LANDLORD AND TENANT — continued. dissolved, and the landlord's right of entry is complete. Willison v. Watkins, 3 Pet. 43; Walden v. Bodley, 14 Pet. 156. 22. Rights and Liabilities of Landlord - Right of Entry-Lien for Rent - Distress.] An attornment to one put in possession under a writ of habere facias for other premises dissolves the relation of landlord and tenant, and ends the tenant's right to a notice to quit. Woodward v. Brown, 13 Pet. 1. . LANDLORD AND TENANT — continued. 31. The lien is paramount to the title of one claiming under a deed of trust executed by the tenant after the beginning of the tenancy, both as to chattels on the premises when the deed was made, and as to those subsequently acquired by the tenant and placed there. Beall v. White, 94 U. S. 382. 32. Where a statute, like that of Illinois, gives a landlord the right "to seize for rent any personal property of his tenant," and also provides 23. At common law, re-entry for non-payment that every landlord "shall have a lien upon the of rent can be made only after a demand of the crops growing or grown upon the demised premprecise sum due at a convenient time before sun-ises in any year for rent,' no lien attaches to set of the day when the rent was payable, and in the most notorious place on the land. Connor v. Bradley, 1 How. 211; Prout v. Roby, 15 Wal. 471. 24. And this, although there be no one there to pay. Prout v. Roby, 15 Wal. 471. 25. Under the statute 4 Geo. II. c. 28, to recover in ejectment for non-payment of rent, it must be proved that on some day between the time when the rent fell due and the day of the demise there was not, on the land, sufficient property liable to distress to countervail the arrears; and that must appear as the result of an examination of every part of the premises. Connor v. Bradley, 1 How. 211. 26. Where a landlord enters for non-payment of rent, he may hold buildings erected by the tenant, although he has covenanted to renew or pay for such erections at the end of the term; and it makes no difference that the lease provides for repossession by the landlord "as in his first and former estate." Kutter v. Smith, 2 Wal. 491. 27. Equity will not relieve from a forfeiture for non-payment of rent on a bill brought without tender of the sum admitted to be due. Sheets v. Selden, 7 Wal. 416. personal property other than crops before the actual levy of a distress. A levy, therefore, made by a landlord on the personal property of his tenant after the institution of bankruptcy proceedings against the latter, is ineffective as against the title of the assignee in bankruptcy; and it makes no difference that the levy of a distress is the act of the landlord himself, and not technically mesne process, which the bankrupt act, § 14, specially mentions as ineffective against an assignment, the effect of a distress warrant being like that of mesne process, and the object of the law being to prevent the acquirement of a lien by any method after the institution of proceedings. Morgan v. Campbell, 22 Wal. 381. 33. In Virginia, the judgment in replevin on a distress for rent in arrear should be for double rent. Alexander v. Harris, 4 Cranch, 299. 34. •Assignment By Lessor By Lessee- Surrender.] An assignment by a lessor of all his "right, title, and interest" in the lease, authorizing the assignee to "sue for, collect, and recover' the lease, "and the rights to the rent reserved under the same," and declaring it to be "distinctly understood that it is the object and purpose" thereof to put the assignee in the place of the lessor," so far as concerns the rights" of the lessor "under the lease," carries rent in arrear. United States v. Hickey, 17 Wal. 9. 28. In the District of Columbia, under the act of February 22, 1867, § 12 (14 Sts. 404), which gives the landlord a tacit lien on such of the tenant's chattels on the premises as are "subject to execution," beginning with the tenancy, the landlord's lien has priority over a subsequent chattel mortgage: the mortgage does not relieve the chattels from liability to execution; and the act means to exclude only chattels which are ex- 36. A surrender of a tenancy is not to be preempt from execution under some regular exemp-sumed, where it is apparent that there was no tion law. Webb v. Sharp, 13 Wal. 14. 29. But it seems that a bona fide purchase and removal of the chattels in the ordinary course of trade will displace the landlord's lien. Ib.; Fowler v. Rapley, 15 Wal. 328. 30. But the lien, which attaches to any such chattels belonging to the tenant as soon as they are brought on to the premises, is not displaced, where the chattels are a stock of goods, by a sale of the stock in mass to one who knows of the tenancy, and who goes into possession and continues to occupy and sell in the ordinary way; nor by a second sale of like sort. Fowler v. Rapley, 15 Wal. 328. 35. The personal representatives of the lessee under a perpetual lease were held liable on the lessee's covenant to pay rent, although he had assigned the lease in his lifetime. Scott v. Lunt, 7 Pet. 596. surrender in fact, and no intention either to surrender or to accept a surrender, and where the facts are not such as to constitute a surrender by operation of law, irrespective of intention. Beall v. White, 94 U. S. 382. 