Law of Real Property: Being a Complete Compendium of Real Estate Law, Embracing All Current Case Law, Carefully Selected, Thoroughly Annotated and Accurately Epitomized, Volume 7

Emerson E. Ballard, Tilghman Ethan Ballard

Ballard Publishing Company, 1901 - Real property

Preview this book »

Selected pages

Title Page

Table of Contents

Index

and vendee 2 Right to use public recordsUse of abstracts as evidence	1

ABUTTING OWNERS 3 Title and rights of abutting owner	2

Railroads in streetsPower of municipalities	3

Railroads in streetsGrant of privilege 6 Railroads in streetsRecovery of damages by abutting owners	4

Street railroads	5

Elevated railroads	6

Change of gradeMunicipal liabilityStatutes construed	7

Change of gradeMeasnure of damages II Vacation of streets	8

Implied covenant as to condition of premisesLease of furnished rooms	400

Renewal of lease	401

Assignment of lease	402

Assignment of leaseLiability of assignee	403

Destruction of leased premises 438 Destruction of leased premisesStatutes construed	404

Miscellaneous notes	406

Parol licenseRevocation	407

Judgment lienEstate to which it attaches	408

Assessment against abutting owners for municipal improvements Frontage systemValidity when exceeding benefits or value of property	9

Assessments against abutting owners for municipal improvements Property subject toMiscellaneous notes 14 Assessment against abutting owners for ...	10

Right of landowner to be heard	11

Miscellaneous notes ACKNOWLEDGMENTS 16 Purpose and necessity of acknowledgment	12

ADVERSE POSSESSION As to what constitutes adverse possessionGeneral principles	16

Who may take acknowledgmentsJurisdiction of officer	17

Who may take acknowledgments of instrument executed to cor poration	18

Form and sufficiency of certificate	19

Conclusiveness of certificate	20

Acknowledgment by married womanConclusiveness of cor	21

Color of titleWhat constitutes	22

Color of titleJudicial decrees and conveyances under 28 Extent of possession under color of title 29 Title byMineral or surface estate	24

Title byWho may acquire 31 Title byWhat property may be acquiredLands of railroad Company	25

Title byCharacter of title acquired	26

Title byPayment of taxesIllinois statute construed	27

Title byTime necessary	28

Title byTacking possessions	29

Interruptions of adverse holding 37 Public property	30

Vendor and vendeeGrantor continuing in possession	31

Landlord and tenantLife tenant and remainderman	32

Tenants in common 41 Sale of land in the adverse possession of another	34

Rights of aliens as to real estateConstruction of statutes and treaties	35

ASSIGNMENTS FOR CREDITORS 43 As to what constitutes an assignmentFormal requisites	37

Validity of assignmentsEffect of fraudulent intent 45 Preference of creditorsStatutes construed	38

Title rights and liabilities of an assigned	40

Construction of statutes and miscellaneous notes BONA FIDE PURCHASERS	41

Highways and streets as boundaries 54 Monuments courses and distances	46

As to what constitutesGeneral principles	48

Purchasers at execution or judicial sales	49

Conveyances forValidityDefiniteness requiredPerpetuities 58 Power of courtsDoctrines of cy pres 59 Church propertyMiscellaneous notes	51

COMMUNITY PROPERTY 6064 Recent construction of and amendments and changes made in the statutes of the several states and territories since t...	53

HUSBAND AND WIFE	54

What constitutes a contractConsideration 66 Validity of contractsPublic policy	56

Validity of contractsContracts to prevent bidding at public sale	57

Construction of contractsLaw of place 69 Time as the essence of a contract	59

Breach of contractMeasure of damages	60

FraudRepresentations as to location amount quality or value 72 FraudRepresentations as to title or cost	63

FraudStatements of opinion or intention 74 FraudConcealment by vendee of information as to the value of land	64

Relief from fraudElection of remediesWaiver of rights	65

Action for fraudMeasure of damages 77 Recision of contractsGeneral principles	66

Recision of contractsParticular cases 79 Recision of contractsPlacing parties in statu	68

Ownership of land by corporationsWho may question their right	71

Foreign corporationsStatutes construed	72

Contracts and conveyances byPower to makeManner of exe cution	73

Mortgages by corporations	74

National banks	75

Municipal corporationsPower to acquire lands 87 Municipal corporationsContracts and conveyances 88 Municipal corporationsTitle to public proper...	76

Covenants running with the land 90 Covenants of warranty	78

Covenants against incumbrances	79

Breach of covenantEffect of covenantees knowledge of out standing incumbrance or title	80

Breach of warrantyEvictionOutstanding paramount title	81

Notice to covenantor of adverse suit against covenanteePleading and Practice in action on covenant	83

Breach of covenantMeasure of damages	84

CROPS AND EMBLEMENTS 96 Title to growing cropsRights of purchaser at judicial or fore closure sale	85

Mortgaging crops 98 Rights of tenant or adverse occupant to emblements	86

COURTESY AND DOWER 99 Courtesy of husband	87

Right of dowerNature of estateSale and conveyance	88

Lands subject to dower	89

Release or loss of dower	90

Jointure	91

Assignment of dowerJurisdiction of equity	92

Miscellaneous notes DANGEROUS PREMISES 106 Liability of ownerGeneral principles	93

