64 HARVARD LAW REVIEW. Property — Ejectment — Municipal Corporations. — Held, that a municipal corporation may maintain ejectment for the recovery of a street dedicated to public use by the owner of the fee. One judge dissenting. City and County of San Francisco v, Grote, 52 Pac. Rep. 127 (Cal., Sup. Ct.). The better view, and the one supported by the weight of authority, is that taken in the dissenting opinion. Sedg. & Wait, Tr. Title to Land, Chap. VIII. The citv had only an easement in the street, and an easement does not constitute an estate in lands. To allow the grantee of an easement to bring ejectment is a plain departure from the common-law rule which requires some corporeal estate to support that form of action. Rowan v. Kelsey, 18 Barb. 484. The majority of the court argued that the city gets such an interest as is necessary for the enjoyment of its rights in the street, and that this interest is sufficient to support the action. But it is equally true that a private easement carries with it such an interest in the land over which it extends as is essen- tial to its proper enjoyment, and the grantee of a private easement has never been allowed to bring ejectment. It seems that the rights of the public may be fully pro- tected by indictment, injunction, or an action for maintaining a nuisance. Property — Exchange of Lands. — Plaintiff conveyed certain land to defend- ant, and received in consideration therefor a deed from defendant of certain other land and $25 in money. The word "exchange" was not used in either conveyance. Held, that the transaction was not a technical common-law exchange, so as to contain an implied warranty of title by both parties. Windsor v. Collinson, 52 Pac. Rep. 26 (Ore.). The case is interesting as a surviving bit of mediaevalism, and as illustrating the fact that, even in these days of statutory alterations, a knowledge of Coke and Littleton may become of practical importance. All the authorities are agreed that the word escambium, or " exchange," is as necessary to this form of conveyance as the word " heirs " to the creation of a fee ; and this alone was sufficient to decide the case. 2 Black. Com. 323. In the opinion of the court, the fact that money was paid by one party was equally fatal ; and some cases in this country support that position. Long V. Fuller, 21 Wis. 122. The older authorities, however, make no mention of such a requirement ; and this omission is, perhaps, significant. Sheppard's Touchstone, 294. The plaintiff was correct in his contention that an implied warranty was an incident of a technical exchange. Upon a failure of title to the land received, either party was entitled to re-enter on the land given by him in exchange. Sheppard's Touchstone, 290. Property— Recording Acts — Constructive Trust. — Plaintiff's agent, A having spent $1,000 intrusted to him by plaintiff to loan on mortgage security, had a friend execute a mortgage to plaintiff on certain land, to which in fact neither the friend nor A had any title. A fraudulently told plaintiff that the mortgage was a good lien on the land, and thereupon the latter accepted it. and had it recorded. Later A bought the land himself and afterward assigned it for the benefit of his creditors. Held, that the assignee took the land free from any equity in plaintiff. Robertson v. Rentz, 74 N. W. Rep. 133 (Minn.). ^ By the laws of Minnesota a deed, mortgage, or an express trust is not good against an assignee in insolvency unless recorded, but an implied or resulting trust is. The reasoning of the court is as follows. The creditors would have no constructive notice of the mortgage from the record because it was made by a stranger to the title, and therefore it is to be taken as unrecorded. By estoppel against A it is to be considered as if actually made by him to plaintiff, but being unrecorded it is not good against the assignee in insolvency. The reasoning is specious but unsound. A by his false repre- sentations is estopped to deny that the mortgage is a valid lien on the land, but plain- tiff's claim is certainly in the nature of a constructive trust, arising by implication of law from A's fraud. Plaintiff used due diligence by recording the mortgage as he understood it, and to punish him for not recording a claim arising out of a fraud of which he knew nothing, — a claim in its very nature unrecorded, — is to pervert the registry laws to a strange use. Property — Rule in Shelley's Case. — Testator devised lands to A for life, re- mainder to his heirs. Held, that the rule in Shelley's Case does not apply, and A takes only a life estate. Wescott v. Benford, 74 N. W. Rep. 18 (Iowa). The court rests its decision on the ground that a strict application of the rule in Shelley's Case would defeat the intention of the testator as to the life estate to A. As was conclusively shown in Van Grutten v. Foxwell, [1897] A. C. 658, the rule in Shelley's Case is not a rule of construction, but an absolute rule of property. Its object, it may be said, is to defeat the intentions of the testator when they run counter to it. Rules of construction may be employed to discover what was meant by the word " heirs." If it means a particular class the rule does not apply. If it means heirs in a general sense, as it did in the principal case, the rule should be applied notwithstanding
