Cole v. Lake Co.

54 N.H. 242

Opinion

*Ladd, J.

The first objection is, that the necessary parties were not before the court in the outset; that John A. Cole and John Davis, 2d, being parties to the indenture, ought to have been made parties to the bill.

We think this objection cannot prevail. The case shows that Davis, for a valuable consideration, transferred and assigned to the plaintiff all his right, title, and interest in the indenture, December 18, 1856 ; and J. A. Cole in the same manner assigned his interest therein to the plaintiff, September 9, 1857. This shows conclusively that neither Davis nor J. A. Cole now have any interest, either legal or beneficial, in the subject-matter or the object of the suit, and are not to be affected in any way by the event. If they or their representatives are liable for the payment of rent xxpon their covenant in the lease, that liability will remain xxnclianged and unaffected by any deci’ee that can be made upon this bill, which is brought to reform the instrument in a particular in no way connected with the amount of the rent, or the times and mode of its payment; — that they are not necessaxy parties is therefore clear, and, for the reasons given above, we think there is no ground for requiring them to come in. Story’s Eq. Pl., sec. 153; Day v. Cummings, 19 Vt. 496.

At the argument of the exceptions before the whole court, the defendants moved to dismiss the bill for the reason that there has been an assignment of the lease pendente lite, and proof has been offered upon this motion from which it may be assumed that the fact is so. But we think the motion must be overruled. The Us pendens is a sufficient notice to the assignees of the plaintiff, and they will be bound by the decree. Story’s Eq. Pl., sec. 156, and cases in note.

The defendants move that certain evidence received de bene esse by the judge who tried the cause, under circumstances shown by an amendment to the case, be considered here, and that the findings of fact upon ■which a reformation of the lease was ordered be set aside or modified, and the order reversed.

We do not think the affidavit of Mr. French, when considered in connection with the facts respecting the introduction of this evidence as stated in the amendment, shows sufficient ground for reopening the case. Counsel as well as parties must be held to some reasonable degree of diligence in such matters, otherwise the court will find it impossible to get through with the business required of them. We cannot consider and weigh evidence at the law terms in determining questions of law reserved in equity any more than at law. How it would be as to setting aside findings of fact by a judge at the trial term as being against evidence or as unsupported by evidence it is not necessary to inquire, because no such question is here reserved, and the evidence upon which the findings were based is not before us. In order, however, that the defendants may not feel that their rights have suffered by reason of this omission, we may say, informally, that we have read the evidence in question without being able to discover its importance, and so far as we can get any light from an attentive examination of the whole case, and the printed and oral arguments of counsel upon this point, we all concur with the chief justice, who tried the cause, in the opinion that the material findings of fact ought not to be changed or affected by the evidence, were it received.

We are unable to attach the least weight to the fact that a similar lease was made to the B., C. & M. Railroad a few months before, and the memorandum of Mr. Bell shows absolutely nothing, except what appears from an inspection of the two documents, namely, that they are similar.

As to the votes of the corporation, if that of November 21, 1846, were considered, that of June 80,1852, would also be considered, and we should still be of opinion that the lease was not executed by Mr. Bell on behalf of the company without sufficient authority to bind them in the premises.

We think the order for á reformation of the lease, upon the facts found, was right. It is therefore to be affirmed, and a decree entered accordingly.

As to the finding by which the amount of water the plaintiff may draw for the supply of his wheel on the Tucker lot is fixed, the defendants object that any parol agreement entered into by Mr. Bell on that subject cannot be received to change the terms of the lease ; and that is so beyond question. It is not objected, however, that upon this bill the measure of the quantity of water to be taken for that purpose to answer the terms of the lease may not be ascertained and fixed. This is all the court undertook to do, and in doing it received evidence that a certain definite measure was agreed upon by the parties soon after the execution of the lease. If this act of Mr. Bell be regarded merely as a piece of evidence bearing upon the size of a penstock that should have the capacity to draw the quantity of water called for by the lease, it would doubtless be entitled to very considerable weight, in that view alone ; but it seems to have been something more, namely, a practical application of the instrument to the thing conveyed, by which the parties may well be considered.bound, — something like a practical location of a piece of land conveyed by deed, where the parties, immediately after the execution of the deed, go upon the ground and establish its boundaries by fixed and definite monuments not inconsistent with the calls of the deed. We see no reason why a decree fixing the quantity of water the plaintiff may draw for use on the Tucker lot, under the lease as amended, should not be entered in accordance with this finding. It is no more than prescribing an instrument and mode whereby the quantity required to drive a wheel like that used by the lessees at the time of executing the lease shall be measured and ascertained.

The bill praj^s for an order that the defendants remove from the canal certain obstructions placed by them therein, and an injunction restraining them from filling up the channel of the canal, or doing any act to prevent the water from freely flowing therein ; and this raises what seems to be regarded as the important question in the case.

The respective rights and obligations of the parties rest upon the true construction of the lease as reformed. It is contended by the defendants that this lease creates a simple tenancy at will in the lessees, determinable at the pleasure of either party; and that this is shown (1) by the express reservation contained in it, and (2) by the fact that it is made determinable at the will of the lessees.

Upqn a careful examination of the reservation, in connection with the rest of the instrument, we think it will not bear the construction which the defendants claim for it. The reservation is, “ the control of the water in the Winnipissiogee river, and in all mill-ponds, bays, lakes, and reservoirs at and above said premises, with the right of holding back and retaining and discharging the water therefrom at their pleasure.” The question is, whether this gives the grantors the right to cut off or interfere with the flow of water from their dam into and through this canal by any special means or appliance independent of their general control and management of the water in the river, lake, &c. In giving construction to this reservation we are to look at the whole lease together, as well as the subject-matter to which it relates.