Liability of owner for injury to tenant and family	95

Liability of owner for injury to visitors or servants of his tenant	97

Liability of owner for injuries to children	98

Fall of buildings walls or advertising boards	99

Coal holes in sidewalksDefective elevators	101

Liability of municipalitiesRecovery of indemnity from abutting Owners 113 Miscellaneous notes	102

As to what constitutesGeneral principles 115 As to what constitutesParticular cases	103

As to what constitutesMaps and plats	104

Acceptance of dedicationNecessityWhat constitutes	106

Revocation or abandonment of dedication	107

Abandonment of lands dedicated as a public parkInjunction against	108

As to what constitutes a valid conveyance	109

Deeds and wills distinguished	110

Exchange of landsRequisites of deed	111

Who may be a grantee	112

Deed to partners	113

Filling blanks and alterations	114

Delivery of deedsGeneral principles 127 Delivery of deedsParticular cases	116

Delivery by recordingPresumptions	117

Delivery to third persons 130 Delivery to third persons to be delivered after grantors death	119

Delivery in escrowTitle when deed is obtained by fraud 132 Acceptance of deedNecessity of and what constitutesPre sumptions	121

Surrender destruction or redelivery of deed to grantor 134 Construction of deeds	122

Construction of particular deeds 136 Recitals in deeds	125

Reservations and exceptions 138 Restrictions as to use of property	126

Restrictions as to the erection of buildingsViolation by erection of flat or apartment house	127

Cancellation of deed on account of grantors mental incapacity	129

Cancellation of deed for fraud	130

Cancellation of voluntary deed from husband to wife obtained by her shamming affection	131

Cancellation of deed for undue influence or duress	133

Cancellation of conveyances between persons occupying fiduciary relationsBurden of proof	134

Quitclaim deeds	135

Miscellaneous notes	136

Descent of real estatePer stirpes	142

Descent to paternal and maternal kindredDescent of ancestral	143

property Halfbloods 169 Adopted children	144

Bastards	146

147164 Form of deedsRecent constructions of and amendments	147

Descent to surviving husbandStatutes construed	149

Descent to surviving wifeStatutes construed	150

Advancements	151

Rights of creditors against heirs	152

DESCRIPTION OF REAL ESTATE 176 Statement of case reported 177 Description of real estateUse of word fractional	153

Use of words fractional or part in description 179 Description as so many acres off of the side or in the corner of a designated tract	155

made in the statutes of the several states and territories since the compilations on this subject in Vol I Secs 57105 Vol II Secs 133147 Vol III Secs 181...	156

Sufficiency ofParticular cases	157

Construction or descriptions 183 Evidence in aid of descriptions	159

EASEMENTS	160

Right of servient owner to maintain gates or bars over	164

Creation by grants and reservations	165

Creation by prescription	166

Establishment of public highway by prescription	167

Appurtenant or implied easements	168

Lateral support	169

Light and	170

Way of necessity 194 Rights of dominant and servient ownersUse of easementRe pairs	171

Abandonment or extinguishment of casement	172

Statement of case reported 198 Ejectment against intruding walls and projecting roofs 199 As to when the action will lie and who may maintain	177

Ejectment against railroadsStay of writ of possession	179

Ejectment by abutting owner against telegraph poles in street 202 Sufficiency of complaint 203 Parties to the action 204 Title necessary to maintain e...	182

Proof of plaintiffs titleBurden of proof	183

Defenses in ejectmentCross complaint 207 Defenses in ejectmentTitle by adverse possessionOutstanding title	184

Evidence in actions of ejectment	187

Directing verdict 210 Judgment in ejectment and execution of judgment	188

Practice in ejectmentMiscellaneous notes	189

168 Vol V 162179 Vol VI Secs 190211	190

EMINENT DOMAIN 212 Constitutional right of eminent domainStatutes construed	191

Condemnation of property by receiver of a corporation	192

As to what is public use 215 Condemnation of land for a private road	193

As to what constitutes a taking 217 Destruction of property under police power distinguished from taking under eminent domain	196

Condemnation of property already appropriated to public use 219 Condemnation of railroad right of way for telegraph line	199

Additional servitude 221 Additional servitudeStreet railways and electric light poles	201

Compensation for property taken 223 Proceedings to condemn landJurisdiction of court	204

Power of condemning party to determine the necessity for con demnationConclusiveness of decision 225 Proceedings to condemn landComplaint or ...	205

Failure to agree with landowner as a condition precedent to con demnationAllegations of petition	206

Proceedings to condemn landNotice 228 Proceedings to condemn landJury trialView of premises	208

Proceedings to condemn landRecovery of costs attorneys fees and interest	209

Proceedings to condemn landAbandonment or dismissal 231 Proceedings to condemn landMortgages and lienholders 232 Proceedings to condemn l...	211

Proceedings to condemn landEvidence	213

Measure of damagesElements considered	215

Measure of damagesBenefits considered	216

Measure of damagesCondemnation of land for railroad right of	218

Measure of damagesCondemnation of railroad lands for another public	220

Title acquired by condemnation of land	221

Miscellaneous notes	222

Statutes amended and new statutes EQUITY	223

SubrogationGeneral principles and particular cases 243 SubrogationSuretys rights	224

