Volume 34 — New Jersey Equity Reports

<p>A testator divided his estate into four shares, gave one share to each of his three daughters, and directed liis executors to invest the fourth share, and to pay tire interest thereon to his son for life, and at liis son’s death, to pay the principal of that share to his three daughters, “ or their heirs,” equally ; and “in case of the death of any of my said daughters before my decease, or before the death of my son, or before receiving her bequest, leaving lawful issue, such issue is to take the bequest or share to which his, her or their mother would be entitled, if living.” One daughter died testate, after the testator, but before actually receiving her share, leaving lawful issue.—Held, that her share vested in her at the testator’s death, and was payable to her executors, and not to her issue.</p>

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>Bill to foreclose. On final hearing on pleadings and proofs..</p>

<p>A deed of lands, accompanied by a lease thereof to the grantor, containing a clause for redeeming the lands, by paying a certain amount within a specified time, is a mortgage, and not defeated by the grantor’s failure to make a tender within the time limited, although the grantee took possession of the premises at the expiration of the lease. The time for making such tender may be extended by parol.</p>

<p>Creditor’s bill. On final hearing on pleadings and proofs.</p>

<p>In 1860, complainant made a verbal agreement with liis brother John to buy a part of a tract of land on which John then lived. He paid the purchase-money, entered into possession, and erected thereon a dwelling-house, in which he has ever since resided. John continued to live on the other part of the land. In 1873, John gave three mortgages covering the entire tract. In 1877, the first mortgage was foreclosed, and the whole tract bought thereunder by the holder of the other two mortgages. In 1875, complainant had a survey of his part of the tract made, and also a search of the records, whereby he discovered the existence of the mortgages ; he also knew of the subsequent advertisement of the premises for sale under the foreclosure, and consulted counsel in regard to it, but took no steps to protect his claim, not even giving notice of it at the sheriff's sale.—Held, that his silence estopped him from setting up any claim to relief against the purchaser at the foreclosure sale.</p>

<p>Two owners of lands agreed by parol that the property should be considered and conducted as partnership property, each owner contributing equally to the support of a widow, whose support for life was a charge on the lands, and to-the expenses and taxes; that an account should be kept of the proceeds derived from the sale of the produce and from the sale of any sand therefrom that one owner might live on the land, and any advancements for her support should be charged against her, and at the death of either, a final account should be taken. On a bill for such an account filed by the administrator of one owner, after the widow’s death—Held, that it was no ground for demurrer—</p> <p>(1) That the agreement was by parol.</p> <p>(2) That the administrator sues in a representative capacity, and requires the defendant to testify in regard to transactions with the intestate.</p> <p>(3) That the intestate’s account of his advances and payments has been exhibited to her, and its correctness admitted by her, and hence complainant might have a remedy at law.</p> <p>Note.—A contract to sell or buy mere improvements on lands is not within the statute of frauds, Frear v. Hardenbergh, 5 Johns. 272; Benedict v. Beebe,. 11 Johns. 145; Lower v. Winters, 7 Cow. 263; Scoggin v. Slater, 22 Ala. 687 ; Cassell v. Collins, 23 Ala. 676; Zickafosse v. Huliek, Morris 175; Clark v. Shidtz, 4 Mo. 235; Godeffroyv. Caldwell, 2 Cal. JS9; Powell v. MeAshan, 28 Mo. 70; Lombard v. Buggies, 0 Me. 62; Davis v. Broeklebank, 9 N. H. 73 ; Dubois v. Kelly, 10 Barb. 496; Hoby v. Boebuck, 7 Taunt. 157; Keyset- v. District, 35 N. H. 477; see Ronanyne v. SheiTard, L. B. (11 Irish C. L.) 11/6 ; Hallen v. Bunder, 1 Cr. M. c6 B. 266. Aliter as to improvements and land, Howard v. Easton, 7 Johns. 205; Green v. Vardiman, 2 Blackf. 324; Hogsett v. Ellis, 17 Mich. 351; Slarin v. Newcomb, 13 Wis. 519; Kelly v. Webster, 12' O. B. 283 ; nor a partnership to speculate in real estate, Bissell v. Harrington,. 18 Hun 81; Chester v. Dickerson, 52 Barb. 349, 54 N. 7. 1; Wormser v. Meyer, 54 How. Pr. 189; Smith v. Tarlion, 2 Barb. Ch. 336; Dale v. Hamilton, 5 Hare 369, 2 Phil. 266; Tompkins v. Lee, 2 N. 7. S. C. 589; Trowbridge v. Wetherbee, 11 Allen 361; see Essex v. Essex, 20 Beav. 442 ; Pitts v. Waugh, 4 Mass. 424; Fall Biver Co. v. Borden, 10 Cush. 458; Fraser v. Child, 4 E. D. Smith 153; Gray v. Palmer, 9 Cal. 616; Patterson v. Ware, 10 Ala. 444; Henderson v. Hudson, 1 Mwnf. 510 ; Parker v. Bodley, 4 Bibb 102; Thorn v. Thornr 11 Iowa 146 ; Clancy v. Omine, 2 Dev. Eq. S63 ; Wetherbee y. Potter, 99 Mass. 354; or to locate mines, Murley v. Ennis, 2 Col. 300; or to survey and take up public lands, Gibbons v. Bell, 45 Tex. 417; see Henley v. Brown, 1 Stew. 144-; Bryant v. Hendricks, 5 Iowa 256; Davis v. Walker, 4 Hayw. 295; nor one to remove a mortgage from lands, or to cancel it, Green v. Randall, 51 Vt. 67; Wallis y. Long, 16 Ala. 738; Howard v. Gresham, 27 Ga. 347; Valle v. American Co., 27 Mo. 459; Ackla v. Ackla, 6 Pa. St. 228; Holland y. Johnson, 51 lnd. 346; Simonton v. Gaudolfo, 2 Fla. 392. Oontba: Duncan v. Blair, 5 Denio 196; Dock v. Hart, 7 W. & 8. 172; Parker v. Barker, 2 Mete. (Mass.) 423; Leavitt Y. Pratt, 53 Me. 147; Phillips v. Leavitt, 54 Me. 405; Malins v. Broivn, 4 H. Y. 403; see, also, Toppin v. Lomas, 16 C. B. 145; Massey v. Johnson, 1 Exch. 241; nor a contract to keep up a fence, Fleming v. Ramsey, 46 Pa. St. 253 ; see Yeakle v. Jacob, 33 Pa. St. 376 ; May y. Baskin, 12 8m. & M. 428 ; nor one not to use a building in trade competition, Leinan v. Smart, 11 Humph. 308 ; Bostwick v. Leach, 3 Day 476 ; see Gottschalk y. Witter, 25 Ohio St. 76; also, Richardson v. Pierce, 7 R. I. 330 ,- nor one to build a party-wall, Hayes v. Moynihan, 60 III. 409 ; see Stuart v„ Smith, 7 Taunt. 158; Mice v. Moberts, 24 Wis. 451; nor one to pay taxes on lands, Brackett v. Evans, 1 Cush. 79 ; nor one to pay an assessment, Memington v. Palmer, 62 JST. T. 31; Carr v. Dooley, 119 Mass. 294; McCormick v. Cheevsrs, 124 Mass. 262; nor one to drain a mine, Townsend v. Peasley, 35 Wis. 383; nor one to divert a tvater-eourse, Hamilton Co. v. Cincinnati M. M., 29 Ohio St. 341; Le Fevre v. Le Feme, 4 Serg. & Mawle 241; nor one to build a ditch and keep it in repair, Gooch v. Sullivan, 13 Nev. 78 ; nor one to build a dam, Jackson v. Bitch, 62 Pa. St. 451; see Stevens v. Stevens, 11 Mete. 251; Pitman v. Poor, 38 Me. 237; nor one to set out fruit trees, and receive a share of their product as compensation, Wiley v. Bradley, 60 Ind. 62; see Falmouth v. Thomas, 1 Or. & Mee. 89; Cain v. McGuire, 13 B. Mon. 340 ; nor an agreement for board and lodging at so much per year, with the owner of the premises, Wright v. Stavert, 2 Ell. & Ell. 720; Wilson v. Martin, 1 Denio 602; see Inman v. Stamp, 1 Stark. 12; nor one for “mutually keeping house,” Austin v. Thomson, 45 N. H. 113; nor one to destroy the rabbits on demised lands, Morgan v. Griffith, B. jR. (6 Exch.) 70; nor one to remove a prior lease on lands conveyed, Negley v. Jeffers, 28 Ohio St. 90 ; nor one-to answer for damages done by defendant’s workmen in quarrying stone on plaintiff’s land, Griffiths v. Jenkins, 10 Jur. {N. S.) 207; nor one to pay a grantor the excess beyond the original purchase-money, on a resale, Graves v. Gi-aves, 45 JV. H. 823; Bruce v. Hastings, 41 Vt. 3S0; nor one to remove buildings from lands conveyed by the defendant, Detroit R. R. v. Forbes, SO Mich. 165.</p> <p>A landlord’s parol contract to make repairs on the demised premises is within the slatute, McMullen v. Riley, 6 Gray 500; O’Leary v. De Laney, 63 Me. 584; Wood’s Land. <& Ten. $ 377; Addison on Coni. \ 203; ietiits v. jSscibury, 74 N. Y. 409; and the right to use a church for public worship w'hen. not occupied by the congregation (0 which it belongs, Brumfield v. Carson, 33 Ind. 94; and holding the title of lands to indemnify a surety for work and labor to be done by the covenantee, Harper v. Spainhour, 64 N. C. 629 ; see Dyer v. Graves, 37 Vt. 369 ; and building a saw-mill on the lands of another, who agrees to furnish from his lands the logs to be used at the mill, Jones v. McMichael, 12 Rich. 176; and the sale of a pew, V-ielie v. Osgood, 8 Barb. ISO ; Buck v. Pickwdl, 27 Vt. 157.</p> <p>Tor cases of parol partnership in the management of lands and the products thereof, see Orawshay v. Maulé, 1 Swanst. 495; Morris v. Barrett, 3 Y.& J. 884; Roberts v. Eberhardb, Kay 148; Howe v. Howe, 99 Mass. 71.—Hep.</p>

