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of another, so soon as it shall have taken root becomes the property of the owner of the soil. The principle, which vests in the owner of the soil the title to whatever is built upon his land, does not apply when the building is erected with the permission of the owner: but the builder may enter and remove it upon revocation of the license. Neither does this right of property by accession apply to a case in which one seizes upon the property of another by trespass, and appropriates to it labor and expenditure, even to the extent of changing the form and distinctive character of the article: as by the manufacture of unwrought silver into a vase or other article of elaborate workmanship; the owner may seize it, if he can prove the identity of the original materials.

Fourth, The acquisition of property by invention, authorship, or other intellectual labor, comes properly under this head, but will be more particularly spoken of in the chapters on Patents, on Copyrights, and on Trade-marks.

Fifth, To this head may also be referred the subject of good will, by which is meant, the advantage which accrues to any trade or business from an established custom, which we have heretofore spoken of as the presumption that customers will continue to visit the old stand. Good will is regarded, both at law and in equity, as valuable property, capable of being bought and sold, and passing by transfer: but its original acquisition must always be by occupancy and accession.

CHAPTER XXV.

OF TITLE BY MARRIAGE.

Of the effect produced by marriage upon the property of parties, under statute regulations of the different States and territories, we shall speak fully and carefully in the Appendix; to which reference may be had for information as to the present condition and effect of such statute regulations. In this chapter, we propose to speak only of the more important interests usually acquired, at common law, by the husband or wife in the property of the other.

SECTION 1.

Of Estates by the Curtesy.

If the husband survive the wife, he is entitled to administer her estate; in the absence of a will, may collect her dues and pay her debts, and, at common law, the surplus, if any, in personal property belonged to him. His interest in her real estate ceases at her death, unless he has by her a child, born alive, which could have inherited the estate if it had been alive at the death of its mother. In such case, the husband is entitled to the use of such estate during his life. This estate resembles, in some respects, the estate of dower which the wife has in the lands of her husband. It differs, however, in two important particulars: First, it extends to all the real estate of the wife, instead of a third part; and, second, it depends upon having issue born alive, which is not necessary to an estate in dower.

Curtesy is not confined to the legal estate of the wife, but has been held to extend to her equitable interests; excepting, however, cases in which the trust is declared to be for

her sole and separate use, or in some other manner clearly excludes the idea of curtesy in the husband. Dower may be barred or forfeited in a variety of ways: but no conduct of the husband, unless it result in divorce, deprives him of this right. He renders himself liable in damages if he is guilty of waste, but his estate is not forfeited, as is the case with a doweress who is guilty of waste. There is, of course, no occasion for an assignment of curtesy, as the husband takes possession of the whole.

SECTION 2.

Of Estates of Dower.

Upon the death of a husband, his wife is entitled to an estate for life in one-third part of his real estate. But, what is included in the expression "his real estate," is by no means the same in all the States. It extends, in some of them, to all the real estate of which the husband was seized as an estate of inheritance at any time, during the coverture, while, in others, as in Connecticut, it extends only to such estate, of which the husband died seized. The estate must be, not only an estate of inheritance, but one in which the husband has a beneficial interest; the wife not being dowable in estate held by him as trustee. Neither has she dower in estate in which the husband has title only as mortgagee; nor where he takes title as purchaser, (at the same time mortgaging the land back for the purchase money,) except subject to the rights of the mortgagee; nor in lands purchased with partnership funds, except subject to the rights of partnership creditors and a final adjustment of balance between the partners.

Dower may be barred in several ways: First, by a reasonable ante-nuptial agreement, by which the wife receives certain estate in settlement, with the agreement that it shall be in lieu of dower and of other claims against her husband's estate. Such an agreement and settlement of an estate upon a wife may, or may not, amount to what is technically known as jointure.

Second, it may be barred by devise, in lieu of dower; in which case, however, she has a right, within a limited period after the death of her husband, to elect, whether she will accept such devise or retain her dower. Statute regulations differ in the several States, in reference to this matter; some of them providing that, if a husband by his will makes any provision for his widow, it will be taken to be in lieu of dower, unless it plainly appears to have been his intention that it should be in addition thereto. In other States, the provision is exactly the reverse.

Third, the dower may be barred, by the wife joining her husband in a deed. No separate consideration to her is considered necessary: the sale and conveyance by the husband being deemed a sufficient consideration for her signature.

Fourth, it may be barred by such misconduct of the wife in the lifetime of her husband as, under the statute laws of the State in which they live, amounts to a forfeiture of dower; or by voluntarily committing or suffering waste upon the estate assigned to her in dower, during her occupancy thereof.

Dower is assigned to the widow, either voluntarily by the heirs or other persons interested, or upon her petition in pursuance of statutes regulating the matter in the different States.

SECTION 3.

Of the Interest which a Husband acquires in the Personalty of his Wife.

At common law, the husband by marriage acquired an absolute title to all the personal property then in her possession. He does not acquire a mere life estate in it, as by curtesy he sometimes does in her real estate, but it goes to his executors and heirs in case of his death, she surviving him, unless he has given it to her by will. As a necessary accompaniment of his acquisition of her estate, he is, at common law, bound to pay her debts; this rule, however, is universal, and not at all dependent upon his receiving estate of any sort with her.

All wages earned by the wife while she is married belong to the husband; so that she can acquire nothing by her services.

As to personalty not in possession of the wife, as things in action, for which she holds notes, bonds or other securities, the husband has, at common law, the right to reduce them to his possession, by voluntary payment to him by the debtor, or by adverse action at law. If they are so reduced to possession by the husband, the property then becomes his, as absolutely as that which was in her possession and control at the time of the marriage. He may also assign them, and such assignment, even before their avails are reduced to possession, will, if made upon good consideration, be valid against the wife: but, if not reduced to possession during his lifetime, he cannot devise them by will; for unless they are collected, (i. e. reduced to possession,) or assigned before his death, they belong to the wife. The husband also has right to all the rents and profits of the real estate of his wife during the marriage, and they may be taken adversely, for his debts. All her leases of land, and other chattels real, are his, and may be transferred by him,

In fact, at common law, the wife has, during coverture, no separate rights in, or control of, her own property, but may, with her husband's consent, and jointly with him, make sale and conveyance thereof.

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