SubrogationDischarging vendors lien or purchase money mort gage 245 SubrogationPayment of first mortgage under agreement for first lien	225

SubrogationGrantees to mortgagees 247 Equitable relief from fraud or mistake	226

Equitable conversion	227

Doing equity ESTATES 250 Creation of fee simple estate	228

Estates tail	230

Rule in Shelleys case	231

Creation of life estate 254 Creation of life estateDevise during widowhood	232

Proceedings to condemn landMiscellaneous notes	233

Rights and liabilities of life tenant	234

Future estates 258 Contingent remainders 259 Void remainderEffect on prior estate	235

Vested remainders	236

Conditions subsequentIllegal and impossible conditions 263 Conditions subsequentConveyance in consideration of support 264 Failure to perform c...	239

LEASES	240

Perpetuities	241

Merger 267 MergerConveyance taken by lienholder	242

Miscellaneous notes	243

Estoppel by deedGeneral principles and particular cases	244

Title by estoppelAfteracquired title	245

Recitals in deeds	246

Estoppel in paisGeneral principles	247

Estoppel in paisAccepting benefits 274 Estopped in paisSilence when one should speak	248

Estoppel in paisParticular cases	250

Estoppel as applied to the public EVIDENCE	251

Admissability of deeds and documents affecting realty interests 278 Admissibility of records and certified copies	252

Parol evidenceConstruction of deeds etc Contemporaneous and collateral contracts	253

Parol evidenceProof of consideration	254

Parol evidenceMiscellaneous notes 282 Declarations affecting realty interests	255

Declarations in support of title by adverse possession	256

Opinions and expert evidence 285 Presumptions	258

Competency of witnesses	259

EXECUTION SALES 287 What real estate may be sold on execution	260

Estate of vendor or vendee subject to execution sale 289 Exemption of property from execution sale 290 Issue and levy of execution	262

Return of execution 292 Appraisement and notice of sale	264

Power of officerTime and manner of sale	265

Certificate of saleSheriffs deedConfirmation	266

Title rights and liabilities of purchaser	267

Validity of salesSetting aside	268

Attachment salesMiscellaneous notes	269

EXECUTORS AND ADMINISTRATORS 298 Contracts and conveyances by executors and administrators	270

Sale and conveyance under a power of sale in a will	271

Rights and liabilities as to possession rents and damages	272

Suits by executors and administrators	273

Sales to pay debts	274

Validity of salesSetting aside	275

Collateral attack upon sales and conveyances	276

Purchase by executor or administrator at his own sale	277

Lawful fenceRight to erect fencesMalicious erectionLiability of owner for injury by barbed wire fence	278

Partition fencesHedge fences	279

Fencing railroadsStatutes construed	280

What constitutes a fixtureParticular cases	281

Personal property attached to real estateEffect of contract re serving title or fixing character of property or chattel mort gage to secure purchase price	282

Right to fixturesVendor and vendee	283

Right to fixturesMortgagor and mortgageeLessor and lesee	284

FORCIBLE ENTRY AND DETAINER	285

As to what constitutes forcible entry and detainer 315 Who may maintain the action 316 ComplaintDefensesEvidenceDamages	286

PracticeStatutes construed	287

FRAUDULENT CONVEYANCES 318 Conveyance by husband to wife in pursuance of a parol ante nuptial contractValidity as to his creditors 319 C...	288

Conveyances made with intent to defraudEffect of grantees knowledge of fraudulent intent	292

Conveyance for support of grantor 322 Conveyances in fraud of marital rights	294

Conveyances between husband and wife	295

Setting aside conveyance from husband to wifeBurden of proof Wifes rightsSubsequent creditors	296

Crops improvements and profits arising from husbands expendi ture of money and labor on his wifes landRights of his creditors	297

Conveyances between near relatives	299

Preference of creditors 330 Preference of creditorsConveyances in contemplation of in solvency	302

Preferences by insolvent corporations	303

Property exempt from execution or held in trust	304

Force and effect of fraudulent conveyance between parties to it 334 Rights of subsequent creditors	305

Setting asideWho may maintain the action	306

Setting asideReducing claim to judgmentExhausting legal remedies	307

Setting asideComplaint 338 Setting asideParties	308

Setting asideLiens and priorities acquired by creditor bringing the action	309

Setting asideProtection to granteeReturn of consideration or giving lien for	310

Setting asidePractice 342 Setting asideProof of fraudEvidence	311

Setting asideProof of fraudPresumptions and inferences Burden of proof 344 Setting asideProof of fraudDeclarations of grantorEvidence of his reput...	313

Setting asideProof of fraudSufficiency of unsupported testi mony of grantor	314

Badges of fraudWithholding instrument from record	316

Miscellaneous notes	317

Who may claim a homestead	318

In what lands a homestead may be claimed	319

Lands acquired in exchange for homestead 351 Occupancy and use necessary	320

Amount of land claimedStatutes construed	321

Selection allotment and declaration of homestead	322

Selection of homestead by occupation and	324

Voluntary conveyancesRules for determining validity	327

Insolvency of debtor as affecting his deed	328

Abandonment loss or waiver of homestead	329

Abandonment by conveyance or removal	331

Conveyance and incumbrance of homestead	332

Conveyance and incumbrance of homesteadNecessity of joint conveyance of husband and wife	333

