627 EPITOME OF CASES. § 683, 684 Cov Sec. 683. Contracts concerning party walls. enants in party wall contracts which stipulate that they are to bind the heirs and assigns, executors and administrators of the respective parties, run with the land, and all their benefits and burdens,—the liability to perform and the right to take advantage of them-both pass to the heir or assignee of the land to which the covenant is attached. Kimm v. Griffin, 67 Minn. 25 (69 N. W. Rep. 634; 64 Am. St. Rep. 385). Construing Ia. Code, §§ 2019, 2020, which prescribe the rights of adjoining owners of city or town lots in reference to the erection of party walls, and § 2030, which provides that the statute" shall not prevent adjoining proprietors from entering into special agrements about walls on the lines between them, but no evidence of such agreement shall be competent unless it be in writing signed by the parties thereto or their lawfully authorized agents," it is held that the last section does not render void a parol contract which is the same as that the law made for the parties. Swift v. Calnan, 102 Ia. 206 (71 N. W. Rep. 233; 63 Am. St. Rep. 443; 37 L. R. A. 462). Sec. 684. Statutes construed-Enforcing right to contribution. A statute (Ia. Code., §§ 2019, 2020), authorizing the owner of a city or town lot who is about to build contiguous to the land of his neighbor, to rest one-half of an 18-inch wall on his neighbor's land who may have the right to use the same by paying one-half of the cost thereof, after having been acquiesced in and enforced for more than 40 years, will not be held unconstitutional. Swift v. Calnan, 102 Ia. 206 (71 N. W. Rep. 233; 63 Am. St. Rep. 443; 37 L. R. A. 462). Under Pa. Act. Aprl 10, 1849, the right of compensation for the erection of a party wall passes to the purchaser. of the premises upon which the wall has been erected unless stipulations to the contrary are made in the conveyance. Voigt v. Wallace, 179 Pa. St. 520 (36 Atl. Rep. 315). McClain's Ia. Code, § 3195, construed and applied-enforcing contribution for use of party wall by adjoining owner. Gadmer v. Lent, 102 Ia. 741 (70 N. W. Rep. 782). PLATS AND SURVEYS. EPITOME OF CASES. Sec. 685. Miscellaneous notes. Where the plat of a subdivision of an addition to a city is based upon and refers to an older plat of such addition, such older plat will control where there is a conflict. Bussee v. Town of Central Covington, Ky. (38 S. W. Rep. 865). A map or plat of an addition to a town implies a previous survey and marking upon the ground, and one claiming under a deed describing the property conveyed by reference to such plat may show the existence of the stakes indicating the lines as marked by the surveyor. Burke v. Mc Cowen, 115 Cal. 481 (47 Pac. Rep. 367). The conclusiveness of the statutory survey to establish a boundary between adjoining owners may be waived by them by agreement or by a new survey. Spacy v. Evans, Ind. (48 N. E. Rep. 355). The rule in surveying boundaries defined by streams or other waters is always to follow the stream or body of water crossing the mouth of affluents or other inlets from headland to headland. City of Oakland v. Oakland Water-Front Co., 118 Cal. 160 (50 Pac. Rep. 277). Citing, Tripp v. Spring, 5 Sawy. 212 (Fed. Cas. No. 14,180); Knight v. Association, 142 U. S. 161 (12 Sup.Ct. Rep. 258). Where there has been a government survey of lands, while belonging to it, a resurvey of such lands must follow the boundaries and monuments as run by the original survey wherever it is possible to locate them. Randall v. Burk Tp., 9 S. Dak. 534 (70 N. W. Rep. 837). While it may be within the province of the courts to correct the original United States surveys which have been upheld by the land department, yet before such correction can be made and the credit which is due to the surveys as established by field notes be overthrown,the mistake must be shown by clear and convincing testimony. Blair v. Brown, 17 Wash. 570 (50 Pac. Rep. 483). For an examination of particular evidence as to the applica bility of certain instructions where the correct location of a section corner was at issue, see Woodbury v. Venia, 114 Mich. 251 (72 N. W. Rep. 189). For construction of rules for determining the location of a group of surveys made in the name of the same warrantee, where only the exterior lines are given, see Morrison v. Seamans, 183 Pa. St. 74 (38 Atl. Rep. 710). For construction of particular surveys, see Humphrey v. Cooper, 183 Pa. St. 432 (38 Atl. Rep. 994); Hitchcock v. Southern Iron & Timber Co., Tenn. (38 S. W. Rep. 588). Pennsylvania has a new statute concerning the recording of plats. Law 1899, p. 123. Although a statute (Mo. Rev. Stat. 1889 § 8320), authorizes the county surveyor to appoint deputies, the record of a survey made by a deputy surveyor is not admissible in evidence unless it purports to be made in the name of the principal. Carter v. Hornback, 139 Mo. 238 (40 S. W. Rep. 893). N. C. Code, § 2769, construed and applied-duty of surveyor to make two copies of the survey of an entry-showing mistake in survey. Higdon v. Rice, 119] N. C. 623 (26 S. E. Rep. 256). U. S. Rev. Stat., 