Chapter XII: Section 20: of the act prevents carriers doing interstate or foreign

commerce business from relieving themselves from liability by special provision in the bills of lading. This is a very salutary act, since it was the common custom of carriers to place many provisions in their bills of lading by which they endeavored to evade their liability as common carriers. It was practically impossible for a shipper to comprehend all the printed stipulations contained in a bill of lading. This provision of the act compelling a common carrier doing an interstate or foreign commerce business to issue a bill of lading by which he is liable, in case of loss, for the real value of the goods lost, is as follows:

"Any common carrier, railroad or transportation company receiving goods for transportation from a point in one state to a point in another shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it, or by any common carrier, railroad or transportation company to which such property may be delivered, or over whose lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed; provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law."

The act also provides that every person or corporation, whether carrier or shipper, who shall knowingly grant, give, solicit, accept or receive any such rebates, concession or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars ($1,000.00), nor more than twenty thousand dollars ($20,000.00).

The act also provides that the willful failure, upon the part of any carrier, to file and publish the tariff or rate and charges required by said act, or the failure strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof, the corporation offending shall be subject to a fine of not less than $1,000.00 for each offense, nor more than $20,000.00 for each offense.

The act also provides that agents or officers of a corporation convicted of violating the act may be imprisoned not more than two years in addition to the fine. A person delivering property to a carrier for transportation to another state or to a foreign country who shall accept a rebate or offset from the regular scheduled charge shall, in addition to the above described penalties, forfeit to the United States a sum of money three times the amount received from the carrier.

CARRIERS OF PASSENGERS

=271. Carriers of Passengers Defined.= One who holds himself out as ready and willing to carry from place to place for compensation, all who desire to employ him for this purpose is a public carrier of passengers. The liability of a public carrier of passengers is not the same as that of a common carrier of goods. A common carrier of goods is liable as an insurer of the goods, while a common carrier of passengers is obliged to exercise a high or extraordinary degree of care, only in the protection of passengers. Railroad, steamboat, ferry and omnibus companies are common examples of public carriers of passengers. Owners of buildings operating elevators are in the position of public carriers of passengers. While, strictly, they are not obliged to carry all persons, they operate the elevator publicly for the convenience of their tenants, and their tenants' clients. The liability for injury to passengers of owners of buildings in which elevators are operated is the same as that of public carriers of passengers.

=272. Who Are Passengers?= A person does not have to be on board a public conveyance to be a passenger. Steamboat companies provide depots, waiting rooms, and wharves for the convenience of passengers. Railroad companies provide depots, rest rooms, and waiting rooms for persons desiring to make use of the railroad. It is said to be the rule, that when a person enters the premises of a public carrier for the purpose of becoming a passenger, he is a passenger from the time he enters upon the property of the public carrier. If a person enters the premises of a public carrier not for the purpose of purchasing a ticket, nor to become a passenger, he is a mere trespasser, and is not entitled to the rights and privileges of a passenger. A person traveling on a pass is a passenger. A carrier of passengers is permitted to enforce reasonable regulations for acceptance of passengers. Until these reasonable rules are observed a person is not a passenger. A person is a passenger until he has a reasonable time to leave the public conveyance and premises of the carrier after reaching his journey's end.

=273. Rights and Liabilities of Carriers of Passengers.= A public carrier of passengers is obliged to carry all suitable persons who desire to become passengers, so far as the carrier has facilities for their accommodation. The carrier is also obliged to furnish reasonable facilities to accommodate all who may reasonably be expected to present themselves as passengers. A carrier may refuse to carry drunken or disorderly persons, as well as those who, by reason of contagious diseases or for other reasons, are not proper passengers. A carrier may require passengers to purchase tickets before admitting them to the vehicle of conveyance. The carrier is permitted to pass reasonable rules and regulations for conducting his business. Unlike a carrier of goods, a carrier of passengers is not liable as an insurer. A carrier of passengers is bound to exercise extraordinary care in the protection of the passengers, and is liable for any negligence resulting in a passenger's injury, and which is not contributed to by the passenger.

If a passenger refuses to pay his fare, or becomes disorderly, he may be removed by the carrier. The carrier is entitled to use only the force necessary to effect the removal of the passenger. If the passenger is injured by reason of excessive force used by the carrier in, his removal, the carrier is liable in damages. Some states require by statute that carriers remove obnoxious passengers only at regular stations. In the absence of such statutes, a carrier may remove a passenger at any place where he may be removed without injury. If a passenger is injured by reason of his own negligence, or if his own negligence in any way contributed directly to the injury, he cannot recover damages from the carrier.

=274. Baggage.= A public carrier of passengers may pass reasonable rules and regulations governing the control and amount of personal baggage a passenger is permitted to carry with him. The contract between a passenger and an ordinary public carrier impliedly gives the passenger the right to carry with him on his journey, baggage consisting of articles to be used on his journey. The business of the passenger, his social position, and the purpose of the journey largely determine the question of what articles properly constitute personal baggage. A workingman would not be permitted to claim that jewels and fancy dresses were a part of his personal baggage Such articles would properly constitute the personal baggage of an actress or a society woman.

