marshaling securities 595 Sale under decree of foreclosure	517

Notice of foreclosure salePostponement	518

Application of proceeds of foreclosure sale	519

Foreclosure salesValidityEnjoining and setting aside	520

Title rights and liabilities of purchaser at foreclosure sale	522

Foreclosure by advertisement	523

Power of sale	525

Sale under powerNoticeValiditySetting aside	526

Sale under powerPurchase by mortgagee	527

Deeds of trusts to secure debts 605 Sale under deed of trustValiditySetting aside 606 Indemnity mortgages	529

Mortgage to secure several notesForeclosurePriority 608 Building and loan association mortgages	531

Building and loan association mortgagesForeign associations 610 Building and loan association mortgagesDetermining amount due Method of comp...	532

Miscellaneous notes	533

Instruments not entitled to record	534

Knowledge sufficient to put one on inquiry	535

Possession as notice of unrecorded deed	536

Sufficiency of notice of sale by publication NUISANCE 616 As to what constitutes a nuisance	537

Remedies and proceedings	538

Legislative and municipal power	539

As to acquiring right to maintain nuisance by prescription	540

Statement of case reported 621 Partition Surface to one and minerals to anotherPayment of owelty	541

Retroactive legislation	543

As to who may have partition	544

PARTNERSHIP REAL ESTATE 632 As to what constitutes partnership real estateWhen treated	550

personalty Miscellaneous notes	551

PARTY WALLS 634 As to what constitutes a party wall 635 Party walls by prescription	552

Contracts concerning party walls	553

Rebuilding party walls 638 Miscellaneous notes	554

PLATS AND SURVEYS 639 Miscellaneous notes	555

As to what is peaceable possessionQuieting title 641 Possession as notice	556

Presumption as to knowledge of title	557

POWER OF ATTORNEY	558

Authority conferred by and conveyances under 644651 Recent constructions and amendments of statutory provisions of the several states and territo...	559

PUBLIC LANDS 652 Conclusiveness of decisions of the state courts and land department	560

School landsMiscellaneous notes	561

Mining claimsLocation and relocation 655 Mining claimsBy whom and where location may be made	562

Mining claimsMarking locationSurvey	563

Mining claimsConflicting locationsAdversary proceedings	564

Mining lands Miscellaneous notes	565

Tide landsMiscellaneous notes	566

Town site landsConclusiveness of decisions of town site trustees 661 Grants to railroadsMiscellaneous notes	568

Conflicting grants to railroadsSelection of deficiency	569

PreemptionHomestead 664 Preemptors possession not adverse 665 Mortgage of homestead landsLiability for debts	571

Timber culture claims	572

PatentsPresumptionsPrioritiesCancellation	573

Construction of local statutes	574

Miscellaneous notes	575

QUIETING TITLE 670 As to when the action will	576

As to when possession of plaintiff is necessary	577

JurisdictionWaiver by parties 679 JurisdictionTitle involvedHow determined 680 JurisdictionAs to when title is involved	583

JurisdictionState and federal courts 682 JurisdictionLaw of place	584

Jurisdiction of particular courts	585

JurisdictionCounty where action should be brought 685 JurisdictionLand in another state 686 JurisdictionNonresident partiesLands affected	586

JurisdictionInjunction to prevent suit in another state	587

Jurisdiction of partiesNotice by publication	588

Notice by publicationAs to what is a newspaper	589

JurisdictionLegal and equitable	590

JurisdictionEquity will retain when 692 Former adjudicationGeneral principles	591

Former adjudicationDecrees in probate proceedings 694 Former adjudicationBinds only parties and privies	592

Former adjudicationChanges in construction of statutes 696 Former adjudicationParticular cases	593

Demand and tender before suit 698 Demand and tender in an action for breach of real contracts	595

Keeping a tender goodAs to what	596

InjunctionsGeneral principles 701 InjunctionsPracticePreliminary injunctions	597

InjunctionsBalancing of injuries	598

Causes for which injunctions may be granted	599

As to when injunctions will not be granted	600

Mandatory injunctions 706 Enjoining the removal of minerals 707 Enjoining trespassThe rule in Florida	601

