Annotated real estate statutes of Indiana : the law of real property

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Preface

To collect all of the statutes of Indiana which in any way affect the title to real property, and arrange them in a logical manner, together with the case and text-book law bearing on these statutes and kindred legal principles, has been no easy task. We are conscious of the imperfections which must mark all work of this character; and we can only say that we have endeavored, by patient and careful labor, to render these imperfections as harmless, and our work as helpful, to our brethren in the profession as possible.

In the preparation of our notes we have purposely avoided the style common in the preparation of a thesis or treatise, in order that we might bring the attention of the reader direct to the decisions of courts and the utterances of jurists. In references to cases, it has been our aim to state the legal principle, which, from a careful examination of each case, we believe it sustains ; leaving the reader to determine what weight it ought to have, and what its application should be. We have kept in mind the fact that the statute, and its construction by our own Supreme Court, is of the first importance. Common-law questions have been given such prominence as their importance seemed to demand. Conflicting authorities have been brought together, in some instances reconciled ; in others the weight is shown, and in other cases our limited space has only permitted us to hint at inviting lines of discussion.

The many important subjects embraced in this book, if discussed in the usual style of text-book law, would fill volumes ; and, in order to compress it all into the small compass of this volume, we have often withheld our own thoughts and arguments, that we lU

IV PREFACE.

might simply cite the searcher after authority to its highest source. We, therefore, offer this work to the busy practitioner, hoping that it may prove to be a ready, handy and reliable help.

T. E. BALLARD.

EMERSON E. BALLARD.

EXPLANATORY NOTE.

The Revised Statutes of 1881, and the acts of succeeding Legislatures as contained in Elliott's Supplement (1889), so far as they appertain to Real Estate Law and are in force, have been made the basis of this work. Where a section of statute is set out, reference is made to its original section number in these books, and the volume and page of all acts since 1881 have been given. Where there is more than one section upon a given subject, they are brought together; and in some instances the division into sections made by the Legislature and preserved in the statutes, being more arbitrary than logical, has been disregarded, and several sections grouped together under an appropriate head ; but, in all such cases, the original form of the section has been preserved by making of each one a separate paragraph. By the use of the subjoined table any one having the number of a section of Revised Statutes (1881) or of Elliott's Supplement (1889) which is any where treated, is immediately referred to the section in the text. To avoid repetition, it has been our aim, so far as possible, to confine the consideration of a subject to one place in the book, and give cross-references to, and from,\indred subjects. All ref-- erences to sections, unless otherwise designated, are to sections in this work. References to authorities are made to pages, unless the contrary is stated. Citations to Kent's Commentaries are to the 1 2th edition ; to Washburn on Real Property, 4th edition.

miMNi

^CIRRESPONDING SECTIONS

► "^^ t^iSED Statutes, i88i ; Elliott's Supplement, I wp, js.Kir> THE Sections of this Work, f'^m^tcate Revised Statutes, 1881; bold-face figures, sections in this work.

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8 Sa2

..000 742 200

. . . . . 608 754 200

, . . . . 742 756.

741 756.

. 743 757.

, . . 748 759.

\ ^ 748 760.

\ \ .748 762.

' ' ' 288 765.

'^\ ^ 288 766.

\ \ 286 768.

236 769.

' ' . . ...286 770.

.644 1022 89

.644 1023 86

.648 1043 896

.643 1044 396

.648 1050 669

.648 1051 660

.648 1052 660

.648 1053 660

.646 1054 662

.646 1055 668

.646 1056 664

.646 1057 664

.646 1058 666

.647 1059 666

.647 1060 667

.648 1061 666

.649 1062 666

.660 1063 666

.660 1064 678

.660 1065 678

287 771 226

288 772 227

773 228

774 229

775 231

777 282

831 80

289 240 197 197 197

908 ......660 1066 676

910 664 1068 668

911 666 1069 668

912 666 1070 669

986 606 1071 671

987 606 1073 668

883 640 1017 88 1075 686

884 641 1018 83 1076 686

885 642 1019 87 1077 687

886 641 1020 86 1078 687

887 642 1021 88 1079 687

vii

,206

.206

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COBRESPONDma 8EGTIONB.

IX

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...410

X CORRESPONDING SECTIONS.

sections in this work.

CORRESPONDING SECTIONS. XI

SYNOPSIS OF CONTENTS.

