GAME LAWS-GAME KILLED BEYOND STATE.-If a statute declares that every person in the state who shall at any time sell, or offer for sale, the hide or meat of any deer, elk, antelope, or mountain sheep, shall be guilty of a misdemeanor, its application extends to the selling of the hide or meat of any such animals, though lawfully killed beyond the state: Ex parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129. Compare Dickhaut v. State, 85 Md. 451, 60 Am. St. Rep. 332.

GAME LAWS AND THEIR CONSTITUTIONALITY are considered in the monographic note to Ex parte Maier, 42 Am. St. Rep. 138-144. Such statutes are constitutional, though made applicable to game killed outside of the state where the killing was lawful: Roth v. State, 51 Ohio St. 209, 46 Am. St. Rep. 566.

KOERNER v. WILLAMETTE IRON WORKS.

[36 Oregon, 90.]

MORTGAGES-JUNIOR ENCUMBRANCERS-RIGHTS OF, HOW BARRED.-The rights of a junior lien creditor who has not been made a party to the foreclosure of a senior lien may be barred by a suit for strict foreclosure requiring him to redeem within a reasonable time or stand foreclosed.

Stott, Boise & Stout, for the appellant.

C. D. & D. C. Latourette, for the respondents.

91 BEAN, J. This is a suit brought by the purchasers at a sale under a decree foreclosing a mortgage, to require a junior lien creditor, who was not a party to the foreclosure suit, and who subsequently levied upon the property under his judgment, and at a sale became the purchaser, to redeem. The court below entered a decree of strict foreclosure, requiring the defendant to redeem within four months, by the payment of the purchase price, with interest, and, in the event of its failure to comply therewith, that it be forever barred from making such redemption. From this decree the defendant appeals, claiming that the remedy in such case is by a reforeclosure of the original mortgage, a resale of the premises, and distribution of the proceeds according to the priorities of the respective parties.

The question of the proper procedure to bar the rights of a judgment lien creditor, who was not made a party to the foreclosure of a prior mortgage, was considered in the case of Sellwood v. Gray, 11 Or. 534, and it was held that a suit to compel him to redeem within a reasonable time or be barred

and foreclosed was the proper practice, and this has since been recognized as the rule. Thus, in Osborn v. Logus, 28 Or. 302, 310, Mr. Justice Wolverton, in discussing the question as to whether subsequent lien creditors are necessary parties to a suit to foreclose a mechanic's lien, after quoting the statute, says: "No one will contend, under this statute, that, without the presence of a subsequent lienor as a party defendant, the suit 92 could not proceed. The decree without him is not binding, so far as he is concerned. But a purchaser under such a decree may insist upon a redemption by the lienor not made a party, failing in which such lienor will be thenceforth barred of all interest in the premises": Citing Sellwood v. Gray, 11 Or. 534. And in the recent case of Security Sav. Co. v. Mackenzie, 33 Or. 209, in discussing the form of the decree in a suit to foreclose a vendee's interest under a title bond, it is said: "His [the vendor's] right in this regard is analogous in many respects to the right of a purchaser at foreclosure sale to compel a subsequent lien creditor, who was not made a party to the suit, to redeem. In such case, a court of equity will compel the creditor to exercise his right of redemption within a reasonable time, or, in default thereof, be as effectually foreclosed of his equity of redemption without sale as if he has been made a party to the original decree." So that, while it may be claimed that the case of Sellwood v. Gray, 11 Or. 534, could have been put upon another ground, the question now under consideration was squarely in issue and decided, and the doctrine of the case has since been regarded and accepted as sound. Moreover, it is abundantly supported by authority: 7 Ency. of Pl. & Pr. 123; Parker v. Child, 25 N. J. Eq. 41; Bolles v. Duff, 43 N. Y. 469; Shaw v. Heisey, 48 Iowa, 468. We are therefore not disposed to disturb or overrule it, and the decree of the court below is affirmed.

MORTGAGE FORECLOSURE. THE RIGHTS OF A JUNIOR encumbrancer who has not been made a party to foreclosure proceedings are considered in Anson v. Anson, 20 Iowa, 55, 89 Am. Dec. 514; Frink v. Murphy, 21 Cal. 108, 81 Am. Dec. 149; note to Berlack v. Halle, 1 Am. St. Rep. 190.

BROWN V. SOUTHERN PACIFIC COMPANY.

[36 Oregon, 128.]

DEEDS-COVENANTS, WHEN PERSONAL.-A covenant in a deed to a railroad company agreeing to build a fence along the railroad, or not to hold the company liable "for any damage done to stock belonging to us," omitting the word "assigns," is personal to the grantors, and does not run with the land nor bind tenants or other successors in interest.

RAILROADS-LIABILITY FOR STOCK KILLED-STATUTORY NOTICE.-Under a statute providing that a railroad company shall be liable to the owners of stock killed for damages resulting from failure to fence its track, "provided, however, that no action shall be maintained until such owner has given at least thirty days' notice in writing to the company," a notice including plaintiff's stock as well as stock owned jointly by himself and a third person for which he seeks to recover, and signed by both, is sufficient. Such notice is not jurisdictional.

Carson & Fleming, for the appellant.