Appointment of receiversPractice	602

Receivers in foreclosure proceedings	603

Suits affecting lands in hands of receivers 711 Sale of lands in hands of receiver 712 Receivers in proceedings supplementary	604

Parties plaintiff	605

Parties defendant 715 Commencement of suitSufficiency of complaint	606

Sufficiency of answer	607

CounterclaimsCross complaints 718 PleadingMiscellaneous notes	608

Amendments 720 NonsuitsStriking out pleadings	609

Relief which may be granted 722 New trial of rightWaiver of jury trial	610

CostsAdditional allowances in condemnation proceedings 724 JudgmentsWhen void or voidable	611

JudgmentsCollateral attack	612

JudgmentEstoppel by 727 JudgmentsMiscellaneous notes	613

AppealsAs to the right	614

AppealsInteriocutory ordersFinal orders 730 Appeals Construction of statutes	615

AppealsPracticeMiscellaneous notes	616

REAL ESTATE AGENT 732 Authority of real estate agentRevocation	617

Liability of principal for agents contracts	618

Acts of agent after revocation of authority 735 Trust relation of agentActs must be consistent	619

As to when commission is earned due and payable 737 Rights to commission on sale consummated by anotherFraudulent sale	620

Double commission 739 Miscellaneous notes	622

RECORDS AND RECORDING 740 741 As to what instruments may be recorded Unrecorded deeds	623

Partition between life tenants and remainder	624

Practice in actions for partition	625

Parties to actions for partition	626

Allowance for attorneys fees	627

Improvements by cotenantsAllotment to party making	628

Trial of title in partition	629

Partition sales	630

The right to redeem and who may exercise it 762 Redemption by judgment creditors	632

Miscellaneous notes	635

As to when equity will reform instruments	636

As to when the mistake must be mutual 768 Reformation of mortgages	637

Reformation of conveyance by married woman	638

Rescission instead of reformation	639

Who may maintain an action for reformation 772 ComplaintProof necessary	640

RESULTING TRUSTS 773 Implied trustsMatters ex post facto	642

Does not arise out of an oral agreement or inadequacy of consider ation	643

Trusts arising from payment of purchase money	644

Payment of purchase moneyTrust in favor of wife	645

Trust in favor of wifeStatute construed	646

Trusts arising out of fraud	647

Particular casesSufficiency of proof	648

RIGHT OF WAY 780 Grants of right of wayConstruction of same	649

Condemnation proceedingsPractice	650

Condemnation proceedingsNotice 783 Condemnation proceedingsWaiver of rights by land owner	651

Abandonment or waiver by railroadRelocation of line 785 Recovery of damagesMeasure of damages	652

Negligent construction of road under lawful authorityPresent and prospective damages 787 Appeals in condemnation proceedings	653

Use of right of way by land ownerAdverse possession	654

Specific performanceEquitable rightLachesSubsequent pur chaser with notice	655

Highway and farm crossings	656

Railroad crossingsOther roadsStreet railways 792 Equitable power to prevent severance of operating railroad	657

RIPARIAN OWNERS	658

Facts stated 794 Nature of riparian rightsPower of state over	663

Constitutional lawPower of state to destroy riparian rights	665

Use of banks and waters of stream	669

Riparian rights upon nonnavigable lakes 798 Partition of water rights by courts of equity	670

Removing ice from mill pond 800 Accretion and alluvian	671

As to what is a cloud upon titleJurisdiction of equity to remove	672

Action by remainderman to quiet title	673

Complaint	674

Parties	675

PracticeMiscellaneous notes	676

Trespass to try title	677

STARTING FIRES 810 Negligent destruction of insured property by fireRights of parties	680

Contributory negligence	681

Liability of railroads for firesNegligence	682

Action for injuries by fireMeasure of damages	684

Action for injuries by fireComplaintParties 815 Action for injuries by fireEvidenceInstructions	685

Miscellaneous notes	687

STATUTE OF FRAUDS 817 As to what contracts are within the statute 818 Same Statutes construed and applied	688

Parol extension of time given in a written contract 820 Sufficiency of memorandaSeveral papers construed together	689