37. Assumpsit for Use and Occupation.] Assumpsit for use and occupation does not lie where the holding was adverse to the plaintiff, and the relation of landlord and tenant did not exist. Lloyd v. Hough, 1 How. 153. 38. Where one goes into possession of land on an agreement or understanding that he is to purchase it, he cannot be held liable for use and occupation, certainly where the purchase is actually - MORTGAGEE, 11. Pleading Averment of Demise for Three Years -Proof of Demise for One, Occupation for Three. See PLEADING VARIANCE, 10. Tenant's Possession inures to Benefit of Landlord. See LIMITATION ADVERSE POSSESSION, LANDS OF STATES CALIFORNIA 66 salt-marsh or tide lands," coupled with the statute of the next day confirming sales of marsh and tide lands before then made according to laws relating to the sale of swamp and overflowed land, and declaring that unsold marsh and tide lands might be sold under provisions of existing laws for sale of swamp and overflowed lands, provided none within five miles of San Francisco should be sold by authority of that act, it was held that there was no authority for the sale In general of salt-marsh or tide lands within five miles of that city, the former act being in effect incorpoCALIFORNIA. rated into the latter as the authority for future Wife dowable of Rent reserved in Lease for LANDS OF STATES California - Swamp Lands. See LANDS OF STATES tinued. LANDS OF STATES — CALIFORNIA― continued. | LANDS OF STATES IN GENERAL sales, so that sales made under the former might be said to be made by authority of the latter. O'Neal v. Kirkpatrick, 5 Wal. 791. 2. But were the construction of those statutes otherwise, still such a sale could not be made, being in effect prohibited by the act of April 27, 1863, which adopted a complete system for the sale of all swamp and overflowed marsh and tide lands, and excepted lands within five miles, etc., and repealed all conflicting acts. Ib. but a in case 3. The California statute of March 26, 1851, was a grant of the land therein described; confirmation thereof could be made only of a strict compliance with its provisions. v. Seabury, 19 How. 323, 333. Field Grants thereof - Other See LANDS OF UNITED STATES-LEGISLATIVE GRANTS, 22 et seq., 110. LANDS OF STATES GEORGIA- Title- Power of Alienation-Validity of Grant ·Presumption in Favor Impeachment.] An unextinguished Indian title held not inconsistent with seisin in fee by the state. [JOHNSON, J., dissenting.] Fletcher v. Peck, 6 Cranch, 87. 2. The land in question herein held to belong to Georgia, and not to Carolina nor to the United States. Ib. 3. The legislature had power, under the constitution of 1789, to dispose of unappropriated land within the state. Ib. 4. The laws of Georgia in 1787 did not prohibit the issuing of a patent for more than a thousand acres to any one person, the imposition of that limit in the act of February 17, 1783, relating exclusively to grants upon head-rights. Patterson v. Winn, 11 Wheat. 380. 5. Under the laws of Georgia, a patent for land lying partly within and partly without the Indian country, although void as to so much as lies within, is valid as to the residue. Patterson v. Jenks, 2 Pet. 216. 6. And this, although it was extended over the boundary by means of deception practised on the officer making the grant. Winn v. Patterson, 9 Pet. 663. 7. Although a public grant raises a presumption of compliance with every prerequisite, the court cannot safely charge that no fraud on the part of a public officer could invalidate it. Patterson v. Jenks, 2 Pet. 216. 8. In general, a patent can be impeached for causes anterior to its issuance in equity only. But it is necessarily examinable at law, where the grant is void, as where the state has no title, or the officer who issues the grant has no authority. Patterson v. Winn, 11 Wheat. 380. con warranty, and passes such estate only as the grantor has at the time of the grant. Rice v. Minnesota & Northwestern Railroad Co., 1 Black, 358. 2. Thus, an act of a territorial legislature incorporating a railroad company, and granting it lands which congress may afterwards grant to the territory in aid of the construction of the road, is not a valid and binding grant as against the state. Ib. 3. The consent of congress is not necessary to a sale by a state of land in the sixteenth sections reserved for school purposes. Cooper v. Roberts, 18 How. 173. 4. A trespasser on such land, claiming by title adverse to that of the state, cannot inquire into mere irregularities in the sale by the state under its own statutes. Ib. 5. State legislation which, in making appropriations for school purposes, takes account of the proceeds of sixteenth sections and equalizes the distribution of funds arising from all sources, does not violate the act of congress providing that the proceeds of the sixteenth sections in each township shall be used exclusively for the schools in that township, if the proceeds of no such section are diverted from the township, although the township thereby receive less than its proportionate share of the funds arising from other sources. Springfield Township v. Quick, 22 How. 56. 