<p>A policy of insurance was issued to and in the name of the complainant’s wife, on his property, upon her application. Complainant alleged that the policy was taken out by her in her own name instead of his, by mistake on on her part. Reformation after loss refused, on the ground that there was no proof of mutual mistake, nor of fraud on the part of the company.</p>

<p>Where a husband and wife have never lived together, and the wife evinces a strong' disinclination to live with her husband at all, and repulses his advances towards a reconciliation, their consequent separation held not to be desertion within the divorce act.</p>

<p>A mortgagee died in 1877, leaving, besides the mortgage, but little personal property, which was shortly afterwards divided among her next of kin. In September, 1879, the mortgaged premises were sold by their owner, and the amount of the mortgage paid to the mortgagee’s next of kin, one of whom then produced the mortgage, and it was canceled of record. In October, 1879, one of the mortgagee’s creditors took out letters of administration on her estate.—Meld, that the payment of the money due on the mortgage to the next of kin, and its cancellation of record, were invalid, and the latter was set aside on the administrator’s application.</p> <p>Note.—On the death of a mortgagee, the mortgage passes to his personal representative, who, in equity, is trustee of the heir, for whom he holds it, subject to the rights of creditors, Burton v. Hintrager, 18 Iowa 848; Chase 'v. Loekerman, 11 Gill & Johns. 185; Barnes v. Lee, 1 Bibb 588; Minna v. Smith, 8 Gr. Oh. 14 ; Metchumv. Dew, 7 Coldw. 538; see Sehoole v. Sail, 1 Seh. & L. 176; Aubrey v. Milton, 8 Moll. 589; Mutual Life Ins. Co. v. Sturges, 5 Stew. Eq. 678, 6 Id. 888.</p> <p>Although the mortgagee may have entered for condition broken, but died before foreclosure, Fay v. Cheney, 14 Pick. 899; White v. Mitlenmeyer, 80 Iowa 868.</p> <p>An executor may execute a power of sale contained in a mortgage of lands to his testator, Richmond v. Hughes, 9 R. I 888; or an administrate!-, Mer~ rin v. Lewis, 90 III. 505; Harniekell v. Orndorff, 35 Mil. 341.</p> <p>He may require the tenant in possession to attorn to him, where the mortgagee died after foreclosure, but before the time for redemption bad elapsed, Lockwood v. Tracy, 48 Conn. 447,; or, consent to the entry of another into the possession of the premises mortgaged, Webster v. Calden, 56 Me. 804. Or, sustain trespass against the heir for entering and catting and carrying away wood, after foreclosure, Palmer v. Stevens, 11 Cush. 147; Brooks v. Goss, 61 Me. 307; or, the purchaser of the wood from the mortgagor in possession after condition broken, McMellop v. Jackman, 50 Vt. 57; nor can a quit-claim deed of the heir before foreclosure sustain a writ of entry by his grantee, Taft v. Stevens, 3 Gray 504; Douglass v. Dunn, 51 Me. 181; nor can the heir himself enter, Smith v. Dyer, 16 Muss. 18; Haskins v. Hawkes, 10S Mass. 379. See Van Duyne v. Thayre, 17; Wend. 833.</p> <p>One of several executors can release a portion of the mortgaged premises, Stuyvesant v. Hall, 8 Barb. Qh. 151.</p> <p>He may receive payment of the mortgage, and cancel it, Ely v. Schofield, 35 Barb. 830; Schwartz v. Leist, IS Ohio St. 485; Griffin r. Jjovell, 43 Miss. 7/.08; see Page v. Johnston, 83 Wis. 895; although a foreign representative, Doolittle r.Levns, 7 Johns. Oh. 45; see Stone v. Scripture, 4 Lans. 186; Vroom v. Van Horne, 10 Paige 549 ; Thorpe’s Case, 15 Grant’s Oh. 76.</p> <p>If the mortgagor is the executor of the mortgagee, and charges himself ■ with the amount of the mortgage debt as assets, this operates as a satisfaction, Martin v. Smith, 124 Mass. 111. See Griffin v. Pringle, 56 Ala. 436; Wathen v. Glass, 54 Miss. 382 ; Thorp v. Felte, 6 B. Mon. 15; McPhadden v. Bacon, 13 Grants Oh. 591; Morrow v. Peyton, 8 Leigh 54■</p> <p>As to a fraudulent entry of satisfaction, and its effect, see Fine v. King, 6 ■Stew. Eq. 108; Hays v. O’Gonnor, 1 N. Y. Leg. Obs. 405; Pemann y. Buck-master, 85 III. 403; Weir v. Mosher, 19 Wis. 311.</p> <p>If money due on a mortgage be paid to the heir, the executor may recover it from him, Tabor v. Tabor, 3 Swanst. 635.</p> <p>Payment to the next of ldn is no defence to an action by the administrator, Mitchell y. Moorman, 1 Y. & J. 21. See Story v. Kemp, 51 Ga. 399.</p> <p>If money be decreed to be paid to B’s distributees, payment to B’s administrator is not a satisfaction, Hamer v. Bethea, 11S. O. (K. S.) 416.</p> <p>As to payments to one of’Several executors, see Ewart v. Dryden, 13 Grant’s Oh. 50; Ewart y. Snyder, Id. 55.</p> <p>One of two executors may consent to the postponement of the lien of their testator’s mortgage, Mutual Life Ins. Go. v. Sturges, 6 Stew. Eq. 328, 335.</p> <p>A personal representative may, before foreclosure, assign a mortgage belonging to his decedent’s estate, Burt v. Bicker, 6 Allen 77; Trades Saving Bank v. Free se, 11 O. E. Qr. 453; Orooker v. Jewell, 31 Me. 306; Kinnay. Smith, 2 Qr. Oh. 16; Oollamer v. Langdon, 20 Vt. 3.3; see Winslow y. Orowsll, 32 Wis. 639 ; Sinclair y. Dewar, 17 Grant's Oh. 621; Benavd y. Otmselyea, 7 Abb. Pr. 105; Ladd v. Wiggin, 35 K. H. 421; and, semble, a foreign administrator may also, Olark v. Blackington, 110 Mass. 369 ; Grace v. Hunt, 1 Cooke 344; Copper v. Wells, Sax. 10 ; Smith y. Tiffany, 16 Hun 552 ; see S.ieldon v. Sill, 8 How. 441; Thatcher y. Hatch, 6 McLean 68; Hill y. Winne, 1 Biss. 275 ; Cutler y. Davenport, 1 Pick. 81; so where an assignment of a mortgage is made to an administrator, as such, Flagg y. Johnston, 32 Ga. 26 ; 2 Jones on Mart. § 1390 ; Wil kins y. Sorrels, 45 Ala. 272; Thurston y. Kennett, 22 K. H. 151; see Bicharás v. Adamson, 43 Iowa 248; Bogert v. Hertell, 4 Hill 432 ; People y. Miner, 37 Barb. 466.</p> <p>One of several executors may so assign, Jones on Mart. $ 796 ; see Stuart v. Abbott, 9 Gratt. 252; Hitchcock y. Merrick, 15 Wis. 522.