must concur. Both facts are material and traversable. Hence both must be alleged, and as of a certain specified time and place. In the first and second counts in the indictment the erection of the engine without a license, with the specified time and place, is alleged, but there is no allegation of use. In the third count the two facts are alleged, but the specific time applies to the use only. The allegation of the want of a license is simply that it was "before that time," thus leaving it entirely uncertain whether that want had not been supplied, as it might have been before the use of the engine. As the two facts the use and want of license-must exist at the same point of time to make the engine a common nuisance, every allegation in the indictment may be proved as laid, and yet the respondent guilty of no crime. Exceptions sustained. Demurrer sustained. Indictment bad.

PETERS, C. J., and WALTON, VIRGIN, LIBBEY, and FOSTER, JJ., concurred.

(80 Me. 472)

SAVAGE v. Savage.1

(Supreme Judicial Court of Maine. June 30, 1888.)

1. HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE-CONVEYANCE BY WIFE TO HUSBAND.

Under Rev. St. Me. 1871, c. 61, § 1, giving a married woman power to sell and convey land held in her own right, without the assent or joinder of the husband, a married woman has the power to convey her land directly to her husband.2

2. TRIAL-INSTRUCTIONS-EXCEPTIONS-When Lie.

Exceptions do not lie to the refusal of a presiding judge to give requested instructions, when the case shows that there was no evidence upon which the same could be based.

Motion and exceptions.

Real action. The verdict was in favor of the defendant, and the plaintiff alleged exceptions, and also filed a motion for new trial, on the ground that the verdict was against evidence, but subsequently abandoned the motion. Washington Gilbert, for plaintiff. C. W. Larrabee, for defendant.

LIBBEY, J. Both parties claim the land in controversy under Hannah Savage, who, it is admitted, was the owner January 24, 1880. The plaintiff claims as devisee under the will of said Hannah, who died December 9, 1886. No question is raised as to the validity of the will, and if she held the title at her death, the plaintiff must prevail. The defendant claims that said Hannah conveyed her title to David Savage, her husband, January 24, 1880, and that he conveyed to her, September 1, 1885. The plaintiff contests the validity of the deed from Hannah Savage to David Savage, on two grounds: (1) That when said deed was executed, a married woman had no power to convey her lands to her husband; (2) that the deed was obtained by duress.

1. Prior to the act of 1847, c. 27, husband and wife could not contract with each other, because at common law. from their legal union, they were regarded as one person so far as their power to contract with each other was involved; but by that act the husband was clothed with power to convey his real or personal estate directly to his wife. Johnson v. Stillings, 35 Me. 427. By the act of 1852, c. 227, the wife was empowered to convey her real or personal estate directly to her husband; not in direct terms, but as a result of

'Reported by Leslie C. Cornish, Esq., of the Augusta bar.

As to the validity and enforceability of contracts between husband and wife, see Pillow v. Sentelle, (Ark.) 5 S. W. Rep. 783, and note; Reamey v. Bayley, (Pa.) 11 Atl. Rep. 438; Brown v. Brown, (Neb.) 36 N. W. Rep. 275, and note; Brickley v. Walker, (Wis.) 32 N. W. Rep. 773, and note; Alward v. Alward, 2 N. Y. Supp. 42; Appeal of Spitz, (Conn.) 14 Atl. Rep. 776. See, also, as to the power of a married woman to contract in the various states, Littlefield v. Dingwall, (Mich.) 39 N. W. Rep. 38, and note; Kilbourn v. Brown, (Conn.) 14 Atl. Rep. 784; Booker v. Wingo, (S. C.) 7 S. E. Rep. 49.