CHAPTER I. DEFINITION AND OWNERSHIP. (8m. 1-».)

Definition of real estate, appurtenances, hereditaments and fixtures. Ownership of land by aliens and corporations. The nature, source and proof of title.

CHAPTER II. ESTATES. (Sec. 10-89.)

Kinds of estate. Estates-tail. Fee-simple. Creation of a fee. Shelley's case. Life estates. Future estates. Suspension of the power of alienation. Void remainders. Remainders defined. Contingent remainders. Vested remainders. Cro6&- remainders. Reversion. Actions by remainder-men, or reversioners. Estates upon conditions. Conditions precedent and subsequent. Breaches of conditions.

CHAPTER III. CONTRACTS. (See. 80-50.)

Arbitration. Statute of frauds. Sufficiency of written memorandum. Equitable modification. Parol sale of land. Part performance. Parol gift of land. Construction and validity of contracts. Fraudulent representations. Rescission. Consideration. Title bonds. Sale of U. S. land. Specific performance. Power of courts. Character of the contract. Part performance. Demand and tender. Parties, pleading and practice. Persons deceased or under l^;al disabilities. Defenses to actions for specific performance.

CHAPTER IV. CONVEYANCES. (8ec. 81-188.)

Who may convey. Indians, negroes and corporations. Definition and sufficiency of deeds. Delivery. Escrow. Acceptance. Blanks and alterations. Seal. Grantor and grantee. Heirs and assigns. Reservations and exceptions. Lost deeds. Construction of deeds. Estates in common. Joint tenants. Co-tenants. Tenants by entireties. Quit-claim. Warranty deed. Legalized

ziU

XIV SYNOPSIS OF CONTENTS.

conveyances. Power of attorney. Conveyances by commissioners. Acknowledgment of deeds, etc. Proof of deeds. Record of deeds and defeasances. Recorder's books and index. Cancellation of conveyances. Fraudulent conveyances. Voluntary conveyances. Preference of creditoi-s. Conveyance of property exempt from execution. Setting aside fraudulent conversances. Its effect. Fraud of purchaser. Innocent purchaser. Revocation. Heirs and legal reprebentatives.

CHAPTER V. MORTGAGES. (Bee. 184-177.)

Definition, etc. Mortgagor and mortgagee. Power of corporations to mortgage. Possession of the premises. Deeds and defeasances. Power to sell. Record. Priority. Assumption of. Indemnity mortgage. Assignment of. Satisfaction. Foreclosures. Junior mortgages. Debt not due. Sales on decree of foreclosure. Execution for debt secured by. School -fund mortgages. State Universit}' mortgages.

CHAPTER VI. PLATS AND SURVEYS. (Bee. 178-198.)

Making, acknowledgment and recording of plats. Imperfect 'plats. Boundaries. Establishment of. Surveyors aAd surveys. Streams as boundaries. Monuments. Proof.

CHAPTER VII. JUDICIAL SALES. (Sao. 19*-a7B.)

Definitions. Executions. SherifTs sales. Lands subject to. Levy, appraisement, sale and return. Sales in parcels or 2if 5(i/f</<7. Notice. Venditioni exponas. Bidder not paying. Surplus. SherifTs certificate. Deed. Title by. Purchasers at. Liens. Validity of. Irregularities. Setting aside. Redemption. Rents and profits. Junior incumbrancers. Recover^' for waste. Exemption. Married women. Alienation of exempt property. Executor's, administrator's and guardian's sale. Widow's rights. Liens. Sales voidable. Sales under wills.

Chapter VIII

Title by. General principles. Children. Adopted children. Grandchildren. Parents, brothers, sisters and others. Half-blood. Illegitimates. I Advancements. Per stirpes, etc. Liability of heirs and devisees. Husband and wife. Curtesy and dower. Widow's rights. Construction of statutes. Widow as heir, etc. Subsequent marriages. Election by widow. Widow's quarantine

SYNOPSIS OF CONTENTS. XV

Unciaiined real estate. Wills. Revocation of. Ademption. Construction of wills. Contracts to make will. " Children," " heirs " and " issue."

Chapter IX

Definition of trusts. Express trusts. Conveyance of trust estate. Implied trusts. Creditors. Purchase-money. Husband and wife. Sales. Misapplication of funds. Trustees — dealing with the trust estate. Cestui que trusts. Suits by trustees. Death or resignation of the trustee. Charitable trusts.