The right granted is, to draw a certain quantity of water from the canal leading from the Lyford saw-mill connected with the dam of said company, &c., and the defendants covenant that they will keep said dam in repair so as to afford the use of the water as aforesaid, subject to the exercise of the right reserved by said lessors to control the water. It is also stipulated, that in case the lessees are interrupted in the use of their mills by the acts'of the defendants, in holding back, retaining, and discharging the water, there shall be an abatement of rent for that cause. Are these various provisions of the lease consistent with the idea that the defendants might at any time, at their mere pleasure, and for a purpose in no way connected with the exercise of a general control of the water in the river, lake, &c., put in a permanent barrier at tlie head of the canal, and so, by cutting off entirely the flow of water therein, terminate the lease ? We think they are not. Why a covenant that the defendants should keep their dam in repair so as to afford the use of the water, unless the state and flow of water in the canal were to depend on the state of the water in the dam ? Why the provision that, in case the lessees fail to perform on their part, the lessors may immediately, or at any time thereafter while said neglect or default continues, shut off the water and prevent its flowing through said flume, if it was understood that such right existed whether the lessees performed the covenants or not ? Observe, also, that this very provision is expressly limited by the significant phrase, “while said neglect or default continues.” Why does the instrument speak of an abatement of rent in case of interruption, unless the intention were to provide for those occasions when the defendants’ general management of the water, for the benefit of their large interests said to be involved, might disenable them, temporarily, to supply the stipulated amount of water, that is, enough to drive the two wheels?

If the intention had been to reserve in the defendants the right at any time to terminate the lease by shutting off entirely the water from the canal, why was it not so put in the instrument in terms unambiguous and clear ? Why was a right so important to both parties, the exercise of which might be attended with consequences so ruinous to the lessees, left to be inferred by means of a construction, more than doubtful, of a clause in the document which appears on its face to relate to the general control of the water in the reservoir upon which the supply in the canal was dependent ? We think the lease is not capable of such a construction.

The right to control the water in the river, mill-ponds, lakes, etc., upon which the water to supply the canal depended, and to discharge the same therefrom at pleasure, was most certainly reserved to the lessors. If the defendants had occasion to draw the water in the dam — • which is understood to include the whole of the Lake Winnipissiogee— so low that enough would not naturally flow through the canal to supply the quantity required by the lease, it is clear they would have the right to do so, and the only remedy of the lessees would be an abatement of rent. So, if, in the course of such general management and control, they had occasion to hold back all the water and so wholly stop its flow in the river, the only remedy of the lessees upon their lease would still be an abatement of rent. But suppose the water above the dam stands at a sufficient height to furnish the required amount to the canal; and suppose, at the same time, in their control of the water in the river and the discharge of it from their dam, the defendants erect a barrier to prevent its flow into the canal, still permitting a quantity sufficient to answer the call of the lease to pass at some other point, — through a sluice directly into the river, or through some other canal for the use of some other mill, and so into the river: would such a management and control of the water come within any fair interpretation of the clause reserving the right ? We think not.

• The fair and sensible construction of the lease, as it seems to us, is, that tiie flow of water in the canal was in general to depend upon the height at which the defendants might choose to keep it in the reservoir; and such we think must have been the understanding of the parties, as shown by the language they employed.

Whether under any circumstances or upon any contingency the defendants, in the reasonable exercise of their reserved right to control the water in the reservoir and regulate its discharge, might hinder its flow from the dam into the canal, and so interrupt, temporarily, the natural and usual dependence of its flow in the canal, upon its height in the dam, we need not now inquire. It is enough that no such contingency is shown. To justify the erection of a barrier at the head of the canal would doubtless require an extraordinary state of facts, of which we have no hint or suggestion at this time.

So far as the lessees are concerned, the defendants’ right to control the quantity of water in their reservoirs, and the amount of its discharge therefrom into the river, seems to be absolute and unrestricted. They may hold it back until it accumulates to an indefinite height above their dam, and so they may discharge and draw it down indefinitely at their pleasure. But the right to interfere with the natural and necessary relation between its condition and flow in the canal and its condition as to height in the reservoir can only exist when and so far as such interference may be necessary in the reasonable exercise of their right to control the accumulation and discharge of water from the reservoir.

The result of our conclusions upon this point is, that the lessees are entitled to have the canal kept in substantially the same condition, so far as regards its capacity for conducting water from the dam to the points where the lessees are to take it, as when the lease was executed ; and that the plaintiff must have a suitable and proper order with respect to the obstructions complained of to carry out these views. It is said, further, that this instrument creates simply a tenancy at will, because by its terms the lessees may terminate it at their pleasure. The words are, “ to have and to hold said demised premises to said lessees for and during their pleasure.”

It is not contended but that a lessor may, by express covenant, grant an estate, the duration of which shall depend upon the pleasure of the grantee, and when that is done there can be no pretence that the estate so created is a tenancy at will, in the ordinary legal signification of the term.

The question here is, What were the meaning and intention of the parties in this respect as shown by the language of the habendum above quoted, read in the light thrown upon it by the rest of the instrument ? One covenant is, “ and the said parties agree with each other that all the covenants and agreements herein contained shall extend to and bind their legal representatives.” The inquiry now is, not what estate is created by this clause, but what effect, if any, is to be given it upon the question whether the estate created is or is not a strict tenancy at will, as claimed by the defendants.

On its face this clause appears to be important, and must have been so regarded by the parties. It could not have found its way into the instrument without some design. It must have been understood to have some meaning and effect. It certainly cannot be stricken out as senseless or repugnant, and there can be no doubt but that we must give it some effect, if possible.