Rights of surviving husband wife or children	335

Miscellaneous notes	337

Power of legislature to destroy a husbands vested rights in his wifes land 364 Antenuptial contracts and marriage settlements	338

Conveyances between husband and wife	339

Conveyances to husband and wifeEstates by entireties	340

Incohoate interests 368 Effect of divorce on real property rightsPower of court	341

Occupying claimants 370 Recovery for improvements made by occupant under color of title What constitutes sufficient color of title	343

Improvements on public lands	344

Improvements by grantees and mortgagees 373 Improvements by tenants and cotenants	345

Improvements by grantee or lessee of life tenant	346

Miscellaneous notes	347

INFANTS AND INSANE PERSONS 376 Validity of contracts and deeds of insane persons 377 Affirmance and disaffirmance of contracts	348

Judicial sale of lands of infants and insane persons	349

GuardiansActions byPowers in respect to wards real estate	351

Miscellaneous notes INSURANCE 381 Iusurable interestInsurance by life tenant	352

Rights of mortgagee as to insurance 383 Mortgage clause in policyForce and effect of conditions	353

Validity of insurance on buildings used for illegal and immoral purposes	354

Condition in policy against change in insureds titleLiens and incumbrances	357

Condition in policy against vacancy of premises	358

Condition in policy against vacancy of premisesConstruction pending removal of occupapnt	360

Waiver of forfeiture clauses in policy	361

Liability of agent of insurer on contract to act as agent of in sured 391 Recovery in case of total lossWhat is a total loss	362

Miscellaneous notes	364

Change of use or place of diversionWaste waters 395 AbandonmentAdverse use of water	366

Actions and adjudications concerning water rights	367

Conveyance of water rights	368

Miscellaneous notesStatutes construed	369

JUDICIAL SALES	370

Appraisement of property 400 Notice manner and terms of sale	371

Confirmation 402 Title and rights of purchaser	372

Liability of purchaser for failure to complete purchase 404 Relief to purchaser upon failure of titleEffect of reversal of decree	374

Vacation of sale on offer to increase	376

Setting aside saleFraud and irregularities	377

Setting aside saleInadequacy of price 408 Guardians salesPower of courtValidity	378

Guardians salesValidity where guardian fails to take the stat utory oath	380

Miscellaneous notes	381

LANDLORD AND TENANT 411 As to when the relation exists 412 Estoppel to deny title	382

Forfeiture 414 Tenancy at willTenancy at sufferanceTermination	384

Tenancy from year to year 416 Holding over	385

Termination of relationNotice to quit	386

Surrender	387

Surrender by operation of law 420 Appropriation of leased premises under right of eminent domain	388

Wrongful eviction by landlord 422 Eviction for nonpayment of rent or for wrongfully holding over	389

Farming on the sharesTitle to and lien on cropps	390

Landlords lienPriorityStatutes construed	392

Landlords lienTitle and liability of vendee or mortgagee of crops	393

Agricultural lien for advancements	394

Repairs	395

Miscellaneous notes	396

Construction of leases	397

Covenants in leases	399

Judgment lienWhen it attaches	410

Judgment lienExtent ofFederal judgments 444 Judgment liensPriority of liens	411

Judgment liensMiscellaneous notes	413

Preferred claims against decedents estatesPriority of lien for 447 Equitable liens	414

Legacies as a charge on land 449 Lis pendensGeneral principlesStatutes construed and applied	415

Pendente lite purchasers	417

Miscellaneous notes	419

MARRIED WOMEN 452 Contracts and conveyances byLaw of place determines validity	420

Estoppels applied to married women	421

MECHANICS LIENS 475 Mechanics liens against public buildings	432

Mechanics liens against public school property	434

Construction of mechanics lien statutes	435

Agreements fixing BOUNDARIES	436

Right of nonresident to a mechanics lien 479 Estate or property subject to the lien	437

Extent of property affected by the lien	438

Kind of labor or material for which a lien may be claimed 482 Kind of labor or material for which a lien may be claimed Statutes construed	439

Improvements by lessee	441

Improvments by husband of owner 485 Subcontractors and materialmen	442

Subcontractors and materialmenHow far rights of are affected by payments to or contracts with the principal contractor	443

Subcontractors and materialmenStatutes construed	444

Joint lien on several lots or buildings	446

Priority of mechanics liensStatutes construed	447

Priorities as between mechanics liens and mortgages	448

Priority of mechanics liensConstruction of statutes giving me chanics liens priority over existing liens 492 Priority of mechanics liensConstruction of ...	451

Loss or waiver of lien 495 Loss or waiver of lientaking notes or collateral security	453

Filing and recording building contractsStatutes construed	454

Filing of lien statement 498 Filing of lien statement by subcontractor or materialman	455

