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determined, viz., at the death of A, the remainder is gone.

§ 139. Rule in Shelley's Case.-And here is a proper place to consider what is known as the rule in Shelley's Case. It was laid down in the following language in 1 Rep. 104 as follows: "It is a rule of law, where an ancestor by any gift or conveyance takes an estate in freehold, and in the same gift or conveyance an estate is limited mediately or immediately to his heirs in fee or in tail, that always in such case the heirs are words of limitation of the

estate and not words of purchase." Land is acquired in two ways, by descent and purchase. Where one derives title through a deed or will, he is a purchaser. Where it comes to him by virtue of his kinship or relation to an ancestor, he takes by descent. But if by will an estate is given which is the same in quality and quantity as that which would go by descent, it is an estate by descent. The effect of the rule in Shelley's Case was to cut off what would seem to be intended as a remainder limited to the heirs of the grantee, and to make the estate an absolute fee in the grantee. This rule has been generally adopted in this country as a part of the common law, although it has been modified or abolished by statute in some of them.

§ 140. Executory devises.-An executory devise of lands is such disposition of them by will that thereby no estate vests at the death of the devisor, but only on some future contingency. Executory devises were created to carry out the purposes of the testator. A devise to a femme sole and heirs upon the day of her marriage is a good executory devise.

If she does not marry the estate would go by descent. to the heirs of the testator. A devise to A and his heirs, but if he dies before the age of twenty-one years, then to B and his heirs, is good, though if these words were used in a deed the remainder would be void and A would take a fee. Executory devises were abused by making them the means of creating perpetuities. So there is a rule at common law which has been incorporated into the statute law of many states that the utmost length of time that is allowed for the contingency of an executory devise to happen in, is the duration of a life or lives in being and twenty-one years afterwards.

§ 141. Estates in reversion.-An estate in reversion is the residue of an estate left in the grantor to commence in possession after the determination of some particular estate granted out by him. It grows out of the legal maxim that whatever a man does not dispose of remains to him and his heirs. It is a present interest, but can only take effect in the future as is implied in the definition above given.

§ 142. Estates in severalty.-Estates are now to be considered with respect to the owners thereof, whether in severalty, as tenants in common, or as joint tenants. An estate in severalty is one which has a single owner.

§ 143. Joint tenancy.-At common law a joint tenancy was where lands or tenements were granted to two or more persons, to hold in fee-simple, fee tail, for life, for years or at will. In joint tenancies, there must be unity of interest, of title, of time and of possession. One of the incidents of this tenancy at common law was the right of survivorship, by

which on the death of one the entire estate vested in the survivor. In this sense, joint tenancies do not exist in this country, except in the case of conveyances to husband and wife jointly. These are called tenancies by the entirety. No part of such an estate can be sold by one so as to affect the right of survivorship of the other. No part of it can be seized in execution for the debt of either during its continuance, and upon the death of one the whole vests in the survivor. In Ohio the courts have refused to recognize such a tenancy, by holding that husband and wife holding by joint deed or devise are tenants in common, without the right of survivorship.

§ 144. Tenancy in common.-A tenancy in common is where there are several owners who may hold by different title, in different interests, which may be acquired at different times, the only unity being unity of possession.

Tenants in common may have partition of the lands. They may sue one another for waste. The possession of one is the possession of all. If one receives all the rent, or more than his share, he is liable to the other tenants for the excess. They are liable for their proportionate share of the expense for repairs, for taxes, and for insurance. Tenants in common must act in good faith towards each other. One can not buy in the estate for himself at a delinquent tax sale. If one buys in an outstanding title which threatens the estate, he can not claim this in his own right, to the prejudice of his co-tenants, if they are willing to pay their share of the purchasemoney.

CHAPTER XII.

TITLE TO REAL PROPERTY, HOW ACQUIRED.

§ 145. Ways of acquiring title.-Title or ownership of real property may be acquired by occupancy or possession when it continues long enough to ripen into a perfect title, by marriage, by devise, by descent, by contract.

§ 146. Title by occupancy.-Mere possession or occupancy is the lowest form of title, but it is good in the occupant against the world until some one shows a better title, but any show of right in a claimant would be good as against a mere intruder. As we have seen, property without an owner belongs to the first one who takes possession of it. This right, which was so important at the time of the early settlements on this continent, is of little value now that most of our public domain has been disposed of. Its assertion by the European nations, who are extending what they choose to call their "spheres of influence" in Africa, bids fair to result in serious complications and wars such as grew up here in the last century between France and England. Where two claim by possessory titles, one being in present possession and the other having had prior possession, it is the rule in England and America that proof of prior possession is presumptive evidence of title and will prevail over the claims of the more recent occupant. It is

not necessary in such a case that the prior possession should have continued for twenty years. The statutes of limitations usually provide that no action for the recovery of the title or possession of real estate shall be maintained after twenty years from the time the cause of action accrued, unless the person entitled to such action was under the disabilities of infancy, coverture, insanity, or imprisonment. Special periods of limitations are fixed by the statutes of different states and they are constantly undergoing modification.

§ 147. Adverse possession.-In order to make possession for the statutory period of limitations a bar to an action, the possession must be adverse. Adverse possession is a possession inconsistent with the right of the true owner; in other words, where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than as owner-that is, with the intention of excluding all persons from it, including the rightful owner-he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it, unless there is something to show that his possession is consistent with a recognition of B's title. Adverse possession depends upon the intention with which it is taken. and held. Where there is an unintentional encroachment on the land of another, as where a man thinking he is building on his own line by mistake puts part of the structure over the line, such possession is not adverse. The possession must be hostile. or adverse, actual, visible, notorious, exclusive, continuous and under claim of title.

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