Putting this clause and the words in the habendum together, it reads “ to have and to hold said demised premises to said lessees and their legal representatives for and during their pleasure.”

Now, whatever else may be meant by the term “ legal representatives ” of the lessees, it certainly does not mean the lessees themselves. It is equally certain that it must mean some person or persons to whom the demised premises may legally pass from the lessees, and this, to say the least, implies an assignment either by operation of law or by the act of the lessees themselves. The clear intention, then, was to create an assignable estate. That being so, the intention was not to create a strict tenancy at will, for that is not an interest or estate capable of assignment. The bearing of this covenant, therefore, upon the construction of the words in the habendum, which we are considering, would seem to be conclusive that they were intended as an express covenant for an estate greater than a tenancy at will. Whether that estate was understood by the parties to be a fee-simple, or an estate for life, or a term, the length of which was at the option of the lessees, is of no consequence so far as regards this point. It is sufficient that they intended to create an estate which might be conveyed by assignment, and not a mere tenancy at will. The words in the habendum are, at least, equally capable of a construction to tally with the obvious intention of the parties as thus expressed; and, without going further, we have no hesitation in holding that such is the construction they must receive, and, therefore, that the estate granted is not a simple tenancy at will.

We think the evidence excepted to as to expenditures made by the plaintiff on the Tucker lot was admissible on the question of reforming the lease.

The word “ heirs ” does not appear in the lease. The defendants thereupon contend that, at most, it conveys only a life estate to the lessees. The plaintiff claims that the whole instrument read together is sufficient to give a perpetual right to take and use the water upon the terms and conditions therein specified, — that is, a fee, — but at the same time moves that, in case the court should be of a different opinion, the lease may be reformed by inserting the proper word of inheritance, so as to express in legal language the actual contract of the parties according to their intention when it was made. J

Before proceeding to consider the question thus raised, we may as well say, that, from an examination of the lease alone, without resorting to extrinsic evidence at all, we entertain no doubt that the understanding and contract of the parties were as claimed by the plaintiff. The defendants demised and leased to the plaintiff and others the right to draw a certain quantity of water from tlieir canal through a flume to the plaintiff’s mills and buildings on certain land, for the use and operation of the plaintiff’s mills and machinery; gave the plaintiff the right to maintain the flume and keep it in repair, and for that purpose to enter upon the defendants’ land, “ to have and to hold said demised premises to the said lessees, paying a certain yearly rent.” Everything included in those stipulations “ shall extend to and bind their legal representatives; ” the fair meaning of which is, that every right of the parties under the instrument shall extend to their legal representatives. This is all expressed in the common language of the country. No technical words, presumed to be used in a settled, technical, legal sense, are employed. The intention of the parties is therefore to be found in the ordinary, natural, and popular signification of the written language in which they chose to express themselves. In point of fact, there is nothing for construction here at all, fokpt is a primary maxim that it is not permitted to interpret what has no need of interpretation. It is not permitted to the court to defeat the plainly expressed intention of the parties, by distorting, explaining away, or wresting from its commonly received import the language they have used, under the name and guise of construction .\>

The language of this lease, in its ordinary, natural, and popular sense, makes the intention of the parties to pass a perpetual right obvious and unmistakable. Such being, in fact, the manifest meaning of the instrument, and the indubitable intention of the parties as therein expressed, it might not be difficult to find authority on which to hold that the deed should be treated as reformed in conformity with that intention under the prayer for general relief in the bill. Busby v. Littlefield, 31 N. H. 200, and authorities cited.

There may also be room for doubt whether the defendants, having entered into a covenant in terms undeniably sufficient to bind a corporation of this sort forever, could be permitted to repudiate it on the ground that the estate is limited to the legal representatives rather than the heirs of the lessees, so long as the conditions upon which the estate was granted continue to be performed by any one who comes within the class designated by the term legal representatives. Coke Litt. 9 b., 94 b.; 2 Bl. Com. 108, notes; 4 Kent Com. 7; 1 Washb. R. P. 58. We have not chosen, however, to examine either of these propositions, but prefer, rather, to inquire whether there exists in this state any law whereby a legal contract, fairly and openly concluded between the parties, and by them put in writing in terms so plain as to leave no room for doubt as to the obligations they have thereby mutually assumed, is set aside and nullified for want of a single word, purely technical in its legal effect, which adds nothing to the sense of the instrument, and can only be made consistent with the intention it is held to express by an interpretation which withdraws it entirely from all the ordinary uses of the language in which it is found. There being no doubt as to what the contract between these parties was, no doubt as to the meaning of the lease, the question we propose to consider is, whether that contract is to be destroyed by an application of the proposition that to create a fee the word “ heirs ” must be employed.

Suppose A, being the owner in fee of a piece of land, by a deed duly executed, conveys to B all “ his estate and interest therein,” and expressly declares in the same deed that B, having paid him the full value of the land, it is his intention,- and the effect of the deed shall be, to pass an absolute title in fee simple to B: a rule of law defeating that intention, and preventing the deed from having the effect intended to be given by its express terms — construing the language, is This deed shall pass, and shall be construed to pass, a fee,” to mean “ This deed shall not pass, and shall be construed not to pass, a fee,” because the superfluous word “ heirs ” was not used — -would undoubtedly strike the unlearned with a degree of astonishment. Such a rule must appear to an intelligent layman, unfamiliar with the mysteries of the fossil remains of feudal institutions, as arbitrary, destructive, tyrannical, and in most violent conflict with all ideas of legal reason which such a person can comprehend.