the power given her to convey her estate "as if she were unmarried." Allen v. Hooper, 50 Me. 371. If the legal meaning of the act of 1852 has not been changed by the legislature since its passage, Allen v. Hooper is conclusive as to the power of Hannah Savage to convey directly to her husband. In the Rev. St. of 1857, c. 61, § 1, the words used in the act of 1852, giving a married woman the power to convey or devise her real or personal estate “as if she were unmarried," were changed to "as if sole." This did not change the meaning at all. By act 1861, chapter 46 (Rev. St. 1857, c. 61. § 1) was amended by striking out the words “as il sole, and," so that it reads as follows: "Section 1. A married woman of any age, may own in her own right real and personal estate acquired by descent, gift, or purchase; and may manage, sell, convey, and devise the same by will, without the joinder or assent of her husband. * * *"" It is claimed by the learned counsel for the defendant that this change in the terms of the statute was intended by the legislature to restore the unity, or oneness, of husband and wife, so that the wife could no longer convey her lands directly to her husband. If so, it would seem to restore their common-law relation so that the husband could not convey to the wife; but there is no change in the terms of the statute construed by the court as giving that power in Johnson v. Stiilings, supra, and the statute still recognizes the authority of the husband to convey directly to the wife, and in such case declares she shall not convey “without the joinder of her husband in such conveyance.' It is not necessary to determine the intention of the legislature in the amendment of 1861; but it may be found in the act of 1857, c. 8, which provides that "when a husband waives a provision made for him in the will of his deceased wife, her estate being solvent, and in all cases where she dies intestate and solvent, he shall be entitled to an allowance from her personal estate, and a distributive share in the residue thereof, in the same manner as a widow is in the estate of her husband; and if she leaves issue, he shall have the use of one-third: if no issue, of one-half of her real estate, for his life, to be recovered and assigned in the manner and with the rights of dower." It may have been supposed that this act was inconsistent with Rev. St. 1857, c. 61, § 1, giving the wife power to devise her lands "as if sole;" and the amendment of 1861, striking out the words above quoted, was made to bring the two statutes into harmony. No other intention is perceived. By the Revised Statutes of 1871, which were in force when the deed in contention was made, no change was made in these statutes in respect to the question involved here, and we have no doubt Hannah Savage had legal power to convey her lands directly to her husband when she executed the deed to him.

2. The law given to the jury by the presiding judge on the question of duress was sufficiently favorable to the plaintiff. The attention of court has not been called by the learned counsel to any authority which holds it more favorable for him. If the requested instruction presented sound law in the abstract, the case does not show that there was any evidence proving, or tending to prove, the facts upon which it was based, and the judge, for that reason, might well refuse it. He had already fully instructed the jury upon the law of the case. We can see no error in the exclusion or admission of the evidence excepted to. The motion is not relied on, no report of the evidence having been furnished. Exceptions and motion overruled.

PETERS, C. J., WALTON, VIRGIN, FOSTER, and HASKELL, JJ., concurred. (80 Me. 447)

ATWOOD et al. v. O'BRIEN.1

(Supreme Judicial Court of Maine. June 20, 1888.) EASEMENT RIGHT OF WAY-DEED-CONSTRUCTION-ESTOPPEL.

A conveyance of real estate by metes and bounds, one course in which is "to a point on the south-westerly side line of 'Rowe Street,' so called, thence south-east

'Reported by Leslie C. Cornish, Esq., of the Augusta bar.

erly on said continuation line," etc., does not estop the grantor from denying the grantee a right of way over the northerly half of what is called "Rowe Street," when there is no reference in the deed to any plan of Rowe street, and the street is in fact never made and laid out by the city, especially where it appears that, after the refusal of the city to lay out the street, the grantee accepted a release from the grantor of the southerly half of "Rowe Street, so called," subject to whatever right of way of easement there may be over it, for the purpose of fixing the line in the center thereof.

On agreed statement of facts from supreme judicial court, Penobscot county. Trespass quare clausum.

Chas. H. Bartlett, for plaintiffs. P. H. Gillin, for defendant.