If the personal baggage is placed in trunks and packages, and placed in the absolute control of the carrier, the latter is liable for their protection as an insurer. If the articles are retained by the passenger, the carrier is liable only as a bailee for hire. That is, the carrier is liable only for ordinary negligence, and is obliged to exercise only ordinary care.

A carrier is permitted to charge for excess baggage, and becomes liable as an insurer of such baggage. A carrier is not obliged to carry any baggage not necessary for the convenience or comfort of a passenger, and if attempt is made to carry it as personal baggage, the carrier does not become liable for loss or injury thereto. Sample goods carried by traveling salesmen do not constitute personal baggage. A carrier is not permitted to carry these samples free of charge. If the freight is paid by the salesman, the carrier becomes liable as an insurer.

INNKEEPERS

=275. Innkeeper Defined.= An innkeeper is a person who keeps a public house for the entertainment, for compensation, of all fit persons who desire to become guests and who are willing to pay the regular price. An innkeeper furnishes both food and lodging to guests. Persons who furnish one or the other, only, are not innkeepers. Innkeepers are classed as exceptional bailees. They are liable as insurers of their guests' baggage entrusted to their care. A boarding-house keeper is not an innkeeper. A restaurant keeper is not an innkeeper.

=276. Duties and Liabilities of Innkeeper.= Innkeepers are obliged to receive all fit persons who present themselves as guests and who offer the regular price for entertainment. An innkeeper is obliged by reason of his public profession, to keep food and lodging facilities sufficient to meet all reasonably expected demands. Like a carrier of passengers, an innkeeper is not obliged to receive obnoxious persons. After a traveler has been received by an innkeeper for the purpose of obtaining food and lodging, he is a guest. The innkeeper is then obliged to use reasonable care for the protection of the guest. A person who boards at an inn is not a guest, neither is one who rooms at an inn, but does not board there.

An innkeeper is liable as an insurer, for the loss of, or damage to, the goods entrusted to his care by his guest. If the goods are lost or injured without any negligence on the part of the guest himself, and not by an Act of God (see _Act of God_, chapter on Carriers), or by a public enemy, the innkeeper is liable to the guest. If the goods are retained by the guest, and remain in his possession and control, the innkeeper is not liable as an insurer for their protection, but is obliged to exercise only ordinary care.

=277. Lien of Innkeeper.= An innkeeper has a right to retain possession of the goods of his guests until he receives his compensation. This is called an _innkeepers' lien_. At common law, a boarding-house keeper has no lien on the goods of the boarder. Some states provide by statute for a boarding-house keeper's lien upon the goods of a boarder. Even though the goods brought to an inn are the goods of a third person, the innkeeper has a lien thereon for the charges of the guest, unless the innkeeper knows at the time of receiving the guest, that the goods belonged to another. Unless otherwise provided by statute, an innkeeper cannot sell the goods of a guest upon which he has a lien, but must file a bill in equity, a petition in a court of equity requiring the goods to be sold under order of court for the payment of his charges.

REAL PROPERTY

=278. Real Property Defined.= The great English legal writer, Blackstone, divides all property into two kinds, _real_ and _personal_. The latter embraces everything of a movable nature, while the former embraces everything of a permanent nature. Blackstone defines real property as consisting of _lands_, _tenements_ and _hereditaments_. By land is meant the soil, and everything above and beneath the soil, the trees and vegetation above as well as the deposits beneath the soil. By tenement is meant anything that may be held, such as a franchise or right of way. By hereditament is meant everything that can be inherited. It includes lands and tenements. Under the English law, heirlooms were considered hereditaments. They are not so considered under our law.

=279. Trees, Growing Crops, and Emblements.= Growing trees are part of the land and are considered real property. Nursery trees may be planted by a tenant for the purpose of the tenancy. In this event, they are considered personal property. Trees cut down and cut into logs are personal property. Trees blown down or cut down, but not cut into logs are real property. Trees sold, but not cut, are regarded as personal property. A practical distinction between real and personal property is that real property passes to the heirs at the death of the owner, while personal property passes to the executors or administrators of the owner's estate. Personal property is first subjected in the satisfaction of judgments at law against the owner.

_Emblement_ is the term applied to crops which must be planted annually. Such crops as corn, potatoes, wheat, and melons are emblements. They are personal property even though not severed from the soil. They belong to the tenant who plants them. Apples, peaches, clover, and similar things which are harvested annually, but are grown from roots or trees which are not planted annually, are real property. They are a part of the real estate, and pass with it when the latter is transferred.