2395, applied-north and south line-rule when made on an assumed or wroug magnetic variation. Taylor v. Fomby, 116 Ala. 621 (22 So. Rep. 910). POSSESSION. Sec. 686. EPITOME OF CASES. Possession as notice of rights or title. The holder of the legal title to land of which there is no actual occupancy, is presumed to be in possession thereof. Troxell v. Johnson, 52 Neb. 46 (71 N. W. Rep. 968). Actual possession of land is notice of the rights of the possessor therein. Van Baalen v. Cotney, 113 Mich. 202 (71 N. W. Rep. 491); Jones v. Brenizer, 70 Minn. 525 (73 N. W. Rep. 255); First Nat. Bank v. Chafee, 98 Wis. 42 (73 N. W. Rep. 318); Stovall v. Judah, 74 Miss. 747 (21 So. Rep. 614). A husband's occupancy of land is notice of an unrecorded deed thereof to him from his wife although such occupancy is but a continu § 686, 687 POWER OF ATTORNEY. 630 ance of their previous possession. Carr v. Brennan, 166 Ill. 108 (47 N. E. Rep. 721; 57 Am. St. Rep. 119). The posses. sion of a vendee under an unrecorded land contract is not notice of the rights of his vendor so as to protect a secret assignee of the latter as against a subsequent mortgage made by such vendor. First Nat. Bank v. Chafee, 98 Wis. 42 (73 N. W. Rep. 318). A grantor retaining possession after he has conveyed the legal title to another for the purpose of defrauding his creditors, is not entitled to the aid of the doctrine that possession is notice of the possessor's rights, as against a good faith mortgagee of his grantee. Alliance Trust Co. v. O'Brien, 32 Or. 333 (51 Pac. Rep. 640); Citing, Exon. v Danck, 24 Or. 110 (32 Pac. Rep. 1045); Bank v. Batty, 30 N. J. Eq. 126. In Tennessee it is held upon an exhaustive review of the authorities, that the continued possession of a grantor after the execution of an absolute conveyance, which is duly recorded, is not notice of any adverse claim of title by him. Curry v. Williams, Tenn. (38 S. W. Rep. 278). Citing, Van Keuren v. Railroad Co., 38 N. J. L. 165; Bloomer v. Henderson, 8 Mich. 395 (77 Am. Dec. 453); Scott v. Gallagher, 14 Serg. & R. 333 (16 Am. Dec. 508); Newhall v. Pierce, 5 Pick, 450; Lodge v. Simonton, 2 Penrose & W. 439 (23 Am. Dec. 36 and full note); Koon v. Tramel, 71 Ia. 131 (32 N. W. Rep. 243); May v. Sturdivant, 75 Ia. 116 (39 N. W. Rep. 221; 9 Am. St. Rep. 463). POWER OF ATTORNEY. EPITOME OF CASES. Sec. 687. Authority conferred by power of attorney. A general power to sell and convey real estate, does not authorize the person acting thereunder to make a dedication of it for public purposes. Anderson v. Bigelow, 16 Wash.198 (47 Pac. Rep.426). A provision in a power of attorney authorizing him "to sell, transfer, and release two certain mortgages executed by Gotthard Kunz (describing them); to indorse and transfer the notes secured by said motgages; to sell and transfer my E 631 STATUTORY PROVISIONS. § 687-689 claims for said notes and mortgages filed in the superior court of said San Luis Obispo county, state of California, in the mat、 ter of the estate of said Gotthard Kunz, now deceased; and to receive payment of said claims, and give acquittances therefor," is held to confer on him power to sell and transfer the title to the securities absolutely or to collect them, but does not confer power to pledge them. Hawxhurst v. Rathgeb, 119 Cal. 531 (51 Pac. Rep. 846; 63 Am. St. Rep. 142). Where a husband and his wife, as such wife, joined in a power whereby they authorized and empowered one L., as their attorney in fact, among other things, to grant, bargain, sell, and convey all pieces or parcels of land which they then owned, or might thereafter acquire or become seised of, "or which they may now or hereafter be in any way interested," it is held that under this power the attorney was authorized and empowered to convey a tract of land thereafter acquired by the husband as a soldier's additional homestead, and to bar the wife's inchoate dower right, provided for in Rev. Stat. 1866, ch. 48. Snell v. Weyerhauser, 71 Minn. 57 (73 N. W. Rep. 633). Citing, Tuman v. Pillsbury, 60 Minn. 520 (63 N. W. Rep. 104). Sec. 688. Revocation of power of attorney. The death of the maker of a power of attorney revokes the power and a conveyance subsequently executed by the attorney is void. Tuttle v. Green, Ariz. (48 Pac. Rep. 1009). Where a power of attorney is coupled with an interest or where it is given for a valuable consideration, unless there is an express stipulation that it shall be revocable, it is from its character, in contemplation of law, irrevocable, whether the terms expressly making it so are expressed in it or not. Muotague v. Mc Carroll, 15 Utah 318 (49 Pac. Rep. 418). STATUTORY PROVISIONS. [In Vol. IV, § 591-632; Vol. V, SS 644-651, will be found a compilation of the statutory provisions of the several states and territories concerning powers of attorney. Below we give such amendments, changes and additional constructions as have been made.] Sec. 689, New Jersey. (See Vol. IV, § 616; Vol, V. § 648.) A married woman, her husband joining with her, may execute a power of attorney for the conveyance of her land or release of dower. N. J. Laws 1898, p. 685, § 40. |