Lien statementTime for filing	456

Lien statementExtension of time for filing repapirs or sub stitution of new materials	457

Lien statementDesignation of ownerDescription of premises 502 Lien statementStatement of contract and account	458

Lien statementMistakes and inaccuraciesIncluding nonlienable items 504 Lien statementVerification	460

Lien statementAmendment 506 Enforcement of lienComplaint	461

Enforcement of lienParties and defenses 508 Enforcement of lienStatute of limitations	462

Enforcement of lienProof in the actionAllowance of attor neys fees	463

Enforcement of lienMiscellaneous notes	464

Right to drill and operate oil wellsMalicious operation for the purpose of draining adjoining land	465

Mining leases 513 Mining leasesForfeiture and abandonment	467

Oil and gas leasesExecution and construction	469

Miscellaneous notes	470

What constitutes a valid mortgageFormal requisites	471

Validity and construction of contracts between mortgagor and mortgagee	472

Delivery and acceptanceIntervening rights acquired between ex ecution and acceptance of mortgage	475

Equitable mortgageMortgage by deposit of title deeds	476

Mortgages to and by corporationsNational bank mortgages	477

Construction of mortgages	478

Title of parties and right to possession	479

Conveyance of mortgaged premises by mortgagor to mortgagee Acquisition of outstanding title by mortgagee	480

Afteracquired propertyMortgage to secure advances 526 Deeds construed as mortgages	481

Action to declare deed a mortgageSufficiency of proof 528 Priority of purchase money mortgage	484

Priority of mortgage to secure future advances 530 Assumption of mortgageTaking conveyance subject to mortgage 531 Assumption of mortgageLi...	486

Assumption of mortgageSurety relation of mortgagorExten sions	488

Assumption of mortgageCovenant by grantees agent 534 Assumption of mortgageStatute of fraudsParol evidence	489

Priority of mortgages	490

Assignment of mortgageWhat constitutes 537 Assignment of mortgageTitle and rights of assignee	492

Recording assignment of mortgage	494

Assignment of mortgagePayment to mortgage afterward 540 Payment release and satisfaction	495

Authority to receive paymentPayment to agent	497

Release of part of mortgaged premises	498

Release without authority	499

Penalty for failure to enter satisfactionStatutes construed	500

Mortgagees rights and remedies 546 Breach authorizing foreclosureFailure to pay taxes or interest	501

Foreclosure proceedingsGeneral principlesPractice	503

Defenses to foreclosure proceedings	508

Defenses to foreclosure of mortgages by trustees executors	509

Usury as a defense to foreclosure proceedings 553 Usury as a defense to foreclosure proceedingsWhat constitutes Payment of commission for and ex...	511

Statute of limitationsStatutes construed	512

Judgment in foreclosure proceedings	513

Personal and deficiency judgment upon foreclosure of mortgage 557 Personal and deficiency judgment upon foreclosure of mortgage Statutes constr...	515

Allowance of attorneys fees in foreclosure proceedings	516

Lien of judgment for attorneys fees and costsSale to satisfy 560 Validity and enforcement of mortgagors agreement to pay ex penses of abstract nece...	518

Appointment of receiver in foreclosure proceedings 562 Cross bills and adjudication of adverse claims of third parties in foreclosure proceedings	521

Foreclosure against deceased mortgagorFiling claim against estate	522

Rights of prior and junior incumbrancers	523

Marshalling securitiesRule where portions of the mortgaged premises have been conveyed	524

Sale under decree of foreclosure	526

Appraisement of propertyNebraska statutes construed 568 Notice of foreclosure sale 569 Who may make foreclosure sale and whereTermsSale in par...	528

Application of proceeds of foreclosure sale	529

Validity of foreclosure saleSetting aside	530

Title of purchaser at foreclosure saleRight to have deed cor rected	531

Possession of premises after foreclosure saleRights of owner and purchaser	533

Foreclosure by advertisement	535

Power of saleRevocation by death or insanity of mortgagor 576 Power of saleSale under	536

Sale under powerPurchase by mortgagee or trustee	537

Deed of trust to secure debtsAppointment of trustee to fill vacancy	538

Sale under deed of trust 580 Notice of sale under deed of trustPublicationDescription of property	540

Sale by trustee under power of sale in deed of trust without re quest of beneficiary	541

Postponement of sale under deed of trustRight of trustee to recover commissions	543

Indemnity mortgage and mortgage to secure several notesFore closure 584 Building and loan association mortgagesStatutes construed	544

Building and loan association mortgagesUsury	545

Building and loan association mortgagesLoans by bidding	547

Complaint on foreclosure proceedings	548

Parties to foreclosure proceedings	549

Miscellaneous notes	550

Knowledge sufficient to charge one with notice 590 Charging notice to principal on account of his agents knowledge	551

Notice by publication	553

NUISANCE	555

What constitutes a nuisance 593 What constitutes a nuisanceEncroachment and improvement upon public street	556

Cemetery as nuisance	557

Legislative and municipal control	559

Power of municipality to create nuisance by erection of pest house	562

Acquiring prescriptive right to maintain nuisance 598 Remedies and proceedings against nuisances	564