=280. Party Walls.= A wall between two estates standing partly on the land of each estate is a _party wall_. If injured or destroyed by one of the adjoining owners, the other has an action for damages against him by reason thereof. If a wall stands wholly upon the land of one owner, and another constructs his house using a part of the wall as a foundation, he is a trespasser and is liable in damages, or may be compelled to remove his house therefrom. If, however, he is permitted to use the wall in such a manner for twenty years, the wall is regarded as a party wall. The party so using the wall for twenty years is said to acquire an _easement by prescription_. Party walls are owned in common by adjoining owners. Each party does not own half the wall. Both parties own the entire wall together.

=281. Fixtures.= By attaching a piece of personal property permanently to the land, or to something permanently connected with the land, the personal property, in law, becomes a part of the realty. A tenant may so attach personal property to the land of his landlord as to lose title thereto. No distinct line can be drawn between articles which may constitute fixtures and those which may not. It is something of a matter of intention of the one so attaching the articles to the land. It is now usually conceded by the courts that a tenant may attach such articles to the real property as are necessary and desirable for the purpose of his tenancy, and may remove them at or before the expiration of his lease, if the same can be done without injury to the real estate or to the fixtures to which they are attached. A different rule is applied in case of an owner as against a purchaser or mortgagee. For example, if _A_ leases a building for the purpose of operating a dry goods store, he is permitted to put in shelves and to remove them at the expiration of the tenancy. If _A_ were the owner, and permanently attached the shelves, he could not remove them as against a purchaser of the building or a mortgagee.

=282. Fences.= Most of the states have statutes regulating the building and maintenance of fences. Parties may enter into a contract relating to partition fences if they choose. The duty to maintain certain portions of a partition fence may result from usage. If _A_ and _B_ are adjacent owners of a farm, and _A_ has for a period of twenty years maintained a certain portion of the partition fence, he may be compelled to continue to maintain that portion of the fence. A partition fence constructed jointly by the adjacent owners is their common property. It is their joint duty to keep it up. Either one has a right to go upon the premises of the other for that purpose. One person may construct a fence on his own premises, which he may rebuild or take away at pleasure. A person constructing a fence must use reasonable care in seeing that it is so constructed and kept up that stock coming in contact with it is not injured.

=283. Private Ways.= The right to go over the land of another is known in law as a _way_. Originally, ways were of three kinds, a mere foot way, a foot and horse way, by which a horse might be ridden over the way, and a cart way. The last two classes are now treated as one. Ways are classified as _ways of necessity_ and _ways of convenience_ or _easements_.

If _A_ sells land to _B_ and the only access _B_ has to a highway is over _A's_ land, _B_ has a way of necessity over _A's_ land. If _A_ sells land to _B_ and the only access to a highway left to _A_ is over the land of _B_, _A_ has a way of necessity over _B's_ land.

A way of convenience may arise by continuous usage under a claim of right for a period of twenty years. If _A_ for an uninterrupted period of twenty years, under claim of right uses a path over _B's_ premises, he acquires a way of convenience or easement which gives him the right to continue the use of the path.

=284. Highways.= Ordinarily, highways are established by public officials acting under statutory authority. Land is taken from the owners by order of court granted upon a petition properly filed and heard. It is said that the public has an _easement in a highway_, a right to use the highway as a roadway. The absolute title remains in the original owner. If the highway is abandoned, the property reverts to the original owner or to his grantees or assignees.

A highway may be created by declaration or admission of the owner that a certain piece of property is to be used as a highway. It must also be accepted as such by public officials. The public may also obtain the right to use certain property as a highway by adverse user for a period of twenty years. This is called _obtaining the right by prescription_.

_285. Estates in Land._ The extent of the interest of a person in a certain piece of land or real estate is said to be his _estate_. Estates are designated by different names, depending upon the amount of the interest held. In general, estates in land are divided into _freehold estates_ and _estates less than freehold_. Freehold estates are in turn divided into _estates of inheritance_, and _estates less than inheritance_. Estates of inheritance are divided into _estates in fee simple_, and _estates in fee tail_. Estates less than inheritance consist of _dower estates_, _estates curtesy_, _estates for the life of another_, and _estates for one's own life_, and _homestead estates_. Estates less than freehold or leasehold estates consist of _estates for years_, _from year to year_, _at sufferance_ and _at will_.

=286. Freehold Estates.= Freehold estates embrace estates of inheritance and estates less than inheritance. They are estates of uncertain periods of duration. The estate may be one of inheritance, that is, forever, or for a lifetime. The term, _freehold_, is taken from the name, _freeman_. A freehold estate originally applied to the estate of a freeman. A freeman, that is, a person permitted to go anywhere he chose, belonged to the only class of persons permitted to hold estates of this character. The meaning of the term has lost its significance. Under our law, all persons are freemen.

=287. Estates in Fee Simple.= Absolute ownership in land is termed an _estate in fee simple_. It means that the owner has absolute and unconditional ownership of the land in question. It is an estate of general inheritance. At the owner's death, the estate passes to the general heirs of the owner, unless particular persons are designated by will of the owner to take the title.

