distances. This is founded on much experience, for this shows that
courses differ from variations in the compass, changes in the surface,
etc. Though monuments may be moved intentionally or by natural causes,
they can be more trusted in the long run of things.
The location of a monument is a question of fact. It is sometimes said
that natural monuments possess higher value than artificial ones, this
depends on the character of the artificial one. A large stone set in a
secure place surely is a better boundary than a wayward stream whose
course is changed by every freshet. In marking the public lands of the
western territories by statute monuments must designate the corners of
the tract. But when these are lost then corners and distances become
the guide. Oral evidence may be admitted to establish the location of
monuments, and even hearsay evidence may be used for the purpose.
In a city lot courses and distances play a larger part in fixing the
boundaries, and are more carefully defined. Often the boundary is to
the center of a dividing wall.
The boundary of land by a non-navigable stream is to the center; and
if one owns on both sides of such a stream he is the owner also of the
bed. But if land is bounded by the bank or shore of a stream, or by
other words of clearly evident exclusion, the stream is excluded. The
rule is different that applies to a tidal navigable stream. In some
states the boundary is high-water mark; in other states low-water. In
both cases the riparian owner, so-called, may erect a wharf extending
from his land subject to public control. The boundary of a natural
pond or lake, either in its natural state or raised artificially, is
low-water mark. Nor is the law changed by the conversion of a fresh
water pond into a salt pond by the hand of man. The boundary to an
artificial pond is through the center.
The title to the bed of all lakes, ponds, and navigable rivers to the
ordinary high-water mark is vested in the states. Thus the people who
live around them may enjoy the waters the same as others enjoy tidal
waters. Nor is the state title affected by any manipulation of the
land above the surface of the water.
The same rules of law apply to land situated along public highways. If
a deed should bound the land "by or along a highway," it would include
the land to the center; only words of clearly intending exclusion have
a different effect. If a deed should say "by the side" of a highway,
it might be excluded and it might not, the courts do not agree. All
agree that the intention of the parties should govern, but differ as
to intention expressed in the words they have used. The law is full of
such difficulties. If a highway is abandoned, the adjoining owners can
extend their lines to the center, unless one of them can prove that he
is entitled to more than one half.
In investigating the title to real estate it is the duty of an
attorney employed for that purpose, says Justice Trenchard, "to make a
painstaking examination of the records and to report all facts
relating to the title. He is, therefore, liable for any injury that
may result to his client from negligence in the performance of his
duties--that is, from a failure to exercise ordinary care and skill in
discovering in the records and reporting all the deeds, mortgages,
judgments, etc., that affect the title in respect to which he is
employed."
=Divisional Tree.=--When the base of a tree is wholly on the land of
one owner the whole tree belongs to him. An adjoining owner, however,
may cut off at the divisional line such branches as over-hang his land
without notice and without reference to the length of time they have
been growing. To do this he cannot go on the land of his neighbor, but
must stay on his own land. A different rule applies to a tree that
stands on a divisional line and both owners have an interest therein.
=Dower.=--Dower is the interest that a wife has in her husband's land
after his death, and consists, unless modified by statute, of the use
of one third during her life. While both live her interest is so
secured to her by law that he cannot sell and convey any of his land
unless she unites with him in signing a proper deed of conveyance. In
most states this interest or dower is paramount to the claims of her
husband's creditors. But if there is any lien on the land at the time
of his death, like a mortgage, she cannot claim a preference or
priority over the mortgagee.
She can claim her dower in any land belonging to her husband which her
children, if she had any, could have inherited as the heirs of their
father. When her dower is in mortgaged land, she cannot get possession
until the mortgage has been paid. Again, where land, wherein she has
a dower interest, must be sold, her right to the proceeds follows the
sale. If her husband was not in possession of the land claimed by him
before and after marriage, her dower will not become effective until
gaining possession. If he were only the nominal and not the real
possessor, her dower will not attach to the land, nor if he were in
possession as trustee, the real ownership belonging to another.
A legal marriage is necessary to sustain a dower estate. Whenever a
marriage can be set aside for some illegality, and is not, it will
sustain her dower on his death. So, too, her dower may be lost or
barred by a legal separation; if she should re-marry, or the divorce
is set aside, her dower would revive. Her dower may also be lost
should her husband legally part with his estate, or by any legal
proceeding it should be taken away from him; thus, should another
claim it and prove that he had the better title. In other words she
loses her dower whenever her husband has no estate from which her
dower can be carved out. It is true that an adverse claimant cannot
give any title to her husband's land that would bar her right thereto.
