he accepted the defendant's proposition and agreed to build the dam and mill was rendered unnecessary by the one that, relying upon the defendant's promise, he did build them. The report shows an absolute acceptance by the orator of the defendant's proposition, and we should have no hesitation in allowing an amendment of the bill in that respect did we deem it necessary, but an allegation that he executed the contract implies an accept

ance.

master.

Sec. 282. Amendments. The orator alleges that he was to have such rights of flowage as was necessary to give sufficient head and power to propel his machinery. It is claimed that the allegation is not sustained by the facts found by the The report shows that at the time of the negotiations in August, 1879, the extent of the flowage permitted by the original license was modified by an agreement that the orator should have the right to flow the defendant's land by a dam five feet in height. The bill therefore alleges one right, and the report

shows another.

The orator must recover, if at all, upon the case made by the bill; neither the answer, special prayer for relief, nor the proofs can aid him to recover upon a case not made by the bill. Thomas v. Warner, 15 Vt. 110; Barrett v. Sargeant, 18 Vt. 365. Upon the bill as drawn the orator cannot recover, but the facts found present a case entitling him to relief, and it can be granted him, if the bill is amended by adding an allegation of that part of the contract in respect to the right of flowage by a dam five feet high, as stated in the master's report. As to the right and practice of the court to permit amendments under the circumstances as shown in this case, see the late cases of Harrington v. Bagon, 57 Vt. 644; Dwinnell v. Bliss, 58 Vt. 353; Copper v. Dyer, 59 Vt. 477 (59 Am. Dec. 742); Still v. Buzzel, 60 Vt. 478 (12 Atl. Rep. 209).

The orator cannot prevail except upon an amendment to the bill as above indicated. The amendment should be permitted upon such terms as the Court of Chancery deems just and reasonable.

The decree is reversed and cause remanded with mandate in accordance with above opinion.

ANNOTATIONS.

Sec. 283. Miscellaneous notes.

"The privilege of

the use of the public streets of a city or town, when granted by ordinance, is not always a mere license, and revocable at the pleasure of the municipality granting it, for if the grant is for adequate consideration, and is accepted by the grantee, then the ordinance ceases to be a mere license, and becomes a valid and binding contract; and the same result is reached where, in case of a mere license, it is, prior to its revocation, acted upon in some substantial manner, so that to revoke it would be inequitable and unjust." Chicago Mun. Gas Light Co. v. Town of Lake, 130 Ills. 42 (22 N. E. Rep. 616). One who has license to enter upon the real estate of another, cannot be regarded as a trespasser. Willoughby v. Railroad Co., 32 S. C. 410. A verbal permission, given by one tenant in common to a third person, to enter upon land and cut timber, is a mere naked license and is not assignable, and may be revoked at any time. Ward v. Rapp, 79 Mich. 469 (44 N. W. Rep. 934). Where, with the consent of the owner, one enters upon land and takes water from a spring and continues to do so for a period of fifteen years, under a verbal gift of the water so taken, his license to do so cannot be revoked. Blaine v. Ray, 61 Vt. 566 (18 Atl. Rep. 189). An executed, parol license was held to be irrevocable. Wilson v. Chalfant, 15 Ohio, 248 (45 Am. Dec. 574).

A written license to enter upon land and imbed water pipes, with the privilege of keeping them in repair, does not create an interest in the land, nor an incumbrance upon it. Wilkins v. Irvine, 33 Ohio St. 138. It is held, that, under the guise of a license, a permanent interest in land cannot be created. Mumford v. Whitney, 15 Wendell, 380 (30 Am. Dec. 60). A license to cut timber upon the land of another is not assignable. Emerson v. Fisk, 6 Greenleaf, 200 (19 Am. Dec. 206). A parol license is not assignable, and, where a mill-dam has been erected under such license and afterwards suffered to fall into decay, the license will be deemed to be revoked. Cowles v. Kidder, 24 N. H. 364 (57 Am. Dec. 287). A parol license is not assignable and may be revoked at pleasure, but a license to explore for oil is not revocable when it has been granted by a deed, and the licensee has taken possession of the land, and made large expenditures thereon, with the understanding that, if oil should be discovered,

he should have a lease or conveyance. Dark v. Johnston, 55 Pa. St. 164 (93 Am. Dec. 732). A parol license to enter upon land at "any and all times" and cut wood, must be acted upon within a reasonable time or it will be deemed to be revoked. Hill v. Hill, 113 Mass. 103 (18 Am. Rep. 455).