=288. Estates Tail.= It was formerly the custom in England for wealthy land owners to give land to the oldest son to be given by him to his oldest son, a particular person or his direct heirs. That is, instead of giving the entire interest in the land to a person in such a manner that the latter could sell or dispose of it as he chose, it was given by deed or will to a particular line of heirs or persons. If _A_ gave his property by will to =B= and _B's_ direct heirs, the estate created did not permit _B_ or his direct heirs to dispose of the estate in such a manner that the direct heirs designated could be deprived of the estate at _B's_ death. Granting estates to a particular person or heir rather than to heirs generally, is called _entailing estates_. The estate granted is called an _estate tail_. The result of entailing estates is to continue them in the hands of a few.

England no longer permits the entailing of estates for long periods. In this country, the matter is controlled by statutes of the different states. A person is permitted to give real estate, by will, to a person for the latter's life, and then to a person not yet born. The latter takes the estate in _fee_. A person is not permitted to give property to _A_, and to the unborn child of the unborn child of _A_. If this is attempted, when _A_ has a child, the latter takes an _estate in fee simple_. The above doctrine is called the rule against perpetuities.

=289. Life Estates.= An estate created to exist during the life of the holder, during the life of a third person, or until an uncertain event happens or fails to happen, is called a _life estate_. Life estates embrace homestead estates, dower estates, and estates by the curtesy. If _A_ gives _B_ a farm for life, remainder in fee to _C_, _B_ takes a life estate. He may sell or transfer his life estate, but no more. If _A_ dies leaving a will, by the terms of which _B_, his wife, is given a farm for life, or during widowhood, _B_ takes a life estate in the farm. If she marries, she loses her estate. This estate may be created by deed as well as by will.

=290. Estates by the Curtesy.= At common law, the husband, at the wife's death, has a life estate in the real property owned by the wife, if issue has been born alive during the life of the wife. The husband may waive his right to the estate if he signs a deed with the wife, whereby he expressly waives his right to his estate by the curtesy. The interest of the husband in the estate of his wife, is at the present time in most states regulated by statute.

=291. Dower Estates.= At common law, at the death of her husband, a wife takes a life interest in one-third the real property owned by her husband during the marriage. If _A_ owns one hundred acres of land, and dies, leaving a wife, _B_, _B_ takes one-third interest for life in the one hundred acres of land. This interest of _B_ is called her _dower estate_. Some states by statute provide that the wife shall have a definite share of the husband's estate at the latter's death. In the states having these statutes, the wife is not entitled to dower, but takes the prescribed share in place thereof. The husband cannot deprive the wife of right of dower, by transferring his real estate. If she does not expressly release dower in the deed of conveyance, it may be enforced against the estate, if she survives her husband.

=292. Exempt Estates.= The states generally provide by statute that certain property shall be exempt from execution on judgment obtained by creditors of the owner. Exemption statutes usually provide that a certain amount of real estate used as a home by the owner shall not be subjected to the satisfaction of judgments of creditors. If the debtor has no real property used as a home, he is sometimes permitted to retain a certain amount of personal property in place thereof. This statutory right to keep a certain amount of real property exempt from creditors is sometimes called a _debtor's homestead estate_. It exists during the life of the owner.

=293. Estates for Years.= The right to the possession, or the contract for possession of land for a definite period of time is called an estate for years. Originally in England, only freemen could hold freehold estates. Freehold estates are those of inheritance and those less than inheritance. Persons occupying a position inferior to that of freemen under the early English law, sometimes called _villeins_, were permitted to hold estates for years, but not freehold estates.

If _A_ leases his farm to _B_ for five years, _B_ has an estate for years. If _A_ leases his house and lot to _B_ for one month, _B_ has an estate for years. If _A_ leases his house and lot to _B_ for two years, and to _C_ for three years, _C's_ estate to follow _B's_, _B_ and _C_ have estates for years. Estates for years are also discussed under _Landlord and Tenant_. Estates for years are commonly called leases or leaseholds. A holder of an estate for years may assign or sublet his estate, unless it is provided otherwise in his lease.

=294. Waste.= If persons have estates for years or life in real property, certain rules for the use of such property are recognized in order that they may not destroy or injure the remaining estate. That is, if _A_ has an estate for life in a farm, and _B_ has the remainder, _A_ is not permitted to destroy _B's_ interest. If a tenant for life or years so treats the estate as permanently to injure it, he is said to commit _waste_. A tenant for life is not permitted to cut off the timber. He may cut out underbrush. If such is the custom in the vicinity, he may cut timber for fuel and to repair buildings and fences. The general rule is, that a tenant for life or years may so use the estate as not permanently to injure or destroy it. He is entitled to the fruits and crops, to cultivate the estate to advantage, but not to destroy the buildings or fences, or to so treat the land as ultimately to destroy its productiveness.

