S. 287; 5 L. R., Ch. Div. 183; Hale v. Hale, 3 L. R., Ch. Div. 643; 35 L. T., N. S.933; 24 W. R. 1065; Contra, In re Moseley, 11 L. R., Eq. 499; 40 L. J., Ch. 275; 24 L. T., N. Š. 26.

1. Varner v. Rice, 44 Ark. 236; Stukely v. Butler, 1 Hobart 168; Bradley v. Peixoto, 3 Ves. Jr. 324; Greenleaf's Cruise, vol. 1, tit. XIII, ch. 1, § 2, p. 466 (2nd ed.) and note.

McCleary v. Ellis, 54 Iowa 311; Graves v. Atwood, 52 Conn. 512; Jack son v. De Laney, 13 Johns. (N. Y.) 537; Ide v. Ide, 5 Mass. 500; Reformed Presbyterian Church v. Disbrow, 52 Pa. St. 219.

Where B conveyed land to C, "to have and to hold the same unto her, the said C, as her own and indefeasible estate to be owned.controlled, managed, and if desired, sold and conveyed by her or those who may act for her as her legal representatives or guardians during her life." Upon condition, however, that whatever part or parcel of said premises may be owned or held by the said C at the time of her decease, or of which she may die seised, or in which she may at that time have any right, title or interest, shall revert to vest in, and again become the absolute and indefeasible property of the grantor, or in case of his death to his lawful heirs," held that C took an absolute title in fee, and that the condition, being repugnant to the fee, was void, and that upon the death of C the land went to her heirs and not to B who survived her. RоTHROCK and LEVERS, JJ., dissenting. Case v. Dwire, 60 Iowa 442.

In Ward v. Ward, 1 Martin (N. Car.) 28, a deed conveyed an estate absolutely, but in the premises, though not in the habendum, there was an exception of the grantor's lifetime in any part or parcel of the land; and it was held that the fee passed immediately to the grantee, and the reservation was void. In the case of Young, Petition of, 11 R. I.636, a father executed a warranty deed of land to his son, his heirs and assigns forever. Then followed a covenant of ownership and of general warranty; subsequent to these a reservation of the right and privilege for those

who should be appointed to settle the grantor's affairs after his decease, to cut off and sell wood if necessary for payment of debts, etc. Held, that it was void as an exception because repugnant to the grant.

In Cruise's Digest, part 7, tit. 13, ch. I, § 22, a lease was to husband and wife and their son, with a proviso that if the son should demand any profits of the lands or enter into the same during the life either of his father or mother, then the estate limited to him should be utterly void; held, that this condition was utterly void, for it was contrary to the estate limited before.

In Sheppard's Touchstone, 131, it is said that "if a feoffment be made of land in fee, on condition that the feoffee shall not enjoy the land . . the condition is void as repugnant to the estate."

In 4 Kent's Com. 131, it is said that "conditions are not sustained when they are repugnant to the nature of the estate granted, or infringe upon the essential enjoyment or independent rights of property, and tend manifestly to public inconveniece."

A deed to Mrs. R from her father recites in the premises, or granting part, a conveyance of certain lands "unto the said party of the second part (Mrs. R), her heirs and assigns forever.' The habendum was in these words: "To have and to hold the above described lands so long as she may live; and in case of her decease, said lands to pass to the use and benefit of her child or children, and in case there be no offspring, she is at liberty to will away the above described lands." Held, that the granting part of this deed vested in the grantee (Mrs. R) an estate in fee simple, which could not be converted into a life estate by the habendum, because of the rule that where there is a clear repugnance and irreconcilable conflict between the granting and habendum clauses of a deed, as in this instance, the former must prevail. Robinson v. Payne, 58 Miss. 690; Gadberry v. Sheppard, Miss. 203; Emerson v. White, 29 N. 482. See Thatcher v. Howland, 2 Metc. (Mass.) 41; School Trustees v.

Co. Commrs., 1 Nev. 283; Bradley v. Peixoto, 3 Ves. Jr.; Brandon v. Robinson, 18 Ves. Jr. 429; McCullough v. Gilmore, 11 Pa. St. 370.

1. Blackstone Bank v. Davis, 21 Pick. (Mass.) 42; McCleary v Ellis, 54 Iowa 311; s. c., 37 Am. Rep. 205; Mebane v. Mebane, 4 Ired. Eq. (N. Car.) 131; Jones's Will, 23 L. T., N. S. 211; Graves v. Dolphin, 1 Sim. 66; Snowden v. Dales, 6 Sim. 524.

