T

most frequently occur, and are to be found in the books it is not perceived how any wellgrounded distinction can be made between such cases, and the case of a dedication of land for the use of the city of Cincinnati. The same necessity exists in the one case as in the other, for the purpose of effecting the object intended. The principle, if well founded in the law, must have a general application to all appropriations and dedications for public uses, when there is no grantee in esse to take the fee. But this forms an exception to the rule applicable to private grants, and grows out of the necessity of the case. Ibid.

5. In this class of cases there may be instances where, contrary to the general rule, a fee may remain in abeyance until there is a grantee capable of taking, when the object and purpose of the appropriation look to a future grantee in which the fee is to vest. But the validity of the dedication does not depend on this: it will preclude the party making the appropriation from reasserting any right over the land; at all events, so long as it remains in public use; although there may never arise any grantee capable of taking the fee. Ibid.

f 6. The doctrine of the law relative to the appropriation of land for public highways, was applied to a public spring of water for public use, in the case of M Connell v. The Trustees of the Town of Lexington, 12 Wheat. 582. Ibid.

7. All public dedications must be considered with reference to the use for which they are made; and streets in a town or city may require a more enlarged use of the land in order to carry into effect the purposes intended, than may be necessary in an appropriation for a highway in the country. But the principle, so far as respects the right of the original owner to disturb the use, must rest on the same ground in both cases; and applies equally to the dedication of the common as to the streets. This was for the public use, and the convenience and accommodation of the inhabitants of Cincinnati; and doubtless greatly enhanced the value of the private property adjoining the common, and thereby compensated the owners for the land, thus thrown out as public ground. Ibid.

8. After being thus set apart for public use, and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such dedication. It is a violation of good faith to the public, and to those who have acquired private property with a view to the enjoyment of the use thus publicly granted. Ibid.

9. If the ground in controversy in the ejectment had been dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery to compel a specific execution of the trust, by restraining the corporation, or by causing the removal of obstructions. But even in such a case, the property dedicated would not revert to the original owner. The use would still remain in the public, limited only by the conditions

imposed in the grant. Barclay and others v. Howell's Lessee, 6 Peters, 498.

10. In some cases a dedication of property to public use; as for instance, a street or public road, where the public has enjoyed the unmolested use of it for six or seven years, has been deemed sufficient for dedication. Ibid.

11. The vacant land in front of the city of New Orleans and on the Mississippi, was dedicated to the use of the city of New Orleans, before the cession of Louisiana to the United States; and having been so dedicated, did not become the property of the United States when Louisiana was ceded by Fiance. The alluvion deposits from the river Mississippi belonged to the owners of the land bounding on the river, to which ad ditions were so made. New Orleans v. The United States, 10 Peters, 662.

12. In order to dedicate property for public use, in cities and towns and other places, it is not essential that the right to use the same shall be vested in a corporate body. It may exist in the public, and have no other limitation than the wants of the community at large. Ibid.

13. The principles upon which the case of the City of Cincinnati v. White, 6 Peters, 431, and the case of Barclay and others v. Howell, 6 Peters, 498, were decided, were examined, and affirmed in the case of New Orleans v. The United States. Ibid.

14. If buildings had been erected on lands within the space dedicated for public use, or grants of part of the same have been made by the power which had authority to make, and had made a dedication of the same to public use; the erection of the buildings and the making of the grants would not be considered as disproving the dedication, and the grants would not affect the vested rights of the public. Ibid.

1. If a deed has not been proved, acknowledged, and recorded, and would therefore be insufficient against subsequent purchasers, without notice, parties who claim under such deed have a right to come into a court of equity for a discovery, upon the ground of notice: and if notice should be brought home to subsequent purchasers, the complainants have a right to relief, by a decree quieting the title. Findlay et al. v. Hinde and Wife, 1 Peters, 245.

2. In Virginia and Kentucky, the modes of conveyance by fine and common recovery, have never been in common use; and in these states the capacity of a feme covert to convey her estate by deed, is the creature of the statute law: and to make her deed effectual, the forms and solemnities prescribed by the statutes must be pursued. Elliott v. Piersol, 1 Peters, 338.

3. Whether erasures and alterations in a deed

21. If a deed for lands is to be made void by the happening of a subsequent condition, the performance of which is impossible at the time the deed is made, the condition only is void, and the estate of the grantee becomes absolute. Hughes et al. v. Edwards et ux., 9 Wheat. 489; 3 Cond. Rep. 648.