=295. Estates at Will and at Sufferance.= Estates at will and at sufferance are discussed under the title of _Landlord and Tenant_. They are estates in land, and are classified as estates less than freehold. An estate which may be ended at the desire or will of either party is known as _an estate at will_. If _A_ and _B_ agree that _A_ may occupy _B's_ house, _A_ to pay thirty dollars per month, the tenancy to cease at the desire of either party, _A_ is said to be a tenant at will, and the estate he possesses is called _an estate at will_. It is not transferable. If _A_ attempts to assign his lease, it ceases. An estate at will is terminated by either party notifying the other of his intention to terminate the lease or by either party doing anything inconsistent with the estate. If the owner dies, the estate is terminated.

If a person has a lawful estate in land, and retains possession without right after his interest ceases, he is said to be a _tenant at sufferance_. If _A_ rents _B's_ house for one year, and, at the expiration of the year he still occupies the house without _B's_ consent, he is a tenant at sufferance. He, in fact, has no estate in the premises except that which the owner suffers him to enjoy. This interest is called an _estate at sufferance_. A tenant at sufferance is a wrongdoer. He may be ejected at the will of the owner. The owner is not permitted to use excessive force in ejecting a tenant at sufferance. He may use the force necessary to eject him. At the present time, most of the states have statutory provisions by which unlawful tenants may be ejected by legal process.

=296. Estates in Remainder.= There may be many estates in the same piece of real property. If an owner of an estate in fee simple by one instrument grants an estate less than fee simple to one person and the balance of the fee simple estate to another, the latter estate is called a _remainder_. If _A_, an owner in fee, by the same instrument grants _B_ an estate for life, remainder in fee to _C_, _C_ has an estate in remainder. If _C_ is living at the time the estate is granted, the estate in remainder vests in him at the time of the grant, and is called a _vested remainder_. If the estate in remainder depends upon any contingency, or is conditional in any way it is said to be a _contingent remainder_. If _A_ grants a life estate in his farm to _B_, and the remainder to the heirs of _C_, the heirs of _C_ cannot be determined until _C's_ death. The estate in remainder is said to be _contingent_.

=297. Estates in Reversion.= An owner of an estate in real property in fee simple is permitted to grant his interest in the form of as many estates as he pleases. As long as the total of his grants do not equal his interest, he is said to retain an _estate in reversion_. If _A_ owns a farm in fee simple, and grants _B_ an estate for ten years, _A's_ remaining interest is called an estate in reversion.

=298. Title to Real Property.= Title to real property or the right of the owner eventually to obtain possession of it may be acquired in several ways. Mere occupancy under claim of title will, under certain circumstances, if for a certain uninterrupted period of time, give the occupant title. An uninterrupted possession of real property, under a claim of right for a period in excess of twenty years will in most states give the occupant title by _adverse possession_.

Civilized nations provide by law that the heirs of the owner of real property shall take the title to the property at the owner's death. Estates less than freehold pass as personal property to the executors of the estate of the deceased owner. The statutes of the different states designate who are heirs.

Title to land owned by the government is transferred by public grant. Title by an owner may be conveyed to another by voluntary gift, by devise or will, or by deed. Title by devise or will is discussed in the chapter on Wills.

=299. Deeds.= The customary method of transfer of real property is by deed. A deed is a written instrument sealed and delivered for the conveyance of land. Deeds were originally divided into _deeds-poll_, and _indentures_. Deeds-poll were mere written obligations of the grantor delivered to the grantee, the grantee making no covenants. An indenture, on the other hand, consists of mutual obligation on the part of grantor and grantee. The obligation of each was reduced to writing, signed, sealed, and delivered, the one in exchange for the other. A lease is an example of an indenture. The term, _indenture_, originated from the custom of writing the obligation of both parties on the same piece of paper, and by writing some letters of the alphabet between the two agreements, and by cutting the paper through these letters at sharp angles. The separate obligations could be identified by fitting together the saw-tooth edges of the different instruments. At present, duplicate copies are made designating them as indentures. Leases are discussed more at length in the chapter on Landlord and Tenant.

At present, the form of deeds in common use are _quit claim deeds_ and _warranty deeds_. Some states provide forms of deeds by statute. Even in the absence of statute, a written instrument, properly signed and delivered by the grantor, containing a description of the property, and an expression of intention to convey the real estate described, is probably sufficient to constitute a deed. A formal deed is customarily used. Transfers of real property are important transactions. A formal deed contains several formal parts known by different names. These formal parts have resulted from well recognized customs and practices, some of them dating back a great many years. The formal parts of a warranty deed are the _premises_, the _habendum_, the _redendum_, the _conditions_, the _warranties_ or _covenants_, the _conclusions_ and the _acknowledgment_.