In Jones's Will, 23 L. T., N. S. 211, a certain residuary property was devised equally to the testator's nephews and nieces, providing, as to the share of one of the nephews, that his trustees should hold it for him for his life and pay him the interest and proceeds as they accrued, and that if his share should become liable to be seised by any of his creditors, or if he should become bankrupt, or should alien or mortgage the same, his interest should immediately cease and go to his sisters, it was held not a conditional limitation but a condition in restraint of alienation, and therefore void. See Tillinghast v. Bradford, 5 R. I. 205.

2. Mebane v. Mebane, 4 Ired. (N. Car.) Eq. 131; Snowden v. Dales, 6 Sim. 524.

In Mebane v. Mebane, 4 Ired. (N. Car.) Eq. 131, RUFFIN, C. J., said: "Terms of the exclusion of the donee's creditors, not amounting to a limitation of the estate, can no more repel the creditors than a restraint upon alienation can tie the hands of the donee himself. Liability for debts ought to be and is just as much an incident of the property as the jus desponendi is; for indeed it is one of the modes of exercising the power of disposition."

But in Nichols v. Eaton, 91 U. S. 716, it is distinctly laid down that a provision in a will giving a life estate in land, that it shall not be alienated or subject to the devisee's debts, is entirely valid. MILLER, J., in that case, said: "I do not see that the rents and profits of real property and the interests and dividends of personal property may not be enjoyed by an individual without liability for his debts being attached as

a necessary incident to such enjoyment. This doctrine is one which the English chancery court has engrafted upon the common law for the benefit of creditors, and is of comparatively modern origin. We concede that there are limitations which public policy or general statutes impose upon all dispositions of property, such as those designed to prevent perpetuities and accumulations of real estate in corporations and ecclesiastical bodies. We also admit that there is a just and sound policy peculiarly ap propriate to the jurisdiction of courts of equity to protect creditors against fraud upon their rights, whether they be actual or constructive frauds. But the doctrine that the owner of property, in the free exercise of his will in disposing of it, cannot so dispose of it, but the object of his bounty, who parts with nothing in return, must hold it subject to the debts due his creditors, though, that may soon deprive him of all the benefits sought to be conferred by the testator's affection or generosity, is one which we are not prepared to announce as the doctrine of this court." See also Rochford v. Hackman, 9 Hare 475; Graves v. Dolphin, 1 Sim. 66; Brandon v. Robinson, 18 Ves. 42; Wilkinson v. Wilkinson, 3 Swans. 515.

A testator, after bequeathing a legacy to his wife, gave all the "residue and remainder" of his estate to his children A, B, C, etc., expressly providing that whatever shall fall to the share of A should be deposited by his executor in the hands of B and C, and be retained by them and dealt out to A for his comfort and advantage, and authorizing his executor to sell all or any part of his land for the interest of his heirs. Held, that the legal estate of A's share of the land vested in B and C, subject to the power to sell, and that a sale under the power avoided the estate, if any, acquired by a creditor of A under an attachment and levy. Brannan v. Stiles, 2 Pick. (Mass.) 460.

And in Bramhall v. Ferris, 14 N. Y. 41, where a testator, with a view to provide for the support of a son and his family, devised and bequeathed his real

and personal estate to his executors, and directed them to sell it and invest the proceeds, and gave the use and income thereof to the son for life, and the principal over to others on his decease; on a creditor's bill filed to reach the son's interest; held, that a valid trust was a surplus beyond the support of himself and family.

1. Hill v. McRae, 27 Ala. 175; Pope v. Elliott, 8 B. Mon. (Ky.) 56; Vaux v. Parke, 7 W. & S. (Pa.) 19; Braman v. Stiles, 2 Pick. (Mass.) 460; Shankland's Appeal, 47 Pa. St. 113; Perkins v. Dickinson, 3 Gratt. (Va.) 335; White v. White, 30 Vt. 338.

A testator directed his executors to purchase land and hold it in trust for his son, who was to have the rents and profits, but the same were not liable for his debts, and at his death the land was to go to his heirs, and in default of such heirs to the testator's heirs, and these provisions were held valid and the land not subject to execution for the son's debts. Fiser v. Taylor, 2 Rawle (Pa.) 33; Bank of State v. Forney, 2 Ired. (N. Car.) Eq. 181.

2. Wood on Land. and Ten., § 323; 3 Jur., N. S. 311; Roe v. Galliers, 2 T. R. 238; Church v. Brown, 15 Ves. 263; Slaughter, 1 Esp. 8; Doe v. Bevan, 3 Man. & Sel. 353; Hargrave v. King, 5 Ired. (N. Car.) Eq. 430.

A sixth sale or quarter sale reservation contained in a lease in fee is void; otherwise in a lease for years or for lives. Overbagh v. Patrie, 8 Barb. (N. Y.) 28.