22. A deed is not avoided by the seal being torn off fraudulently or innocently by the obligor; but may be declared on as a subsisting deed. Cutts v. The United States, 1 Gallis. 69.

23. Any material alteration of a bond, after its execution, by the obligee, avoids it. Ibid.

24. A deed of land, executed by husband and wife, but containing no words of grant by the wife, does not convey her estate in the land, nor her right of dower. Powell et ux. v. The Monson and Brimfield Manufacturing Co., 3 Mason's C. C. R. 347.

25. The parties to a deed are estopped to deny the consideration stated in it; but it seems that another auxiliary consideration may be proved. Ibid.

26. By the statute of Rhode Island of 1798, all deeds, &c., to two or more persons, are held to create tenancies in common; unless the words clearly and manifestly show an intention to give a joint tenancy. Randall v. Phillips et al., 3 Mason's C. C. R. 378.

27. The delivery of a deed may be inferred from circumstances, and need not be proved by positive testimony. Gardner v. Collins, 3 Mason's C. C. R. 398.

28. Whether a deed is to be presumed from a long possession, is a mixed question of law and fact; and in most, if not in all cases, is to be submitted to the jury under the advice of the court. The existence of the deed is a fact for the jury, but its legal effect and operation a question of law for the court. Jackson v. Porter, 1 Paine, 457.

29. If, by mistake, a deed is drawn plainly different from the agreement, a court of equity will consider the deed as if it had conformed to the agreement; or if the deed be ambiguously expressed, it may be explained by the agree ment. If, however, the deed be so expressed, that a reasonable construction can be given to it, and when so given, it does not plainly appear to be at variance with the agreement, the latter is not to be regarded in construing the former.

Ibid.

30. A deed of bargain and sale, in New Jersey, passes the possession without any actual entry by the bargainee; and this possession the law presumes to continue until the contrary is proved. Lessee of Bayard v. Colfax et al., 4 Wash. C. C. R. 38.

31. A deed for lands, of which the grantor is not in possession at the time of the execution, does not pass the lands; and a covenant of seisin in the deed is broken as to such lands. Thomas v. Perry, Peters' C. C. R. 49.

32. Where, in a deed, the property sold is said to contain about so many acres, more or less; both parties consider these words as a rep

VOL. I.-46

33. A sheriff's deed cannot be given in evidence, without producing the judgment and execution under which the sale was made; without them, the sheriff has no authority to sell. Den v. Wright et al., Peters' C. C. R. 64.

34. A conveyance by administrators, under an order of the orphans' court, cannot be read in evidence, without the production of the order. Ibid.

35. An erasure in a deed, not shown to have been made before execution, is sufficient to avoid it on a plea of non est factum. The presumption is, that the alteration was made after the execu tion; and the same presumption arises in reference to a settled account, in which an erasure or alteration has been made. Prevost v. Gratz, Peters' C. C. R. 364.

36. The general principle of law is, that evidence de hors cannot be received to impeach the validity of a grant; the exceptions to the rule arise from acts which are contra bonos mores, mala in se, or mala prohibita. Polk's Lessee v. Hill et al., 2 Overt. 118.

37. Under a conveyance taking effect under the statute of uses, the bargainee has a complete seisin in deed, without actual entry or livery of seisin. Green v. Liter et al., 8 Cranch, 229; 3 Cond. Rep. 97.

38. A conveyance of wild and vacant lands gives a constructive seisin thereof in deed to the grantee, and attaches to him all the legal remedies incident to the estate. Ibid.

39. Under the act of assembly of Kentucky, of 1798, entitled "an act concerning champerty and maintenance," a deed will pass the title to lands, notwithstanding an adverse possession. Walden v. The Heirs of Gratz, 1 Wheat. 292; 3 Cond. Rep. 570.

40. A conveyance of the right, title and interest in land, is sufficient to pass the land itself, if the party conveying had an estate therein at the time of the conveyance; but it passes no estate which was not then possessed by the party. Ibid. 452.

41. The party who sets up a conveyance must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under it is as much bound to prove the performance of the act, as he would be bound to prove any matter of record on which the validity of the deed might depend. Williams et al. v. Peyton's Lessee, 4 Wheat. 77; 4 Cond. Rep. 395.

