over, any general assignment for the benefit of creditors, although free from fraudulent intent, and containing no preferences, is an act authorizing an adjudication of bankruptcy, whereupon the assignment becomes void.""

By St. 32 Hen. VIII. c. 9, it was declared to be unlawful to buy or sell any pretended right or title to any lands or hereditaments unless the vendors or their ancestors, or the persons through whom the claim is derived, have been in possession of the property, or of the reversion or remainder thereof, or taken the rents or profits thereof, within a year before the sale, but the purchase of a pretended title, by a person in lawful possession of the rents and profits, was declared to be allowable. It is sometimes said that this statute is merely declaratory of the common law, but since, at common law, and before the Statute of Uses, the transfer of freehold interests in land necessarily involved a transfer of the seisin, there was, it would seem, but little room for the application of a statute forbidding the transfer of land by one who was disseised,—that is, the transfer of a right of entry merely.48

In a few states in this country the English statute, or the principle involved therein, was adopted as a part of the common law. In other states there are specific statutory provisions invalidating transfers of land in the adverse pos

46 Bankruptcy Act, § 3; Collier, Bankr. 42; West Co. v. Lea, 174 U. S. 594; In re Meyer (C. C. A.) 98 Fed. 976.

47 The "Pretended Title Act" (A. D. 1540).

48 See Rawle, Covenants for Title, § 47. Article in 2 Law Quart Rev. 481, by Prof. Maitland.

49 Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52; Patterson v. Nixon, 79 Ind. 251; Tabb v. Baird, 3 Call (Va.) 481; Barry v. Adams 3 Allen (Mass.) 493; 4 Kent's Comm. 448.

50

session of another person." In a majority of the states, however, at the present time, no restriction upon the right of transfer arising from the fact that the land is in the adverse possession of a third person is recognized, and that such is the law is quite frequently declared by statute."

51

52

The adverse possession in a third person which invalidates the conveyance need not, as a rule, be under color of title, though in two states the statute is otherwise construed.54

The statute has been held not to apply to a transfer made in the performance of an executory contract valid when made, to a transfer made to correct a mistake,56 to a

55

50 1 Stimson's Am. St. Law, § 1401.

61 Roberts V. Cooper, 20 How. (U. S.) 467; Matthews v. Hevner, 2 App. D. C. 349; Doe d. Cain v. Roe, 23 Ga. 82; Lytle v. State, 17 Ark. 608; Mathewson v. Fitch, 22 Cal. 86; Bayard v. McLane, 3 Har. (Del.) 139; Farrar v. Fessenden, 39 N. H. 268; Sims v. De Graffenreid, 4 McCord (S. C.) 253; Stoever v. Whitman's Lessee, 6 Binn. (Pa.) 416.

521 Stimson's Am. St. Law, § 1401; Trustees of Putnam Free School v. Fisher, 34 Me. 172; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430; Cassedy v. Jackson, 45 Miss. 397; Carrington v. Goddin, 13 Grat. (Va.) 587; Stewart v. McSweeney, 14 Wis. 468; Shortall v. Hinckley, 31 Ill. 219.

In England, the statute was regarded as invalidating a sale by one who had not been in possession for a year. Doe d. Williams v. Evans, 1 C. B. 717. But 8 & 9 Vict. c. 106, making rights of entry alienable, changed the law in this respect. Kennedy v. Lyell, 15 Q. B. Div. 491; Jenkins v. Jones, 9 Q. B. Div. 128. 5 Sharp v. Robertson's Ex'rs, 76 Ala. 343; Dana (Ky.) 336; Barry v. Adams, 3 Allen Mut. Ins. Co. of Indianapolis v. Grim, 32 Ind. 249, 2 Am. Rep. 341. 54 See Crary v. Goodman, 22 N. Y. 170; Higinbotham v. Stoddard, 72 N. Y. 94; Stoddard v. Whiting, 46 N. Y. 627; Kreuger v. Schultz, 6 N. D. 310.

