the existence of the marriage relation; or may simply be presumed under the presumption of innocence and the policy of the law-semper praesumiter pro matrimonio which is that all matrimonial conduct, if possible, shall be referred to a matrimonial status. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy.10 One learned writer" has said: "If the parties desire marriage and do what they can to render their union matrimonial, yet one of them is under a disability as when there is a prior marriage undissolved-their cohabitation, thus matrimonially meant, will, in matter of law, make them husband and wife from the moment when the disability is removed; and it is immaterial whether they knew of its existence, or its removal, or not, nor is this a question of evidence. This doctrine is overlooked in some of the cases, but it is abundantly sustained by others, and the reasoning on which it rests is conclusive." Garrison, J., in the dissenting opinion in Collins v. Voorhees12 in applying the doctrine said: "... the rule by which the law, from matrimonial conduct, presumes matrimonial consent, is not a canon of evidence having for its object the ascertainment of whether in point of fact consent was interchanged, and, if so at what period of time; . . . the doctrine is founded on public policy and is applied on principles other than that which regulate the laws of proof or prescribe the form of the syllogism." Where consensual marriages are recognized, it is illogical to require a ceremony after the removal of an impediment to a legal marriage. Further public proceedings would also subject the parties to the scandal of the prurient-minded. To require an express agreement such as, "From henceforth we are husband and wife," is superfluous. If formerly a new contract really was necessary, what Mr. Chief Justice Cardozo has tersely said in the field of contracts might also be interposed: "The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman and every slip was fatal." There is the further criticism that, if this mode of reasoning were strictly applied, it would work great injustice in the cases of the most innocent relations, where the parties to the marriage not only had no knowledge of the existence of the impediment at the time of contracting marriage, but never knew of its removal.

The further question arises: does the case actually fall in class one above? It is submitted that it is more properly classified in the third group, where the parties have married in good faith,15 and where by the great weight of authority and sound principle, lawful marriage has been presumed from the moment when the disability was re

Adger v. Ackerman, supra note 4; Gall v. Gall, supra note 7.

BISHOP, MARRIAGE, DIVORCE, AND SEPARATION (1891) §§ 77, 956, 961; Piers v. Piers, 2 H. L. Cas. 331 (1849).

10Hynes v. McDermott, 91 N. Y. 451 (1883).

BISHOP, op. cit. supra note 9, § 970.

1247 N. J. Eq. 315, at 317, 20 Atl. 676 (1890).

13 Such a statement was held to be a declaration of marriage in verba de presenti, Howard v. Bank of Marietta, 21 Ohio App. 000, 152 N. E. 784 (1926).

14Wood v. Lucy, Lady Duff-Gordon, 222 N. Y. 88, at 91, 118 N. É. 214 (1917). 15See the dissenting opinion of the principal case at 511.

moved.16 Both parties, intending to do that which was legal and honorable, divorced their respective spouses to enable themselves to become husband and wife, and were ceremoniously married under the misapprehension that the decrees were valid. They probably had no knowledge of the impediments at that time. Bad faith should not be inferred because the parties, laymen, were unacquainted with the extra-territorial effect of their divorce decrees. While ignorance of the law cannot be set up as an exemption from punishment for crime, or from liability for a tort or breach of contract, knowledge of the law for all intents and purposes will not be imputed to every person.17 The so-called presumption that every one knows the law is not a presumption of actual knowledge. One is held to know the law, but nothing is deemed proved by the rule.18 In the determination of subjective good faith, ignorance of the law is most pertinent.

The court relied on a Wisconsin case, Lanham v. Lanham,1o which can be distinguished because there the parties knew of the impediment to their marriage and acted in bad faith. It might well have turned to New York for the lex loci contractus20 to determine whether a common law marriage had been constituted in that state as was claimed.21

If the result in the instant case was arrived at notwithstanding the good faith of the parties, it is unsupported by authority, and the doubtful reasoning generally invoked to require a new contract is inapplicable. A relation illicit because of an unknown impediment is not inherently immoral, 21a and therefore not meretricious so as to justify the application of the presumption of continuous meretricious