42. It is essential to the validity of a grant, that the thing granted should be so described as to be capable of being distinguished from other things of the same kind; but it is not necessary that the grant itself should contain such a description as, without the aid of extraneous testimony, to ascertain precisely what is conveyed. Blake et al. v. Doherty et al., 5 Wheat. 359; 4 Cond. Rep. 682.

43. The freehold estate which vests in the releasee, under a deed of lease and release, by enlargement, is an estate at common law, which

44. Though the assent of a grantee to a deed, clearly for his benefit, may be presumed; yet, if a consideration is to be paid, the assent must be proved, or nothing passes by the conveyance. Ibid.

45. A deed made merely for the purpose of using the name of the grantee, in order to give jurisdiction to the federal courts, is fraudulent; and the court will not entertain jurisdiction. Maxwell v. Levy, 2 Dall. 381.

57. A, and B his wife, conveyed her estate to C and his heirs, to the use of A and B during their joint lives, and to the use of the survivor in fee simple. Held, that this deed operated as a feoffment, and the uses were well raised out of the seisin of C, and were executed by the statute of uses. Durant v. Ritchie, 4 Mason's C. C. R. 45.

58. Where a deed was executed in Massachusetts by a husband, of lands owned by him in that state, in March, 1808; and afterwards, in November, 1808, his wife signed and sealed the same deed, with the following words written over her signature: "I agree in the above conveyance: in witness whereof," &c., giving the

47. Where the deed is made efficacious to pass land by an act of the legislature, before it can create a title, all the requisitions of the act must be complied with. Lessee of Patton v. Brown, 1 Cooke, 119.

48. To authorize a deed to be read in evidence in Tennessee, upon a probate of a judge in another state, the certificate must show in what capacity he acts, and of what state he is judge. Ibid.

49. At common law, a grant to a deceased person will pass no estate to his heirs. Dougherty's Heirs v. Edmiston, 1 Cooke, 134.

such a conveyance did not operate as a release of her dower in the estate so conveyed. Hall v. Savage, 4 Mason's C. C. R. 273.

59. Where a person enters into possession under a recorded deed, claiming title to the entierty, and exercises acts of ownership, it is a disseisin of all persons who claim title to the same land to the extent of the boundaries in the deed. Prescott v. Nevers, 4 Mason's C. C. R. 326.

51. The rule is, that if by mistake a deed is drawn plainly different from the agreement upon which it is founded, a court of equity will consider the deed as if it had been conformed to the agreement; or, if the deed be ambiguously expressed, it may be explained by the agree ment. Hogan v. The Delaware Insurance Co., 1 Wash. C. C. R. 419.

52. If a deed be so expressed as that a reasonable construction can be given to it, and when so given, it does not appear to be at variance with the agreement; the latter is not to be regarded. Ibid.

53. A conveyance of lands, of which the grantor is out of possession at the time of the execution of the deed, is valid, according to the common law of Pennsylvania. Brown's Lessee v. Brown, 1 Wash. 429.

54. A copy of a deed, duly recorded, is, after sixty years, admissible in evidence to establish the grant under which the party claims title to the land in controversy. Stokes v. Dawes, 4 Mason's C. C. R. 268.

55. Where a marriage is proved, a recital in a deed, sixty years old, that the grantor is heir, and sells as such, is prima facie evidence of the

high-water mark to the first mentioned bounds;" conveys the land only to the high-water mark on the bank of such river, and does not include the flats below. Ibid.

61. The owner takes the bank as it is, and may continue to be, by alluvion or decrease by the flow of the river. Dunlop v. Stetson, 4 Mason's C. C. R. 349.

62. In case of a deed of trust, executed to secure a debt, unless in case of some extrinsic matter of equity, a court of equity never interferes to delay or prevent a sale according to the terms of the trust; and the only right of the grantor, in the deed, is the right to any surplus which may remain of the money for which the property was sold. The Bank of the Metropolis v. Guttschlick, 14 Peters, 19.

63. A deed was executed in Glasgow, Scotland, by which land in Ohio, which had been patented to David Buchanan by the United States, was conveyed to Walter Sterling. The deed recited that it was made in pursuance of a decree of the circuit court of the United States for the district of Virginia. No exemplification of the decree was offered in evidence in support of the deed. The court held, that as Buchanan was the patentee of the land, although he made the deed in pursuance of the decree of the circuit court of Virginia, the decree could add nothing