=300. Premises of a Deed.= The premises of a deed contain the name and description of the parties. If a deed is given by an unmarried person, he should be designated in the premises of the deed as _A B_, unmarried. This enables abstractors of titles to determine that a complete transfer of title has been made. Otherwise there is nothing to show that _A B_ did not have a wife at the time the transfer was made. In this event, the wife would retain her right of dower. The premises usually contain the date of instrument. Sometimes, the date is placed at the end of the instrument. The consideration is also contained in the premises. The consideration of a deed may be either good or valuable. If the grantor receives something of value, as money or an article of value, the consideration is said to be _valuable_. If a parent grants real property to a child or relative and states the consideration to be love and affection, the consideration is adequate, and is known as _good consideration_. The receipt of the consideration is also acknowledged in the premises of a deed. The language by which the grantor conveys the estate, such as "give," "grant," "set over," and "release" is contained in the premises as well as the description of the estate granted.

=301. Habendum and Redendum Clauses.= The premises of a deed are followed by the _habendum_ and _redendum_ clauses. The _habendum_ clause describes the estate granted, whether an estate in fee, an estate for life, or an estate for years. It is not necessary to repeat the description of the estate in the _habendum_ clause. The _habendum_ clause usually commences with the words, "To have and to hold."

The _redendum_ clause contains any interests or rights retained by the grantor. If the grantor reserves to himself the right to use a certain driveway, he places this reservation in the _redendum_ clause.

=302. The Conditions, Warranties and Covenants of a Deed.= A warranty deed may not be an absolute transfer of real property, but may be conditional. For example, if the deed is absolute in form, but contains a condition that the transfer is to be of no effect if the grantor pays the grantee a certain sum of money by a certain time, the deed is a conditional one. The conditions above described constitute the deed a mortgage. This class of conditional transfer is discussed in the following chapter. Most deeds are without conditions.

The next formal part of a warranty deed is the covenant of warranty. The grantor covenants that he is lawfully seized of the estate. This means that the grantor has the legal title and right to possession, which right he conveys to the grantee. The grantor also covenants that the grantee shall have quiet enjoyment of the estate, that the estate is free from incumbrance, and that the grantor and his heirs warrant the title to the estate.

=303. The Conclusion of a Deed.= The conclusion of a deed contains the signature of the grantor and the statement that he has signed and sealed the deed. Most states require by statute that a deed must be signed in the presence of two witnesses. The signature and statement of the witnesses to the effect that the deed was signed in their presence is a part of the conclusion. The mere statement that the grantor signs and seals the deed makes it a sealed instrument. Seals were originally impressions made in wax affixed to the instrument. A scroll or flourish of the pen was regarded as a seal, but at present a deed is in itself regarded as a sealed instrument, and requires no seal nor substitute therefor.

=304. Acknowledgment of a Deed.= The states of this country require by statute, deeds to be recorded by the public recorder, if parties to the deed desire to give notice of the transfer to third persons. Third persons are deemed to have notice of deeds so recorded even though they have no actual notice. For the purpose of having a deed recorded, the grantor must acknowledge his signature before a notary public who adds his statement to that effect to the deed, and signs and seals the same. A quit claim deed contains no warranties nor covenants. It is merely a release of the grantor's interest to the grantee.

QUIZ QUESTIONS

BAILMENT

1. Define _bailment_.

2. For whose benefit may bailment be made?

3. Distinguish a _bailment_ from a _sale_.

4. Give an example of a bailment.

5. Name and define the parties to a bailment contract.

6. May an infant enter into a bailment contract?

7. Is an infant liable for his torts?

8. Classify bailments.

9. Give an example of a bailment for the mutual benefit of both bailor
and bailee.

10. Is a bailment a contract?

11. What is the consideration in a bailment for the sole benefit of the
bailor?

12. What party to a bailment contract has possession of the property?

13. Is a finder of lost property a bailee?

14. In whom is the title to bailed property?

15. Are the title and possession in the same person?

16. May a person not the owner of property bail it?

17. Give an example of a bailment for the sole benefit of the bailor.

18. What degree of care is required of a bailee in case the bailment is
for the sole benefit of the bailor?

19. Give an example of a bailment for the sole benefit of the bailee.

20. What degree of care is required of a bailee in a bailment for his
sole benefit?

21. _A_ hires of _B_ an automobile for $3.00 per hour. Is the bailment
for the sole benefit of the bailor, the bailee, or for the mutual
benefit of both parties?

22. In the above example what degree of care is required of _A_?

23. What implied warranties accompany mutual benefit bailments?

24. Define and distinguish public and private warehousemen.

25. What are government warehouses?

26. Are warehouse receipts negotiable?

27. What degree of care is required of warehousemen?

28. What degrees of care are recognized in bailments?

29. How is the standard for determining degrees of care arrived at?

30. Is ordinary care the same in the bailment of different kinds of
property?

31. If a third person takes property away from a bailee may the latter
recover possession?

32. What are the rights of a person purchasing from a bailee?

33. What is meant by _liens_ on personal property?

34. _A_ leaves his watch with _B_ for repairs. _B_ repairs the watch. Can _B_ retain possession until he receives his pay?