Parol gifts of real estate	690

Presumption of a giftIllegitimate child 823 Parol sales	691

Part performancePayment of consideration 825 Part performancePossession and improvements	692

Specific performance of oral contracts	693

STATUTE OF LIMITATIONS	694

Delay in bringing action for specific performance 834 LachesFiduciary relations	700

LachesParticular cases	701

As to enforcement of express trusts	702

Disabilities of parties 838 Set off and cross demands 839 Interruption or suspension of statute	703

Waiver of statuteRenewal of notePleadingConstruction of statute	705

SURFACE WATER 889 Upper and lower owners	731

Fighting surface waterErecting barriers 891 Construction of drainsEstoppel of land owners	732

Diversion of surface water by railroad	733

Liability of municipalities	734

TAXES AND TAX TITLES 894 Exemption from taxes 895 Exemption from taxesStatutes construed	735

Exemption from taxesSchool propertyProperty of churches and charitable institutions	736

Exemption of agricultural lands from municipal taxes 898 Assessment of taxesStatutes construed	738

Assessment of taxesIn whose name assessment should be made	740

Assessment of taxesDescription of property	741

Assessment of taxesOmitted propertyErrors in valuation	742

Assessment of taxesBoards of equalization and review 903 Publication of delinquent lists	744

Lien for taxes	745

Lien of municipal or corporation taxesAssessments for improve	746

Discharge of tax lien by payment of the amount demanded by the collecting officerEnjoining sale upon tender of taxes	747

Tax sales	748

Who may purchase at a tax sale	750

Title and rights of a purchaser at a tax sale	751

Rights of a purchaser at an invalid tax sale 912 Tender and payment required of one recovering land from the holder of an invalid tax title	753

Irregularities which avoid or invalidate tax sales	755

Setting aside tax salesPracticeReasons insufficient 915 Redemption from tax sales	756

Notice of expiration of time for redemption 917 Tax deeds	757

Tax deedsConclusiveness of as evidence of titleConstitutionality of statutes	759

Judicial proceedings to collect taxes	760

Judicial proceedings to confirm and enforce tax titles 921 Collection of taxes by sale of propertyStatute of limitations	762

Statute of limitations and tax titles	763

Miscellaneous notes	764

Construction of miscellaneous statutes	765

Creation of an estate in commonConveyance by cotenant 926 Trust relationsBuying in titles	766

OusterRents	768

Injury to property by cotenantInjunctions TITLE	769

Good and marketable titleVendee entitled to 930 Good titleDeed defectively witnessed	770

Sufficiency of a tax title	771

Prima facie proof of title 933 Slander of title	772

Contracts and conveyances concerning growing trees 935 Action for injuring or removing treesMeasure of damages	773

As to what constitutes a trespass on lands 937 As to who may maintain the action	774

PleadingSufficiency of complaint	775

Practice and proof	776

Measure of damages	777

Measure of damagesInadvertent or unintentional wrong	778

Creation of express trusts TRUSTS	779

Sufficiency of the writingConstruction of trusts 944 Execution of power after death of the donor 945 Statute of usesExecution of trust	782

Passive trustsAs to when the title vests in the beneficiary 947 Spendthrifts trusts 948 Enforcement and perpetuation of trusts	786

Power of court to order sale and reinvestment	787

Trustees dealings with trust estates 951 Termination and revocation of trusts	789

VENDOR AND VENDEE	790

Statement of case reported 953 Vendors lienHistory of the doctrine	792

Vendors lienStatus of the doctrine in the United States	795

Land contractsConstructionForfeiture 956 Land contractsDeficiency in quantity soldDefective title	798

Assignment and assumption of liens and rights	799

Rescission of land contractsRecovery of damages for fraud	800

Equitable lien of the vendee upon rescission of contract 960 Purchase moneyAction for may be based on grantees acceptance of the deed	801

Enforcement of the payment of purchase money by foreclosure of land contract	803

Defenses to actions for purchase money	804

Vendors lienCreation and extentWho may enforce	805

Vendors lien against a married woman 965 Vendors lienRights of subsequent purchaser 966 Vendors lienLoss release waiver and satisfaction	806

