Page:Harvard Law Review Volume 8.djvu/524

508 508 HARVARD LAW REVIEW. It was decided in Berths v. JVurnan, 92 N. Y. 152, that the separate property Acts relating to married women had not done away with estates in the entirety. The prin- cipal case decides that, while the nature of the estate is not changed the rights of the husband to the possession and income of the property during the joint lives, which depended not on the nature of the estate, but on the general principal of common law that the husband is entitled to his wife's properly, is taken away by the statute, and that the wife is entitled to the possession and usufruct jointly with her husband. It is sometimes held that when the nature of the estate is not changed by the separate prop- erty acts, neither husband nor wife can transfer any interest without the consent of the other. McCurdy v. Canning, 64 Pa. St. 39. Property — Applicability of Registry Laws to Lease — Renewal Clause — Notice. — Mass. Pub. Sts. c. 120, § 4, provide that " a lease for more than seven years from the making thereof" shall not be valid against a bona fide purchaser for value without actual notice, unless recorded. An unrecorded lease for five years, pro- viding that the lessee was to have the privilege of renewal " for the further term of five years," was held to be within the statute, so as to give the lessee no right to compel a renewal at the end of the first five years, the land having passed to a bona fide pur- chaser who had no actual notice of the unrecorded instrument. Toupin v. Peabody, 39 N. E. Rep. 280 (Mass.). The case does not call for a decision of the question whether such a lease is wholly void as against the purchaser, or whether it may be good for the first term of less than seven years ; and the court is careful not to pass upon it. No case has been found upon this precise point. The court follows Massachusetts authority in holding that the fact that defendant knew that plaintiff was in possession as tenant, did not amount to the actual notice required by the statute. Lamb v. Pierce, 113 Mass. 72; Keith v. Wheeler, 159 Mass. 161. In Cunningham v. Pattee, 99 Mass. 248, it was decided that such knowledge amounted to notice of the nature of the tenant's interest, of the existence of a written lease, and of its contents, including a covenant to renew. The principal case is distinguished upon the ground that in Cnnningham v. Pattee the two terms aggre- gated less than seven years, so that the statute had no application. The case is clearly within the purpose of the statute, though these decisions would seem to indicate that knowledge of a fact may amount to notice of the contents of a lease for seven years or less, while not equivalent to the actual notice required for leases of a longer period. The registry laws of the various States are considered in i Devlin on Deeds, c. 21, 22. Property — Chattel Mortgage — Delivery. — Where a mortgage is delivered to a third person for the benefit of a mortgagee who is ignorant of its existence, his acceptance as of the time of delivery will not be presumed when this will defeat the intervening rights of attaching creditors of the mortgagor. JCuh et al. v. Garvis et al., 28 S. W. Rep. 847 (Mo.) ; Ensworth v. King, 50 Mo. 477, overruled. The doctrine of the English courts laid down in Doe d. Garmons v. Knight, 5 B. & C. 671, and Xenos v. Wickham, L R. 2 H. L. 296, that the question of delivery is wholly one of the intention of the obligor, and that a deed may become binding before the obligee knoAvs of its existence, has received little support in this country when a strict application of the doctrine would affect the intervening rights of creditors. In Merrills V. Swift, 18 Conn. 257, the rights of such creditors were subordinated to' those of the mortgagee, and the acceptance was said to relate back to the time of delivery. This has not been followed, however, and has been stated to be doubtful law. i Jones on Mortgages, § 502. On the other hand, Wisconsin, New York, New Hampshire, Michi- gan, Indiana, Massachusetts, Texas, Arkansas, and Kentucky have reached a conclusion contrary to Merrills v. Swift. Property — Fixtures. — Held, that an arrangement between vendor and vendee of machinery which is to be attached to the realty, that the title shall remain in vendor until payment, is not binding upon a subsequent mortgagee of the realty who has no notice of this arrangement. Wade v. Donan Brewing Co., 38 Pac. Rep. 1009 (Wash.). This seems clearly sound, and is in accord with Sojithbridge Savings Bank v. Exeter Machine Works, 127 Mass. 542. A contrary decision would work injustice to the mort- gagee, who may have relied on these articles as part of the realty in taking the mortgage. A recent decision in Vermont holds conversely that a statute allowing " machinery attached to, or used in a shop, mill, printing office, or factory " to be mortgaged as realty does not apply where the machinery is put in subsequently to the execution of the mortgage. Kendall v. Hathaway, 30 Atl. Rep. 859 (Vt.). In such a case the mort- gagee would have all he could have relied on without the fixtures. The distinction between these cases is well shown in Davenport v. Shunts, 53 Vt. 546. Property — Severance from the Freehold by a Trespasser. — A suit brought by a landowner against defendant, an innocent vendee of a trespasser, who