CHAPTER X. EASEMENTS. (Sec. 862-376.)

Nature of easements. Acquisition of. Disputation and interruption. Implied, when. Air and light. Lateral support. Party-walls. Private ways. Way of necessity. Way by adverse use. Use and repair. How lost. License. Revocation, etc.

CHAPTER XL

Lawful fence. Partition fences. Fencing overflowed lands. Fencing railroad track. Gates at farm crossings.

CHAPTER Xn.

HUSBAND AND WIFE. (Bee. 895--418.)

Rights to realty upon divorce. Nature and extent of wife's inchoate interest- Vesting of upon judicial sales. Deed by infant wife. Conveyances by and between. Marriage settlements. Coverture at common law. Disabilities removed. Suretyship. Estoppel in pais. Separate lands of the wife. Sale of land for wife's support.

CHAPTER Xni.

LANDLORD AND TENANT. (Sec. 419-^3.)

When the relation exists. Forfeiture by disclaimer. Estoppel. Dangerous premises. Tenants at will and at sufferance. For years. Holding over. From year to year. Attornment. Notice to quit. Length and form of. Non-payment of rent. Leases. Covenants and conditions in. Sub-lessees. Construction of leases.

XVI SYNOPSIS OF CONTENTS.

CHAPTER XIV.

TAX SALES AND TAX TITLES. (Sm. *44-486.)

Lands exempt. Destroyed property. Lien of taxes. Discharge as to part. Sale of land for taxes. Unsold lands. Redemption. Infants and insane persons. Part owners. Tax deed. Invalidity of sale. Injunction against sales.

CHAPTER XV.

Priority of Vendor's lien defined and considered. Vendee's lien. Assignment of. Subsequent purchaser. Notice. Parties — ^pleading and practice. Waiver of. Judgment liens. Transcripts from justices, etc. Lis pendens. 'PMTch.2c&tT pendente lite. Mechanics' lien. Married women and infants. Notice. Employes of corporations. Recognizances and assessments. Widow's lien. Legacies. Equitable liens. Keeping liens alive. Lien of a mortgage.

CHAPTER XVI.

LANDS OF THE STATE. (See. 548-577.)

General notes. Sale of lands. School lands. Sale of school lands. Escheated estates. Sale and conveyance of.

CHAPTER XVII.

MUNICIPAL CORPORATIONS. (Bee. 578-58S.)

Cities and towns. Sale of realtj' by. Annexation of territory. Disannexing territory. Appropriation of lands by. Counties. Powers of over lands.

CHAPTER XVIII.

CEMETERIES. (Bee. 589-400.)

General notes. Conveyances to and by county commissioners. Cities and towns may establish. Vacation of. Voluntary associations. Platting. Private burying-ground. Appropriation of land for.

CHAPTER XIX.

WATERS AND MILLS. (Bee. 601-006.)

Navigable streams. Water-courses. Rights of riparian owners. Surface water. Subterranean waters. Mills and mill dams.

SYNOPSIS OF CONTENTS. XVll

CHAPTER XX.

ADVERSE POSSESSION. (Sec. 607-611.)

Twenty jeare. General notes. Landlord and tenant Tenants in common. Conveyance by one out of possession.

CHAPTER XXI.

EMINENT DOMAIN. (B60. 6ia-«56.)

Right to take private property. Condemnation by the United States. Appropriation by railroad company. Damages. Appeal. Appropriation by gravel roads, hydraulic companies, manufacturing, mining, navigation, gas and water-works companies, etc. School corporations. Assessment of damages.

CHAPTER XXII.

EJECTMENT AND QUIETING TITLE. (8m. 667-680.)

Plantiffs. Right to possession. Agent or tenant. Demand or notice to quit. The complaint Defenses under the general denial. Co-tenants— ouster. Damages. Who may sue to quiet title. The complaint. Practice. New trial of right Purchaser pending. Forcible entry and detainer. Occupying claimants.

CHAPTER XXIII.

Who may have. Pleading and practice in. The petition. Commissioners and their report. Sale of land. Parol partition. Qjiestions of title in. Miscellaneous notes.

CHAPTER XXIV.

Definition and nature. Lineal and collateral warranties. Married women. Personal covenants. Covenants running with the land. Warranty. Breach of. Seizin. Covenant against incumbrances. Breach of covenants. Measure of damages.

