The Government Class Book by Andrew W. Young

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Sec.9. Every proprietor of lands adjoining a stream, has naturally an equal
right to the use of the water that flows in the stream adjacent to his
lands, "as it was wont to run." Each may use the water while it runs
upon his own land; but he can not unreasonably detain it, or give it
another direction; and he must return it to its ordinary channel when it
leaves his estate. He can not, by dams or any obstruction, cause the
water injuriously to overflow the grounds of the neighbor above him, nor
so use or apply it as materially to injure his neighbor below him.

Sec.10. But this right to the use of waters, as an easement to the land,
may be acquired and lost, or enlarged and abridged, by prescription. A
man may diminish the quantity of the water, or corrupt its quality, by
the exercise of certain trades; and by such use of the water for a
sufficient length of time, he is in law _presumed_ to have acquired it
by grant: and this presumption is the foundation of his right by
prescription. The time of such use and enjoyment of water necessary to
establish such right is twenty years, except in states in which a
different period is fixed by statute. (Sec.7.)

Sec.11. It is a general and established doctrine, that an exclusive and
uninterrupted enjoyment of water, or of light, or of any other easement,
in any particular way, for twenty years, or for any other period which
in any particular state is the established period of limitation, is a
sufficient enjoyment to raise a presumption of title as against the
right of any other person. The enjoyment is deemed to have been
uninterrupted, whether it has been continued from ancestor to heir, and
from seller to buyer; or whether the use has been enjoyed during the
entire period by one person.

Sec.12. As a right may be acquired by use, so it may be lost by disuse; and
as an enjoyment for twenty years, or such other period as is prescribed
by statute, is necessary to establish a right; an absolute
discontinuance of the use for such period will raise the presumption
that the right has been released or extinguished. Thus a title to land
may pass from its actual owner by non-occupancy for the period above
stated; and a title to it may be acquired by an undisturbed occupant who
shall hold it in peaceable and uninterrupted possession for the same
period.

Chapter LIII.

Leases:--Estates for Life; Estates for Years; Estates at Will; Estates
by Sufferance; Rent, &c.

Sec.1. Real estate, the title to which is conveyed by deed, as
distinguished from other estates in land, is called an _estate of
inheritance_. An estate of inheritance, that is, an estate in lands that
may be transmitted by the owner to his heirs, is a _fee_. No estate is
deemed a fee unless it may continue forever. When it is a pure and
absolute inheritance, clear of any qualification or condition, it is
called a _fee-simple_.

Sec.2. An interest in lands which is to continue for a limited period, is
usually conveyed by a written instrument called lease. _To lease_, means
to let; but generally to grant the temporary possession of real estate
to another for rent or reward. Sometimes the word _demise_ is used for
ease. The landlord, or person letting the estate, is called _lessor_;
and the tenant, or person to whom the land is leased, is called
_lessee_. Leases for a term longer than one year, are usually required
to be sealed, and in some states, proved and recorded also, as deeds and
mortgages.

Sec.3. These limited interests in land are divided into estates for life,
estates for years, estates at will, and estates by sufferance. An
_estate for life_ is an estate conveyed to a person for the term of his
natural life. Life estates held by lease, however, are not common in
this country. Another kind of life estate is that which is acquired, not
by the acts of the parties, as by lease, but by the operation of law.
Such is the right of a husband to the real estate of his wife acquired
by her before or after marriage. Such also is the right of dower. (Chap.
XLVIII, Sec.6, 7. Chap. LI, Sec.7.)

Sec.4. An _estate for years_ is a right to the possession and profits of
land for a determinate period, for compensation, called rent; and it is
deemed an estate for years, though the number of years should exceed the
ordinary limit of human life. And if a lease should be for a less time
than a year, the lessee would be ranked among tenants for years. Letting
land upon shares for a single crop is not considered a lease; and
possession remains in the owner.

Sec.5. A lessee for years may assign over his whole interest to another,
unless restrained by agreement not to assign without leave of the
lessor. And he may underlet for any less number of years than he himself
holds; but he is himself liable to the landlord.