The reason for this rule is that, like a minor, her rights cannot be
acquired against one who is unable by reason of age or other infirmity
to protect himself.
The wife is entitled to have dower assigned to her immediately after
her husband's death. Until this is done, she has the right of common
law for the period of forty days, called quarantine, to reside in her
husband's house, provided she does not marry during that time.
Dower may be assigned to her in two ways. One way is by direction of
the court, which ascertains by proper evidence the extent, location
and value of the husband's lands, and then directs the sheriff to
carry out its order in assigning to her a specific portion for her use
during life. The other way is by agreement. In some states money is
assigned to her instead of land as dower.
Dower may be barred by agreement made before marriage. These
arrangements, marriage settlements, are becoming more frequent with
the increase of wealth and complexities respecting the holding of
property. Sometimes a testator provides for his widow in lieu of
dower. In such a case she may accept the gift, or reject it and claim
her dower rights. Suppose a testator should own a large amount of
land, and in his will should give her only a small amount of money in
lieu of dower. If eager to get the most possible, she would reject the
gift of money and claim her dower rights. On the other hand, suppose
he had but very little or no real estate, then she doubtless would
accept the money gift, unless she could claim a still larger sum by
virtue of some statute made to fit such cases.
Dower does not exist in crops or trees severed from the land, but does
exist in mines and quarries belonging to the husband which were opened
and worked during his life. If lands have been exchanged by the
husband, she can elect in which she shall take her dower, but not in
both. There can be no dower in a mere personal privilege, or in a
revocable license pertaining to land. The widow of a partner is
ordinarily entitled to dower in so much of the partnership land as is
left after the payment of the firm's debts and the adjustment of
matters between the partners. But if an agreement among them that the
land shall be considered as personal property for all purposes, then
no dower therein can be claimed by the widow of any partner.
A wife can release her inchoate dower or future expectation of
receiving it by joining in a conveyance with her husband for that
purpose. In order to make the election binding, it must be made with
full knowledge on the widow's part of her husband's estate, and the
relative value of her dower interest. The election is personal, and
cannot be exercised by her representatives after her death, nor by
creditors; and if insane, this cannot be done by any committee or
guardian acting under the authority of a court.
An absolute divorce, even though for the husband's fault, divests the
wife of dower, unless her right is saved by statute. Quite frequently,
the statute provides that there shall be no dower in case of divorce
for the wife's fault. Occasionally it is provided by statute that
divorce for the husband's fault shall not bar dower; and sometimes a
statute requires dower to be assigned immediately upon divorce without
awaiting the husband's death. It may be added that the principles of
the common law relating to dower have been largely modified by statute
in all the states.
=Drunkenness.=--The courts are reluctant to recognize intoxication as
an excuse either for committing a crime or for repudiating a contract,
but if from long continued intemperate habits a man has become
actually insane or incompetent, his actual mental condition will be
recognized whatever may have produced it.
Again, in making a contract the other party could hardly deal with a
man badly intoxicated without knowing his condition, consequently the
element of fraud appears, and the contract may be declared invalid
either for lack of contracting capacity on the part of the drunken
man, or for fraud on the part of the other in taking advantage of his
condition. His fraud would be still greater if he had designedly
caused the drunkenness of the other. Either objection, however,
renders the contract voidable rather than void, and should an
intoxicated party, after he became sober ratify his contract, or fail
to repudiate it and restore the consideration, if any, within a
reasonable time, he would become bound.
The courts are still more reluctant to admit intoxication as an excuse
for criminal acts. The courts hold that one who voluntarily deprives
himself of self-control must have intended the consequences, therefore
it is everywhere held that one who voluntarily becomes intoxicated,
although he did so with no purpose to commit a crime when intoxicated,
cannot claim immunity from criminal responsibility, or even a
mitigation of the penalty, though having no capacity to distinguish
between right and wrong. And yet, like so many legal rules, there are
some marked exceptions to this one. Thus, since burglary is the
entering of a house with the intent to commit a felony therein, one
who blunders into a strange house because he is too drunk to know
where he is or what he is doing has not committed the crime of
burglary. So one who carried off the property of another through
drunken ignorance does not commit larceny, as there is no intent in
such a case to convert the property to the taker's own use. Another
application has been made in cases of assault with intent to kill a
person.
Again, says Peck, "if one is visibly intoxicated, it is the duty of
those who come in contact with him to take his condition into account,
and their use of due care will be judged in view of that fact. Even if
the drunken person and the other are both negligent, the sober party
may be liable under the doctrine of the last clear chance, if he fails
to exercise toward the drunken man the degree of care which is
evidently required to avoid injuring him. Especially is a common
carrier, in dealing with a passenger who is on its car in an
intoxicated condition, bound to take his helpless condition into
account in removing him from the car or otherwise handling him, and
not put him in a place of manifest danger to one in his condition."