CHAPTER XXV.

TORTS AND CRIMES. (8eo. 716-780.)

Trespass. Trespassing animals. Estrays. Removing fruit or flxtures. Creating stagnant water. Befouling water. Arson. Burning woods or grass.

XVUl SYNOPSIS OF CONTENTS.

Injury to trees or vines. Altering or removing land-marks. Injury to dam or ditch. Forcible entry or detainer. Hunting on inclosed lands. Canada thistles. Gathering berries. Converting landlord's portion. Nuisance.

CHAPTER XXVL

MISCELLANEOUS SUBJECTS. (Bwi. 740-810.)

Abstracts. Appeals. Assignments. Bona fide purchasers. Consideration. Crops, etc. Dedication. Description. Ditches, etc. Ek|uity. Estoppel. Evidence. Ferries and wharfs. Forfeiture. Former adjudication and stare decisis. Highways. Infants and insane persons. Injunctions. Joinder of causes and jurisdiction. Judgment. Law of place. Mines. Notice. Possession. Purchase-money. Railroads. Real estate agent. Receivers. Rents. Repairs. Statutes of limitations. Surrender. Title papers — recovery and reformation of. Waste.

Chapter I. Definition And Ownership

Sec. 1. Definition.

The word "land," and the phrases "real estate and "real property" include lands, tenements, and hereditaments. (R. S. 1285. In force May 6, 1853.)

Land comprehends all things real, both above and under the surface of the earth, 2 Bl. Com. 17, 19; Tiedeman on Real Prop., § 2 ; I Wash, Real Prop. 3 ; Boone on Real Prop., § i. It includes the tenements and hereditaments, 59 Ind. 412. Fences are a part of the real estate upon which they are erected, 55 Ind. 470^ but the key to the door of a house has been held not to be a part of the real estate, 5 Blkf. 417. Water is real estate, 33 Ind. 403 (5 Am. Rep. 224) ; and so is stone piled up on the land, 84 Ky. 257. Under some circumstances, the shares of stock in a corporation may be treated as real property, i O. St. 350; I Wash. Real Prop. 18. And where money is directed to be invested in real estate, equity will, generally, treat it as real property, 1 1 O. St. 290; 8 O. St. 453; I Met. (Ky.) 255 ; 14 B. Mon. (Ky.) 445. Growing trees are real estate, 73 Ind. 498 ; Tiedeman on Real Prop., § 9; I Wash. Real Prop. 13, 14; 87 Ind. 536; 46 Ind. 488 (15 Am. Rep. 295). And, generally, manure is considered part of the real estate upon which it accumulates, 53 Ind. 131 ; 39 O. St. 650; I Wash. Real Prop. 1 8 ; Tiedeman on Real Prop., § 2 ; Boone on Real Prop., § 12 ; and so are growing crops planted by the owner of the soil, I Wash. Real Prop. 9. As to whether or not a building is real estate, will often depend upon the contract of the parties claiming it, or the circumstances under which it was erected, 96 Ind. 159(49 Am. Rep. 152). "A dwelling house is presumed to be realty until shown to be personalty," 85 Ind. 269; 71 Ind. 442. As to what constitutes a house, see 116 Ind. 200 (18 N. E. Rep. 683), and authorities there cited.

2 DEFINITIOX AND OWNERSHIP.

Sec. 2. Appurtenances and hereditaments.

" An appurtenance is a thing belonging to another thing as principal, and passes as incident to the principal thing/* 29 O. St. 648. It includes such incorporeal easements, rights or privileges as are necessary and essential to the proper enjoyment of the estate granted, 107 N. Y. 384 (14 N. E. R. 283) ; Boone on Real Prop., § 306. And whatever belongs to the land granted, Tiedeman on Real Prop., § 842. But it does not include other land, 3 Wash. Real Prop.' 394. Upon this point, see 9 West. Rep. 744 ; 8 Cent. Rep. 233 ; 116 Pa. St. 360. A race-way to a mill is an appurtenance, 3 N. H. 190(14 Am. Dec. 346). So are water privileges, 81 N. Y. 557 ; 53 Cal. 135 ; 56 Cal. 1 1. There is little, if any, distinction now maintained between appurtenances and hereditaments ; both words are often used to designate the same thing.