6. Nor does a state statute conflict with such act which, while recognizing that act as prohibiting such a diversion, directs the school trustees and county treasurers to pay the proceeds of these sections into the county treasuries, for distribution by the county auditors among the various townships, it being apparent that the school laws of the state authorize a distribution of school funds by county auditors among the townships, and such construction of the statutes being in harmony with the act of 1855. Davis v. Indiana, 94 U. S. 792. 7. Where congress grants land to a state for railroad purposes, and the state appropriates the bulk of the land to those purposes, but permits the pre-emption of a small part by settlers who settled and made improvements before the grant was made, no one other than the government can object to such pre-emption, the railroad company having waived its right to do so by accepting the land appropriated. Baker v. Gee, 1 Wal. 333. 8. Where a state makes a grant of land to a railroad company, defeasible if the company do not perform certain acts within a certain time, and engages in civil war before the expiration of that time, and thereby renders performance by the company impossible, the conditions, being conditions subsequent, are abrogated at law; but in equity, if the enforcement of that rule would work injustice, the court, while holding that the rights of the company have not been devested by breach of the conditions, may hold that the con LANDS OF STATES IN GENERAL tinued. con-LANDS OF STATES — IOWA — continued. ditions must still be complied with, and within a reasonable time, so as to put the parties as nearly as may be in the position they would have been in had no breach occurred. Davis v. Gray, 16 Wal. 203. 9. A state may provide for the reclamation of swamp and overflowed lands within its limits, and for an assessment of the expense on lands benefited. If the charges are apportioned in a mode substantially just and reasonable, the scheme of apportionment is not objectionable because absolute uniformity is not attained. Hagar v. Reclamation District, 111 U. S. 701. 10. The fact that such lands are situated in more than one county does not affect the right to delegate authority for the establishment of a reclamation district to the supervisors of the county containing the greater part of the lands. Ib. 11. Nor, in California, are lands derived under Mexican grants exempt from assessment. lb. Decisions of State Courts respecting Sales of Swamp Lands Followed by Federal Courts. LANDS OF STATES-IOWA Sales, etc., of Swamp Lands.] An agreement of a county for a conveyance of swamp lands to which it was entitled under an act of congress was annulled and a reconveyance ordered, saving the rights of intermediate purchasers, where the agreement was made on information from its agent that the claim would probably be rejected by the government, and neither the county officers nor the voters to whom the matter was submitted knew the nature or the value of the property, and the grantee did know, but did not inform them, and the county's agent soon afterwards, having become the agent of the purchaser, procured an allowance of the claim, and the purchaser did not make improvements as agreed, and the consideration was grossly inadequate. [WAITE, C. J.. and STRONG, J., dissenting.] American Emigrant Co. v. Wright County, 97 U. S 339. 2. A bill by another county against the same defendant to set aside a deed and contract for alleged similar fraud and misrepresentations, and for inadequacy of consideration, was dismissed without prejudice to the right of the county to bring an action at law for breach of contract, the proofs falling short of the previous case. American Emigrant Co. v. Wright County, 100 U. S. 61. 3. Nothing in the Iowa statutes prohibits a sale of swamp lands by a county for less than LANDS OF STATES MARYLAND Grants - Lots in Washington.] In Maryland, a grant of an island by name will pass the whole island, although the description by courses and distances would exclude a part of it. Lodge v. Lee, 6 Cranch, 237. the commissioners of the city of Washington to 2. The Maryland statute of 1793, authorizing resell lots in that city in default of payment by the first purchaser, contemplated a single resale only; and by such resale the power given by the act was executed. Oneale v. Thornton, 6 Cranch, 53. LANDS OF STATES-MICHIGAN-School Lands - Grants thereof. Title - Power of Alienation.] Although North Carolina had power to grant the fee to lands in the Indian territory in that state, subject to the Indian right of occupancy, yet under section 6 of the statute of 1783, which was not LANDS OF STATES NORTH CAROLINA AND TENNESSEE - continued. - NORTH CAROLINA AND LANDS OF STATES TENNESSEE — continued. repealed by the statute of 1784, entries and grants within that territory were void. Lattimer v. Poteet, 14 Pet. 4. 