</p> <p>And such assignee may foreclose in his own name, Kelson y. Stollenwerch 60 Ala. 140; Simpson v. Ammons, 1 Binn. 175; Williams v. Ely, IS Wis. 1; Smith v. 'Tiffany, 16 Him 558.</p> <p>But the heirs may, under some circumstances, assign a mortgage, Babbitt y. Bowen, S3 Vt. 437. See Moore v. Comrs., 54 Ind. 534; Lewis v. Lyons, 13 IlL 117; Patterson v. Allen, 50 Tex. 33.</p> <p>An executor cannot assign the legal estate in lands mortgaged to his testator, unless the land is devised to him; such assignment will only transfer the mortgage, Doe v. Hansen, 3 Allen (JV. B.) 437; Watson v. Hawkins, 60‘ Mo. 550 ; Bobinson v. Byers, 9 Grant’s Oh. 573.</p> <p>'An administrator may enforce a vendor’s lien on lands sold by him, Bratty. Bratl,81 Md.578; Barwiekv. While,3Del. Oh. 384; Whitey.Beviere, 57 Ga. 386.</p> <p>Tlie personal representatives of a mortgagee are the proper parties to foreclose it, and not his heirs or devisees, Frealcc v. Horseley, Ereem. 180 ; Anon. Id. 53; Bradshaw v. Outram, 13 Ves. 834; Snarely v. Pickle, 89 Qratt. 37; Harrison v. Harrison, 1 Call 419; Grattan v. Wiggins, 83 Oal. 16; Copper v. Wells, Sax. 10; Demarest v. Wynkoop, 3 Johns. Ch. 145; Pierce v. Brown, 34 Vt. 165; Clerkson v. Bowyer, 8 Vern. 66; Gibson v. Bailey, 9 N. H. 168 ;■ Johnson v. Bartlett, 17 Pick. 477; Sheldon v. Smith, 97 ilfass. 34; Merrin v. Lewis, 90 111. 505; Griffin v. Lovell, 4'3 Miss. 403; Fifield v. Sperry, 80 JV. H 338; Dayton v. Dayton, 7 Bradwell 136; Booth v. Smith, 5 Conn. 133, 140, note; Jones on Mori. \ 1387; see Pierce v. Jaquith, 48 N. H. 831; Felch v. Hooper, 30 Me. 159 ; Mclver v. Cherry, 8 Humph. 713; Walker v. Sehreiver, 47 Iowa 589 ; Mebane v. Mebane, 80 N. C. 34; or the administrator de bonis non of such executor, Galfield v. Hanson, 57 How. Pr. 331; Utterbacic v. Cooper, 38 Grail. 333; Kirby v. Stale, 51 Md. 383 ; see Abingdon v. Tyler, 6 Coldw. 503 ; Fletcher v. Sanders, 7 Dana 345; Barwick y. White, 3 Del. Ch. 384-Bo, he may revive a foreclosure, although the foreclosure was obtained by tire mortgagee as trustee of a third person, Biley v. McCord, 81 Mo. 885, 84 Mo. 365; see Lockwood, y. Tracy, 4Q Conn. 447; Van Billiard v. Nace,l Grant’s Cas. 333; Atehison v. Surguine, 1 Terg. 400.</p> <p>Although the mortgagee may have entered for condition broken, Devey v. Van Deusen, 4 Bick. 19.</p> <p>So, where the decedent conveys to a creditor in trust to satisfy his debt and pay* tlie surplus to the decedent, Craig v. Jennings, 31 Ohio St. 84; see Williamson v. Wickersham, 3 Coldw. 53; or bequeaths the mortgage, Gibbes v. Holmes, 10 Bich. Eq. 484-</p> <p>As to an executor’s sale of the land mortgaged, after foreclosure and purchase by the executor, see Foster v. Huntington, 5 H. H. 108 ; Baldwin v. Timmins, 8 Gray 801; Wilson v. Stoats, 6 Stew. Fig. 524.</p> <p>Where there is no executor, a creditor of a deceased mortgagee may foreclose, Willis v. Farley, 24 Cal. 490; Randolph v. Chapman, 21 La. Ann. 486.</p> <p>On foreclosure by a first mortgagee, the heir of a deceased second mortgagee is not a necessary party, Whitla v. Halliday, 4 Dr. & War. 267; German Sav. Bank v. Muller (N. Y.), 9 Reporter 622; Beebe v. Morris, 56 Ala. 525; nor the representative of a deceased prior encumbrancer, on foreclosure of a subsequent mortgage, Walker v. Jarvis, 16 Wis. 28.</p> <p>So, where a mechanics’ lien, prior to the mortgage, is being enforced, Shields v. Keys, 24 Iowa 298; see Milam v. Brujfee, 6 Mo. 685.</p> <p>One executor may foreclose against a delinquent co-executor, Rathbone v. Lyman, 8 R. I. 155.</p> <p>As to the forms in pleading by an executor, see Moir v. Dodson, 14 Wis. 279; ■and the ownership of the mortgaged premises after foreclosure, Fifield v. Sperry, 20 N. H. 338.</p> <p>Whether a foreign representative may foreclose here without talcing out letters, see Porter v. Trail, 3 Stew. Eg. 106; Averill v. Taylor, 5 How. Pr. 416 ; Whart. Oonfl. of Laws {2d ed.) § 626 ; Vroom v. Van Horne, 10 Paige 549; Young v. Brush, 28 N. Y. 667; Chamberlin v. Wilson, 45 Iowa 149 ; McClure v. Bates, 12 Iowa 77; Lucas v. Byrne, 35 Mcl. 485; Jones on Mort. § 1389.</p> <p>A probate court has no authority to order an executor, on the receipt of money loaned, to reconvey real estate conveyed to his testator by deed absolute on its face, but intended as a mere security, Anderson v. Fisk, 41 Cal. 308.</p> <p>If the mortgage be redeemed, the heir alone is competent to reconvey, ■Clarkson v. Bowyer, 2 Vern. 66; Wood v. Williams, 4 Madd. 186; Scott v. Nicholl, 3 Russ. 476; Silvester v. Jarman, 10 Price 78; Osborne v. Tunis, 1 Dutch. 633 ; Huggins v. Hall, 10 Ala. 283; see Griffin v. Lovell, 42 Miss. 402; Hilton v. Lothrop, 46 Me. 297;. ICinna v. Smith, 2 Gr. Ch. 17; Merriam v. Barton, 14 Vt. 501.</p> <p>For proceedings under the English statutes, where the heir is unknown &c., see MeyricPs Case, 9 Hare 116 ; Boden’s Case, 1 De G. M. & G. 57; Quinlan’s Case, 9 Irish Ch. 306; Hodged Case, 1 Grant’s Ch. 285.—Rep.</p>

<p>Bill to foreclose, and cross-bill. On final hearing on pleadings and proofs.</p>

<p>1. In order to give jurisdiction, the divorce act requires that the parties, or one of them, must have been an inhabitant of this state at the time of the injury, desertion or neglect complained of, &c.—Held, that an incurable impotence existing at the time of the marriage, was a continuing injury and gave jurisdiction, although neither of the parties was an inhabitant of the state when the marriage was contracted.</p> <p>2. The parties were married in 1865, and the defendant (the wife) successfully resisted all efforts for intercourse for about five years. Some time after-wards her impotence was discovered, and complainant induced her to submit to a surgical operation therefor, which was performed in 1877, but without success. In 1879 complainant became satisfied that defendant was incurably impotent, and in 1880 filed a bill for divorce on that ground.—Held, that his claim to relief had not been forfeited by delay.</p>