*

*

DANFORTH, J. An action of trespass upon land, which is before the court upon facts agreed. It is admitted that the fee is in the plaintiffs. The defendant admits the alleged acts of trespass, and justifies under a claim of right of way. The validity of this claim is the only question involved. Its foundation is found in a deed of September 18, 1884, from the plaintiffs to Andrew Kelley, Jr., the defendant's grantor, by which land south of that in question is conveyed. The description in this deed is, so far as material. as follows, viz.: "Beginning at a point on the north-westerly side line of First street, being on the division line between lot No. 11 and land of Barker & Davis, according to Bradley's plan of the Davenport lands, extended March 24, 1851; thence north-westerly on said division line and the continuation thereof, two hundred and forty feet, to a stone on the continuation of the south-easterly side line of Second street; thence north-easterly, on said continuation of said line, one hundred and sixteen feet, to a point on the continuation of the south-westerly side line of Rowe street, so called; thence south-easterly on said continuation line, two hundred and forty feet, to a point on the north-westerly side line of First street; thence south-westerly on said side line * * * to the place of beginning." It is claimed that there is a grant of a right of way over what is called "Rowe street," or that the plaintiffs are estopp d to deny the defendant such a right by virtue of this deed. It is undoubtedly well settled that a conveyance of a lot of land by reference to a plan upon which streets are laid down in connection with the lot conveyed, or when the land is bounded by a street, such a grant or estoppel will ordinarily follow. But this conveyance lacks several of the elements necessary to bring it within that rule. The description is by fixed and definite metes and bounds, and not by a reference to any plan. The only plan referred to is that of Bradley's, and that only to fix the starting point. Upon that plan there is no location, no indication whatever, of any such street or way as is here claimed. The land is not bounded upon the street claimed. The north rly line, which is alleged to be such a boundary, begins and runs upon the "continuation" of the southwesterly side line of "Rowe street;" showing, as do the facts, that though Rowe street might be in existence at some other point, yet it did not at any place come in contact with or adjoin this land. All these facts were patent, and as well known, or should have been, to the grantee as to the grantors. The lot was bounded at each end by a located and traveled way. How, then, can it be said that here was a grant of way, when there was none in existence, no occasion for any, or any estoppel from asserting a truth equally well, known to both parties, and clearly recognized by the deed? Much more would the deed, with its definite description, come within the principle settled in Warren v. Blake, 54 Me. 276, and exclude the way, even if there had been one. But it is said that a continuation of "Rowe street" across the land in question was contemplated when the deed was given; and it is claimed that this intention was a sufficient dedication of it to enable the grantee to hold a right of way over it. In Bartlett v. Bangor, 67 Me. 460, it was held that the loca

tion of streets upon a plan, and selling the lots by reference to the plan, would constitute such a dedication of the way as could not be revoked by the owner. But our attention has not been called to any case, nor are we aware of any, where the mere recognition of a contemplated street as such would have that effect, especially where there was no location upon any plan. But however that might be, under other circumstances in this case it can have no such effect. It appears from the facts in this case that "Rowe street" had been opened and traveled from Main street in the direction of this land in question, but stopping some little distance before reaching First street, which is the easterly boundary of the land conveyed to Kelley. If continued in a straight line of the same width across First street to Second street, its southwesterly side line would be the northerly line of the lot sold Kelley, as described in the deed. In 1878, Mr. Wilson, acting for the proprietors, proposed to the city of Bangor that, if it would extend Rowe street, well "graded and graveled," across this land, the city might have all the gravel contained on said street, and two years to remove it. This proposition was accepted by Bangor, as appears by its records, and the gravel taken. This was the contemplated street. It was not dedicated to the public, nor represented as such by any plan or otherwise. The plan, made a part of the advertisement of the auction sale, showed it as a "proposed street," and the advertisement described the lot as lying on the "southerly side of the proposed extension of the so-called Rowe Street."" These facts were all open, and the grantee was put on his guard by the terms of his deed, as well as in other ways. The plaintiffs had fully performed their part of the contract. It only remained for the city to perform its part. The contemplation-the contingency-was with it, and the fact that the street is not there is not the fault of the plaintiffs, but is the fault of the city. When Kelley bought, if he relied at all upon having the street, he must have relied upon the city, and not upon the plaintiffs. But the case does not stop here. By the subsequent conduct of the parties, it is made clear that no claim was made by Kelley upon the plaintiffs, or, if so, he released them from it. In June, 1885, the city, having refused to make the street, paid for the gravel it had taken. In the following December another contract was made between the plaintiffs and Kelley, by virtue of which another deed was given, in which a nominal consideration is expressed. In this deed the plaintiffs release to Kelley all their interest in "the southerly half of the so-called Rowe Street' lying between the First and Second streets in Bangor, which adjoins land of said grantee." Then follow these words: "This deed is given for the purpose of settling beyond any doubt that the northerly line of said grantors' land between said streets lies in the center of the so-called Rowe Street,' and that said Kelley is the owner of the southerly half of said Rowe street, subject to whatever easement or right of way may be over the same." This deed having been accepted by Kelley, he is bound by its terms, and in it he acknowledges the title of the grantors to the northern half, the very land in question, without any reservation whatever, and for the express purpose of removing any doubts as to that title. At the date of the first deed, both parties had reason to expect, and undoubtedly did expect, that Bangor would extend and make fit for use Rowe street. The deed was given and received with that impression, the grantee taking his chances. The expectation failed, the chance for a public street had gone, and the grantee's title extended only to the southerly line of the expected street. While 50 feet was perhaps none too wide for a public street, half that would be amply sufficient for all private purposes. Hence, to quiet all claims, to remove all doubts, the latter deed was made, giving the grantee the control of the half adjoining him, with the right of way over that, and the control of the other half, without any right of way over that, to the grantors. Whatever may have been the effect of the former deed, the last one, we think, settled the whole matter; and, if any right of way remained, it was a private one.