Sec.6. A tenant for years, whose lease expires after the land is sown or
planted, and before harvest, is not entitled to the crop, if the lease
is for a certain period; for, knowing that his lease would expire before
harvest time, he might have avoided the loss of his labor. But if the
lease for years depends upon an uncertain event, the occurring of which
would terminate the lease before the expiration of the term, the tenant
would be entitled to the crop, if there were time to reap what has been
sown, in case he should live. It is believed that, in a few states, the
tenant has a right to the crop from grain sown in the autumn before the
expiration of the lease, and cut the next summer after its expiration.

Sec.7. Where there is an express agreement to pay rent, the tenant can not
avoid payment even if the premises are destroyed by fire or flood, or if
he is in any other manner deprived of their enjoyment and use, even
without any default on his part. Hence, if land should be leased with a
flock of sheep, and the sheep should die, the full rent must be paid.
But if the land should be recovered from the tenant by a person having a
better title than that derived from his landlord, he is not liable for
rent after his use of the land has ceased.

Sec.8. A tenant can not make repairs at the expense of the landlord, or
deduct the cost of them out of the rent, unless by special agreement.
But if the premises, from want of repair, have become unsafe or useless,
the tenant from year to year may quit without notice; and he would not
be liable for rent after the use had ceased to be beneficial.

Sec.9. When rent is due, payment may be made or tendered upon the premises;
and if no place of payment has been agreed on, a personal tender off the
land is also good. As to the time of payment, where there is no special
agreement to the contrary, rent is due yearly, half-yearly, or
quarterly, according to the usage of the country. Where there is no
particular usage, the rent is due at the end of the year.

Sec.10. An _estate at will_ is where land is let to another, to hold at the
will of the lessor. Tenancies at will, strictly such, are not common.
Such estates, when no certain term is agreed on, are construed to be
tenancies from year to year, and each party is bound to give reasonable
notice of an intention to terminate the lease. If the tenant holds over
after the expiration of a lease for years, either by express consent, or
under circumstances implying consent, it is held to be evidence of a new
contract without any definite period, and is construed to be a tenancy
from year to year: and in those states where the old English rule
prevails, six months' notice must be given the tenant to quit.

Sec.11. What turns leases for uncertain terms into leases from year to
year, is the landlord's reserving annual rent. A tenant placed on land
without any terms prescribed or rent reserved, is strictly a tenant at
will; and it has been held that such tenant is not entitled to notice to
quit; but the general rule now seems to be, that even in such case the
six months' notice is necessary; or, as in some states, a reasonable
notice.

Sec.12. An _estate at sufferance_ is that which is acquired by a tenant who
has come into lawful possession of land, but who holds over by wrong
after his interest has ceased. He is not entitled to notice to quit; and
where there is no special statute, he is not liable for rent; and the
landlord may enter, and remove the tenant and his goods with such gentle
force as may be necessary. If undue force is used, the landlord would be
liable to an action for forcible entry and detainer.

Chapter LIV.

Contracts in General.

Sec.1. A _contract_ is an agreement between two or more persons, by which
the parties agree to do, or not to do, a particular thing. Contracts are
_executory_, when the stipulations remain to be executed, or when one
party agrees to sell and deliver, at a future time, for a stipulated
price, and the other agrees to accept and pay. Contracts are _express_,
when the parties contract in express words, or by writing; _implied_,
when an act has been done which shows that the parties must have
intended to contract; as, when a person employs another to do some
service, it is presumed that the party employing intended to pay for the
labor performed.

Sec.2. Contracts are also distinguished as specialties and simple
contracts. A _specialty_ is a contract under seal; as a deed, or a bond.
But we shall here consider chiefly that common class of contracts called
_simple contracts_, or _contracts by parol_. _Parol_ signifies by word
of mouth. Applied to contracts, however, it not only means verbal
contracts, but includes written contracts not under seal. Both are
simple contracts; the distinction between them is in the mode of proof.
The mutual understanding of the parties to a verbal contract may be
proved by parol evidence. But as the real intention of parties is more
likely to be expressed in a written contract, the rule of law is, that
parol evidence may not be admitted to contradict or vary the terms of a
written instrument. It may however be admitted to explain what is
doubtful, or to supply some deficiency.