It has also been held that the intoxication of one who uttered a
slander may be admissible in mitigation of the damages, as utterances
of a drunken man could not seriously impair the reputation of any one.
=Equitable Remedies.=--Elsewhere we have told how courts of law differ
from courts of equity. In some states no separate courts exist, and
wherever legal proceedings are established by a code or system of
statute law, the form of complaint addressed to a court is quite the
same in an equity case as in any other. But in states where code
practice has not been established, the mode of setting forth one's
grievance or wrong is by a bill or petition, ending with a prayer for
relief. We will now briefly state some of the things for which relief
in equity may be sought.
One of the most common things is to compel persons who refuse to
perform their contracts to execute them. Suppose one has agreed in
writing properly signed to sell his farm to another, but is unwilling
to give him a deed. It may be that he can get more for his farm, or he
has made the discovery since selling it that it is worth much more, is
underlaid with coal or oil, or that a railway is soon to be built
near it that will enhance its value. If he went to a law court, all
that it could do would be to compel the seller to give the purchaser
such damages as he could prove he had sustained from the seller's
failure to execute his agreement. But a court of equity can go further
and compel the seller to give the purchaser a proper deed, the kind of
deed mentioned in the agreement; or, if none was specified, the kind
of deed usually given in such cases.
This remedy cannot be always sought whenever the seller fails to
execute his contracts. The important limitation is, when the law has
an adequate remedy, and the injured person has no need of resorting to
a court of equity. All the ordinary agricultural and manufactured
products fall within this class, cotton, cattle, lumber, fruits, stock
in trade and the like. But if a chattel has a sentimental value to the
purchaser, a court of equity will decree that it must be delivered to
him, because in such a case the damages would obviously be inadequate.
The same rule applies to all articles of a unique or rare value that
cannot be duplicated; also to patented or copyrighted things that
cannot be procured in the open market.
Suppose one has purchased the stock of a bank or railroad company,
which the seller refuses to deliver, has the buyer a legal remedy for
damages, or an equitable remedy to compel the seller to deliver the
stock, or has he the choice of remedies? The courts have divided on
this question. The better rule is, if the stock can be readily bought
in the open market, the buyer has only a law remedy to recover damages
from the seller's failure to execute his contract; if the stock cannot
be thus purchased, a money damage is not an adequate remedy, the
purchaser wants the stock and he can, through a court of equity,
compel the seller to deliver it to him. As government bonds can always
be bought in the open market, a court of equity will not decree the
specific execution of a contract for the delivery of the actual bonds
purchased.
If A has agreed to erect a building for B on his land and fails to do
it, money damages are usually an adequate remedy, but if B cannot find
any one else to do the work as well, or in as satisfactory manner,
then a court of equity would compel A to fulfil his agreement.
Likewise if a landlord has agreed to repair his tenant's premises and
neglects, the legal remedy is usually more satisfactory than a
specific execution of the agreement, because work done under
compulsion is not likely to be as well done as that done voluntarily.
A contract to render personal services will not be enforced against a
person who has agreed to perform them, for several reasons, one is
that another person can be employed, another is that the thirteenth
amendment to the federal constitution, forbidding involuntary
servitude, cuts off the equitable remedy in such cases; of course the
legal remedy for damages is still effective. A contract to give a
mortgage to secure a loan of money may be enforced by the creditor,
but a contract to lend money cannot be enforced by either party,
because there is usually an open market for the lending and borrowing
of money. Likewise a contract to form a partnership cannot be
enforced, for, if it were, the unwilling partner could dissolve it and
thus nullify the action of the court.
Where one sells out his business, whether commercial or professional,
and agrees not to compete with the buyer, equity will compel the
seller to observe his contract unless it was illegal or an
unreasonable restraint on trade. This limitation is important. Thus A,
a dentist in Philadelphia, agreed with B, another dentist, not to
practice in the city for ten years a certain method of extracting
teeth. A continued to practice as before and B applied to a court of
equity to enjoin him. He failed for the reason that no one ought to
have a monopoly, so the court said, in any means or method for
relieving human suffering, like the process in dispute. If an employee
agrees not to divulge the trade secrets of his employer, equity will
enforce the agreement, for damages given in a law court would be
wholly inadequate.
Another class of cases must be mentioned relating to injuries to land.
By the common law the only relief a landowner had against one who
injured it in any way was an action of waste to recover money damages.