A. H. Tanner, for the respondent.

129 MOORE, J. 1. The question presented for consideration is as to whether the covenant in the deed of Samuel Brown and wife to the Oregon & California Railroad Company created a charge upon their estate running with the land, and binding upon plaintiff. The said covenant is as follows: "And we further agree to build and maintain a fence on such side of said railroad through the premises herein, north of the town of Gervais, or not hold such railroad responsible for any damage done to stock belonging to us." The right to have a division fence built or repaired by an adjoining proprietor is a benefit to the dominant 130 and a detriment to the servient estate, which is in the nature of a distinct easement, affecting the lands of the proprietor upon whom the burden is imposed: Tyler on Boundaries, 343; Washburn on Easements, 2d ed., 601; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335. It has been held that a covenant to build or maintain a division fence creates an encumbrance upon the covenantor's estate, which runs with the land, if so intended by the parties to the deed: 12 Am. & Eng. Ency. of Law, 2d ed., 1049; Beach v. Crain, 2 N. Y. 86, 49 Am. Dec. 369; Burbank v. Pillsbury, 48 N. H. 475, 97 Am. Dec. 633. In order to determine whether a clause in a deed conveying real property is to be construed as a covenant running with the land, or a condition personal to the parties, it is necessary to consider two subordinate questions: 1. Whether the right granted or the burden imposed is con

nected with the land affected by the conveyance, or collateral to it; and 2. If found to be the former, whether the situation of the parties and the condition of the subject matter enable the court to say, from an inspection of the language of the deed, that it was the intention of the parties thereto that the covenant should run with the land: Masury v. Southworth, 9 Ohio St. 340. In Kellogg v. Robinson, 6 Vt. 276, 27 Am. Dec. 550, Mr. Justice Phelps, after speaking of those covenants which necessarily run with the land, says: "There is another class of covenants of a doubtful or equivocal character, and which may be treated either as merely personal, or as annexed to and running with the land. With respect to these, it is doubtless competent for the contracting parties to make them either the one or the other, as they think expedient. When, therefore, the party covenants for himself and his assigns, it evinces an intent to bind the land, and the obligation becomes connected with and qualifies his estate."

131 An examination of the covenant in the deed of Samuel Brown and wife shows that it does not include their "assigns" in express words, and, inasmuch as the fence along the right of way was not in esse at the time the deed was executed, it is contended that the omission in this particular manifests an intention that the covenant should be personal only. "When the covenant," says Lord Coke, in Spencer's Case, 5 Coke, 16, 1 Smith Lead. Cas. 137, "extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodam modo annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, although he be not bound by express words; but, when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being-as, if the lessee covenants to repair the house demised to him during the term, that is parcel of the contract, and extends to the support of the thing demised, and therefore is quodam modo annexed appurtenant to houses, and shall bind the assignee, although he be not bound expressly by the covenant; but in the case at bar the covenant concerns a thing which was not in esse at the time of the demise made, but to be newly built after, and therefore shall bind the covenantor, his executors or administrators, and not the assignee, for the law will not annex the covenant to a thing which hath no being." In Kellogg v. Robinson, 6 Vt. 276, 27 Am. Dec. 550, which was an action upon a covenant against

encumbrances, it was alleged in the declaration that in a certain deed the grantee had covenanted to make and maintain the partition fences, and at the trial it was contended that, as it was not averred that the assignees of the grantee were to be bound by the covenant, and as the fence was not in esse at the time the conveyance was executed, the covenant never became effective; but, it appearing 132 that the fence had afterward been built by the grantee, it was held that the first clause of the covenant was thereby satisfied, and the latter clause became operative, as concerning a thing in esse. In Masury v. Southworth, 9 Ohio St. 340, the court held that the omission of the word "assigns" in a lease containing a covenant on the part of the lessee to insure a building on the demised premises did not exempt the assignee of the lease from the performance of its conditions, when it was apparent from an inspection of the instrument that it was the intention of the original parties thereto to make the covenant run with the land. Mr. Justice Gholson, commenting upon the rule announced in Spencer's Case, 5 Coke, 16, 1 Smith Lead. Cas. 137, says: "When any effect, such as to pass an estate or create an obligation, is dependent upon the intent of parties as expressed in a writing, it is an important inquiry whether the law has prescribed certain words or expressions as essential to be used to indicate that intent. If it be so, those words must be used, and none others will suffice. The word heirs' in the case of a conveyance to create an estate in fee simple is an instance. But, where the law has prescribed no such words, then the intent of the parties must be ascertained from the whole instrument, interpreted and construed by just and proper rules."

In Duffy v. New York etc. R. R. Co., 2 Hilt. 496, the plaintiff, having hired a pasture belonging to one Mrs. Bassford, turned his horse therein, which escaped through a defective fence, and, getting upon the railroad track, was killed. In an action to recover the damage thus sustained, it appeared that Bassford and his wife had executed a deed to defendant of a strip of land adjoining said pasture lot, containing a covenant on the part of the grantors for themselves, their heirs, executors, and administrators, to erect a fence and maintain the same in good repair for eighteen years, and it was 133 held that, notwithstanding the word "assigns" was not used in the deed, the covenant was intended to run with the land, and was binding upon all persons claiming or occupying the premises under the party making the covenant. The court, in rendering