The question whether that rule is part of the law of this state is presented for our consideration in the present case, in a form which differs in no material respect from the case supposed for illustration.

It is said to be a rule of the common law, that without the word “ heirs ” a fee-simple in land cannot pass by deed; and that this rule is so absolute and unyielding, that, no matter how clearly the intention of the grantor to convey a fee may be stated in the deed, such intention can be of no avail without that word. Waslib. R. P., Bk. I, ch. Ill, sec. 58, and authorities in notes. A priori we should expect to find a rule which in its practical application brings about results so anomalous and absurd, but which is, nevertheless, enforced with such remorseless rigor by the courts, upheld by reasons very plain and very imperative. Naturally we should also expect that the books, which are full of cases where its application has produced palpable injustice, more or less aggravated according to circumstances, would also be filled with strong and conclusive reasons in its support. On the contrary, what does appear ? I venture to affirm that since the revolution by which the house of Stuart was finally excluded from the British throne, when most of the shackles which feudalism had riveted upon the tenure of lands throughout the kingdom were removed, not a reason, nor the semblance of a reason, growing out of the condition and wants of society, the pi’ogress of civilization, the exigencies of trade, or the analogies of the law, can be found in its support in any country or state where the common law has been used.

The rule is a feudal one: that it had no place in the laws of the Saxons is shown by Reeves. Speaking of the form of charters at about the time of the Norman conquest, he says, — “ The words of limitation to convey a fee, whether absolute or conditional, were divers; ” and after giving a number of Latin forms which were used, some of them containing the word “ haeredibus,” and some not, he continues, “ from which divers ways of limiting estates (and numberless other ways might be produced) it must be concluded that no specific form had been agreed on as necessarily requisite to express a specific estate; but the intention of the gran ter was collected, as well as could be, from the terms in which he had chosen to convey his meaning.” 1 Reeves’s Hist. Law (Finlason) 42.

Blackstone says, — “ This very great nicety about the insertion of the word £ Heirs ’ in all feoffments and grants, in order to vest a fee, is plainly a relic of the feodal strictness; by which we may remember it was required that the form of the donation should be punctually pursued ; or that, as Cragg expresses it in the words of Baldus,£ donationes sint stricti juris, ne quis plus donasse praesumatur quam in donatione expresserit.’ And, therefore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee’s estate in the land extended only to his own person, and subsisted no longer than his life; unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs.” 2 BÍ. Com. 107. Chancellor Kent says, — ££ The rule was founded originally on principles of feudal policy which no longer exist, and it has now become entirely technical,” and he gives the same reason for it as Blackstone. 4 Kent Com. 6.

To comprehend fully the reasons which gave birth to this rule, we ought to recall not only the nature of the feudal tenures of land in England, but the history of the origin and development of the system itself, which before the close of the eleventh century had succeeded, mainly by conquest and force, in vesting the ultimate ownership of nearly all the lands in England, as well as on the continent of Europe, in the feudal lords, and parcelling them out among a few military chieftains or leaders of bands of predatory barbarians.

This is not the place for an extended review. In a brief recapitulation Guizot says, — ££ I will once again recall to you the first origins of the feudal relations. As you are aware, they go back to the Germanic warlike band; they are a consequence, a transformation of the relations between the barbarous chief and his companions.

“ The relations between the barbarian chief and his companions, it will be recollected, had two essential characteristics. 1. It was purely personal, engaged only the individual who acceded to it of his own choice, and in no way involved his family, his children, his descendants. 2. It was, moreover, perfectly free; that is to say, the companion was at liberty to quit the chief when it suited him, to enter into another band, to associate himself with another expedition. Upon personality and liberty reposed the mobile society, which was the basis of feudal society.

££ The territorial establishment once accomplished, by the mere introduction of landed property into the relation between the chief and the companions, it was greatly modified. From the very nature of landed property it followed that the relation became less free, less mobile. The companion attached himself to the estate which he had from his chief; it was not so easy for him to quit his estate as formerly to quit Iiis chief. The will of the individual was constrained to fix itself more firmly; the social tie was stronger. The relation accordingly lost its personality. Landed property necessarily tended to become hereditary; inheritance is its natural, normal condition. The relation between the vassal and the suzerain follows the same law; it was not only personal, but hereditary; it engaged the children as well as the father, the future as well as the present. As it was more strong, the social tie was more durable. * % # 3$ ifc -%■ * ¿fc

“ Still, the primitive character of the relation was not abolished; far from it. Instinctively, by the sole power of manners, an effort was made for it to remain free and personal; as much so, at least, as was compatible with the new state of facts. Whenever there was a change in the persons between whom the relation was established, — that is to say, whenever the vassal died, — the social tie had to be renewed. The son did not tacitly and without ceremony become the vassal of his father’s suzerain; but a formal act was necessary on his part to place him in the same situation, to make him contract the same rights and the same duties. It was necessary, in a word, that the relation should take the character of personality. This, in fact, is the character which they sought to give it by the ceremonies of homage, the oath of fidelity and investiture.” 4 Guizot Hist. Civ. (Appleton & Co., 1867) 63. “ The feudal relation being in its origin purely personal, no one could, as may easily be conceived, impose upon the suzerain another vassal than him whom he had adopted, with whom he had treated. Accordingly, in the earliest ages, the vassal was not allowed to sell his fief without the consent of his lord. Still, as this stagnation, this immobility of fiefs, was very inconvenient, even impracticable in civil life, the permission to sell fiefs was soon introduced under one form or another, and on more or less favorable conditions; but in being introduced it gave rise, for the profit of the suzerain, to a right, either for redemption or indemnity, at each change. Accordingly, from the tenth century, the suzerain might in Prance either resume the fief by paying its value to the possessor, or exact a certain sum from the purchaser, generally equal to a year’s rent.” Id. 73.