<p>The rate of interest to be computed on the accounting of a delinquent trustee, stated, where the rate had. been changed by law during the period covered by the account; and also the proper method of calculating such interest where the trustee’s disbursements had not been regularly credited to him; also other items of the account, as to the valuation of certain lands involved in his misfeasance, and the time from which he was chargeable with interest under the will, explained and settled.</p>

<p>After five mortgages had. been given on a tract of land, a small strip thereof was condemned and taken for a railroad track, and the owner paid therefor. The fourth and fifth mortgages, held by the bank, were subsequently foreclosed, the mortgagor being made the only defendant. At the foreclosure sale thereunder the bank bought the premises. Afterwards the second mortgage was foreclosed, making the railroad company a defendant, among others, and tlie bank came in and proved its mortgages.—Held, that the decree should order, first, the sale of all the land (excepting the strip condemned) to satisfy, in order, all five of the mortgages, and in case of a deficiency, then the sale of that strip.</p>

<p>Where defendants, in good faith, sever in their answers, each one may be .allowed his costs, although they all may have employed the same soli.citor.</p>

<p>Bill to foreclose. ■ On motion for personal decree for deficiency against William J. Gibby.</p>

<p>In 1870, the defendants, in consideration that the Montclair Railroad Company would construct a depot on the premises, and step a specified number of daily trains there for ten years, and build the fences along the track, agreed in writing to convey to the company the lands necessary for their track and depot. The company took possession at once, and built their track but nothing more. In 1875, under the foreclosure of a mortgage, all of the Montclair company’s property was sold, and a new company organized. In 1878, under a foreclosure against the latter company, all of their property was sold, and another company, the complainants, formed. After the complainants had been incorporated, the defendants began an ejectment at law to recover their lands, and this action was enjoined by complainants and relief in equity sought. The defendants answered, protesting against the specific performance of their contract, and expressing willingness to convey the premises to complainants, on receiving compensation therefor and damages assessed as of the date when the Montclair company took possession.—Held, that they were equitably entitled to have their compensation and damages so estimated.</p>

<p>1. Construction of a contract by which complainant was to receive a certain percentage on the contract price for building a railroad.</p> <p>2. A witness cannot, without leave of the court, be re-examined on a matter as to which he has been previously examined; but the ground of objection must be specifically stated when he is re-called, or his testimony will not be •excluded. The rule, however, does not prevent the re-calling of a witness in rebuttal.</p>

<p>1. Recording a mortgage in tlie records of assignments of mortgages, is not ■constructive notice.</p> <p>2. That a board of directors of a company incorporated in this state, held its meetings out of the state, does not affect its title to lands acquired here.</p> <p>3. Where a mortgagor gave a mortgage covering all of his interest in a corporation and in its lands—Held, that it was not a lien on lands then owned by him, and which he was under contract to convey, and afterwards conveyed accordingly to the corporation, superior to the title of the corporation, but only •a lien on his interest in the company.</p>

<p>Bill to foreclose. On final hearing on pleadings and proofs.</p>

<p>Bill for construction of will and account.</p>

<p>Bill to foreclose and cross-bill. On final hearing on pleadings and proofs.</p>

<p>A covenant contained in a deed of jointure provided that the husband should invest his wife’s separate estate, and account to her for the income and for the rents of her real estate. After the marriage he received all of her personal property and invested it, but never accounted for nor paid to her the income thereof, nor the rents of her real estate, which he also received. —JIM, that his representative was, after his decease, liable to account to her therefor, with interest to be calculated with yearly rests.</p>

<p>Bill to foreclose. On general demurrer.</p>

<p>An allegation in a bill that the defendant, by virtue of a judgment and execution at law against complainant’s grantor, has seized upon and is about to sell lands to which complainant has the legal title, presents no equitable ground for enjoining such sale.</p>

<p>After the appointment of a receiver of an insolvent corporation by this court, and proceedings in foreclosure, an agreement among the secured and general creditors of the corporation, was entered into, whereby certain income bonds were to be issued, “ payable in thirty years, with interest at seven per cent., payable half-yearly,” and the interest was to be paid, if the company should “be able to pay it by its income, after paying claims prior thereto, within the year,” and the annual interest should not be allowed to accumulate. A committee to arrange the details of the plan was appointed.— Held, that the committee had authority to consent (hat the bonds should be made payable, at the option of the company, on or before the expiration of thirty years from the date of their issue ; and held, also, that, the receiver would not he ordered to pay the interest on the bonds while the floating debt of the company remained unpaid.</p>

<p>Bills for divorce a vinculo for desertion</p>

Bill to compel payment of the deficiency existing after applying the proceeds of the sale of mortgaged premises to the mortgage. On rehearing of decree advised by an advisory master.

<p>1. A gift of a fund to establish and maintain a school of learning is a charitable trust.</p> <p>2. This court will not administer a foreign charity, but where such a charity is valid by the laws of this state, and by the laws of the state where it is to he executed, and the trustees have the legal capacity to receive the fund and carry out the charity, this court will order its payment to them.</p>

<p>Creditor’s bill. Motion to dissolve injunction on bill and answer and affidavits annexed thereto, respectively.</p>

<p>1. An answer to a foreclosure' bill stated that tbe complainants, in consideration of $500, stipulated “ to agree to the conditions of tbe mortgage.”—Held, that the allegation was not sustained by proof that the complainants, in consideration of $500, agreed to take the mortgage in suit in substitution for ■another of .the same amount on other property.</p> <p>2. Since the act of 1880 (P. L. of 1880 p. $55) there can be no decree for •deficiency in a foreclosure suit against the obligors in the bond secured by the mortgage in suit.</p>

<p>A husband, who treated his wife with extreme cruelty and drove her from his house under a menace that he would kill her if she did not go, and threatened to have a constable put her out of his house when she returned and applied to him for support, was required to give security for the maintenance of his wife and child, a boy five years of age, notwithstanding his allegation and oath that he expelled her because he detected her in adultery, his testimony on the subject not being corroborated, but, on the other hand, being, overborne by that of the wife and her alleged paramour.</p>

<p>Creditor’s bill. On final hearing on pleadings and proofs.</p>

<p>On application for an injunction, heard on bill and affidavit, .and depositions taken on notice.</p>

<p>1. By the common law, a husband had an absolute right to all moneys earned by his wife; but this rule has been abrogated in this state. Rev. 6S7 14.</p> <p>2. Prior to this statute, a husband could make a valid gift or relinquishment to his wife of her earnings, even against creditors whose debts had already been contracted.</p> <p>3. If a wife places money in her husband’s hands, to be invested for her, and he accepts it with that understanding, he becomes her trustee, and is bound to execute his trust faithfully.</p> <p>4. The marital relation does not disqualify a husband from becoming the agent of his wife.</p>

<p>On final hearing on bill, answer and proofs taken before a master.</p>

<p>■ On final hearing on bill and answer, and proofs taken in open court.</p>

<p>On final hearing on bill, answer and proofs taken- before a master.</p>

<p>1. A voluntary deed made by a grantor who is indebted at the time of its execution, is void as to creditors whose claims then exist. A conclusive presumption of fraud arises from the mere fact that debts exist and the deed is voluntary.</p> <p>2. A voluntary deed may be void as to creditors whose claims are contracted subsequent to its execution. If the grantor of such a deed executes it in the expectation of shortly contracting debts, and with the design of so placing the property conveyed that if misfortune afterwards befalls him, and he becomes unable to pay his debts, it shall he beyond the reach of his creditors, the deed will be held void on the ground of fraud.</p> <p>3. Where a husband purchases land with the separate estate of his wife, and takes title either in his own name, or in that of a third person, a trust results in favor of the wife, and equity will decree a conveyance to her.</p> <p>4. If a wife permits her husband to take title to her lands, and to hold himself out to the world as the owner of them, and to contract debts upon the credit of such ownership, she cannot afterwards, by taking title to herself, withdraw them from the reach of his creditors, and thus defeat their claims.</p>

<p>On an application for an injunction, heard on bill and affidavits and answer and affidavits.</p>