Enforcement of vendors lienPractice	807

Miscellaneous notes	808

Statement of case reported 970 Percolating watersRemoval of water from a spring	810

Pertaining to dams	813

Pollution and diversion of flowing watersInjunction to prevent 973 Draining cemeteries	814

Subterranean waters	815

As to the validity of devises of real estate 976 Killing of the testator by the deviseeValidity of the deviseRight of inheritance	816

Acceptance necessaryAfter acquired realty 978 Agreements to devise realty	818

Agreements to deviseResulting trusts 980 Construction of willsRules	819

ConstructionChildren heirs issue	820

Construction of deviseCreation of a defeasible fee 983 Construction of particular wills	821

Devises and bequests in lieu of dower	822

Conditions in restraint of marriage 986 Miscellaneous notes on willls	824

As to when the statute applies	827

Eminent domainRecovery of compensation by landowner	828

As to when the statute begins to	829

Time necessary to bar an action	830

Laches	831

Enforcement of implied trustsStaleness of demand	832

Other editions - View all

The Law of Real Property, Vol. 4: Being a Complete Compendium of Real Estate ...
Tilghman Ethan Ballard
No preview available - 2017

Common terms and phrases

64 Minn acknowledgment acquired action adverse possession applied assignment authority breach building choses in action church Citing claim Code Colo condemnation condition subsequent constitute construction construed contract conveyance conveyed corporation court of equity court say covenant creditors damages death debt debtor dedication deed defendant devise dower easement effect elevator eminent domain enforce entitled erection estopped evidence execution faith fee simple fraud grantee grantor heirs held homestead husband intention interest judgment land lease liable lien mechanic's lien ment mortgage N. J. Eq N. W. Rep owner party payment person plaintiff premises proceedings provides purpose railway real estate remainderman rule seisin Stat statute street subrogated tenant Tenn therein thereof tion trust valid vendee vendor vested void W. R. Co wife

Popular passages

Page 566 - That whenever by priority of possession rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same...‎

Appears in 519 books from 1847-2007

Page 183 - Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations...‎

Appears in 89 books from 1871-2006

Page 77 - May 19, 1889, the husband, or his heirs or assigns, of such married woman, shall be barred from commencing or maintaining any action to show that said real property was community property, or to recover .said real property, as follows: As to conveyances...‎

Appears in 82 books from 1873-1993

Page 688 - No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, for a longer term than one year, unless such contract, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.‎

Appears in 65 books from 1851-1999

Page 689 - An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission; 6.‎

Appears in 179 books from 1872-2007

Page 784 - ... to all intents, constructions and purposes in the law, of and in such like estates, as they had or shall have in use, trust or confidence of or in the same...‎

Appears in 120 books from 1806-2004

Page 133 - Know all men by these presents, that I, John McLoughlin, of Fort Vancouver, in the Territory of Oregon, for and in consideration of the sum of one dollar, to me in hand paid by...‎

Appears in 191 books from 1830-2002

Page 239 - To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit, and behoof for ever.‎

Appears in 47 books from 1845-2004

Page 559 - On this - day of - , in the year - , before me [here insert the name and quality of the officer], personally appeared — — , known to me [or proved to me on the oath of - ] to be the president [or the secretary] of the corporation that executed the within instrument, and acknowledged to me that such corporation executed the same.‎

Appears in 169 books from 1871-2004

Page 558 - ... giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present...‎

Appears in 420 books from 1830-2008

Bibliographic information

Title	Law of Real Property: Being a Complete Compendium of Real Estate Law, Embracing All Current Case Law, Carefully Selected, Thoroughly Annotated and Accurately Epitomized, Volume 5 Law of Real Property: Being a Complete Compendium of Real Estate Law, Embracing All Current Case Law, Carefully Selected, Thoroughly Annotated and Accurately Epitomized, Arthur Walker Blakemore
Editors	Emerson E. Ballard, Tilghman Ethan Ballard
Contributor	Arthur Walker Blakemore
Publisher	Ballard Publishing Company, 1899

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