Sec.3. To make a valid contract, _the parties must be capable of
contracting_. They must be of sound mind. Hence idiots and lunatics are
generally incompetent to make contracts. Contracts by lunatics and
idiots are not necessarily void, but only _voidable_; the validity or
invalidity depending upon facts to be proved. To avoid a contract on the
ground of mental imbecility, it must be proved that the party
contracting was at the time incompetent. But if a general derangement is
once established or conceded, the person is presumed to be incompetent;
and the party seeking to enforce the contract must prove the other to
have been sane. The general rule in the case of idiots is, that if the
party is incapable of acting in the ordinary affairs of life, or in the
particular contract, his idiocy will annul the contract.

Sec.4. Drunkards also are incompetent to contract while in a state of
intoxication, provided the drunkenness is such as to deprive them of
reason for a time, and create impotence of mind. But for absolute
necessaries, if the drunkard consumes them during his drunkenness, or
keeps them after becoming sober, he is liable. Intoxication only renders
a contract voidable, not void, as the party intoxicated may adopt it on
recovering his understanding.

Sec.5. Another requisition to a valid contract, is the _mutual assent of
the parties_. A mere offer by one party not assented to or accepted by
the other, constitutes no contract. Assent must also be given freely. A
contract entered into under duress, or compulsion, is not binding; as
where assent is extorted by threats of personal injury. Assent must also
be given with a knowledge of facts. A contract made under an injurious
mistake, or ignorance of a material fact, may be avoided, even though
the fact is not fraudulently concealed. But a mistake made through
ignorance of the law, will not render a contract void.

Sec.6. A _valuable consideration_ also is necessary to a valid contract. A
_consideration_ is what is given or done, or to be given or done, as the
cause or reason for which a person enters into an agreement. Thus, the
money given or offered, for which a man agrees to perform certain labor,
is the consideration of the agreement. So the money or other thing for
which a promissory note is given, is the consideration. A valuable
consideration is any thing that is either a benefit to the party
promising, or some trouble or injury to the party to whom the promise is
made.

Sec.7. Mutual promises are sufficient considerations to make a contract
binding; but they must be made at the same time. Such promises support
each other. The promise of one party constitutes a sufficient
consideration for a promise by the other party. In case the parties are
distant from each other, if the proposition is made in writing and sent
by mail, and a letter of acceptance is written and put in the mail, the
contract is complete, unless, before mailing the letter of acceptance,
a second letter has been received containing a retraction of the
proposal.

Sec.8. Promises which are wholly gratuitous are void; because, being
neither a benefit to the promiser, nor an injury to the promisee, they
are not regarded in law as a valuable consideration. Hence,
subscriptions to public works and charitable, literary, and religious
institutions, if they are merely gratuitous, can not be collected,
unless they have operated to induce others to advance money, make
engagements, or do other acts to their own injury.

Sec.9. As gratuitous promises are void for want of consideration, so merely
gratuitous services, as voluntarily assisting to save property from
fire, or securing beasts found straying, or paying another's debts
without request, afford no consideration upon which payment for their
value can be lawfully claimed; there being no promise of compensation.
But if a person knowingly permits another to do certain work, as plowing
his field, or hoeing his corn, although the work may have been commenced
without his order or request, his consent will be regarded in law as an
_implied promise_ to pay for the value of the labor, unless the
circumstances of the case are such as to forbid the presumption.

Sec.10. A consideration must also be _possible_, and in accordance with
law, sound policy, and good morals. A contract founded upon an
impossible consideration is void. No man can be lawfully bound to do
what is not in the power of man to do. But it is otherwise, if the thing
to be done is only at the time impossible in fact, but not impossible in
its nature. Hence, inability from sickness to fulfill an agreement, or
the impossibility of procuring an article of a certain kind or quality
which a person has agreed to deliver, would not exempt him from
liability in damages for the non-performance of his contract.

Sec.11. A contract, the consideration of which is _illegal_ or _immoral_,
may be avoided by either party. A man can not be held to an agreement to
do acts forbidden by the law of God or by the laws of the state. But if
an illegal contract has been executed; in other words, if the wrong has
been done, the party in the wrong can not renounce the contract; for the
general rule is, that no man can take advantage of his own wrong; and
the innocent party alone has the privilege of avoiding the contract. If
both parties are guilty, neither can, in ordinary cases, obtain relief
on a contract that has been executed.