<p>On final hearing on bill, answer and proofs taken before a master.</p>

<p>1. In the construction of a release of a mortgage, the question is, not what ■did the parties mean to do, but what have they done by apt and proper words.</p> <p>2. Where a recital is followed by general words, the general words will be held to be limited or qualified by the recital.</p> <p>3. Except under very extraordinary circumstances, a court of equity will not lend its assistance to reform a voluntary deed, or to enforce the specific performance of a voluntary contract.</p> <p>4. It is an established rule that the assignee of a mortgage takes it subject to all the equities which the mortgagor may claim against it, but free from ■secret equities existing in favor of third persons.</p> <p>5. In this state, it is provided by statute that in a suit by an assignee of a mortgage, all just set-offs and other defences shall be allowed against him which would have been allowed if his assignor had brought the action. JRev. 708 131.</p> <p>6. A mortgagor may, by concealing his equities, or misleading the assignee, place himself in a position where justice will be defeated if he is allowed to ■set up, against the assignee, an equity on which he would be entitled to prevail in a suit by his mortgagee. Where the conduct of a mortgagor leads to such a result, courts of equity hold that he is estopped.</p> <p>V. Where one person, by either words or conduct, induces another to believe that he may safely purchase certain property, or take a certain security, and he subsequently, relying on such representation, acquires the property or security, the former will never be permitted, in a court of equity, to overthrow the title so acquired.</p>

<p>On final hearing on cross-bill, answer and proofs taken in upen court.</p>

<p>Upon an application to assess the damages on a judgment recovered against an administrator and his sureties, because of his failure to apply to the payment of the intestate’s debts the proceeds of lands sold under an order of the orphans court—Held,</p> <p>(1) That since the only question to be now determined is the amount to be raised, the further question whether the administrator de bonis non is entitled •thereto, is premature.</p> <p>(2) That as the administrator had authority to sell only the lands specified in the order of the orphans coux-t, his sui'eties are not liable for the px-oceeds of sale of any other lands.</p> <p>(3) That there can be no deduction in the administrator’s favor because of his failure to exhaust the personal estate of the intestate in payment of his •debts-befox-e applying the proceeds of the realty thereto.</p>

<p>1. The 118th and 119th sections of the orphans court act (Sev. 778) are intended to protect the estates of decedents from misapplication or waste by executors &e., and being remedial, must be liberally construed.</p> <p>2. A legacy was given to an infant to be put out on bond and mortgage, and to be paid when the infant attained the age of twenty-one years, with interest accruing thereon. Sdd, that it was the duty of the executors to compound' the interest as it accrued, by investing it as soon as practicable thereafter.</p> <p>3. An executor who, without authority, lends such a fund to his co-executor, on inadequate security, is liable for the amount of the principal and compound interest; and the fact that such investment is stated in his account in the orphans court will not exonerate him.</p> <p>4. The true test in considering the sufficiency of the security for a trust fund, is the price which the property would bring at a forced sale.</p>

<p>After the damages have been assessed against an assignee and Ms surety, ' on their bond given under the assignment act, the surety cannot have the amount of a creditor’s claim deducted therefrom, on the ground that it was not presented to the assignee under oath, where such claim was allowed and included in all of the assignee’s accounts, and no creditor objects thereto. He is bound to answer for all the money found due from his principal.</p>

<p>One of two executors collected a large amount of money due the estate, without his eo-executor’s knowledge, and, in order to secure the estate, gave a mortgage on his own lands, payable to himself and his co-executor. The property covered by the mortgage was sold under a prior mortgage, and nothing realized therefrom for the estate. Held, that the delinquent executor was not, by giving the mortgage, exonerated from liability to his co-executor.</p>

<p>On appeal from decree of Somerset orphans court.</p>

<p>Appeal from order of Camden orphans court.</p>

<p>A testator directed his executors to invest a fund and to pay to his widow, for life or widowhood, one-third of the interest thereof, and to his children and grandchildren, whom he named, the remaining interest in designated portions; that if any such child or grandchild should die without issue, the survivors slwuld take such decedent’s share in like portions ; that, if any of them should die leaving lawful issue over twenty-one years of age, the executors should pay to the representatives of such decedent the principal on which such decedent had received the interest. One child died during the lifetime of the widow, leaving a daughter over twenty-one.—Held, that the executors could pay her the principal of her share on her producing the widow’s release of her interest therein.</p>

<p>Appeal from decree of orphans court of Somerset county.</p>

<p>In 1861, under the directions of a will, A and B, the executors thereof, invested §4,000 in a mortgage, to pay the interest to C until C’s son arrived at twenty-one, and then to pay the principal to him. The mortgage was taken in the name of both the executors. A borrowed moneys at various times afterwards of the mortgagor, on his own account, and, in September, 1875, credited the mortgagor, on the mortgage, with §1,000, on account of those borrowed moneys. In February, 1878, B ascertained these facts, and inquired of A in regard to them, but took no further steps. C’s son attained his majority in October, 1878.'—Held, that B was liable for the §1,000, A being insolvent; and that it was no ground of relief that the mortgage had, for convenience in collecting the interest, been left in A’s hands, or that A’s malfeasance had not been discovered until two years thereafter, and that A was said to have been then insolvent, or that A had voluntarily accounted alone in the orphans court, in 1875, for his administration of the fund, B having omitted to take the steps precautionary and protective which he might have taken in behalf of the trust estate in the premises.</p>

<p>1. On exceptions to an executor’s account, the executor is not a competent witness, when he offers himself as a witness on his own behalf, to testify as to-any transactions between himself and his testator.</p> <p>2. Where stock stood in a testator’s name on the books of the corporation, the facts that the certificate is found in the executor’s possession, and that the testator gave him a power of attorney to receive and assign any scrip or dividend due him from the company, are not conclusive evidence of a gift of the stock to the executor.</p>

<p>The provisions of the statute on the subject of commissions of administrators, executors &c., and the duty of the court thereunder, considered. The fees of (he administrator of a very large es tate fixed and the reasons stated. Allowance for the compensation of an accountant employed by the administralor to keep and make up his account, refused.</p>

This is an appeal from an order advised by Vice-Chancellor Van Fleet dismissing a cross-bill. It' is a decree in a suit originally brought by Charles Kirkland, trustee of Catherine A.- Mower, to foreclose a mortgage upon forty acres of land in Bergen' county, made by Thomas Howland and wife to Catherine F. Dana, and by her assigned to Kirkland.

Thomas Aldridge, the appellant in this cause, was, in the last will and testament of Richard Parkes, deceased, constituted and .appointed by the testator as the executor thereof, and clothed with certain powers and trusts as therein stated Ac. Said Aldridge was duly qualified as such executor upon the probate of said will before the surrogate of the county of Essex, and assumed the duties of his office.

<p>1. The question of abatement from amount of mortgage, on account of deficiency in contents of the premises, may be raised by the mortgagor in fore•closure proceedings, by answer.</p> <p>2. If a vendor fraudulently represents the number of acres, and thereby induces the vendee to pay more for the premises than he otherwise would, an ■abatement will be allowed.</p> <p>3. There will also be abatement where there is gross mistake.</p> <p>4. Gross mistake is where the quantity of land conveyed falls so far short of ■the quantity represented as clearly to warrant the conclusion that the grantee would not have contracted had he known the truth.</p> <p>5. If the description in the deed calls for “ more or less,” and the quantity falls short or overruns a little, compensation will not be allowed, in the absence of fraud.</p> <p>6. Mere enumeration of quantity at the end of a particular description of the premises, where there is no fraud nor gross mistake, is matter of description only, and not of the essence of the contract, and in such case there will not be •deduction from the mortgage.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, dismissing the appellant’s bill. His opinion is not on file.</p>

Newark, 5 Stew. Eq. J/,66. The bill in this cause was' exhibited for the purpose of removing a cloud from the title of the complainant’s land, such cloud consisting in a purchase made by the city of Newark of the premises in question, the same having been sold for an unpaid assessment for a city improvement.