Reeves states the same thing in effect concerning tenures in England, as follows : “ Military service being required by express statute ” (the laws of William the Norman, chaps. 52 and 58, whereby feudal tenures were, as Reeves maintains, fastened upon the land, and the nature of the services on which it should be held established), “ the other effects of tenure were deductions from the nature of that establishment. As all the king’s tenants were supposed to have received their lands by the gift of the king, it seemed not unreasonable that upon the death of an ancestor the heir should purchase a continuance of the king’s favor by paying a sum of money called a relief for entering into the estate. As he would be bound to the same service to which his ancestor was liable, and which was the only return that could be made in consideration of his enjoying the property, it seemed reasonable that the king should judge whether he was capable by his years of performing the services; if not, that lie as lord should have the custody of the land during the infancy, by the produce of which he might provide himself with a sufficient substitute, and in the meantime have the care or wardship of the infant’s person, in order to educate him in a manner becoming the character he was to support as his tenant.” 1 Beeves Hist. Law 66.

This right, which the lord had of exacting a certain sum of money from the new possessor when his vassel sold liis fief, is but one of seven fruits and consequences inseparably incident, as Blackstone says, to the highest species of tenure, that of knight-service, — namely, aids, relief, primer seizin, wardship, marriage, fines for alienation, and escheat; all showing the inexorable tenacity with which the lords retained their control of the land.

Blackstone says, — “At the first introduction of feuds, as they were gratuitous, so also they were precarious, and held at the will of the lord, who was then the sole judge whether his vassal performed his services faithfully. Then they became certain for one or more years. Among the ancient Germans they continued only from year to year. % * ¿ft Ü? # & * & # *

“ But, when the general migration was pretty well over, and a peaceable possession of the new-acquired settlements had introduced new customs and manners; when the fertility of the soil had encouraged the study of husbandry, and an affection for the spots they had cultivated began naturally to arise in the tillers, — a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory. But still feuds were not yet hereditary, though frequently granted by the favor of the lord to the children of the former possessor; till in process of time it became unusual, and was therefore thought hard, to reject the heir, if he were capable to perform the services. * * In process of time feuds came by degrees to be universally extended, beyond the life of the first vassal, to his sons, or perhaps to such one of them as the lord should name, and in this case the form of the donation was strictly observed; for, if a feud was given to a man and his sons, all his sons succeeded him in equal portions, and as they died off, their shares reverted to their lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation. But when such a feud was given to a man and his heirs, in general terms, then a more extended rule of succession took place ; and when the feudatory died, his male descendants in infinitum were admitted to the succession. * * *

“ Other qualities of feuds were, that the feudatory could not aliene or dispose of his feud; neither could he exchange, nor yet mortgage, nor even devise it by will, without the consent of the lord. For the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he should be at liberty to transfer this gift, either from himself, or from his posterity, who were presumed to inherit his valor, to others who might prove less able.” 2 Bl. Com. 55.

Montesquieu says, — “ It cannot be doubted but that at first fiefs were revokable.” Spirit of Laws, bk. 30, cli. 16. Guizot does not assent to this. He thinks the texts cited by Montesquieu prove a fact, and not a law.” “ Doubtless the king or any giver of benefices,” he says, “ who found himself more powerful than the receiver, took back his gift when he felt the desire or need; but that it was the legal state of this kind of property that possessors of fiefs acknowledged the right of the givers to take them back when they pleased, there is no evidence to show.” He also thinks that in the outset feuds were more permanent than Blackstone and .other publicists seem to suppose. 3 Guizot Hist. Civ. 346, 349.

These extracts are enough to show that the word “ heirs,” when first introduced into charters and feofments, was a word of very great importance. It enlarged the right of the vassal from one held either at the will of the lord, or for his own life, to a permanent and hereditary interest. It signified an undertaking by the lord that he would accept the heir as his vassal, and that all the rights and obligations growing out of that relation should be extended to him. It was, in effect, simply a stipulation for a renewal of the lease upon the same terms with the heir of the first lessee. They also show to some extent the nature of the institutions and condition of society in which the rule we are speaking of originated and to which it was applicable, and strongly present the contrast between those institutions and our own.

It is important to our inquiry that the utter repugnancy and hostility of feudal institutions to ours should be fully borne in mind. A few more extracts, presenting the contrast in a striking light, may not be superfluous.