Sec.12. The rule that a consideration is necessary to a valid contract
applies to all contracts and engagements not under seal, except bills of
exchange and negotiable notes after they have passed into the hands of
an innocent indorsee. (See Promissory Notes.) In contracts under seal, a
consideration is necessarily _implied_ in the solemnity of the
instrument.

Sec.13. It is declared by the English statute of frauds, which prevails
generally in the United States, that an agreement which is not to be
performed within one year from the time of making it, shall not be
valid, unless such agreement, or some memorandum or note thereof, is in
writing, and signed by the party to be charged. The statutes of some of
the states have adopted this provision of the English statute, and
require further, that a special promise to answer for the debt, default,
or misdoing of another person, and an agreement or promise upon
consideration of marriage, (except mutual promises to marry,) shall
likewise be void without such writing, in which the consideration shall
be expressed.

Chapter LV.

Contracts of Sale.

Sec.1. A Sale is a transfer of the title to property to another person for
a certain price; or the exchange of a commodity for its equivalent value
in money. The exchange of one commodity for another, is _barter_.
Unless the absolute title is conveyed, the contract is merely a
mortgage. The same general principles of law which apply to contracts in
general, are applicable to contracts of sale, viz.: the competency of
the parties to contract; the sufficiency of the consideration; its
legality and morality; the assent of the parties; and the absence of
fraud.

Sec.2. To make a sale valid, the thing to be sold must have an _actual or a
possible existence_, and be _capable of delivery_. Thus, if A sells a
horse or certain goods to B; and if, at the time of the sale, the horse
is dead, or the good? are destroyed; the sale is void. If the goods are
partially destroyed, the buyer may either take them at a proportionate
reduction of the price, or abandon the contract.

Sec.3. But, although the thing to be sold has no actual and present
existence; yet if its future existence is possible, and if it is the
product or increase of something to which the seller has a present
right, it is the subject of sale. Thus, a man may sell the wool that may
grow on his sheep, the fruit that may grow on his trees, or the future
increase of his cattle. But he cannot sell the products of the sheep or
cattle which he may hereafter buy. A man may, however, agree to procure
goods which he has not, and to furnish at a future time, for a certain
price; and his contract will be good; though this is not strictly a
sale, but an agreement to sell.

Sec.4. There can be no sale without a _price_; and the price must be fixed
and definite, or susceptible of being ascertained by reference to some
criterion prescribed in the contract, so as to render any further
negotiation of the parties unnecessary. Thus, a man may agree to pay
what shall be the market price at a particular time, or a price to be
fixed by a third person. The price must also be payable in money or its
negotiable representative, as notes or bills. One article given for
another is merely _barter_. The same principles of law, however, govern
in both cases.

Sec.5. There must be a _mutual consent of the parties_, and the contract is
binding when a proposition made by one party is accepted by the other.
The negotiation may be carried on by letter, as before stated. (Chap.
LIV, Sec.7.)

Sec.6. In contracts of sale which are not perfected at once by payment and
delivery, certain formalities are to be observed. These forms generally
are prescribed by what is called the English statute of frauds, which
requires, (1.) that the buyer shall accept and receive part of the goods
sold; or (2.) give something in earnest to bind the bargain, or in part
payment; or (3.) that some note or memorandum in writing of the bargain
shall be made and signed by the party to be charged, or by his
authorized agent. These provisions, however, apply only to cases in
which the price of the goods sold is ten pounds sterling, or more. The
same rule prevails generally in this country, with slight variations in
some states. The price of the goods sold, in cases to which the
provisions of that statute apply, is fixed by law in many of the states,
and varies from $30 to $200.

Sec.7. To complete a contract of sale, and pass the title to the property
to the buyer, there must be a _delivery of the goods sold_. When the
goods are such as cannot be manually or immediately delivered, or are
not in the actual custody of the seller, the law does not require an
actual delivery. But they must be placed in the power of the purchaser;
or there must be such acts and declarations of the parties as imply a
change of ownership. When the right of property has been transferred to
the buyer, whether by an actual or only a constructive delivery, he
immediately assumes the risk of the goods; so that if they shall be
afterward injured or destroyed, he must bear the loss.