16Harper v. Atlanta & W. P. R. Co., 33 Ga. App. 259, 125 S. E. 885 (1924); Robinson v. Rupprecht, 191 Ill. 424, 61 N. E. 631 (1901); Manning v. Spurck, 199 Ill. 447, 65 N. E. 342 (1902); Land v. Land, 206 Ill. 288, 68 N. E. 1109 (1903); Teter v. Teter, 88 Ind. 494 (1883); Schuchart v. Schuchart, 61 Kan. 597, 60 Pac. 311 (1900); Lufkin v. Lufkin, 182 Mass. 476, 65 N. E. 840 (1903); Sims v. Sims, 122 Miss. 745, 85 So. 73 (1920); Eaton v. Eaton, 66 Neb. 676, 92 N. W. 995 (1902); Chamberlain v. Chamberlain, supra note 1; Robinson v. Robinson, 83 N. J. Eq. 150, 90 Atl. 311 (1914), aff'd 84 N. J. Eq. 201, 93 Atl. 699 (1915); Schaffer v. Krestovnikow, 88 N. J. Eq. 192, 102 Atl. 246 (1917), aff'd 89 N. J. Eq. 549, 105 Atl. 239 (1918); Fenton v. Reed, 4 Johns. 52 (N. Y. 1809); Rose v. Clark, 8 Paige Ch. 574 (N. Y. 1841); Taylor v. Taylor, 173 N. Y. 266, 65 N. E. 1098 (1903); Wilson v. Burnett, 105 Misc. 279, 172 N. Y. Supp. 673 (Sup. Ct. 1918); Applegate v. Applegate, 118 Misc. 359, 193 N. Y. Supp. 494 (Sup. Ct. 1922); Sorenson v. Sorenson, 122 Misc. 196, 202 N. Y. Supp. 620 (Sup. Ct. 1924); Matter of Crandall, 214 App. Div. 363, 212 N. Y. Supp. (4th Dept. 1925); N. Y. v. Caputo, 127 Misc. 595, 217 N. Y. Supp. 590 (Sp. Sess. Ct. 1926); Mudd v. Perry, 108 Okla. 168, 235 Pac. 479 (1925); Beegle's Estate, 64 Pa. Sup. Ct. 180 (1916). See Cartwright v. McGowan, supra note 3, at 404; Collins v. Voorhees, supra note 3, at 558. Contra: Collins v. Collins, 80 N. Y. 1 (1880), where a distinction is drawn between cases involving property rights and those which do not. But see Applegate v. Applegate, supra at 366, that there should be no difference in the rule in cases involving property and those in which a party is merely seeking to defend the charge of immoral or unlawful conduct.

17See Harper v. Atlanta & W. P. R. Co., supra note 16, at 265.

18Fisk, Presumptions (1926) 11 CORNELL LAW QUARTERLY 20, at 39.

19 Supra note 4.

20Travers v. Reinhardt, supra note 3; BISHOP, op. cit. supra note 9, §§ 838, 839. 21 See the New York cases, supra note 16.

21a Supra note 17.

purpose. Meretricious means lustful and pertaining to the character of prostitution, and involving knowledge that the relation was not intended to be matrimonial but wanton.22 Good faith, once shown to have existed, although under a void marriage, should be presumed to continue.23 Furthermore, in some jurisdictions the presumption has lost much of its stringency; slight circumstances have been held sufficient to establish a change from concubinage to matrimony,24 and a new consent has been found from continued cohabitation and declaration of the parties.25 The presumption has been discarded at times, and whether a meretricious purpose has been kept up is considered a question of fact for the jury.26 It seems that the parties in the principal case not only were innocent, but also were aware of the removal of the impediments,27 and a new agreement could logically have been implied in fact or presumed from conduct. If the law, because of public policy, will call people husband and wife as soon as the impediment no longer exists, although it was known at the time the marriage was contracted, a fortiori if consent to live as husband and wife is present, it is immaterial that the motive to the consent was an erroneous belief that the parties had the sanction of a legal marriage, and it should be given effect at the earliest moment when the parties can lawfully consummate that which they have attempted.

Alfred Appel.

Equity: Equitable servitudes: Restrictive covenants: Effect of change of conditions.-The recent tendency of the courts in this country has been to hold that, under certain circumstances, the court will, in the exercise of its discretion, refuse to decree the specific performance of a restrictive covenant where there has been a change in the character of the neighborhood such that the accomplishment of the original purpose of the restriction has been made impossible, and where enforcement of the covenant would work great hardship on the defendant, and give little or no benefit to the plaintiff. In such

22 Land v. Land, supra note 16, at 294; Townsend v. Van Buskirk, 33 Misc. 287, 68 N. Y. Supp. 512 (Sup. Ct. 1900); Matter of Schmidt, supra note 3, at 465; Wilson v. Burnett, supra note 16; Clark v. Barney, supra note 4, at 458; Mudd v. Perry, supra note 16.

23 Clark v. Barney, supra note 22; Beegle's Estate, supra note 16, at 188, the presumption of illicit relations under such circumstances gives way to the superior presumption in favor of compliance with the requirements of the law, of morality, and of common decency.

24 Adger v. Ackerman, supra note 4.

25 Campbell v. Campbell, supra note 4; Parker v. De Bernardi, supra note 4, the only presumption to be indulged in is in favor of a valid marriage, which may be based on continuous cohabitation alone.

26 Prince v. Edwards, supra note 3; Darling v. Dent, 82 Ark. 76, 100 S. W. 747 (1907).

27See the dissent in the principal case at 512.

