case, perhaps, a grant might be presumed within twenty years." (See also Van Wyck v. Wright, 18 Wend. 157.)

The acquiescence, to be available against the party, must be by one sui juris, and not laboring under any disability. Thus, a feme covert is not bound by the acquiescence of her husband in an erroneous line, dividing lands owned by her from adjoining lands. (Bradstreet v. Pratt, 17 Wend. 44.) The same principle applies with greater force to lunatics, idiots and infants.

SECTION V.

By what Words different Estates are Created.

The rule, at common law was, that to create an estate in fee simple, the word "heirs" was absolutely indispensable. (Littleton, § 1. Co. Litt. 8 b.) Lord Coke says, that if land be conveyed to a man and his heir, in the singular number, he has only an estate for life. The doctrine that an estate in fee could not pass without words of inheritance was the former law of this state. (Jackson v. Myers, 3 John. 388. Same v. Davenport, 18 id. 295; S. C. affirmed on error, 20 id. 537.) But a conveyance to a corporation, whether sole or aggregate, did not require words of inheritance to pass a fee; but in a grant to a corporation sole, the word "successors," is ne

cessary.

A different rule prevailed in devises of real estate. Any words indicating an intention to pass the fee would have that effect. The word heirs was not indispensable in the case of a will as it was in the case of a deed. (Jackson v. Delany, 11 John. 365; affirmed 13 id. 536. Pond v. Bergh, 10 Paige, 140.)

Such was the rule of law in this state until the revised statutes took effect in 1830. In determining the quantity of interest which passed by a deed executed previous to that time, the construction must be according to the former law: one rule applying in the case of deeds, and a more lax one in the case of a devise by will. The revisers, in order to remove this diversity, proposed to the legislature to abolish this distinction, and substantially to make the rule which governed in the case of devises, control also in the case of deeds. The legislature adopted the suggestion, and enacted that the term "heirs," or other words of inheritance, should not be requisite to create or convey an estate in fee; and further enacted, that every grant or devise of real estate, or any interest therein,

thereafter to be executed, should pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest, should appear by express terms, or be necessarily implied in the terms of such grant. (1 R. S. 748, § 1.)

In the construction of devises the courts had been in the habit of seeking for the intention, though apt words were not used. If enough appeared to show the object and design of the testator, his intention would be carried into effect, whereas in the case of deeds if the word "heirs" was omitted, a fee simple could not be made to pass, though the grantor conveyed all his estate to the grantee forever; so important were words of limitation in a deed. To place both modes of alienation upon the same footing, the legislature at the same time further enacted, that in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it should be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent could be collected from the whole instrument and was consistent with the rules of law. (Id. § 2.) Thus, deeds and wills are now placed upon the same footing, with respect to words of limitation; or the quantity of estate intended to be conveyed or devised.

This new rule dispensing with the word heirs as essential to pass a fee, has been adopted in several other states. It is in truth the rule which prevails in all civil law countries, none of which it is believed insisted on any particular form of words as indispensable to the passing of the entire interest of the grantor. The grant to Alvarado, of a large domain in California, which the latter afterwards sold to Col. Fremont, was made according to the laws of Mexico, without any words of inheritance, and was still held by the supreme court of the United States to carry a fee, and to entitle him to a patent from the United States. (Fremont v. The United States, 17 How. 542, 545.)

But though the rule has been thus settled by legislative enactment since 1830, still few deeds, it is believed, are written without the words of limitation which were formerly inserted. As the word heirs is as expressive of the intent to pass a fee simple as any other, and probably more so, it is still recommended to all conveyancers to adhere, in this respect, to the ancient form. The blank deeds furnished by the stationers still contain those words when the design is to convey a fee.

An estate in fee simple will, in England, pass to the king without the words heirs or successors; partly, it is said, on account of his prerogative, and partly because in judgment of law the king never dies. (Cruise's Dig. Deed, ch. 22, § 10.) As the people in this state succeed to the prerogative of the king, it is presumed that a deed of all the grantor's estate to the people carries a fee or whatever other estate the grantee had, without words of limitation.

If it be the design of the grantor, who is the owner of the fee, to convey to another a life estate, the usual mode of expressing it is, "to hold to the said grantee and his assigns, for and during the term of his natural life." If the intention be to grant it for the life of the grantor, or the life of a stranger by name, the phraseology must be changed so as to express that intention.

Estates for years are usually created in deeds by the words "To hold to the said A. B., his executors, administrators and assigns, from the day of the date hereof for and during, and unto the full end and term of year thence next ensuing and fully to be complete and ended." Any other words expressive of the intent will be equally effectual.