<p>On appeal from a decree of the chancellor, whose opinion is reported in Coe v. N. J. Midland li. R. Co., 4 Stew. Eg. 105.</p>

<p>1. The complainant was the holder of a first mortgage bond of the defendant, and agreed to come in under a plan to re-organize the defendant by force of the statute; the bill alleged that the defendant, as re-organized, was about to issue to the other holders of such first mortgage bonds, its own bonds, but did not show that such new bonds were to be secured by a mortgage.—Held, that such statements did not lay a ground for equitable jurisdiction.</p> <p>2. But as the bill alleged that defendant would not disclose to complainant what the plan of re-organization was—Held, further, that the right of such discovery laid a sufficient foundation to the suit.</p>

Creditor’s suit. Original and supplemental bill. On motions to dismiss original bill for want of equity, to dissolve injunction, and on petition for leave to amend answer to original bill.

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>By a written agreement for the exchange of lands, the complainant was to secure to the defendant for his (defendant’s) use, one-half of the rye then growing on complainant’s land (which was under lease), and by a simultaneous verbal agreement, the growing wheat thereon was reserved to complainant’s tenant then on the premises. The deed, which was afterwards given, was a warranty deed, and contained no reservation of the crops at all, because the scrivener regarded it as unnecessary. The defendant, denying the tenant’s . claim to the wheat, converted it to his own use, whereupon the tenant recovered a judgment against him for its value. Then the defendant recovered a judgment at law in respect thereof, against complainant, for breach of covenant in the deed, and on that judgment a writ of error by complainant is still pending.</p> <p>Held, that complainant having conclusively shown that the wheat was reserved at the time of the exchange, may restrain defendant from further proceeding on or enforcing his judgment at law, and that such right has not been lost by his laches.</p> <p>Note.—A conveyance of lands carries therewith the growing crops, Terhune v. Elberson, Pen. *726; Waugh v. Wa/ugh, 84 Pa. St. 350; Budworth v. Sunter, 9 Bob. (La.) 256; Talbot v. SUl, 68 III. 106; Chapman v. Long, 10 Ind. 465; Crews v. Pendleton, 1 Leigh 297; Pratiev. Coffman, 27 Mo. 424; Engle v. Engle, 3 W. Va. 246. See Evans v. Williamson, 43 L. T. Bep. (N. S.) 719, 23 Alb. L. J. 400; Edwards v. Banier, 17 Ohio St. 597; and the grantor’s possession subsequent to the deed does not aflfeet it, Wilkins v. Vashbinder, 7 Watts 378; Tripp v. Sasceig, 20 Mich. 254; Brooks v. Syde, 37 Cal. 366; Pickens v. Beed, 1 Swan 80.</p> <p>A sale of land by the landlord during a tenancy for years, and a subsequent sale of his portion of the crop by the landlord to a third person, gives neither the purchaser of the crop, as against the vendee of the land, title to the landlord’s share, nor the vendee of the land title to the tenant’s share, Moffett v. Armstrong, 40 Iowa 484; Gibbons y..Dillingham, 10 Ark. 9 ; Adams v. Leip, 71 Mo. 597. See Pfanner v. Sturmer, 40 Sow. Pr. 401; Sadley v. Barton, 47 Sow. Pr. 481; Jenkins v. McCoy, 50 Mo. 348; Pickens v. Beed, 1 Swan 80.</p> <p>A demise by a landlord who had purchased a former tenant’s emblements, passes them, .Copley v. Enright, 7 Irish C. L. 393; Carnagy v. Woodcock, 2 Munf. 234; unless reserved, which may be by parol, Toumans v. Caldwell, £ Ohio St. 71.</p> <p>A grantee’s parol promise to pay the consideration to a third person, is good, Bice v. Carter, 11 Ired. 298; Simonton v. Gandolfo, 2 Fla. 392; Mason v. Mason, 3 Bush 35; Baynor v. Lyons,' 37 Cal. 452; Lee v. Newman, 55 Miss. 365„ See Sherburne v. Fuller, 5 Mass. 133; Price v. Sturgis, 44 Cal. 591; Cooper v. Landis, 75 N. C. 536.</p> <p>But not vendee’s parol promise to sell the land and credit any profits on such sale on an indebtedness to him, Kidd v. Carson, 33 Md. 37. See Trow-bridge v. Wetherbee, 11 Alien 361.</p> <p>A grantee in a deed may show a parol agreement, contemporaneous with his deed, to pay off a mortgage on the premises, T'aintor v. Hemmingway, 18 Hun 458; Murray v. Smith, 1 Luer 413 ; Treridich v. Mumford, 31 Mich. 457; Pitman v. Conner, 37 Ind. 337; Thomas v. Hammond, 47 Tex. 43; McDUIy. Gunn, Ifi lnd. 315; Negley v. Jeffers, 38 Ohio St. 90; HoysradtY. Holland, 50 N. II. 483, But see Duncan v. Blair, 5 Denio 196; Machir y. McDowell, 4 Bibb 473 ; Howe v. Walker, 4 Gray 318; Sage v. Jones, 47 lnd. 183 ; and taxes, Brackett v. Evans, 1 Oush. 79; Headrick y. Wisehart, 57 lnd. 139, 41 lnd. 87, 48 Ind. 144 ; Preble v. Baldwin, 6 Oush. 549; Landman y. Ingram, 49 Mo. 813; Herscy v. Verrill, 39 Me. 371; Shields v. Harrison, 77 N. C. 115; McLennan Y. Cheguin, 37 U. C. Q. B 301; aider as to subsequent rents or taxes, Smart y. Harding, 39 Eng. L. <fc Eq. 353; Walker v. McDonald, 5 Minn. 455. See Hand v. Liles, 56 Ala. 143; and municipal assessments, McCormick Y. Cheevers, 134 Mass. 363 ; Swindell v. Richey, 41 Ind. 381; Carr v. Dooley, 119 Mass. 394; and judgments, Besshears v. Rowe, 46 Mo. 501; and pay for fixtures, Heysham Y. Deltre, 89 Pa. St. 506; Hensley v. Brodie, 16 Ark. 511; Bostwick v. Leach, S Day 476; Mott v. Palmer, 1 N. 7. 564. See Noble y. Bosworth, 19 Pick. 314; West Y. Blake, 3 Mann. & Or. 739 ; and a subsisting lease, Allen v. Lee, 1 Ind. 5S; Bomrey Y. Morrill, 57 Me. 868; and that vendee was to use a certain amount of coal annually from the land, Graver v. Scott, 80 Pa. St. 88.</p> <p>A parol exception of a barn from lands conveyed by deed, is void, Detroit R. R. v. Forbes, 80 Mieh. 165; Laudon v. Plait, 34 Conn. 517; Whitaker y. Cawthorne, 3 Dev. 389 ; or, of a gin-liouse, Bond v. Coke, 71 Ff. G. 97; or, of a saw-mill, Pea v. Pea, 35 Ind. 387; or, of a house, Gibbs v. Estey, 15 Gray 587; Duff v. Snider, 54 Miss. 245. But see Dame v. Dame, 38 N. JSC. 429. Or, of manure, Gounce v. Foster, 9 Ff. IF. 538 ; Goodrich v. Jones, 2 Mill 142; Conner v. Coffin, 22 N. II. 538 ; Proctor v. Gilson, 49 FT. M. 62. See Ruekman v. Out-water, 4 Dutch. 581. Or, of timber, Safford v. Amis, 7 Me. 168 ; Warren v. Be-laud, 2 Barb. 613. But see Carpenter v. Ottley, 2 Bans. 451; Stickney v. Parmenter, 35 Mich. 237 ; Cockrill v. Downey, 4 Kan. 426; Jones v. Timmons, 21 Ohio St. 596. Or, of a partition wall, Wickersham v. Orr, 9 Iowa 258 ; Rice v. Roberts, 24 Wis. 461; or, of unaccrued rents, Winn v. Murehead, 52 Iowa 64; or, to obtain vendor’s wife to release her dower, Martin v. Wharton, 38 Ala. 637; or, the use of a spring on the premises sold, Vermont R. R. Co. v. Mills, 23 Vt. 681; or, of a license, Voorhees v. Burchard, 6 Bans. 176, 55 N. V. 98 ; Jungerman v. Boree, 19 Cal. 354; McKee v. St. Louis, 17 Mo. 184; Kent v. Kent, 18 Pick 569.</p> <p>A parol agreement as to the possession of lands Gonveyed by deed, is good, Mersey v. Verrill, 89 Me. 271; Quimby v. Slebbins, 55 FT. M. 420; Merrill v. Blodgett, 34 Vt. 480; Parsons v. Camp, 11 Conn. 525; Willis v. Murlbert, 117 Mass. 151; Miranville y. Silverthorne, 1 Grant’s Cas. 410. Contra, Gilbert y. Bulkley, 5 Conn. 263; Gough v. Dorsey, 27 Wis. 119; Mellon v. Watkins, 24-Ala. 433; Drake v. Boot, 2 Colorado 6S5 ; Loomis v. Loomis, 60 Barb. 22; Jones v. 'Timmons, 21 Ohio St. 596; Howard v. Easton, 7 Johns. 205. But not as to tlie right of rescission or re-purchase, McFhian v. Ortman, 34 Mich. 325; Graves v. Graves, 45 H. H. 323; Sennetl v. Johnson, 9 Pa. St. 335; Paitison v. Horn, 1 Grant’s Cas. 301; Peacock v. Nelson, 50 Mo. 256; Beers v. Beers, 22 Mich. 42; Burrell v. Root, 40 N. Y. 406; Wemple v. Knopf, 15 Minn. 440; Ahrend v. Odiorne, 118 Mass. 861; Bonham v. Craig, 80 N. C. 824; Ballard v. Bond, 32 Vt. 355 ; Campbell v. Campbell. 2 Jones Eq. 364 ; Gallagher v. Mars, _ 50 Cal. 23. But see Greenawalt v. Kohne, 85 Pa. St. 369 ; Boyd v. Stone, 11 Mass. 342; Arrington v. Porter, 47 Ala. 714; Davis v. liiscoe, 84 N. C. 396; Tee v. Lee, 11 Rich. Eq. 574; and an agreement not to carry on the same business as had been carried on in the premises sold, Pierce v. Woodward, 6 Pick. 206 ; Leinau v. Smart, 11 Humph. 309 ; Fusting v. Sullivan, 44 Md. 162 ; War-field v. Booth, 33 Md. 63; Bostwich v. Leach, 3 Day 476 ; Gottschalk v. Witter, 25 Ohio St. 76 ; Whitaker v. Welsh, 2 Pug. 436,- Perkins v. Clay, 54 N. H. 518 ; and a contract to repair, Manning v. Jones, Busb. 368; Buzzell v. Williard, 44 Yt. 44- See ButlemereY. Hayes,' 5 M. & W. 456; Nieoll v. Burke, 78 N. Y-580; Cleves v. Willoughby, 7 Hill 83.</p> <p>That a parol reservation of crops from a written contract of sale or deed for the lands whereon the crops are growing, is void, see Vanderkarr v. Thompson, 19 Mich. S2; Bloom v. Welsh, 3 Dutch. 179; Brown v. Thurston, 56 Me. 126; Smith v. Price, 39 III. 28; Mcllvaine v. Harris, 20 Mo. 457; Harbold v. Kuster, 44 Pa. St. 392; Backensioss v. Stabler, 33 Pa. St. 351; Wintemute v. Light, 4® Barb. 378; Burnside v. Wightrnan, 9 Watts 4®; Johnson y. Tautlmgei; 31 Iowa 500; Turner v. Goal, 33 Ind. 56; Wood v. Lang, 5 T7. O. G. P. 304, Contra, Merrill v. Blodgett, 34 Vi. 480; Flynt v. Gomad, Phil. (N.'. G.) 190; Powell y. Bicli, 41 III- 466; Harvey v. Million, 67 Ind. 90; Baker v. Jordan, 3 Ohio St. 438; O’Lell v. Coyne, 4 TJ. G. O. P. 453. See Benner v. Bragg, 68 Ind. 338; Robinson v. Pitzer, 3 W. Va. 335; Moble v. Smith, 3 Johns. 53.</p> <p>A defendant in execution cannot, by parol, authorize a levy on growing trees or grass, Bank of Lcmsingburgh y. Orary, 1 Barb. 543. See McKenzie v. Lampley, 31 Ala. 536 ; Osborn v. Babe, 67 III. 108 ; Oudworth v. Scott, 41 K- H. 456 ; Adams v. Smith, Breese 383; Hay don v. Crawford, 3 TJ. G. Q. B. (O. S.) 583.</p> <p>Where growing grain has been reserved, from a deed of the lands, a subsequent purchaser of the crop, with notice of the reservation, is hound thereby, although the reservation was by parol, Burnside v. Weightman, 3 Watts & Serg. 368; Harlan v. Harlan, SO Pa. St. 303; Moats v. Witmer, 3 Gill & Johns. 118; East v. Ealer, 34 La. Ann. 139; Davis v. Brocklebank, 9 N. H. 73; Lame v. Lame, 38 M. H. 439. But see Goff v. O'Conner, 16 III. 431; Byasse v. Reese, 4 Mete. {Ky.) 374; Westaott y. Lelano, 30 Wis. 514; Sanders v. Ellington, 77 N. O. 355; Milliman v. Meher, 30 Barb. 37; Seatoff v. Anderson, 38 Wis. 313.</p> <p>Equity may grant relief to the owner of the crops; Lauehner y. Rex, 30 Pa. St. 464; Barnes v. Shinholsler, 14 Ga. 131; McGuiness v. Kennedy, 39 TJ. G. Q. B. 93. But see Young y. Miller, 10 Ohio 85.—Rep.</p>