Measure of damagesSuccessive actions for damages 600 Miscellaneous notes	565

Partition by agreementParol partition	566

Who may have partition	567

Extent of doctrine of implied warranty in partition	568

Practice in actions for partitionMiscellaneous notes 605 Partition proceedingsAnswer by defendants and adjudication of their rights	569

Allowance of costs and attorneys fees	570

Adjudication of title in action for partition 608 Judgment in partition proceedingsForce and effect	572

Partition sales	574

PARTNERSHIP REAL ESTATE 610 As to what constitutes partnership real estate	575

Conversion of partnership realty into personalty by conveyance from one partner to the other 612 Miscellaneous notes	577

PARTY WALLS 613 Ownership of party wallNature of estate inLiability for in juries from falling wall 614 Contracts concerning party walls	578

PLATS AND SURVEYS 615 Location of disputed corners 616 Surveys and maps as evidence	580

Possession defined POSSESSION	583

Possession as notice or rights or title POWER OF ATTORNEY	585

Requisites of power of attorney and authority conferred by 621 Execution of power by instrument which does not refer to	586

PUBLIC LANDS 622 Indians and public lands	587

Conclusiveness of decisions of land departmentPower of state courts	588

School landsStatutes construed	589

Mining claimsLocation and relocationLode and placer claims	590

Mining claimsLocation by aliens	592

Mining claimsMarking boundariesNotice of locationDe scription 628 Mining claimsDoing required amount of workAbandonment and forfeiture	594

Mining claimsTitle of locatorAction to quiet title	596

Mining claimsMiscellaneous notes	597

Swamp and tide landsStatutes construed	598

Townsite landsMiscellaneous notes	599

Grants to railroadsMiscellaneous notes	601

Preemption of public lands for homestead	602

QUIETING TITLE	610

Possession by plaintiff required	612

Complaint in action to quiet title 645 Answer counterclaim and cross complaint by defendant	614

Practice in action to quiet titleMiscellaneous notes 647 Trespass to try title REAL ACTIONS 648 Jurisdiction depending on action involving title	616

Jurisdiction of courts of equity	618

Jurisdiction over lands in another county or state	619

JurisdictionParticular courtsMiscellaneous notes 652 Former adjudicationGeneral principles	621

Former adjudicationwho bound byPrivies in title	622

Former adjudicationParticular cases	623

Former adjudicationStare decisis 656 TenderNecessity of and what constitutesConditional tender	625

InjunctionsGeneral principlesPractice	626

Causes sufficient for granting injunctions	628

Causes insufficient for granting injunctionsInjunction against legal proceedings	629

Injunction against trespass 661 Injunction against wrongful appropriation of land to public	631

Appointment of receiversPractice Statutes construed 663 Title and rights of receiversSuits bySale of property held	634

Homestead landsEstate and rights of contesting claimant	635

Invalid certificate of homestead entry as color of title	636

Conveyance and incumbrance of homestead rights	637

PatentsMiscellaneous notes	638

Water rights on public lands	639

Construction of local statutes	640

Miscellaneous notes	641

As to when commission is earned due and payable 673 Sale by ownerSale to agentRight to commission where there are several agents	642

Action to recover commissionEvidenceBurden of proof RECORDS AND RECORDING 675 What instruments may be recorded	643

Records as notice	645

Unrecorded deeds and mortgages	647

Statutes amended and new statutes	649

Equity of redemptionPurchase by mortgagee	653

Change in redemption statuteRetrospective effect 698 Right to redeemRedemption statutes construed	654

Redemption by judgment creditor	655

Redemption from mortgage foreclosureGeneral principles Statutes construed	656

Procedure to effect redemption	658

As to when equity will reform instruments	659

Correction of judgments and orders of court 704 Reformation of mutual mistakes	660

Reformation of mistakes in descriptions 706 Practice in actions for reformationProof necessary	661

Right to rentsVendee mortgagor and mortgagee 708 Right of mortgagor in possession to rents	663

Right to rentsPurchasers at execution judicial or foreclosure sales	664

Creation of liability to pay rent	665

Rights and liabilities of receivers in reference to rents	666

Pleading and practice in actions for rent	668

Defenses and counterclaims in actions for rent	669

Proof in action for rentBurden of proof 715 Collection of rent by attachment or distressRights of assignee of rent note	670

Miscellaneous notes RESULTING TRUSTS 717 General principles	673

Purchase with trust funds or in violation of trust relation	674

Trusts arising out of fraud or violation of contract	675

What constitutes recordingDeposit of instrument with record ing officer	676

Trusts arising from payment of purchase money 722 Trusts arising from the payment of purchase moneyConvey ance to husband or wife or from pa...	677

RIGHT OF WAY 724 Acquiescence in use of land for railroad right of wayRemedies of land ownerAcquiring right by way of prescriptive	681

Grants of right of wayConstruction	682

Statutory grant of lands and streams to a railroad company construed	684

Right of way ContractsSpecific performanceRemedy for breach	685

Title to and use of right of wayAbandonment	686

Railroads crossing streets and highwaysStatutes construed	687

RIPARIAN OWNERS	688

Title and rights of riparian owners 731 Title and rights of riparian ownersLands bordering on lakes	689