Corporeal hereditaments consist of things substantial, which may be comprehended under the term land, Anderson's Dictionary of Law ; Boone on Real Prop., § 2 ; Tiedeman on Real Prop., § II. An incorporeal hereditament is a right issuing out of a thing corporate, or concerning or annexed to, or exercisable within, the same, 2 Blk. Com. 20 ; 3 Kent Com. 402 ; 2 Wash. Real Prop. 271, 300; Tiedeman on Real Prop., § 11, 587; Boone on Real Prop., § 2.

Sec. 3. Fixtures.

Fixtures are those things, personal in their nature, which become realty by reason of their annexation to that which is realty, Tiedeman on Real Prop., § 3. There is no safe and well-defined rule by which the legal character of such property can always be determined. It often depends as much on the relation and intention of the parties as on the manner of the annexation of the fixture, 81 Ky. 117. Application of the thing to the use to which the realty is appropriated is also an important test, 122 111. 487 (13 N. E. Rep. 827); 117 Ind. 176 (19 N. E. Rep. 753); 4 Met. (Ky.) 358 (83 Am. Dec. 475): i O. St. 511 (59 Am. Dec. 634). The authorities are not harmonious as to when a given thing should, even under the same circumstances, be treated as a fixture. After referring to a large number of cases, the Supreme Court of Indiana held that machinery put into a mill, by one not the

DEFINITION AND OWNERSHIP. 3

owner, became a fixture, and passed under the mortgage then on the realty, 78 Ind. 521 (41 Am. Rep. 593); 147 Mass. 500 (18 N. E. Rep. 407); 99 Ind. 528 ; 45 O. St. 300 (13 N. E. Rep. 493); 35 Ind. 274; 15 O. St. 451. A carding machine in a building, but not fastened to the floor, was held to be a fixture, 3 Blkf. 1 1 1. So were portable furnaces in a house, 141 Mass. 557 (6 N. E. Rep. 715). Gas and water pipes, 108 N. Y. 495 (15 N. E. Rep. 544). Rails in a fence, 55 Ind. 473; 5 Blkf. 556 (36 Am. D. 556). Furniture built into a house, 42 Am. Rep. 449, note. It has been held that machinery which is not a permanent improvement to the building is not a fixture, 140 Mass. 416 (5 N. E. Rep. 162). On this point, see 65 Mo. 682 ; 81 111. 56; 44 Iowa, 57; 108 Mass. 78; 26 Grat. 572; 76 Mo. 72; 47 Iowa 439; 11 Am. Rep. 314, note. Furnaces used for heating buildings have been held not to be fixtures, 108 Mass. 191; 14 Bush (Ky.)3i (29 Am. Rep. 402); 123 Mass. 47; 49 Pa. St. 402; 81 N. Y. 38 (37 Am. Rep. 471); 36 N. J. Eq. 61. . Machinery which supplies the motive power is more usually held to be a fixture, 45 O. St. 289 (13 N. E. Rep. 496). See 9 N. E. Rep. 35, note^ and 5 N. E. Rep. 162, note. Machinery adapted to use in any building does not necessarily become a fixture by being fastened in a building, 140 Mass. 21 (i N. E. Rep. 750). See i Wash. Real Prop. 24, 26; i Story Eq. 710. Saw and grist mills have been held not to be fixtures, 85 Ind. 269; 55 Ind. 188; 18 Ind. 233. So have boilers and engines, 140 Mass. 416 (s N. E. Rep. 161); 127 111.637 (21 N. E. Rep. 202). And also ice-houses, 22 N. E. Rep. 634. See Mortgages.

OWNERSHIP OF REAL PROPERTY.

Sec. 4. Aliens.

All aliens residing in the State of Indiana, who shall have declared their intentions to become citizens of the United States, conformably to the laws thereof, may acquire and hold real estate in like manner as citizens of this State.

All other aliens may take and hold land by devise and descent only, and may convey the same at any

4 DEFINITION AND OWNERSHIP.

time within five years thereafter, and no longer, and all land so left, and remaining unconveyed at the end of five years, shall escheat to the State.

Nothing herein contained shall prevent the holder of any lien upon or interest in real estate heretofore acquired, from taking a valid title to the real estate in which he has such interest, or upon which he has such lien. (E. S. 668, 669, 670. In force March 9. 1885.)

This statute probably repeals section 2967 of Rev. Stat.; and doubtless modifies sections 2507 and 2918 of Rev. Stat. See /fosiy section 6.