35. May a bailee sell property to satisfy his lien?

PLEDGES

1. Is a pledge a bailment?

2. Define a _pledge_.

3. Does title to property pledged remain in the pledgor?

4. Distinguish _pledge_ from _chattel mortgage_.

5. Name and define the parties to a contract of pledge.

6. May an infant pledge property?

7. What kinds of personal property may be pledged?

8. Can a person pledge personal property which he expects to purchase?

9. Can a person pledge a growing crop?

10. What is the purpose of a contract of pledge?

11. Can there be a pledge which is not security for an existing debt?

12. If _A_ delivers possession of personal property to _B_ but does not
owe _B_ anything, is the transaction a pledge? If not a pledge,
what is the transaction?

13. Who has possession of pledged property?

14. Does the pledgee have title to property pledged?

15. In case of a chattel mortgage who has title to the mortgaged
property?

16. In case of pledge of negotiable instruments, who has title to the
instruments?

17. What is meant by _loans on collateral securities_?

18. What is a _collateral note_?

19. By whom are collateral notes commonly used?

20. After payment of the debt for which property is pledged, who is
entitled to possession of the pledged property?

21. Who is entitled to possession of property pledged before payment of
the debt secured?

22. In case of pledge of negotiable instrument who must collect the
interest and instrument when due?

23. What degree of care is required of a pledgee in the protection of
pledged property?

24. If the pledgor fails to pay the debt when due, what may the pledgee
do with the property?

25. In selling pledged property what notice, if any, should the pledgee
give the pledgor?

26. What is meant by _foreclosing a lien in equity_?

27. Define and explain _redemption_.

28. When may the right of redemption be exercised?

MORTGAGES ON PERSONAL PROPERTY

1. Define _chattel mortgage_.

2. In case of a mortgage of personal property, who has possession of
the property? Who has title?

3. Define _mortgagor_ and _mortgagee_.

5. Distinguish _chattel mortgage_ and _sale_.

4. Distinguish _chattel mortgage_ and _pledge_.

6. Distinguish _pledge_ and _sale_.

7. May _choses in action_ be mortgaged?

8. Define and distinguish _choses in action_ and _choses in
possession_. May both be mortgaged?

9. What is the purpose of a chattel mortgage?

10. Does a chattel mortgage require a consideration?

11. Can there be a chattel mortgage without a debt to be secured?

12. Must a chattel mortgage be in writing?

13. _A_ mortgages his horse to _B_ to secure a debt of $40.00. _A_
delivers the horse to _B_. The mortgage is oral. Is it binding?

14. What is the reason for filing or recording a chattel mortgage?

15. Does a chattel mortgage of property, possession of which is given
the mortgagee, have to be recorded to be binding?

16. Who is entitled to possession of mortgaged personal property?

17. _A_ mortgages his household furniture to _B_, later he stores
the furniture with _C_. _C_ acquires a storage keeper's lien.
Is the latter's lien superior to _B's_?

18. Does a mortgagor retain an interest which he may dispose of?

19. Does a mortgagee have absolute title to the property mortgaged?

20. If _A_, the mortgagee of personal property, sells the debt secured
by the mortgage to _B_, what becomes of the mortgage?

21. When the mortgagor defaults in payment of the secured debt, how may
the mortgagee obtain possession of the property?

22. Define _equity of redemption_.

23. Can a mortgagor enforce his equity of redemption after the
mortgagee has obtained possession of the property?

24. Can a mortgagee enforce his equity of redemption without paying the
mortgage debt?

25. Define _foreclosure_.

26. What is the purpose of foreclosure?

27. How is foreclosure enforced?

CARRIERS

1. Define and give an example of _common carrier_.

2. Define and give an example of _private carrier_.

3. What constitutes a person or company a common carrier of goods?

4. Is a common carrier of goods obliged to carry goods of all kinds?

5. Distinguish _common carrier_ and _private carrier_.

6. What is the exceptional liability of a common carrier, and what is
the reason for this liability?

7. If goods intrusted to a common carrier are lost without negligence
of the carrier is the latter liable to the owner?

8. Is the exceptional liability of an insurer a matter of express or
implied contract?

9. What are the exceptions to the liability of a common carrier as an
insurer of the goods intrusted to his care?

10. Define and give an example of _public enemy_.

11. Define and give an example of _Act of God_.

12. Is a common carrier permitted to limit his common law liability as
an insurer of the goods by special contract?

13. Is a common carrier permitted to stipulate against the carelessness
of his agents or servants?

14. Is a common carrier permitted to limit his liability as an insurer
of goods by stipulating in the bill of lading issued that the
valuation is limited to a certain amount, unless informed otherwise
by the shippee?