<p>1. If the validity of a release of an assumption of a mortgage (when a decree for deficiency is sought) is questioned, the complainant must frame the issue so as to raise the question.</p> <p>2. Lands covered by a mortgage were, in part, afterwards laid out by the mortgagor as a public street, and accepted and treated as such by the municipal authorities. Subsequently the mortgagee released- that part of the mortgaged premises adjoining the street, and described it as hounding on the street.—Held, that the land lying in the street is, as against the mortgagee, subject to the public rights acquired by the dedication and release.</p>

<p>Bill for injunction. On final hearing on pleadings and proofs.</p>

<p>A testator appointed two executors, and named two others to act in case of the death or declination of the former, with authority in the survivor to nominate a co-executor with full power to exercise the same discretion in the management and disposition of the estate as the original appointees possessed. He gave to his two sisters, for their joint lives and that of the survivor, as a residence, his real estate in M., called “ the Cottage,” with the appurtenances, lands &c., with a gift over to his executors as trustees, to sell the premises and to invest the proceeds and apply the income to purchasing books and founding a useful public library in or near M.</p> <p>The executors have all died without nominating any associates, testator’s sisters are both dead, and a legal organization in M. has established a public library.</p> <p>On application of the heir at common law of the last surviving executor— JSdd, that he would be directed to sell the premises in M., including a wharf two hundred yards distant from “ the Cottage,” but bought solely for the use of, and always used by the testator solely in connection therewith, and to pay over the proceeds to the library already existing at M., as trustee; and, further, that the executor’s failure to designate a co-executor would not destroy the charity.</p>

<p>Bill for relief. On final hearing on pleadings and statement of facts agreed upon, and proofs.</p>

<p>At a partition sale of lands, complainant’s mother bought one of the tracts, but, by a previous agreement, bought it for complainant, who paid for it. The .sale was confirmed, and deeds ordered to be made to the several purchasers by name. The parties were advised by counsel that the commissioners could not make a deed for the tract to complainant, and hence it was executed to his mother.—Held, that, after the mother’s death, complainant was entitled to relief, and the fact that his mother paid the taxes on the tract for several jears would not estop him.</p>

