Sec. 108. Dower.-Release of. A question is made in the case as to the dower interest of Mrs. Lauber; it appearing that when she signed the bond to plaintiffs she had no information that it was intended as security, instead of an actual sale. We do not see how, under the state of this record, this fact would change the result. The actual consideration, forty-seven hundred dollars, was paid; and if the property is taken for that consideration, even by the process of foreclosure, how can she complain? She has merely parted with what she intended to, for the consideration intended. No prejudice has resulted to her from a variance as to facts, nor does she complain. Neither can the variance as to facts prejudice the defendant.

It is urged that the defendant was in fact a good-faith purchaser, or parted with its money in good faith, relying upon the record as to the condition of the title. Of this we have no doubt; but, with our holding as to the legal status of the holder of such a deed, the legal presumption must prevail as against the facts as claimed. We think the judgment of the district court right, and

it is affirmed.

NOTE. It is held that a grantor in a quit-claim deed is not entitled to the protection given to an innocent and bona fide purchaser. Garrett v. Christopher, 74 Tex. 453 (12 S. W. Rep. 67; 15 Am. St. Rep. 850); Johnson v. Williams, 37 Kan. 179 (14 Pac. Rep. 537,; 1 Am. St. Rep 213) and authorities cited; Cutler v. James, 64 Wis. 173 (24 N. W. Rep. 874; 54 Am. Rep 603); Thorn v. Newsom, 64 Tex. 161 (53 Am. Rep. 747 and note.) One who takes a quit-claim deed is not a purchaser in good faith and he is charged with notice of defects in his title. Walf v. Zabel, 44 Minn. 90 (46 N. W. Rep. 81); Garrett v. Christopher, 74 Tex. 453 (15 Am. St. Rep. 850); Johnson v. Williams, 37 Kan. 179 (1Am.St. Rep. 243); Taylor v. Harrison, 47 Tex. 454 (26 Am. Rep. 304); Thorn v. Newsom, 64 Tex. 161 (53 Am. Rep. 747 and note). The general rule that a grantee in a quitclaim deed cannot recover back the consideration, in case of failure of title, does not apply if the title fails for want of authority in the person who makes the deed to act in the capacity in which he professes to act. Earle v. Bickford, 6 Allen, 549 (83 Am. Dec. 651).

DEFINITION OF REAL ESTATE.

Sec. 109. Common law definition. At common law, the term "land," or the terms "real property" or "real estate," signified the surface of the earth and that which belonged thereto, whether above or beneath, and embraced "all rights and profits arising from or annexed to land, which are of a permanent and immovable nature." The term tenement signified "every thing that may be holden, provided it be of a permanent nature," and the term hereditament meant all things which were "inheritable." 1 Cruise on Real Prop. 1; 2 Blk. Com. 17; Smith's Compendium of law (6th Ed.) p. 1. In England it was held that the interest of a lessee or mortgagee, upon his death, would descend to his personal representative, while in Scotland, it was held that such interests were in the nature of realty and passed by descent to the heirs of the lessee or mortgagee. Bell's Dict. and Digest of the laws of Scotland, p. 727.

Sec. 110. Statutory provisions. The statutes of most of the states contain some definition of the terms land and real estate; but, with very few exceptions, these definitions do not change the doctrine of the common law. Many of these statutory definitions are simply to the effect, that the word "land" or the phrases "real estate" or "real property" shall be construed "co-extensive with lands tenements and hereditaments." Ala. Code, 1886, sec. 2; Ark. Stat., 1884, secs. 645, 6347; Del. Code, 1874, Chap. 5, sec. 1, sub. div. 7; Ill. Rev. Stat., 1889, Chap. 30, sec. 38; Ind. Rev. Stat., 1881, sec. 1285; Mo. Rev. Stat., 1889, sec. 2431; N. C. Code, 1883, sec. 3765, sub. div. 6; N. Y. Rev. Stat., 1889, Vol. 1, p 512; Oklahoma Stat., 1890, sec. 5138; S. C. Civ. Code, 1882, sec. 444. In some states the definition embraces all interests in "lands," "tenements" and hereditaments whether legal or equitable. Colo. Gen. Stat., sec. 225, 3141; Ida. Rev. Stat., 1887, sec. 16, sub. div. 2, and secs. 2825, 2826; Io. Code, 1888, sec. 45; Kan. Gen. Stat., 1889, sec. 2586; Mass. Pub. Stat., 1882, Chap. 3, sec. 3; Me. Rev. Stat., 1883, Chap. 1, sec. 6, sub. div. 10; Mich. Stat., 1882, sec. 2, sub. div. 9; Minn. Stat, 1891, sec. 243, sub. div. 8; Mon. Rev. Stat., 1879, sec. 145,

sub. div.5; N. H. Stat., 1878, Chap. 1, sec. 20; R. I. Stat., 1882, Chap. 24, sec. 9; Tenn. Code, 1884, sec. 49; Wis. Anno. Stat., 1889, sec. 4971, sub. div. 9. In two of the states, the definition includes all rights and interests in lands, tenements and hereditaments other than chattel interests. Ky. Gen. Stat., 1888, Chap. 21, sec. 13; Va. Code, 1887, p. 53, sub. div. 10. In California, it is enacted that "the words real property are coextensive with lands, tenements, and hereditaments," and land is defined to be "the solid material of the earth, whatever may be the ingredients

which it is composed, whether soil, rock, or other substance." Cal. Anno. Codes, 1886, Vol. 2, secs. 14, 659. It is also enacted that "trees, vines or shrubs" and walls, buildings and all things permanently attached thereto and all appliances "shops," and "machinery" used in "mines" are deemed to be "affixed" to the land and pass therewith. Id. secs. 660 and 661; and that "a thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or watercourse, or of a passage for light, air or heat from or across the land of another." Id. sec. 662.