Dubois v. Marshall, 3 (Mass.) 493; German

55 Greer v. Wintersmith, 85 Ky. 516; Simon v. Gouge, 12 B. Mon. (Ky.) 156; Gunn v. Scovil, 4 Day (Conn.) 234; Hale v. Darter, 10 Humph. (Tenn.) 92.

66 Hopkins v. Paxton, 4 Dana (Ky.) 36; Rose v. Blair, Meigs (Tenn.) 525; Augusta Mfg. Co. v. Vertrees, 4 Lea (Tenn.) 75.

57

58

judicial sale, to a transfer by the state," nor to a release made to the person in possession.59

A conveyance of land in the adverse possession of another, in violation of the statute, though it does not convey the legal title, so as to enable the grantee to maintain an action against the person in possession, is almost invariably regarded as effective for the purpose of transferring the title as between the parties, and as against everybody except the person in possession and those claiming under him.60 Consequently, while the grantor can alone sue in ejectment or otherwise for the recovery of the land, a recovery by him inures to the benefit of the grantee, and the grantee may himself, if he so desires, bring ejectment in the name of his grantor.

62

61

67 Humes v. Bernstein, 72 Ala. 546; Little v. Bishop, 9 B. Mon. (Ky.) 240; Preston v. Breckinridge, 86 Ky. 619; Hoyt v. Thompson, 5 N. Y. 320; Coleman v. Manhattan Beach Improvement Co., 94 N. Y. 229; Doe d. Williams v. Bennett, 26 N. C. 122.

58 Ward v. Bartholomew, 6 Pick. (Mass.) 409; Jackson v. Gumaer, 2 Cow. (N. Y.) 552; Cassedy v. Jackson, 45 Miss. 407; Hill v. Dyer, 3 Me. 441.

59 Cameron v. Irwin, 5 Hill (N. Y.) 272; Adams v. Buford, 6 Dana (Ky.) 413.

60 Farnum v. Peterson, 111 Mass. 148; McMahan v. Bowe, 114 Mass. 140, 19 Am. Rep. 321; Snow v. Inhabitants of Orleans, 126 Mass, 453; Den d. Hadley v. Geiger, 9 N. J. Law, 225; Hamilton v. Wright, 37 N. Y. 502; Van Hoesen v. Benham, 15 Wend. (N. Y.) 164; Park v. Pratt, 38 Vt. 545; Pearson v. King, 99 Ala. 125; Augusta Mfg. Co. v. Vertrees, 4 Lea (Tenn.) 75; Crowley v. Vaughan, 11 Bush (Ky.) 517; Wilson v. Nance, 11 Humph. (Tenn.) 189; Coogler v. Rogers, 25 Fla. 853; Wentworth v. Abbetts, 78 Wis. 63; Van Hoesen v. Benham, 15 Wend. (N. Y.) 164.

61 Wilson v. Nance, 11 Humph. (Tenn.) 189; Hamilton v. Wright, 37 N. Y. 502; Chamberlain v. Taylor, 92 N. Y. 348.

62 Farnum v. Peterson, 111 Mass. 148; Cleverly v. Whitney, 7 Pick. (Mass.) 36; Coogler v. Rogers, 25 Fla. 853; Thompson v. Richards, 19 Ga. 594; Justice v. Eddings, 75 N. C. 581; Park v. Pratt 38 Vt. 545; Key v. Snow, 90 Tenn. 664. Contra, Crowley v. Vaughan, 11 Bush (Ky.) 517.

499. The homestead exemption.

In most of the states there are constitutional or statutory provisions exempting from execution or other forced sale for debts, to a certain extent, the "homestead" or residence of the debtor. While these provisions have usually been dictated, in the various states, by the same policy,-that of protecting the family home as against the demands of creditors, -they are exceedingly diverse in character, and even substantially similar provisions have received different constructions in different courts. A brief summary only of the more important features of this legislation, as construed by the courts, can here be given.

