Page:Harvard Law Review Volume 9.djvu/185

RECENT CASES. 157 The only question arising in the case was whether this was an apparent and continuous easement, the Vermont court recognizing no distinction between the reservationand grant of easements of this character upon the severance of the tenement. Property — Deeds — Boundary on a Highway. — Land bounding on a high- way was described in a deed by metes and bounds, but no mention was made of the highway. Held, the deed carried the fee to the middle of the highway. Grant v. Moon, 30 S. W. R. 328 (Mo.). The doctrine finds support among such text-writers as Elliot and Angell, and is also law in Connecticut. Champlin v. Pendleton, 13 Conn. 23 ; Gear v. Barnum, 37 Conn. 229. New Jersey, however, holds otherwise. Hoboken, etc. Co. v. Kerrigan, 31 N. J. Law, 1 3, It is submitted that the New Jersey doctrine is the better. A presumption that the gran- tor intended to convey the fee to the middle of the highway must be gathered from the language of the deed, and where the deed does not mention a highway, or show that the grantor knew that one existed, the presumption should rather be that the land was intended to pass as described. Property — Deeds — Boundary on a Highway. — In connection with the fore- going case, the following may be noticed. H and G streets crossed each other, G running east and west. A deed described land as follows : " Beginning ... at the southeast corner or intersection of H and G streets, and running thence easterly, bounding on G street, 25 feet, then southerly . . . to a nine foot alley ; then westerly, bounding on said alley, to H street, 25 feet ; and thence northerly, bounding on H street, to the place of beginning." Held, the deed did not carry the fee to the middle of H street, Rieman v. Baltimore Belt Ry. Co., 31 Atl. Rep. 444 (Md). The court argues that the starting-point is fixed by the words "southeast corner "at the intersection of the sides of the streets, and that if one end of a boundary line is at the side of a highway, no presumption can carry the other end out into the centre. The case is opposed to the weight of American authority, which holds that even if there is a fixed monument on the side of the highway, a boundary " running thence along the highway " will carry the land in its entire length to the centre of the street. The Maryland court is, however, consistent in following its earlier decisions on this subject. Property — Deeds — Construction. — An instrument was executed to appellants with all the formalities of a warranty deed, but contained a clause that the deed was to be of no effect until after the death of the grantor and then to have full force. Held, that a present interest in the land passed to the grantee but the full enjoyment was postponed until the grantor died. Wilson v. Carrico, 40 N. E. Rep. 50 (Ind.). At common law it was a perfectly well settled principle that a freehold to commence infniiiro could not be conveyed, as the title would be in abeyance ; and to have the title in abeyance for ever so short a time was against all principles of feudal law, which required that there should always be a known owner of every freehold estate. However, under a statute in Indiana a freehold estate to commence in futnro may be created. Having disposed of the difficulty with which we would have been met had the deed in the present case come up in a jurisdiction where the common-law rule as to this point still held, the decision in the principal case seems to be satisfactory. The instrument was not intended to be a devise as the words used were, " convey and warrant," plainly im- porting an intention to convey a present estate to the grantor. The deed was also duly recorded like any other deed. The decision of the court certainly carries out the inten- tion of the parties and though the deed is a curious affair, allows it to stand, thus giving the grantor in effect a life interest i 1 the land with remainder to the grantee in fee. In- struments of a very similar tenor have been upheld in White v. Hopkins, 4 S. E Rep. 863; Graves v. Atwood, 52 Conn. 512; Webster v. Webster, 33 N. H. 18; Abbott v. Holway, 72 Me. 298; and other cases. Property — Distribution— Debt Due from Heir. — Where a judgment lien attached to land immediately on its descent to the heir, it was held, that the administrator was entitled to subject the lands to the payment of a debt due by the heir to the estate, in preference to the claims of the judgment creditor. Streety v. McCurdy, 16 So. Rep. 686 (Ala.). As the court admit, what authority there is on this point is contra. See cases cited. The Alabama case. Nelson v. Mtirjee, 69 Ala. 598, upon which the decision is primarily rested, decided the same question in regard to the proceeds of real estate in the hands of the administrator. This case seems also against the weight of authority. Smith v. Kear- ney, 2 P,arb. Ch. 533; Sartor v. Beatty, 25 S. C. 293; Za Foy v. La Foy, 43 N. J. Eq. 206. The last case points out the distinction between allowing this set-off in regard to