In Georgia, the statute is as follows: "Realty, or real estate, includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of, or dependent thereon. The right of the owner of lands. extends downward and upward indefinitely. Anything intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty and passes with it. Machinery not attached but movable at pleasure, is not a part of the realty." Ga. Code, 1882, secs. 2218, 2219; and it is also enacted that an estate for years passes as realty, Id. sec. 2273. The statutes of Idaho provide that: "Real property or real estate consists of: 1. Lands, possessory rights to land, ditch and water rights, and mining claims, both load and placer; 2. That which is affixed to land; 3. That which is appurtenant to land. Every kind of property that is not real is personal. Rev. Stat. Ida. (1887) secs. 2825, 2826. In Louisana, all property is divided into two kinds, "movable" and "immovable." The immovable includes "lands and buildings, or other constructions, whether they have their foundation in the soil or not," "crops" and fruits before they are gathered, water pipes, things placed by the owner upon the land for its service and improve

ment, such as "cattle intended for cultivation, implements of husbandry, seeds, plants, fodder, and manure, pigeons in the pigeon house, bee-hives, mills, kettles, alembics, vats and other machinery made use of on the plantation works," and the "utensils necessary for working cotton or saw mills, tafia distilleries, sugar refineries and other manufactories;" also "the usufruct and use of immovable things, servitudes established on an immovable estate" and "an action for the recovery of an immovable estate or an entire succession." La. Civ. Code, 1889, Art. 462471.

"Down trees, lying on

In Maine the statute is as follows: land at the time of conveyance, are real estate and pass by the deed; but if they are peeled, or cut into wood, legs or other lumber, they are personal property, and the owner may remove them in a reasonable time thereafter. Carpets and carpeting, stoves and funnels belonging thereto, are not real estate and do not pass by a deed thereof." Me. Rev. Stat., 1883, chap. 73, sec. 1. In Mississippi, it is provided that "the word land shall include all corporeal hereditaments whatever, and any interest therein, whether an estate for years or a different estate." Miss. Rev. Code, 1880, sec. 15; and in Nebraska, it is enacted that the term real estate "shall be construed as co-extensive with lands, tenements and hereditaments, and as embracing all chattels real, except leases for a term not exceeding one year." Neb. Stat., 1889, p. 578, chap. 73, sec. 44; and in Vermont, the statute is as follows: "The words "land", "lands" and "real estate", shall include lands, tenements and hereditaments, and all rights thereto and interests therein; and pews or slips in places of public worship shall be treated as real estate." Vt. Rev. Laws, 1880, sec. 9.

Sec. 111. As to what constitutes realty. It is probable that the decisions of some of the courts, as to what constitutes real estate, may be governed somewhat by the statutory provisions to which we have referred; but, as a general rule, in the absence of any statute or contract, whatever underlies or forms a part of the surface of the earth, or voluntarily grows thereon, or is permanently attached thereto and essential to the use or enjoyment thereof, will be held to constitute real estate. Tiedeman on Real Prop. sec. 2; 3 Kent. Com. 401. Growing trees are a part of the land upon which they stand. Owens v. Lewis, 46 Ind. 488 (15 Am. Rep. 295); Giles v. Simonds, 18 Gray, (Mass.) 441;

Skinner v. Wilder, 38 Vt. 115 (88 Am. Dec. 645); but overhanging branches and fruit form no part of the realty of the abutting owner over whose land the branches and fruit hang, Hoffman v. Armstrong, 48 N. Y. 201 (8 Am. Rep. 537). Percolating water is a part of the realty and belongs to the owner thereof. Hanson v. Mc Cue, 42 Cal. 303 (10 Am. Rep. 299). It has been held that streams of running water and the ice which accumulates thereon should be considered as realty, The State v. Pottinger, 33 Ind. 402 (5 Am. Rep. 224); Brookville and M. Hydraulic Co. v. But-ler, 91 Ind. 134 (46 Am. Rep. 580); but ice formed upon the water and ready to be cut was held to be personalty. Higgins v. Kusterer, 41 Mich. 318 (32 Am. Rep. 160). As a general rule growing crops, which have been planted by the owner of the soil, constitute a part of the realty. 1 Wash. Real Prop. 9; but this rule is held not to apply to crops which have matured and are ready to be harvested. Hecht v. Dettman, 56 Io. 679 (41 Am. Rep. 131). Where manure accumulates upon land in the ordinary course of husbandry, it becomes a part of the realty. Tiedeman on Real Prop. sec. 2; 1 Wash. Real Prop. 18; Bonnell v. Allen, 53 Ind. 130; Chase v. Wingate, 68 Me. 204 (28 Am. Rep. 36); but this rule does not apply to manure which collects in buildings which are not connected with agricultural property, and out of the course of ordinary husbandry. Snow v. Perkins, 60 N. H. 493 (49 Am. Rep. 333).

Under the North Carolina statute, the grant of an easement in the nature of a right of way, is held to be the grant of an interest in land, and as such to be entitled to record, Taylor v. Navigation Co. 105 N. C. 484 (10 S. E. Rep. 897). Rights in a reservoir of water constitute real estate for the purpose of being taxed in the town where the land creating the reservoir is situated, Manufacturing Co. v. Gilford, 64 N. H. 337 (10 Atl. Rep. 849).

Slabs, shavings and sawdust from a mill when used to fill up low ground become realty, but when designed for firewood they are personalty. Jenkins v. McCurdy, 48 Wis. 628 (33 Am. Rep. 841). See fixtures.

Sec. 112. Money treated as realty. Upon the familiar principle that courts of equity consider that done which should have been done, money is sometimes treated as real estate. It is said that "nothing is better established than this prin