A court of equity has power to issue a command to the person who
threatens or attempts to commit injury ordering and directing him to
desist from his purpose. This has been often used by the owners of
land against their tenants who attempted to do things that would
materially injure the property. This remedy is now often used to
secure the owner and occupier of land in its proper use against those
who attempt to commit a nuisance. While the occupier could recover
damages if he sought the aid of a law court, equity will order the
wrongdoer to abate the nuisance. Such a remedy is much more effective
than the legal one, because damages that may be recovered relate only
to a past offense, while the equitable one prevents it from happening
or from its continuance.
Promises not to do some particular act on a piece of land are often
made in deeds conveying them; they are called covenants. Equity will
usually enforce these covenants, and will compel the wrongdoer to undo
what he has done provided that relief is sought promptly. Thus if a
purchaser agrees not to build nearer the street than a stated line, he
can be enjoined from disregarding it. A purchaser therefore who built
two houses three feet beyond the agreed line was compelled to remove
them.
The remedy in such a case is an injunction. It may be temporary or
permanent. Quite often when one applies for an injunction, if the
injury threatened is immediate, the court will immediately enjoin the
party from proceeding and fix a time for a future hearing to decide
whether the injunction shall be dissolved or made permanent. The time
fixed for such a hearing is within the discretion of the court, and
depends on the nature of the case. Usually the time is quite short,
enough to enable the parties to collect the evidence relating to the
controversy. The hearing is conducted very much like any other trial,
witnesses appear, all the evidence is given, and is reviewed by
contending counsel, after which the judge announces his decision. Some
of the more noteworthy injunctions of recent days have been rendered
against labor unions or their members who, having struck for higher
wages, or other ends, have sought to picket the works of their
employers and thus prevent them from employing other workers to take
the places of the strikers. The unions contend that this is an
improper use of the judicial power, whether it is or not no one will
deny that it has been long exercised.
In the early days of administering the patent law injunctions were
granted against infringers. Judges soon grew more cautious when they
learned that patents were sometimes erroneously granted, and that, on
acquiring a fuller knowledge of the controversy, there had been no
infringement. The modern practice therefore is, unless the proof is
very clear, to require a party who applies for an injunction to try
his case first and establish his patent and then, if it has been
infringed, an injunction will be issued.
=Factor.=--A factor receives and sells goods for a commission, is
usually entrusted with their possession, and sells them in his own
name. He has a special interest or property in them, and a lien
thereon for advances in money that he may make to the owners. No
formal mode of authorizing him to act is required, usually this is
done by word only, and his authorized acts may be ratified by his
principal. This authority is largely the outgrowth of usage. The
authority of a factor to fix the terms of selling may be by agreement
or by usage, like any other agent. Limitations fixed by the principal
are ordinarily binding on the factor, and, so far as they are
chargeable with notice of them, third persons also. Where goods are
confided to a factor without instructions, authority to exercise a
fair and reasonable discretion is implied. Unless restricted by his
principal, or by contrary usage, he may sell goods on a reasonable
term of credit. If he is restricted to cash sales only, or is not
protected by usage in selling on credit, he cannot do so. Secret
instructions would not affect the rights of a purchaser ignorant of
them and relying on customary authority.
A factor is employed to sell goods, and not to barter or exchange
them, and if he should do this his principal could recover them. He
may insure the goods, but is not required to do so unless instructed
or is required by usage, which plays a large part in this matter and
must be observed except as qualified by instructions.
He cannot compound or compromise a claim for the purchase price, or
discharge the debt on payment of a part only, or submit a disputed
claim for arbitration, or rescind a sale, or discharge a purchaser
from any part of his obligation, or extend the time of payment, or
make, accept or indorse negotiable paper contrary to instructions or
usage, or sell the goods thus entrusted to him for sale to himself.
See _Agency_.
=Fire Insurance.=--Insurance against loss by fire is now effected in
companies organized for that purpose. Two kinds exist, stock and
mutual. In mutual companies the persons insured act together to insure
each other. The members of some of the largest mutual companies are
manufacturing corporations. The more general mode of conducting them
is to require each member to pay a premium in advance for the amount
insured which, unless unusual losses occur, will be enough to pay all
the losses for the year. If it is not all needed, the balance is
returned to the parties who paid the premiums, or is credited to them
for the following year. If the losses exceed the premiums thus paid in
advance, then an assessment is made on each member to cover the
deficiency. Generally the premium paid is more than enough to cover
the losses, and a balance is returned or credited to the insured as
above mentioned. As mutual companies do not take such risks as stock
companies, the cost of insurance is less and therefore is carried in
preference to insurance in stock companies, whenever it can be
obtained.