Sec.8. When nothing is said at the sale as to the time of delivery, or the
time of payment, the buyer is entitled to the goods on payment or tender
of the price, and not other wise; for, though he acquires the _right of
property_ by the contract of sale, he does not acquire the _right of
possession_, until he pays or tenders the price. But if the seller
delivers the goods absolutely, and without fraudulent contrivance on
the part of the buyer, the buyer will hold possession of them.

Sec.9. But when goods are sold on credit, and nothing is said as to the
time of delivery, the buyer is immediately entitled to the possession.
If, however, it is ascertained, before the buyer obtains possession of
the goods, that he is insolvent, or so embarrassed as to disable him
from meeting the demands of his creditors, the seller may stop the goods
as a security for the price. But if they are stopped without good cause,
or through misinformation, the buyer is entitled to the goods, and to
damages which he may have sustained in consequence of their stoppage.

Sec.10. In the sale of a chattel, if the seller has possession of the
article, and sells it as his own, he is understood to _warrant the
title_. A fair price implies a warranty of title; and the purchaser may
have satisfaction from the seller, if he sells goods as his own, and the
title proves deficient. But if the possession is at the time in another,
and there is no covenant or warranty of title, the party buys at his
peril. It is thought, however, if the seller affirms that the property
is his own, he warrants the title, though it is not in his possession.

Sec.11. With regard to the _quality_ of the thing, the seller is not bound
to make good any deficiency, except under special circumstances, unless
be expressly warranted the goods to be sound and good, or unless he made
a fraudulent representation or concealment concerning them. The rule is,
if there is no express warranty by the seller, nor fraud on his part,
and if the article is equally open to the inspection of both parties,
the buyer who examines the article for himself, must abide by all losses
arising from latent defects equally unknown to both parties.

Sec.12. But this rule does not reasonably apply to cases in which the
purchaser has ordered goods of a certain character, or in which goods of
a certain described quality are offered for sale, and, when delivered,
they do not answer the description. There being no opportunity of
examining them, there is an _implied_ warranty of the quality. An
intentional concealment or suppression of a material fact, when both
parties have not equal access to means of information, is unfair
dealing, and renders the contract void.

Sec.13. As a general rule, each party is bound to communicate to the other
his knowledge of material facts, provided he knows the other to be
ignorant of them, and they are not open and naked, or equally within the
reach of his observation. Surely the _moral law_ and fair dealing
require, in all cases, a full disclosure of all defects within the
knowledge of the contracting parties.

Chapter LVI.

Fraudulent Sales; Assignments; Gifts, &c.

Sec.1. The title to property is sometimes transferred with fraudulent
intent. A debtor, to place his property beyond the reach of his
creditors, sells or assigns it to others by way of mortgage, under the
false pretense of securing the payment of a debt; the property to remain
in the possession and use of the assignor.

Sec.2. Any agreement which operates as a fraud upon third persons, is void.
It is a rule of common law, that all deeds of gift, and all transfers of
goods and chattels made by any person to secure them for his future use,
shall be void as against creditors; and that if property assigned or
sold remains with the seller or assignor, the transaction is to be
presumed fraudulent. But whether such conveyance of goods is only _prima
facie_ (at first view) evidence of fraud, which the vendee or assignee
may rebut by proving the sale or assignment to have been made honestly
and in good faith; or whether the transaction is fraudulent in point of
_law_, and void, is a question upon which the decisions of the courts
in England as well as those in this country differ, and which,
therefore, may be considered as not conclusively settled.

Sec.3. Some have made a distinction between bills of sale and assignments
that are absolute and those that are conditional. The supreme court of
the United States has affirmed the doctrine that an absolute and
_unconditional_ bill of sale or conveyance, when the property is
retained in possession, is of itself conclusive evidence of fraud; in
other words, it is presumed to be fraud in point of law, whatever it may
be in fact. It has been held by the same court, that a conveyance with a
_condition_ that the property is to remain with the vendor until the
condition shall be performed, or a conveyance in the nature of a
mortgage or security, expressing an agreement between the parties, that
the mortgager shall retain possession, is valid.

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