According to Guizot, one of the three constituent elements or essential facts of the feudal system was the amalgamation of sovereignty with property. 3 Hist. Oiv. 341. He says, — “ When I speak of the amalgamation of sovereignty and of property, I repeat that I only speak of the possessor of the fief within his own domains, and over their inhabitants not themselves possessors of fiefs. * * * Originally, in the right, in the spirit of the system, each lord exercised the legislative, judicial, and military powers in his domains; he made war, coined money, &c.; — in a word, he was a sovereign.” Ib. 359. “ We will now descend to the foot of the castle, into those miserable dwellings where the tributary population who cultivated its domains lived. Its situation bears no resemblance to that of the inhabitants of the castle : nothing defends it, nothing shelters it; it is exposed to all dangers, a prey to continual vicissitudes; upon it, and at its expense, burst forth all the storms which occupied the life of its master. Never, perhaps, did any population live more utterly destitute of peace and security, abandoned to a more violent and incessantly renewed movement. At the same time its condition appears stationary: for a long time we can see no general and notable change. Through all the commotion which constantly agitated it, we almost always find it the same —much more immovable, more foreign to social movement, than the little society which lived above it, behind the ramparts and moats of the castle. * * The coloni were attached to the estate; their legal definition formally says as much: servi terras, glebae inhaerentes. They could not, under any pretext, quit the domain to which they belonged; and if they happened to make their escape, the proprietor had a right to claim them in whatever place he found them, and in whatever profession they might be engaged. ‘ We order that laborers be attached to the glebe, in such a manner that they cannot be taken from it, even for a moment.’ Cod. Just., tit. 47, 1. 15. ‘ Let all fugitive laborers, without any distinction of sex, function, or condition, be forced by the governors of the provinces to return to the places-where they were born, have been brought up, and paid, the quit-rent.’ Ibid, 1. 6. ‘ It is fitting that henceforth laborers who have thought of escaping should be loaded with irons, in the manner of slaves.’ Cod. Theod., 1. v, tit. 9. Laborers, like slaves, were subject to corporeal punishment, and were deprived of all right of complaint, of all civil action against their patron, against the proprietor of the soil.” 4 Guizot Hist. Civ. 37, et seq.

It was with entire .justice that Mackintosh characterized a feudal kingdom as “ a confederacy of a numerous body, who lived in a state of war against each other and of rapine towards all mankind, in which the king, according to his ability and vigor, was either a cipher or a tyrant, and a greater portion of the people were reduced to personal slavery.” Mackintosh’s Hist, of Eng., ch. 3.

In a dissertation on the canon and. feudal law, John Adams said,— “ In the latter [the feudal law] we find another system, similar in many respects to the former, which, although it was originally formed, perhaps, for the necessary defence of a barbarous people against the inroads and invasions of her neighboring nations, yet for the same purposes of tyranny, cruelty, and lust, which had dictated the canon law, it was soon adopted by almost all the princes of Europe, and wrought into the constitutions of their government. It was originally a code of laws for a vast army in a perpetual encampment. The general was invested with the sovereign propriety of all the lands within the territory. Of him, as his servants and vassals, the first rank of his great officers held the lands; and in the same manner the other subordinate officers held of them ; and all ranks and degrees held their lands by a variety of duties and services, all tending to bind the chains the faster on every order of mankind. In this manner the common people were held together in herds and clans in a state of servile dependence on their lords, bound, even by the tenure of their lands, to follow them, whenever they commanded, to their wars, and in a state of total ignorance of everything divine and human, excepting the use of arms and the culture of their lands.” He then goes on to speak of the confederacy between those two systems of tyranny, the ecclesiastical and civil, whereby each was to aid the other in maintaining its supremacy, and the struggle between the people on the one hand and this confederacy on the other, commencing at the time of the reformation, and continues, — “ It was this great struggle that peopled America. It was not religion alone, as is commonly supposed; but it was a love of universal liberty, and a hatred, a dread, a horror of the infernal confederacy before described, that projected, conducted, and accomplished the settlement of America.

“ It was a resolution formed by a sensible people — I mean the Puritans — almost in despair. * * * This people had been so vexed and tortured by the powers of those days, for no other crime than their knowledge and their freedom of inquiry and examination, and they had so much reason to despair of deliverance from those miseries on that side the ocean, that they at last resolved to fly to the wilderness for refuge from the temporal and spiritual principalities and powers, and plagues and scourges of their native country.

“After their arrival here they began their settlement, and formed their plan, both of ecclesiastical and civil government, in direct opposition to tiie canon and the feudal systems.” 8 Life and Works of John Adams 350.

It was to answer one of the conditions upon which the existence of such a system depended that the rule in question was introduced. Unless the lord bound himself that the fief should go to the heir of his vassal, the heir had no rights in it on the death of his ancestor, but the lord, being the absolute owner of the soil, might bestow the fief upon any stranger who would enter into homage and do fealty to him for the land, upon such new services as he might impose.

The rule was nothing more nor less than the practice of the feudal sovereign, securing and pei’petuating his grasp upon all the land, and the services of all the landholders in his realm. Its origin, purpose, and history show it to be in no way adapted to our institutions, system of government, or condition of society. As a feudal rule of construction, it was a recognition of the fact that the vassal held his lord’s land upon the condition of rendering in his own person certain services to his lord. The vassal, thus holding the land by reason of the personal trust and confidence l’eposed in him by his lord, could not assign, nor could his heirs inherit, his obligation of personal service on the land held on such a condition. Flanders v. Lamphear, 9 N. H. 201; Eastman v. Batchelder, 36 N. H. 141; Bethlehem v. Annis, 40 N. H. 34, 41, 42. The feudal rule is inapplicable to a conveyance of New Hampshire land not held by any such tenure.

When the fetters which feudalism had fastened upon the tenure of lands in England fell off, every reason on which this rule had rested fell with them. Why should the rule itself be retained ? Lord Coke says, — uCessante ratione legis, eessat ipsa lex ” — Coke Litt. 70 b; and that has come to be — indeed, it was then — one of the most familiar maxims of the law. The fourth maxim of construction of statutes laid down by Dwarris is, An act of parliament cannot alter by reason of time; but the common law may, since cessante ratione eessat lex. Potter’s Dwar. 122.