A condition in a lease for life not "to sell, dispose of or assign his estate in the demised premises" without the permission of the lessor, etc., and the lease contained a clause of forfeiture for the nonperformance of the condition, it was 13 C. of L.-51

held that a lease of part of the premises by the lessee for twenty years was not such a breach of the condition as would work a forfeiture; and that nothing short of an assignment of his whole estate by the lessee would produce a forfeiture of the lease. Nor would a sale of the whole premises under a judgment and execution against the lessee work a forfeiture, there being no evidence of any fraud or collusion on the part of the lessee. Jackson v. Silvernail, 15 Johns. (N. Y.) 276.

3. Van Rensselaer v. Ball, 19 N. Y. 103; De Peyster v. Michael, 2 Seld. (N. Y.) 467; Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. Dennison, 35 N. Y. 393; Van Rensselaer v. Barringer, 39 N. Y. 9.

In Cent. Bank of Troy v. Heydorn, 48 N. Y. 260, the plaintiff sought to recover rent charge reserved by the grantor and covenanted to be paid by the grantee in a conveyance in fee. Seisin in the grantor was well established, so far as one holding under the grantee was concerned, by the fact that the grantee entered in allegiance to the grantor's title, out of which the rent was reserved. "and until something is shown to the contrary, the relation's created by the covenants in the deed are presumed," said GRAY, C. J., "to have continued; unless, therefore, someone bound by the covenant to pay rent has paid it or has been released therefrom, the action is well brought, and the production and proof of the covenant, in the absence of proof of payment or release, entitles the grantor or assignee to a finding that the rent for twenty years (if the covenant has been so long executed) remains unpaid and to a judgment therefor. The law presumes payment prior to that

LIMITED PARTNERSHIP.

1. Definition, 803.

2. Origin, History and Extent, 804. 3. Design and Construction, 806. 4. Formation of the Partnership, 807. 1. How Constituted, 807. [808. 2. The Certificate and Affidavit, 3. The Special Contribution, 812.

(a) Contribution in Property, 4. Publication of Notice, 815. [815. 5. The Partnership Name and Sign, 817.

time, but no presumption arises from the absence of proof of such payment that the rents have been extinguished and the grantee and assignees released from the covenant. Even proof of nonpayment of rent for a period of sixtythree years would not raise a presumption of such release of sufficient strength to establish the fact conclusively as a proposition of law, when the covenant sued upon remains in the possession of plaintiff uncancelled, and is produced and read in evidence. See Livingston v. Livingston, 4 Johns. Ch. (N. Y.) 294.

1. Church v. Brown, 15 Ves. 263; Roe v. Galliers, 2 T. R. 238; Wood on Land. and Ten., § 323; 3 Jur., N. S. 311; Morgan v. Slaughter, 1 Esp. 8; Hargrave v. King, 5 Ired. (N. Car.) Eq. 430.

Where the lessee covenants not to assign without leave, but does so assign, his assignee may by assigning escape liability for rent. Paul v. Nurse, 8 Barn. & Cress. 486. A fine on alienation in a lease for life or years is also valid. Livingston v. Stickles, 7 Hill (N. Y.) 253; Overbaugh v. Patrie, 8 Barb. (N. Y.) 36.

Conditions Against Assignment Generally. A condition or proviso in a lease against assignment thereof does not prevent subletting. Crusoe

υ.

5. Scope of the Business and Relations of the Partners, 818.

1. What Business May be Carried On, 818.

2. Locality and Conflict of Foreign Laws, 818.

3. Relations of the Partners, 819. 6. Conduct of the Business, 821.

1. Withdrawal of Profits or Capital, 821.

2. Alteration, 823.

Bugby, 2 W. 766; Hargrave v. King, 5 Ired. (N. Car.) Eq. 430; Church v. Brown, 15 Ves. 258, 265. Nor is a sublease of part of the premises a breach of a covenant in a lease not "to sell, dispose of or assign" the lessee's interest in the demised premises. Jackson v. Silvernail, 15 Johns. (N. Y.) 278. Nor is a sublease of part for part of the term only a breach of a condition not to "assign or otherwise part with the indenture of the premises thereby leased or any part thereof to any person. Jackson v. Harrison, 17 Johns. (N. Y.) 66. But a proviso in a lease not to assign or otherwise part with the lease of the premises, or any part thereof, for the whole or any part of the term, is broken by a sublease. Doe v. Worsley, 1 Camp. 20. So also a sublease by the lessee's administrator is a breach of a provision that the lessee or his administrators shall not "let, set or assign over" the whole or any part of the premises. Roe v. Harrison, 2 T. R. 425.

2. McKildoe v. Darracott, 13 Gratt. (Va.) 278; Newman v. Rutter, 8 Watts (Pa.) 51; Stuvesant v. Davis, 9 Paige (N. Y.) Ch. 427.

It is only where rent is paid which accrued after a forfeiture that the acceptance of such payment is considered an affirmance of the lease and a waiver of the forfeiture. The acceptance of