Sec. 6. Aliens at common law.

At common law, an alien could not acquire* title to real estate by descent, 2 Kent Com. 54 ; 2 Black. Com. 249 ; i Par. Con. 396 ; Boone Real Prop., § 269. He could neither take by inheritance nor transmit by descent, 27 Ind. 46 ; i Ind. 236 ; 6 Blkf. 341 ; I Chit. Con. 400. He might purchase, but he was exposed to the danger of having his title divested by the State, 2 Kent Com. 61; II Wheat. 332 ; 4 Ala. 99 ; 6 T. B. Mon. 259. See 2 Cal. 558 ; 8 Met. 290 ; 26 Cal. 455 ; 10 Otto 208 ; 7 N. H. 475. As to the effect of the alienage of the father upon children, see 80 N. Y. 171. It seems that the State ought to be estopped to assert the alienage of one to whom she had conveyed land for a valuable consideration, 7 Wend. 367 ; 3 Pick. 224 ; 20 Johns. 707 ; 5 Cow. 314; and land conveyed by the United States to an alien would not revert back, but would escheat to the State, 18 Ala. 565. The title of an alien or his right to convey can be questioned only by the State, Boone Real Prop., § 287; 74 Ind. 252. As to who are aliens, see i Kent Com. 73; 2 Kent Com. 51, 57; i Par. Con.

Sec. 6. Alien widow.

The alienage of any woman shall not bar her right to one-third of her husband's lands, if her hus-

DEFINITION AND OWNERSfflP. 5

band was a citizen of the United States, or if, being an alien, he had complied with the laws of this State to entitle him to hold lands. (R. S. 2507. In force May 6, 1853.)

Under the provisions of section 4, supra^ the alien widow would probably be required to convey the land before the expiration of five years, or it would escheat to the State.

Sec. 7. Alienism not to defeat title.

No title of any resident inhabitant of this State, who was in actual possession of any lands on the first day of November, 1851, or at any time previous, nor of any person holding under such resident, shall be defeated or prejudiced on account of his own alienism or the alienism of any other person through whom his title may have been derived. (R. S. 2918. In force May 6, 1853.)

Sec. 8. Corporations.

By the statutes of Indiana, most corporations are especially authorized to purchase, hold and dispose of real estate for the purposes connected with their business. Agricultural societies, Rev. Stat. §§ 2620, 2621, 2632, 2634; Banks, Id. §§ 2695, 2726, 2728; Benevolent institutions, Id. § 2825; Building and loan associations, Id. §§ 3408, 3409, 3416, 3417; Camp-meetings, Id. § 3423 ; Educational and religious societies, Id. §§ 3434, 3458, 3463 ; Horticultural societies. Id. § 3490 ; Town building company. Id. §§3499, 3501 ; Canal companies, Id. § 3570 ; Water-works companies, Id. § 3581 ; Churches, Id. §§ 3599, 3601, 3609, 361 1, 3616, 3617 ; Gravel-road companies, Id. §§ 3629, 3647, 3659, 3663 ; Hydraulic companies^ Id. § 3699; Insurance companies, Id. §§ 3718, 3745 ; Library company, Id. § 3808 ; Lodges and societies. Id. §§ 3816, 3826, 3828, 3840 ; Manufacturing and mining companies. Id. §§ 3853, 3871,3879; Patrons of husbandry. Id. § 3881 ; Railroads, Id. §§ 3886, 3900, 3901, 3903-3909» 3938» 3947» 395 1 ; Navigation