2. Mere extinguishment of the Indian title to land in North Carolina held not to subject the land to appropriation. Danforth v. Thomas, 1 Wheat. 155. 3. North Carolina, by her cession of the western lauds to the United States, in 1789, and by her cession to Tennessee of the right to issue grants, in 1803, parted with her right to issue grants for land in Tennessee on entries made before the cession to the United States, but afterwards removed because of previous location. Burton v. Williams, 3 Wheat. 529. 4. North Carolina had no right, after the cession of her public lands to the United States, to make a grant to one who had no incipient right before the cession. Polk v. Wendal, 9 Cranch, 87. 5. Under the North Carolina statutes of 1783 to 1789, all entries, surveys, and grants of land set apart for the Indians were void. Danforth v. Thomas, 1 Wheat. 155; Danforth v. Wear, 9 Wheat. 673. 6. But a patent for land lying partly within and partly without the Indian territory is void as to so much only as lies within it. Danforth v. Wear, 9 Wheat. 673. 7. The North Carolina statute of April 12, 1783, offered for sale only such land as was then unappropriated. Rutherford v. Greene, 2 Wheat. 196. 8. Entry and Survey What Subject -How made Priorities.] Title cannot be acquired by an entry contrary to law. Preston v. Browder, 1 Wheat. 115. 9. A question whether the French Lick reservation was subject to appropriation by entry and survey as vacant land, under the law of North Carolina or Tennessee. Edward v. Darby, 12 Wheat. 206. 10. The North Carolina statute of 1777, establishing offices for the receipt of entries of claims for land, did not authorize entries of land within the Indian boundary as defined by the treaty of Holston of the same year. Preston v. Browder, 1 Wheat. 115. 11. The North Carolina land act of 1783 did not prohibit one from making several entries amounting in all to more than five thousand acres, nor from purchasing entry rights acquired by others, nor from uniting several entries in one survey and patent; and such union of entries was allowed by the act of 1784. Polk v. Wendal, 9 Cranch, 87. 12. In Tennessee, an entry, to be special, must call for such objects that a majority of those acquainted with the neighborhood at its date could with reasonable diligence find the location; but it is not necessary that the objects called for be notorious as well as certain. Blunt v. Smith, 7 Wheat. 248. 13. In Tennessee, where, at law, the parties to an ejectment may go back to the original entries and inquire into their relative legal effect, it does not follow that an entry is to be preferred merely because it is prior in time. 1b. Ib. 14. This rule is applicable to military grants. 15. As to the manner of making surveys in Tennessee, see McEwen v. Bulkley, 24 How. 242. be 16. Although a mistake in a survey may corrected, it must not be so corrected as to injure a subsequent adjoining enterer. Blunt v. Smith, 7 Wheat. 248. 17. Where land entered in the name of A. is surveyed in the name of B., it is to be presumed that evidence was produced that satisfied the surveyor that B. had become the owner. It is to be presumed that public officers act rightly. Ross v. Reed, 1 Wheat. 482. 18. The North Carolina statute of 1784, authorizing the removal of warrants located on land previously taken up, did not repeal by implication the laws prohibiting surveys of land within the Indian territory. Danforth v. Wear, 9 Wheat. 673. 19. Grant - Patent — Description Validity Priorities.] A grant raises a presumption that every prerequisite to its issuance was complied with, and a warrant is evidence of the existence of an entry; but if the entry was never in fact made, and the warrant was forged, the grant is void. Polk v. Wendell, 5 Wheat. 293. 20. If a grant be void, as for that the state had no title, or the officer no authority to issue, the validity of the grant is necessarily examinable at law. İb. 21. Semble that, in Tennessee, whether a grant be void or voidable only, a junior grantee cannot avail himself of its defectiveness as against a bona fide purchaser without notice. Ib. 22. Under the laws of North Carolina the first grant under a duplicate warrant was held valid, although other land had been subsequently granted on the original. Blackwell v. Patton, 7 Cranch, 471. 23. It is essential to the validity of a grant that it describe the thing granted so as to distinguish it from other things of like kind, but not so as to dispense with extrinsic testimony in ascertaining precisely what it is, testimony, for instance, to prove natural objects called for. Blake v. Doherty, 5 Wheat. 359. 24. A call for a natural object, like a river, will control both course and distance, if the plat and survey be duly returned, and a patent issued, although no survey was actually made. Newsom v. Pryor, 7 Wheat. 7. 25. And it will make no difference whether the object called for be in the course or at the end of the line. Ib. |