But suppose the rule was retained in England after the reason of it ceased, and that it was engrafted upon the common law at the time of the settlement of this state and the adoption of the constitution, the question is, Has it been adopted here? The framers of the constitution, in providing for the continuance of such laws as had theretofore been adopted and approved, etc., wisely excepted such parts thereof as should be found repugnant to the rights and liberties contained in that instrument. Const. N. H., art. 90. This implies that there might be some parts of the common law to which the exception should bo applied. With all the devotion to the general principles of the common law, which eminently distinguished that generation of men, they could not fail to see that as a body of municipal law it was not wholly free from defects. They must have known, as Judge Cooley says, that many of its features were exceedingly harsh and repulsive, and gave unmistakable pi'oofs that they had their origin in times of profound ignorance, superstition, and barbarism ; that the feudal system, which was essentially a system of violence, disorder, and rapine, gave birth to many of its maxims; and that some of these, long after that system had passed away, might still be traced in the law, especially in the rules which govern the acquisition, control, and enjoyment of real estate. Cooley’s Const. Lina. 22. Hence the exception. Accordingly it has many times been held, under our constitution, that if there is any part of the common law incompatible with our institutions, or not adapted to our circumstances, it does not prevail here. Lisbon v. Lyman, 49 N. H. 582, and cases cited.

They who brought the general body of the common law with them to this region might well have omitted to bring the feudal rule, not because it was fabricated in a barbaric age, but because it was designed and fitted to perpetuate a barbaric condition ; not because it originated in a foreign land, but because it was not suited to the commonwealth which our foreign ancestors came to this country to organize; not because, as a part of the military system of Europe, it was less necessary in feudal times than other compulsory methods of filling armies and navies in other times, but because the general feudal relation of lord and'vassal not being an incident of New Hampshire civilization, and the particular debt of personal service due from the vassal to the lord (which the heirs of the vassal might be incompetent to perform) not being a universal consideration of the conveyance of New Hampshire peal estate, the feudal rule (requiring the word “ heirs ” as evidence of the lord’s intention to assume the risk of his vassal’s heirs being incapable of the stipulated service) was inapplicable to the situation and circumstances of the emigrants, and implied a servitude inconsistent with the principles of personal freedom and equality which pervaded their social and political plan, hostile to the general object of their emigration, and particularly subversive of that absolute ownership of the soil which they specially sought in the New World.

It appears that in Massachusetts, prior to 1651, the word “ heir ” was “ oftentimes omitted when an estate of inheritance is intended to be passed by the parties; ” and in that year a statute was passed by the general court introducing the feudal rule, which has been maintained in that state by statute ever since. Sedgwick v. Laflin, 10 Allen 480. When the union which at that time existed between Massachusetts and New Hampshire was dissolved, the people of the latter province, in 1680, adopted a code made up mainly by copying such of the Massachusetts statutes as they thought adapted to their wants. In that code this act was omitted, and no statute on the subject has ever existed here. The word must have been omitted as often proportionally here as in Massachusetts ; and when the attention of our people had been directed to the subject by a statute under which they lived for twenty-eight years, the omission could hardly have been accidental. They were for several generations engaged in vigorously resisting Mason’s claim to a proprietorship, which if maintained would have given him a substantial baronial dominion over the whole province, with the title of lord-protector, which he assumed. Belk. Hist. N. H. 94 (ed. 1881) ; — and see 1 N. H. Prov. Pap. 488-582. There was nothing in their history in this, any more than in the old country, calculated to impress them with the expediency of introducing the mediaeval rule, either by statute, or by consent and general understanding without a statute. We know of no reason why they should have desired or intended to do so.

The effect of the Massachusetts statute in Sedgwick v. Laflin illustrates the difficulties and injustice occasioned by importing a rule so incompatible with American institutions as to be capable, upon legal principles, of being introduced by nothing short of express legislation. Like many other arbitrary rules that might be made, it would prevent some litigation that would be necessary for ascertaining the intention of the parties upon rules of construction calculated to discover their intention. But the evils of such litigation cannot be compared with the gross injustice that would be perpetrated by such a rule, arbitrarily and summarily defeating the intention of the parties, where the evidence happened not to be sufficient (as it would bo likely to be now that the parties can testify) to induce them to resort to litigation to have their deeds reformed and their intentions carried out in suits in chancery.

The rule has never been judicially declared to be the law in this state. Doubtless there are, in one or two cases where the construction of a will was under consideration, remarks of judges which indicate that they may have understood it to be in force here as to deeds. There are, on the other hand, two cases containing observations deserving of more attention. I refer to Hutchins v. Carleton, 19 N. H. 487, and Mack v. Jones, 21 N. H. 393. Hutchins v. Carleton was somewhat complicated in its facts; but the effect of an instrument written on the back of a mortgage, and executed with all the formalities of a deed, but not containing the word “ heirs,” was before the court. In speaking of that instrument, Woods, J., says, — “There seems to be no objection to regarding the instrument of January 28, 1838, indorsed upon the mortgage, and executed with the formalities necessary for passing real estate, as having actually conveyed from Stevens to Giles the fee-simple, which, in contemplation of law, was perfected in him by the two deeds of Greenwood, or at least a freehold, if the terms of the habendum be deemed insufficient to enlarge the words of the grant to a greater extent.”

It is quite certain that no such remark would have been made by that careful and accurate judge had he understood there was no question of the rule being in force in this state.

Mack v. Jones was case against the selectmen of Marlow for assessing an illegal tax against the plaintiff on a piece of land called the school lot, conveyed to one Silas Mack in 1803 by said town, “ to hold possession of said premises, free from taxes, till grass shall cease to grow and water to run.” The deed did not contain the word “ heirs.” The point decided was, that the town could not by grant exempt land from taxes. But Perley, J., delivering the opinion of the court, says,— “ If the deed can take effect according to the popular sense of the language used, and the probable intention of the parties, Silas Mack and his assigns, since the payment of the securities mentioned in the deed, have been the absolute and unconditional owners of the land. The town retains no interest whatever. There are, however, no words of inheritance used in the deed, and, unless the rule of the common law has been relaxed in this state, Silas Mack took only an estate for life.”