The courts have sometimes spoken of the homestead right as an "estate" in land. While the widow's homestead, as before explained, frequently has the characteristics of an estate, it is difficult to understand how the right of an owner of particular land to hold such land exempt from liability for debts can be in any sense an "estate"; and even in states where the statute expressly declares that it is an "estate," a new meaning must, it would seem, be given to the latter term, in order that the provision may have any real significance. That the homestead right is not an estate

has been quite frequently asserted judicially."

68 Dorrington v. Myers, 11 Neb. 389; Gilbert v. Cowan, 3 Lea (Tenn.) 203; Poe v. Hardie, 65 N. C. 447; Hargadene v. Whitfield, 71 Tex. 482.

64 Ante, § 215.

65 As in Illinois and Massachusetts. See Browning v. Harris, 99 Ill. 460; Abbott v. Abbott, 97 Mass. 136; Pratt v. Pratt, 161 Mass. 278.

66 The right of homestead exemption is but a partial restoration of the common law of exemption of one's land from liability for debts. The estate of the owner, whether a fee simple, for life, or for years, is not changed by the fact that he marries or takes indigent relatives to live with him, or otherwise acquires a right to the exemption, or by the fact that he loses it by abandonment or

(1121)

Persons entitled to the right.

69

The policy of the homestead statutes is usually to protect the family home, rather than individuals, and consequently the statute ordinarily in terms gives the exemption only to the "head of a family," or to a "householder," or "housekeeper" having a family. Whether one is the head of a family is usually determined by the consideration whether he is under a legal or moral obligation to support a person or persons living with him who are dependent on him for support.70 The family need not consist of more than two

otherwise. See the discussion in Waples, Homestead, c. 9. And see, particularly, the dissenting opinion of Clark, J., in Vanstory ▼. Thornton, 112 N. C. 211, for a clear and forcible statement of the character of the homestead right.

67 Black v. Curran, 14 Wall. (U. S.) 463; Flatt v. Stadler, 16 Lea (Tenn.) 371; Little's Guardian v. Woodward, 14 Bush (Ky.) 585; Citizens' Nat. Bank v. Green, 78 N. C. 247; Jones v. Britton, 102 N. C. 166; Yoe v. Hanvey, 25 S. C. 96; Burns v. Keas, 21 Iowa, 257; Carrigan v. Rowell, 96 Tenn. 185; McDonald v. Crandall, 43 Ill. 231, 92 Am. Dec. 112.

88 Waples, Homestead, c. 3.

Waples, Homestead, c. 8. See Moyer v. Drummond, 32 S. C. 165, 17 Am. St. Rep. 850; Bosquett v. Hall, 90 Ky. 566, 29 Am. St. Rep. 404; Linton v. Crosby, 56 Iowa, 386, 41 Am. Rep. 107; Barry v. Western Assur. Co., 19 Mont. 571, 61 Am. St. Rep. 530; Calhoun v. Williams, 32 Grat. (Va.) 18, 34 Am. Rep. 759; Stanley v. Greenwood, 24 Tex. 224, 76 Am. Dec. 106.

70 Bosquett v. Hall, 90 Ky. 566, 29 Am. St. Rep. 404; Moyer v. Drummond, 32 S. C. 165, 17 Am. St. Rep. 850; Holloway v. Holloway, 86 Ga. 576, 22 Am. St. Rep. 484; Bank of Versailles v. Guthrey, 127 Mo. 189, 48 Am. St. Rep. 621; Lane v. Philips, 69 Tex. 240, 5 Am. St. Rep. 41; McMurray v. Shuck, 6 Bush (Ky.) 111, 99 Am. Dec. 662; Wade v. Jones, 20 Mo. 75, 61 Am. Dec. 584.

Accordingly, an unmarried woman, supporting the children of a deceased sister, is entitled to the homestead exemption. Arnold v. Waltz, 53 Iowa, 706, 36 Am. Rep. 248. And likewise an unmarried man supporting brothers or sisters dependent on and living with him. Greenwood v. Maddox, 27 Ark. 649; Marsh v. Lazenby, 41 Ga. 153. So, a woman supporting the children or grandchildren of a deceased husband (Wolfe v. Buckley, 52 Tex. 641; Holloway ▼