and over what became Kelley's own land. Of this construction certainly Kelley has no reason to complain, and the defendant can have no more rights than his grantors. As agreed, the entry must be: Defendant defaulted; damages, one dollar.

PETERS, C. J., and VIRGIN, LIBBEY, EMERY, and FOSTER, JJ., concurred.

(80 Me. 459)

HADLEY et al. v. HADLEY.

(Supreme Judicial Court of Maine. July 25, 1888.)

1. MORTGAGES-RIGHTS OF MORTGAGEE-POSSESSION-BEFORE CONDITION BRoken. Under Rev. St. Me. c. 90, § 2, a mortgagee, or any one claiming under him, may recover possession of the mortgaged premises, even before a breach of the condition, when there is no agreement to the contrary.

2. SAME-WRIT OF ENTRY-TRIAL VERDICT.

On the trial of a writ of entry by a mortgagee to recover possession of premises before condition broken on a mortgage containing no agreement to the contrary, a special verdict of the jury, without any general verdict, that the plaintiff is entitled to a "mortgage judgment," is irregular and irrelevant; it neither affirms nor disaffirms plaintiff's right to possession.

On motion from supreme judicial court, Hancock county.

Writ of entry, brought by a mortgagee to recover possession of mortgaged premises. The jury returned no general verdict; and only a special verdict that the plaintiffs were entitled to judgment as of mortgage, and thereupon the plaintiffs filed a motion for new trial.

Wiswell & King, for plaintiffs. Deasy & Higgins, for defendant.

WALTON, J. This action is before the law court on a motion submitted by the plaintiffs. The action is a writ of entry in common form. The motion states that the plaintiffs claimed title under a mortgage from the defendant, which the plaintiffs claimed had been foreclosed by publication; and that the equity of redemption had expired prior to the date of the writ; and that the issue of fact for the jury was whether there had been a breach of the condition of the mortgage before the commencement of the foreclosure; and that the jury returned a general verdict for the plaintiffs, and also found a special verdict of "mortgage judgment;" and that, before the special verdict was affirmed, the jury were asked by the presiding judge whether or not they found a breach of the condition of the mortgage before the commencement of the foreclosure, to which inquiry the jury replied "that they found no breach of the condition of said mortgage;" and the plaintiffs move that the special verdict of "mortgage judgment" be set aside, as against law and evidence.

In two particulars the record does not sustain the motion. The record does not show a general verdict for the plaintiffs. Nor does it show that the jury were inquired of with respect to a breach of the condition of the mortgage, or that they gave any such answer in relation thereto as is stated in the motion. Omitting the caption, the verdict certified by the clerk is as follows: "What judgment are the plaintiffs entitled to? Is it for a mortgage judgment, or a judgment for absolute title?" "Mortgage judgment. D. H. EPPES, Foreman First Jury." And the clerk certifies that "this is the only verdict in the case." It is plain that upon such a verdict no judgment can be rendered. It neither affirms nor disaffirms the right of the plaintiffs to the possession of the demanded premises. If we turn to the evidence, it is plain that the question actually tried was whether or not there had been a breach of the condition of the mortgage, and especially whether there had been such a breach before the attempted foreclosure. But this was an immaterial issue; for, unfortunately for the defendant, the form of the mortgage was such that the

1Reported by Leslie C. Cornish, Esq., of the Augusta bar.