A contract for the sale of growing timber must be in writting; but a parol agreement for the sale of such timber will amount to a license to the vendee to enter upon the land and cut timber; and, if the license be not revoked or the timber is cut, the title will pass to the vendee. Owens v. Lewis, 46 Ind. 488 (15 Am. Rep. 295). In the case of Hodgkins v. Farrington, 150 Mass. 19 (22 N. E. Rep. 73), the court say: "A parol license to do any act on the land of another does not trench upon the policy of the law, which requires that contracts respecting any title or interest in real estate shall be by deed or in writing. It gives the licensee no estate or interest in the land. It excuses acts done which would be trespass, or otherwise unlawful. It is revocable, not only at the will of the owner of the property on which it is to be exercised, but, by his death, by alienation or demise of the land by him, and by whatever would deprive the origina! owner of the right to do the acts in question, or give permission to others to do them." In support of the same the court cite, "Cook v. Stearns, 11 Mass. 533; Stevens v. Stevens, 11 Metc. 251: Clapp v. Boston, 133 Mass. 367."

LIENS.

STEWART V. BERRY.

(84 Ga. 177.)

Judgment lien-Rescission of a land sale. Under sections 3580 and 3586 of the Georgia Code, real estate held by a purchaser under a title bond is subject to a lien of a judgment against him; and a rescission of the sale, after the lien attaches but before levy of execution, does not affect the validity of the lien.

BLECKLEY, C. J.

Sec. 284. Judgment lien-Rescission of a land sale. The first question is, assuming that part of the purchase money was paid, whether a rescission of the contract after the judgment was rendered, but before the execution was levied, would prevent the land from being subject to be seized and sold as the property of the purchaser. The code, sec. 3580, is in these words: "All judgments obtained in superior, justices' or other courts of this State shall be of equal dignity, and shall bind all the property of the defendant, both real and personal, from the date of such judgment, except as otherwise provided in this code." Section 3586 provides for the specific case of part payment of the purchase money where the holding is under a bond for titles. The section declares: "When a person holds property under a bond for titles, and the purchase money has been partially paid, the same may be levied on under judgments against such person, and the entire interest stipulated in the bond shall be sold. The proceeds of the sale shall be appropriated, first to the payment of the balance of the purchase money, and the remainder to the judgment liens according to date. In all such cases, notice of the levy shall be given by the levying officer to the holder of the bond for titles, and also to the maker of the bond, and in case of death, to his legal representatives." In Dowdell v. Neal, 10 Ga. 148,, there was no bond for titles, and so that case is not within the letter of the statute. In Akin v. Freeman, 49 Ga. 52, the purchaser transferred the bond before making any payment. Wilkerson v. Burr, 10 Ga. 117, and Estes v. Ivey, 53 Ga. 52, recognize in some degree the liability of land partially paid for to be sold as the property of the purchaser under judgments against him. The case, however, nearest in point is Rawson v. Coffin, 55 Ga. 348. We think it makes no difference that the vendor and maker of the bond took back the land by rescission after the judgment lien attached. The vendor, by the rescission, simply took the position of a purchaser from his vendee. Kelley v. Bliss, 61 Wis. 560 (21 N. W. Rep. 609). The ruling in Rawson v. Coffin, supra, is in line with the general law on the subject elsewhere. Freeman on Judgments, sec. 348; Auwerter v. Mathiot, 9 Sgt. & Rawle, 397; Russell's Appeal, 15 Pa. St. 319; Hamilton v. National Bank, 39 La. Annual, 932 (3 So. Rep. 126); Gorham v. Farson, 119 Ill. 425(10 N. E. Rep. 1). It

was contended in the argument that the statute embraced in sec. 3586 of the code, above quoted, is a mere power, and does not contemplate any lien as existing against the land by virtue of the judgment. This view would make seizure necessary to prevent the holder of the bond from making a transfer free from the judgment. We think this is not a correct view of the statute, and certainly it cannot be harmonized with the decision which was made in Rawson v. Coffin. If that case was well decided, and we think it was, the present case ought to follow it. The act of October, 1885, renders land held under bond for titles and partly paid for subject to dower in behalf of the purchaser's widow. Acts 1884–5, p. 92.

There was evidence indicating that some of the purchase money had been paid before the rescission took place. The court ought to have admitted the further evidence of the value of the land at the time the contract of purchase was made, for value, though indirect evidence, is some evidence of price. Mitchell v. Addisan, 20 Ga. 53. The value of the land for rent would also throw light upon the question of price.

The fact that the defendant in fi. fa. was dead, and the further fact that he had ceased in his lifetime to be the holder of the bond for titles, would excuse the plaintiff from serving him with notice of the levy.

The court erred both in excluding the evidence of value, and its final judgment holding the land not subject.

Judgment reversed.

NOTE. See Annotations at the end of the next case and "Epitome of cases"-"Liens."

SILVER BOW COUNTY V. STROMBAUGH.

(9 Mon. 81.)

Judgment liens-Constitutional law. A statute which provides that the lien of a judgment for costs in a criminal case shall attach to the real estate of the defendant from the date of his arrest was held "not to be unconstitutional as incumbering the property without any hearing, adjudication, or legal process."

Lien-Enforcement of. The lien of a judgment may be enforced against a subsequent grantee by an action brought against him to sell the land.