Navigable watersTitle to lands under and rights of riparian Owners	690

Navigable watersRights of the public	691

Rights of riparian owners to accretions	692

Apportionment of alluvianStatute construed 736 Rights to take fish 737 Obstruction or diversion of waters	694

SPECIFIC PERFORMANCE 738 As to the right of specific performanceJurisdiction of equity 739 As to what contracts may be specifically enforced...	696

Contracts to convey land	699

Tender diligence and performance required of party seeking 743 Parties to action for specific performance	701

Defenses to action for specific performance	702

Proof and practice in action for specific performance	703

STARTING FIRES 746 Destruction of insured propertyRights of parties	704

Contributory negligence	707

Action for injury by fireMeasure of damages 750 Action for injury by firePleadingsInstructions	709

Action for injury by fireEvidence	710

Action against railroad company for injury by fireAdmission of evidence as to the starting of other fires	712

Miscellaneous notes	713

STATUTE OF FRAUDS 754 As to what contracts are within the statute of fraudsParol sales and gifts of real estate	714

As to what contracts are not within the statute of frauds 756 Sufficiency of memorandum	716

Part performancePayment of purchase price	717

Part performancePossession and improvements	718

Miscellaneous notes STATUTE OF LIMITATIONS	719

As to when the statute begins to run 761 As to when the statute begins to runActions against railroad company for taking or injuring propertyAction t...	721

Disabilities of parties 763 Interruption or suspension of statute	722

LachesGeneral principles 765 LachesParticular cases	724

Statute of limitations and laches as applied to trusts or fiduciary relations	725

Miscellaneous notes 768781 Statutory provisionsRecent constructions of and amend ments and changes in the statutory provisions of the several state...	727

SURFACE WATER 782 Rights of upper and lower owners	730

Right of landowner to construct ditches and drains	731

Diversion of surface water by a railroad 785 Liability of municipalities	732

TAXES AND TAX TITLES 786 Taxation of real estate of national bankPriority of claim for taxes	734

Exemption from taxesGeneral principlesStatutes construed	736

Exemption from taxesPublic property	737

Exemption from taxesProperty of educational institutions 790 Exemption from taxesProperty of educational institution used for purposes of private ...	739

Exemption from taxesProperty of churches and charitable in stitutions 792 Exemption from taxesProperty of manufacturers and railroad property	741

Assessment of taxesGeneral principlesStatutes construed	742

Assessment of taxesIn whose name assessments should be made 795 Assessment of taxesDescription of property 796 Assessment of taxesDescription ...	746

Assessment of taxesOmission of property	747

Liability of railroads for firesNegligence	748

Assessment of taxesBoard of equalization 799 Lien for taxesPayment of taxesParol proof of payment	749

Publication of delinquent lists	750

tificate	752

Who may purchase at tax sale 803 Title and rights of purchaser at tax sale	753

Rights and remedies of purchaser at invalid tax saleStatutes construed	754

Tender and payments required of one recovering land from the holder of an invalid tax title	757

Irregularities sufficient to avoid or invalidate a tax sale	758

Irregularities insufficient to invalidate a tax sale	760

Setting aside tax salesPractice	761

Redemption from tax sales 810 Right of mortgagee to redeem from tax sale	762

Notice of expiration of time to redeem	766

Tax deed	768

Tax deedConclusiveness as evidence of titleStatutes construed	769

Judicial proceedings to confirm and enforce tax titleForeclosure of tax lien	770

Judicial proceedings to collect taxes	771

Judicial proceedings to collect taxesFilling blanks in decree	772

Judicial proceedings to collect taxesStatutes construed 818 Statutes of limitations and tax titles 819 Miscellaneous notes	774

Construction of miscellaneous statutes	775

Statutes amended and new statutes	778

TENANTS IN COMMON 822 Creation of an estate in common 823 Conveyance and incumbrance by one cotenant	779

OusterLiability for rentAccounting	783

Action for possession by cotenants 827 Injury to property by cotenantRemediesMeasure of dam	785

ages TITLE 828 Good and marketable titleTitle acquired by adverse possession	786

Good and marketable titleRights of vendor and vendeePar ticular cases	787

Growing trees as real estateContracts concerningMiscellaneous notes	790

Trespassing stockCommon law rule 833 What constitutes trespass	791

Criminal trespassRefusal to depart on demand of owner 835 Who may maintain an action for trespassTitle right or inter est necessary	793

Practice in actions for trespassMiscellaneous notes 837 Defenses to action for trespass	796

Measure of damages TRUSTS 839 Creation of express trustNecessity and sufficiency of writing	798

Parol evidence to establish express trusts 841 Statute of uses and passive trusts	802

Spendthrifts trusts 843 Power of courts in respect to trusts	805

Practice in actions affecting trusts 845 Title rights powers and duties of trustees	806

Sale and conveyance by trustees 847 Trustees dealings with trust estates	809

Termination and revocation of trusts	810

Miscellaneous notes	811

VENDOR AND VENDEE 850 Right of vendor or vendee to maintain ejectment or recover for injury to land conveyed 851 As to what constitutes a ...	812