The technical words for creating an estate at will are "To hold to the said A. B. at the will of the lessor." (Litt. § 68.)

With respect to joint estates, it was the rule at common law, that where land is granted to two or more persons, except husband and wife, to hold to them and their heirs, or for the term of their lives, or for the term of another's life, without any restrictive or explanatory words; all the persons to whom lands were so conveyed took as joint tenants. This was the rule in this state prior to the act of 1786. (1 R. L. 54, § 6.) That act as revised in 1830, (1 R. S. 727, § 44,) provides that in every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy; but every estate vested in executors or trustees as such, shall be held by them in joint tenancy. This act as revised took effect retrospectively; for it is made to apply as well to estates already created or vested as to estates thereafter to be granted or devised. But neither this or any other statute affects the character of the estate granted or devised in fee to husband and wife, who now as formerly are neither properly joint tenants or tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety per tout et non per my.

The consequence of which is, that neither the husband or the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor. (2 Black. Com. 182; and ante, page 180.)

At common law, the usual mode of creating a tenancy in common was to limit the estate to two or more persons, "equally to be divided among them; they to take as tenants in common and not as joint tenants." Such a clause in a deed is now unnecessary to create a tenancy in common; for we have seen that by the statute, if the estate be granted or devised to two or more persons in their own right, without any words of explanation, they will take as tenants in common. These words, however, though unnecessary, will not vitiate, and are often inserted in wills, when a tenancy in common is intended to be created. If it be intended to create a joint tenancy in a grant or devise to persons in their own right, the usual mode is to limit the estate to two or more, to have and to hold the same, not in tenancy in common, but in joint tenancy."

If the grant or devise be to executors or trustees as such, the statute declares the nature of the estate, without special words of restriction or explanation. Nevertheless, the conveyancer or the framer of a devise, not unfrequently, for greater caution, inserts the words " as joint tenants and not as tenants in common." These words, though unnecessary in such a case, will occasion no inconvenience.

In the case of marriage articles, the construction is founded on the apparent intent of the parties, however untechnically expressed; and it is, therefore, more liberal than in the case of deeds. (Twisden v. Lock, Amb. 663.)

In this state we have seen, in a former part of this treatise, that all estates tail are abolished; and that every estate which would be adjudged a fee tail, according to the law of this state, as it existed previous to the twelfth day of July, 1782, shall hereafter be adjudged a fee simple; and if no valid remainder be limited thereon, shall be a fee simple absolute. (1 R. S. 722, § 3, ante p. 167.) The words by which that estate was formerly created were such as denoted the particular kind of heirs who were to succeed to the inheritance, as to the heirs male of the grantee, or devisee; or the heirs female-or the heirs of the grantee lawfully begotten upon his present wife, and the like. Similar words are sometimes found in wills drawn by persons not skilled in conveyancing, and it is scarcely

necessary to add, that instead of an estate tail, an estate in fee simple is thus created; and that the heirs generally, and not any particular heirs in exclusion of others, succeed to the inheritance.

The forms of conveyances in the Appendix will show the reader examples of the several kinds of estate, and of the covenants which are usually contained in them, to which reference may be made.

SECTION VI.

Of the Covenants in Deeds.

A covenant is an agreement or consent of two or more by deed in writing, sealed and delivered, whereby either one of the parties promises to the other that something is done already, or shall be done afterwards. He that makes the covenant is called the covenantor, and he to whom it is made, the covenantee. (Touchstone, 160.) In fewer words, it is defined by Stephens, in his commentaries, as a promise by deed. (2 Steph. Com. 108.)

No particular technical words are necessary to make a covenant; but any words which import an agreement between the parties to a deed, will suffice for that purpose. (Hallet v. Wylie, 3 John. 48. Bull v. Follett, 5 Cowen, 170.)

At common law, covenants were either express or implied. Express covenants were when the intention was indicated by the language of the instrument; implied, when they resulted from the nature of the conveyance. Thus, though the words grant, bargain, sell, alien and confirm, in a conveyance in fee, did not imply a covenant, the words "dedi," or "I give," did imply a warranty for the life of the grantor. (Frost v. Raymond, 2 Caines, 188. Kent v. Welsh, 7 John. 258.)

The revisers, in 1830, proposed to continue implied covenants, and to define by legislative enactments, the cases in which they should be implied, and the nature of the covenants that should be thus implied. This enactment they supposed would relieve the law from obscurity, and abrogate the principle which had been established, that an express covenant in a deed takes away all implied covenants. (Vanderkan v. Vanderkan, 11 John. 122.) But the legislature did not adopt that proposal, but coincided with the alternative suggestion of the revisers, and declared that no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not. (1 R. S. 738, § 140.) The