15. What does the Interstate Commerce Act provide relative to the above
question?

16. What is a _bill of lading_?.

17. Distinguish bill of lading and shipping receipt.

18. What are the two essential features of a bill of lading?

19. In what sense, if any, is a bill of lading a negotiable instrument?

20. _A_, in Cleveland, orders a car of hogs from _B_, in Buffalo. _B_
delivers the hogs to the railway company in Buffalo, to be shipped
to _A_ in Cleveland. In whom is the title to the hogs?

21. If _A_ stipulates that the hogs are to be delivered F. O. B.
Cleveland, in whom is the title to the hogs after they are
delivered to the railway company, and before they reach Cleveland?

22. What goods, and under what circumstances, is a carrier obliged to
accept for shipment?

23. Explain the meaning of _stoppage in transitu_. Under what
circumstances is a shipper permitted to exercise the right?

24. What carriers are obliged to make delivery at the residence or
place of business of the consignee, and what carriers are obliged
only to deliver at their depots or warehouses?

25. Define and explain _carrier's lien_.

26. How may a carrier enforce his lien?

27. Why is a common carrier not permitted to discriminate between
shippers?

28. When, if at all, is a carrier of mail liable for negligence?

29. Is the government liable to an owner of mail for its loss?

30. What are the principal features of the Interstate Commerce Act of
1906?

CARRIERS OF PASSENGERS

1. Is every person or company carrying passengers for compensation a
common carrier?

2. Are owners of buildings operating elevators common carriers of
passengers?

3. When does a person become a passenger?

4. Is a person traveling on a pass a passenger within the legal meaning
of the term, passenger?

5. Is a public carrier of passengers obliged to accept all who present
themselves as passengers?

6. When, and how, may a public carrier eject a passenger?

7. What degree of care is a public carrier of passengers obliged to
exercise?

8. What constitutes baggage?

9. What is the liability of a carrier of passengers for loss or injury
to baggage?

INNKEEPERS

1. Must a person represent himself as being ready and willing to
furnish both food and lodging to all who desire to become guests,
in order to be an innkeeper?

2. Are boarding-housekeepers innkeepers?

3. Are innkeepers obliged to receive all persons who present themselves
as guests if the regular price is tendered?

4. What degree of care in the protection of guests is required of
innkeepers?

5. What degree of care is required of innkeepers in the protection of
the baggage of guests?

6. What is an _innkeeper's lien_?

7. How may an innkeeper enforce his lien?

REAL PROPERTY

1. Define _real property_.

2. What is included in the term, real property?

3. Define and give an example of _hereditament_.

4. Define and give an example of _tenement_.

5. Are standing trees real or personal property?

6. Are trees blown down real or personal property?

7. What is the practical distinction between real and personal property?

8. Define _emblements_.

9. Do emblements belong to the tenant or to the landlord?

10. Are apples emblements? If not, why not?

11. How may a wall become a party wall by prescription?

12. Define _fixtures_.

13. Are fixtures real or personal property?

14. Does the rule as to fixtures differ in case of a tenant, and in
case of an owner?

15. Do owners of adjoining property own a partition fence jointly or
does each one own a particular part of the fence?

16. Define and give an example of a _way of necessity_.

17. Define and give an example of a _way of convenience_.

18. How are highways ordinarily established?

19. How may a highway be established by prescription?

20. Into what classes are estates divided as to the quantity of
interest held?

21. What is a _freehold estate_?

22. From what is the term, freehold, derived?

23. Define and give an example of an _estate in fee simple_.

24. What is meant by _entailing an estate?_

25. What was the reason for the practice of entailing estates?

26. To what extent may an estate be entailed in this country?

27. What is the rule against perpetuities?

28. Define and give an example of a _life estate_.

29. What claims do life estates embrace?

30. Define _estate by the curtesy_.

31. Define and give an example of _dower estate_.

32. Define and give an example of _homestead estate_.

33. Define and give an example of an _estate for years_.

34. Is a lease for two months an estate for years?

35. May a holder of an estate for years transfer it?

36. What is meant by _waste_?

37. What is the general rule relating to waste?

38. Give an example of an _estate at will_.

39. Distinguish an _estate at will_ from an _estate at sufferance_.

40. How may an estate at will be terminated?

41. Define and give an example of an _estate in remainder_.

42. Distinguish _vested_ and _contingent remainder_.

43. Distinguish _estates in reversion_ from _estates in remainder_.

44. How may title to real property be acquired?

45. Define _deed_.

46. Define _deed poll_.

47. Define _indenture_.

48. What are the formal parts of a deed?

49. What things are included in the premises of a deed?

50. What is meant by the _habendum_ and _redendum clause_ of a deed?

51. What is a _warranty of a deed?_

52. What are the general warranties of a deed?

53. What things are included in the conclusion of a deed?

54. What is meant by the _acknowledgment of a deed?_

COMMERCIAL LAW