'Trustees of Columbia College v. Thacher, 87 N. Y. 311, 41 Am. Rep. 365, (1882); McClure v. Leaycraft, 183 N. Y. 36, 75 N. E. 961 (1905): 2 TIFFANY, REAL PROPERTY (22d ed. 1920) 1454 1910 28 L. R. A. (N. s.) 719. For a throough discussion of the New York decisions see Sicker, Restrictive Covenants and Building Agreements (1913) 6 BENCH and Bar (n. s.) 56, 96.

cases the courts appear to have proceeded on the theory that they have to deal with a contract, and one which they will not specifically enforce, because to do so would be inequitable. It may be noticed, however, that in England restrictive agreements as to the use of property, enforceable in equity, are regarded today as imposing servitudes upon the property restricted, and some American courts have come to the same result.

In Bull v. Burton, decided in 1919, the New York Court of Appeals had before it the question whether a title was marketable where there was a restrictive covenant running with the land, conditions in the surrounding neighborhood having changed materially. A divided court treated the question along the lines of specific performance. Dean Pound, in an article in the Harvard Law Review,1 criticises the treatment of this question, and remarks: "Courts have hesitated to admit the proprietary theory in this connection because while a sound instinct leads them to feel that relief should be denied, an equally sound instinct leads them to feel that a court of equity should not have discretion to deprive a man of his property." It is submitted that the sound course is to hold that when the purpose of the restrictions can no longer be carried out the servitude comes to an end; that the duration of the servitude is determined by its purpose.

In Trustees of Columbia College v. Thacher, decided by the New York Court of Appeals in 1882, the parties had mutually covenanted that only dwelling houses should be erected on their respective premises, with a view to making the premises more desirable for residential purposes. After the making of the covenant, and before the bringing of the action, the surrounding neighborhood had become a business district, and during the pendency of the action an elevated railway was built, maintaining a station opposite the land in question. The court held that even though a business district had grown up around the land, the plaintiffs would succeed in their bill for an injunction because it was apparent from the agreement that such encroachment was anticipated, and the parties intended to secure the property from the disturbance which business would necessarily produce. But the building of the railway, which was a contingency not within the contemplation of the parties, defeated the object of the covenant, and rendered enforcement oppressive and inequitable. By this decision, then, the fact that a business district had grown up around the land does not render the bill inequitable where it is evident that the parties foresaw such encroachment.

The case of McClure v. Leaycraft (1905) dealt with the same kind of a restrictive covenant running with the land; nineteen out of the twenty-five year's duration of the covenant had elapsed when the action was brought, and the object of the parties in making the covenant had been defeated by the erection of stores and apartment houses

2See Pound, The Progress of the Law, (1920) 33 HARV. L. REV. 813, and cases cited.

in the immediate vicinity. Enforcement of the covenant would not have made the neighborhood desirable for residential purposes, as was the original intent and so, in accordance with Trustees of Columbia College v. Thacher, an injunction was denied. The case goes upon

the ground that the purpose for which the covenant was made can no longer be fulfilled.8

The case of Batchelor v. Hinkle (1914), in accordance with these principles, holds that an injunction would be denied where, as in that case, the covenant was no longer effective for the purpose intended by the parties when they made it.

In Forstmann v. Joray Holding Co., 244 N. Y. 22, 154 N. E.652, decided last November by the New York Court of Appeals, the defendant held title to the land subject to the same sort of restriction under a covenant which was by its terms to expire on January 1, 1929. After the covenant was entered into the character of the neighborhood changed, and in 1916 the board of estimate and apportionment of the city of New York provided that certain territory, in which the land in question was included, be established as a business district. A two story business building was erected by the defendant Holding Company after July 1, 1924, when the premises were leased to it, at a cost of between $43,000 and $44,000, whether or not with unseemly haste, was in dispute. The Appellate Division had held1o that the restriction was imposed, not to govern a general neighborhood development, but as a block restriction only, and was entered into by the parties with a view toward checking the oncoming march of the business district at the lines of the block.11 Merrill, J., dissenting, considered that this could not have been the intention of the parties, inasmuch as there were only a few business buildings actually in the neighborhood at the time the agreement was entered into. The Court of Appeals through Pound, J., writing for a unanimous court, reversed the decision of the Appellate Division, on the ground that "it would be inequitable to grant the injunctive relief... for the reason that it would ‘bear heavily on the defendants without benefiting the plaintiffs'" although, the court also said in the course of its opinion, "doubtless one of the purposes of placing the original restrictions upon the property was to check the advance of business at the lines of the block." The court also said that “An injunction will be withheld as oppressive where it appears that the injury is not serious or substantial, and that to restrain the acts complained of would subject the other party to great inconvenience or loss," citing, inter alia, Trustees of Columbia College v. Thacher, McClure v. Leaycraft and Batchelor v. Hinkle.

Ibid.

But the court says that if the building restriction were of substantial value to the dominant estate, a court of equity might enforce it even though it resulted in serious injury to the servient estate. See also Pagenstecher v. Carlson, 146 App. Div. 738, 131 N. Y. Supp. 413 (1st. Dept. 1911), where the property was of peculiar value for residential purposes, since it faced a park.

210 N. Y. 243, 104 N. E. 629 (1914).

10216 App. Div. 135, 215 N. Y. Supp. 65 (1st. Dept. 1926). "Italics are the writer's.