Option contracts	813

Assignment of contract for the purchase of land	816

Construction of land contractsForfeitures	817

Construction of land contractsParticular cases	818

Sale of land to corporation through one of its promotersFraud Rights of parties	819

Deficiency in quantity	820

Failure of titleRescission	821

Actions to recover purchase money	822

Defenses to actions for purchase moneyDefective title	823

Recovery of purchase money paid by vendeeVendees lien	824

Retention of title to secure purchase money	825

Vendors lienCreation	826

Vendors lienPriority	827

Vendors lienLoss or waiver	828

Action to enforce vendors lienPleading and practice	829

Action to enforce vendors lienDefenses 868 Miscellaneous notes	831

What constitutesSale of timber by life tenant	843

WATERS AND WATER COURSES 915 Subterranean or percolating waters	845

Mill dams and water rights	846

Agreement to devise realtySpecific performance	848

Revocation of willEffect of marriage	849

Conditions in restraint of alienation or marriage	850

Construction of willsRules forGeneral principles	851

Construction of willsIntention of testator as a factor and rules for determining	853

Construction of willsPer capita or per stirpesDivision be tween and among defined and distinguished	854

Construction of willsDevise of remainder after termination of life estate 925 Construction of willsDevise over in case devisee dies without issue	856

Construction of willsDevise for life with power of disposal	858

Construction of particular willsEstate devised	859

Construction of particular willsMiscellaneous cases 929 Devises and bequests in lieu of dowerElectionStatutes con strued	862

Powers contained in wills	863

Miscellaneous notes	864

Copyright

Other editions - View all

Law of Real Property: Being a Complete Compendium of Real Estate Law ...
Emerson Etheridge Ballard,T E Ballard
No preview available - 2023

Law of Real Property: Being a Complete Compendium of Real Estate ..., Volume 12
Emerson Etheridge Ballard,T. E. Ballard
No preview available - 2018

Law of Real Property: Being a Complete Compendium of Real Estate ..., Volume 12
Emerson Etheridge Ballard,T E Ballard
No preview available - 2015

Common terms and phrases

73 Minn acquired action adverse possession Ass'n assignment authority Bank Citing City claim color of title condemnation construction construed and applied contract conveyance conveyed corporation court of equity court say covenant creditors damages debt decree deed defendant dower easement ejectment eminent domain entitled equity erection execution fact fee simple foreclosure fraud fraudulent grantee grantor heirs held sufficient homestead husband incumbrances interest judgment land Law Rep lease lessee liable lien Mass mechanic's lien ment mort mortgage mortgagor N. J. Eq N. W. Rep notice owner parol party payment person plaintiff premises prescriptive period proceedings providing purchaser railroad company real estate remainderman rent resulting trust Stat statute statute of frauds street subsequent taxes tenant Tenn thereof tion tract trust valid vendee void W. R. Co wife

Popular passages

Page 676 - ... which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein...‎

Appears in 65 books from 1847-2007

Page 405 - ... the lessees or occupants of any building, which shall, without any fault or neglect on their part, be destroyed or be so injured by the elements or any other cause as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of...‎

Appears in 98 books from 1854-2001

Page 593 - These rules may be subject to the limitation that a qualified locator may relocate the claim in the possession of an alien, who has not declared his intention to become a citizen, if such relocation...‎

Appears in 51 books from 1870-1997

Page 288 - ... to the effect that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars.‎

Appears in 247 books from 1848-2006

Page 592 - ... the claim or mine upon which such failure occurred shall be open to relocation in the same manner as If no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.‎

Appears in 317 books from 1870-2007

Page 787 - No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action.‎

Appears in 285 books from 1829-2003

Page 653 - Every such contract, every deed conveying any such estate or term, and every deed of gift, or deed of trust, or mortgage, conveying real estate or goods and chattels, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, until and except from the time that it is duly admitted to record in the county or corporation wherein the property embraced in such contract or deed may be.‎

Appears in 71 books from 1849-2003

Page 140 - On this — — — day of , in the year , before me (here insert the name and quality of the officer), personally appeared , known to me (or proved to me on the oath of ) to be...‎

Appears in 165 books from 1871-2004

Page 7 - No person shall, for the same offence, be twice put in jeopardy of his life or limb, nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.‎

Appears in 292 books from 1803-2004

Page 139 - THIS INDENTURE, made this day of , in the year One thousand, nine hundred and , between of , the party of the first part...‎

Appears in 423 books from 1803-2008

Bibliographic information

Title	Law of Real Property: Being a Complete Compendium of Real Estate Law, Embracing All Current Case Law, Carefully Selected, Thoroughly Annotated and Accurately Epitomized, Volume 7 Law of Real Property: Being a Complete Compendium of Real Estate Law, Embracing All Current Case Law, Carefully Selected, Thoroughly Annotated and Accurately Epitomized, Arthur Walker Blakemore
Editors	Emerson E. Ballard, Tilghman Ethan Ballard
Contributor	Arthur Walker Blakemore
Publisher	Ballard Publishing Company, 1901

Export Citation	BiBTeX EndNote RefMan

About Google Books - Privacy Policy - Terms of Service - Information for Publishers - Report an issue - Help - Google Home