6 DEFINITION AND OWNEBSHIP.

companies, Id. § 4109, 41 15 ; Steam-packet companies, Id. § 4135; Street railway companies. Id. § 4145 ; Telegraph companies, Id. §§ 4166, 4168 ; Telephone companies, Id. §§ 4187,4188 ; Tobacco warehouse companies. Id. §4196 ; Deaf and dumb asylum, Elliott's Sup., § 465 ; School for feeble-minded. Id. §§ 495, 5oi2 ; Insane hospitals. Id. §§ 523, 571 ; Soldiers* and Sailors' orphans' home, Id. § 580; Building, loan and savings associations. Id. §§ 841, 842, 850 ; Fair associations. Id. §§ 902, 907, 910, 914 ; Gymnastic associations. Id. § 920 ; Religious bodies. Id. § 933 ; Health resorts. Id. § 959 ; Insurance companies. Id. §§971, 1036: Water-works companies, §§ II 30, 1 132, 1 133; Schools and colleges. Id. § 13 16; Voluntary associations. Rev. Stat., § 3504, Elliott's Sup., §§ 942, 952. A deed to a voluntary association passes title to the individuals composing the society, 140 Mass. 31 (2 N. E. Rep. 688). A county can take real estate by devise, 16 O. St. 354. At common law, corporations could take, hold and dispose of real property, for purposes not inconsistent with the object of their creation, Boone on Real Prop., § 19. It is held that banking corporations have no general powers to purchase real estate, 81 Ky. 5. A national bank may obtain real estate by virtue of a mortgage taken by it to secure a pre-existing debt, 45 O. St. 152 (12 N. E. Rep. 439). They may also accept real estate in payment of a debt or buy it in at judicial sales, had on judgments and decrees held by the bank, 90 Ind. 335 ; 78 Ind. 21 ; 70 Ind. 106. See 6 Ind. 232.

Sec. 9. Title.

Title is defined to be the means whereby the owner of lands hath the just possession of his property, 2 Blk. Com. 194 ; Boone Real Prop., § 246. As to the several degrees of title, see chaptei on Estates. The ultimate source of all title is the government, 3 Kent Com. 377 to 400, and authorities there collated. A "good and sufficient" title is one that can be traced to the government, I A. K. Marsh. 297. One cannot pass a better title than he possesses, I Par. Con. 520. A warranty deed from one in possession of real estate is prima facie proof of title, 98 Ind. 32 ; 1 19 Ind. 172 (21 N. E. Rep. 474). Where both parties claim from a common source of title, it is sufficient for either to trace his title to such common source, 117 Ind. 270(19 N. E. Rep. 572); 78 Ind. 384. Where no possession is shown, title must be traced to the

DEFINITION AND OWNERSHIP. 7

government, 83 Ind. 84; 47 Ind. 498 ; 107 Ind. 404 (8 N. E. Rep. 279). Proof of possession, under claim of ownership, is evidence of a fee-simple title, 7 N. E. Rep. 60. Title need not always be proved exactly as pleaded, i Bibb (Ky.) 511. Parol proof of title, if heard without objection, is sufficient, 59 Ind. 353; or if the title claimed originated in prescription, 23 Ind. JJ ; possession under a deed which purports to convey title is evidence of title 22 N. E. Rep. 894. A decree directing a conveyance to be made to a complainant does not invest him with title until the convey, ance is executed, 12 B. Mon. (Ky.) 450,

Chapter II. Estates

Sec. 10. Definition of estate— Kinds.

The term estate, in its general sense, includes the interest which one has in property, either real or personal, Boone on Real Prop., § 13; Bouvier's Law Diet., tit. Estate; 3 Cranch 97; 16 Johns. 587; Anderson's Law Diet., tit. Estate. See 9 Cow. 81 ; 33 Miss. 195 ; 4 Met. (Mass.) 178; 6 Met. (Mass.) 322; but, in its strict signification, it means the degree, quantity, nature and extent of interest which one has in real property, Bouvier's Law Diet.; Anderson's Law Diet. ; 2 Bl. Com. 103 ; i Wash. Real Prop. 70 ; Boone on Real Prop., § 13; 5 Denio, 40. The innovations by statute render the ancient classification of estates inapplicable in many respects — however, we may note that primarily estates are divided upon the basis of quantity and quality, Boone on Real Prop., § 14; 2 Bl. Com. 103. By quantity it being meant the duration and extent of the interest, 2 Bl. Com. 103, and, by quality, the nature and manner of holding with respect to the number and connection of the owners, 2 Bl. Com. 103, 178. Estates differing widely in duration and extent are subdivided into freehold and less than freehold, 2 Bl. Com. 103 ; i Wash. Real Prop. 71. A freehold is any estate of land of inheritance or for life, 2 Bl. Com. 104; 4 Kent Com. 23. It must at least last during the life of some one, Tiedeman on Real Prop., § 26 ; Boone on Real Prop., § 14; 2 Bl. Com. 386; 4 Kent Com. 23. Estates less than freehold are sometimes referred to as leaseholds and include estates for years, at will and at sufferance, Tiedeman on Real Prop., § 26; 2 Bl, Com. 139. For consideration of such, see chapter on Landlord and Tenant.