This seems to imply that the court in 1850 regarded it as doubtful whether the rule was so adapted to our institutions and the condition of the country as to be adopted with the great body of the common law. It is not probable that twice within the space of two years, — once in 1849 and once in 1850, — the court would have invited the mooting of a question which they thought to be at rest.

The rule was not applied at common law in England to the construction of wills — Coke Litt. 322, b; Com. Dig., Devise (n. 4); Chitty’s note to 2 Bl. Com. 108 — nor in this state, irrespective of the statute of 1822 — Fogg v. Clark, 1 N. H. 163; M’Afee v. Gilman, 4 N. H. 391; Forsaith v. Clark, 21 N. H. 409 — where, although the decision was after the statute, the will was proved very long before.

In Loveacres v. Blight, Cowp. 352, Lord Mansfield said, — “ I really believe that almost every case determined by this rule, as applied to a devise of lands in a will, has defeated the real intention of the testator; for common people, and even others who have some knowledge of the law, do not distinguish between a bequest of personalty, and a devise of real estate. But, as they know when they give a man a horse, they give it him forever; so they think if they give a house or land, it will continue to be the sole property of the person to whom they have left it. Notwithstanding this, where there arc no words of limitation, the court must determine in the case of a devise affecting real estate, that the devisee has only an estate for life; because the principle is fully settled and established, and no conjecture of a private imagination can shake a rule of law.

“ But as this rule of law has the effect I have just mentioned, of defeating the intention of the testator in almost every case that occurs, the court has laid hold of the generality of other expressions in a will, where any such can be found, to take the devise out of this rule. * * In general, wherever there are words and expressions, either general or particular, or clauses in a will, which the court can lay hold of to enlarge the estate of a devisee, they will do so to effectuate the intention.” He did not explain by what authority the court has laid hold of the generality of other expressions in a will to take the devise out of this rule, or how it would be possible in that way to give effect to the intention of the testator without shaking a rule of law by the conjecture of a private imagination, provided it is a rule of law that the word “ heirs ” is indispensable to the passing of a fee. Nor did he do what would have been more useful still, that is to say, point out the reason for a distinction in this respect between the construction of a will and a deed. The reason for not applying the rule to wills is sensible and easily understood. It is, as Lord Coke expresses it, quod ultima voluntas testatoris est perimplenda secundum veram intentionem suam. Coke Litt. 322, b. But this shows no reason for the distinction. It does not show why the intention of the maker of the instrument is any more sacred in one case than in the other, nor by what right the court can abrogate the rule iii favor of one class of donees, if it must be rigidly enforced against the other. If for any reason, however mysterious, a fee in land could not pass without the use of this potent word, all efforts of the court to bring about such a result where the word was wanting, whether in a will or deed, must have failed. ' But in the case of wills those efforts did not fail. What, then, became of the feudal rule ? It yielded to reason. It was swept away by the monstrous absurdity and injustice which its application must involve. It could not stand, because no enlightened court could uphold it, and in so doing defeat the manifest intention of the donor, without feeling that they were ministers of arbitrary oppression and wrong rather than of law. For obvious reasons the same question as to defeating the intention of the grantor in a deed seldom comes up. But when it does arise,-how can that intention be defeated without involving a violation of common right and common sense, equally glaring and flagrant ? Where is the reason for upholding the rule as to deeds, and rescinding it as to wills ? By what right can the courts say that the intention of a testator plainly written in his will shall govern, but the intention of a grantor as plainly written in a deed of bargain and sale shall be set at naught, the consideration of the sale be disregarded, and the property be thrust back upon the grantor or his heirs, on the death of the grantee, for the want of this feudal word of inheritance ?

In the nature of things the word is no more necessary to the valid conveyance of land than to the valid conveyance of a horse. Its use was necessary in the scheme of a semi-barbarous institution, a vast engine of slavery and oppression, an instrument of violence and disorder, which had no better security for its continued existence than superiority of brute force, and which was swept away upon the dawn of a better civilization more than five hundred years ago. Why is its ■use still required in one class of instruments and not in the other, when both have the same object in view, namely, the conveyance of land ?

I have not found any answer to this inquiry.

The legal signification and effect of the word as used in our deeds of bargain and sale are purely technical. Strictly speaking, there is no one in existence at the time of the grant to answer the description. Nemo est Jiaeres viventis. Those who may become the heirs of the grantee take not the slightest present interest by virtue of the word. The conveyance vests the absolute and unlimited ownership in the grantee; the word imposes no restraint on his power of alienation. Nevertheless it has a settled and well understood meaning as thus used, and, as a legal term, is very convenient and useful to show that the estate granted is a fee. It could not now be safely omitted without using some other form of expression showing with legal accuracy the intention and contract of the parties.

Of course it will not be omitted by any conveyance or other person who knows the significance it has thus acquired. But when a case arises where the intention of the grantor to convey, a fee simple is clearly shown by other words in the deed, we think the court have no power to say a fee shall not pass because he has not, in addition, inserted this technical word, using it in a sense entirely distinct and different from its usual and common import.

Our conclusion is, that the rule, which would defeat the obvious intention and destroy the plainly expressed contract of the parties in the present case, is not adapted to our institutions' or the condition of things in this state; that it never became part of the law of the state, and, therefore, that this instrument conveys to the lessees a perpetual right to take and use the water upon the terms and conditions specified, Which right may pass to their heirs and assigns as a fee.

A decree is to he entered in accordance with these views.

Hibbakd, J., having been of counsel, did not sit.