<p>In 1874, a depositor in a savings bank, Rachel Speer, ordered the following entry to be made in her account: “ Frank B, Smith, hatter, Danbury, Conn., son of Joseph Smith and Cornelia; to be drawn by Rachel; after death, by Frank.” In 1870, she directed the following entry to be made in her passbook in another savings bank: “ This account is in trust for Frank B.</p> <p>Smith,” and signed it with her name. She kept both pass-books in her own possession, and drew the dividends and part of the deposits down to 1878, when she became insane. Complainant is her nephew, and understood that, although the funds were deposited in trust for him, he was to have no part thereof until Rachel’s death.—Held, that he had no claim to be protected during Rachel’s lifetime, against her or her guardian drawing the funds.</p> <p>Roie.—A gift to an infant may be supported, if accompanied by delivery of the chattel, Hunter v. Westbrook, % C. & P. 578; Qranigan v. Arelen, IQ Johns. 898 ; Snoui v. Copley, 3 La. Ann. 610; Pierson v. Heisey, 19 Iowa 114; Stell v. McKnight, 1 Pay 64. See Hudnal v. Wilder, 4 McCord 894; Trowell v. Carraway, 10 Heisk. 104; Robertas Appeal, 85 Pa. St. 84; Hillebrant y.'. Brewer, 6 Tex. 45; Mahoney y. McCready, 15 Lower Can. 874. Also, Jones y. Lock, L. P. (1 Ch. App.) 35; Earning y. Bussell, 94 III. 386; Richardson y„ Lowry, 67 Mo. 411; Brewer y. Harvy, 78 H. C. 176 ; Carpenter v. Davis, 71 III. 395; Zimmerman y. Streeper, 75 Pa. St. 1J7; Mason y. Hyde, 4Í Vt. 838. And the law will accept it for the infant, if to its advantage, De Levülian y. Evans, 39 Cal. 180; Darland y. Taylor, 58 Iowa 503 ; Howard v. Copely, 10 La. Ann. 504; Coss y. Singleton, 3 Head 67. See Barnebe v. Suacr, 18 La. Ann. 148; Marston v. Marston, 31 N. H. 491.</p> <p>The parent cannot afterwards reclaim it, Smith y. Smith, 7 C. & P. Jfil; Kellogg v. Adams, 51 Wis. 188; Long v. Long, 16 Grant’s Ch. 239,17 Id. 251. See Orany v. Kroger, 22 III. 74; Taplin v. Wilson, 4 Hun 244; Wigle v. Wigle, 5 Watts 522; Hunter v. Jones, 6 Land. 541; nor Ms creditors, Wain-bold y. Vick, 50 Wis. 456; Allen v. Knowlton, 47 Vi. 512; Mathes y. Dobschuetz, 72 111. 488. See Shirley v. Long, 6 Land. 764.</p> <p>Acts of ownership afterwards exercised by a parent over a gift to his minor child, do not invalidate or affect it, Dodd v. MeCraw, 8 Ark. S3; Seuxdl v. Glidden, 1 Ala. 53; Ector v. Ector, 29 Ga. 443; Whitford v. Horn, IS Kan. 455; Martrick v. Linfield, 21 Pick. 325; Hasbrouek v. Bouton, 41 How. Pr. 208; Kellogg v. Adams, 51 Wis. 138; Fowler v. Lockwood, 3 Led/. 465; Pier-son v. Heisexj, 19 Iowa 114; Mortimer v. Brumfield, 3 Munf. 122; Coppage v. Barnett, 34 Miss. 621. See Thorpe v. Owen, 5 Bear. 224; Durrelt v. Sewatt, 2 Ala. 669; Wheeler v. Wheeler, 43 Conn. 503; Hitch v. Davis, 3 Mid. Ch. 266 ; Cook Y. Husted, 12 Johns. 188.</p> <p>There may be a valid gift of a chattel, reserving to the donor its use for life, Davis v. Ney, 125 Mass. 590; Hope v. Hutchins, 9 Gill <6 Johns. 77; Conner v. Hull,.36 Miss. 424; Duncan v. Self, 1 Murph. 466; Howell v. Howell, 7 Ired. 481; McGinney v. Wallace, 8 Hill {S. C.) 254; Gadsden v. Whaley, 14 S. C. 210; MeKane v. Bonner, 1 Bail. 118. See, however, Lance v. Lance, 5 Jones 413; Withers v. Weaver, 10 Pa. St. 391; Pitts v. Mangum, 2 Bail. 588; Caldwell v. Wilson, 2 Spears 75; Durham v. Dunkley, 6 Land. 135; Anderson v. Thompson, 11 Leigh 439.</p> <p>A bank deposit receipt, semble, may not be transferred as a gift by mere delivery and endorsement, Moore v. Ulster Bank, L. L. {11 Irish C. L.) 512 ; Dunne v. Boyd, L. L. {8 Irish Eg.) 609 ; Gerow's Case, 5 Allen {N. B.) 512 ; Hill v. Sheibley, 64 Ga. 529; Withers v. Weaver, 10 Pa. St. 391; Hassell v. Basket {Ind.), 18 Alb. L. J. 823; Mead v. Mead {Eng.), 22 Alb. L. J. 359; McCabe v. Lobertson, 18 H. C. C. P. 471. But see Amis v. Witt, 33 Beav. 619, 1 B. & S. 109; McGrath v. Leynolds, 116 Mass. 566; Brooks v. Brooks, 11 S. C. 422; Westerlo v. De Witt, 36 N. T. 340.</p> <p>A special deposit of bank bills, sealed in an envelope, was made by A, payable to himself or order, and he afterwards endorsed the certificate of deposit to B.—Meld, that B could hold the deposit against A’s assignee, in insolvency, Phillips v. Franeiseus, 52 Mo. 370. See Young v. Young, 80 JV. Y. 4-22 ; Welch v. Belleville Bank, 94 111. 191; Wyble v. McPheters, 52 Ind. 393; Southerland v. Southerland, 5 Bush 591.</p> <p>Where securities are sealed up, and endorsed with the intended beneficiaries’ names, locked in a box, and the key retained by the donor, the gift is imperfect, Bunnv. Markham, 7 Taunt. 224; Coleman v. Parker, 114 -Mass. 30; Trough’s Estate, 75 Pa. St. 115; Meriwether v. Morrison {Ey.), 10 Beporter 061; Bryson v. Browrig, 9 Ves. 1. See Match v. Atkinson, 56 Me. 324; Ellis v. Secor, 31 Mich. 185; Cooper v. Burr, 45 Barb. 9; Jones v. Selby, Prec. in Ch. 800; Stevens v. Stevens, 5 T. & C. (N. Y.) 87; Fowler v. Lockwood, 3 Bed/. 465; Jones v. Brown, 34 N. M.. 439, J/Jf5; Powell v. Mellicar, 26 Beav. 261; Walsh v. Sea-ton, 55 Barb. 251; Carradine v. Carradine, 58 Miss. 286.</p> <p>As to the efFect of a deposit in the joint names of the depositor and another person, George v. Bank 0/ England, 7 Price 646; Ward’s Case, 2 Bed/. 251; Orphan Asylum v. Strain, 2 Brad/. 34; Condon v. Bank of B., MS. Stevends Pig. N. B. 665. See Mack v. Mack, 5 T. & C. 528; Marshal v. Crutwell, L. B. {20 Eq.) 328.</p> <p>A deposit in a savings bank of the depositor’s money for the benefit of A, the depositor retaining the control of the fund during his lifetime, and A, having no notice thereof, has been held not to constitute a trust which A could afterwards enforce. Brabroolc v. Boston Bank, 104 Mass. 22S ; Clark v. Clark, 108 Mass. 522; Powers v. Provident Inst., 124 Mass. 377; Stone v. Bishop, 4 Clif. 593; Weber v. Weber {N. Y.), 9 Beporter 682; Geary v. Page, 9 Bosw. 290; Meiggs v. Meiggs, 15 Mun 453. Cohtba, Witaell v. Ghapin, 3 Brad/. 886. See Gaskell v. Gaskell, 2 You. & Jer. 502; Moore v. Mocn-e, L. B. {18 Eq.) 414.</p> <p>But the rule is otherwise if the depositor inform A of the deposit, and that A is to have it after the depositor’s death. Gerrish v. New Bedford Inst., 128 Mass. 159; Gardner v. Merritt, 82 Md. 78; Bay v. Simons, 11 B. I. 266, 15 Am. Law Beg. (N. S.) 701, and note; 23 Am. Bep. 447, and note; Vandenberg v. Palmer, 4 N. & J. 204. Although there may have been no delivery of the bank-book. Blasdell v. Locke, 52 N. H. 238.</p> <p>If A make a deposit in a third person’s name, in order to avoid an attachment of the fund, and without an intention to donate it to such third person, he may afterwards recover it from the bank. Broderick v. Waltham Bank, 109 Mass. 149.</p> <p>A made a deposit of her own money in the name of B, an'd it was so entered in the books of the bank. A retained the book until her death, and there was no proof that B ever knew of the gift during her lifetime, she having died before A —Held, that the gift was perfect, and that the money belonged to B’s estate. Howard v. Windham Bank, 40 Vt. 597.</p> <p>A deposited $250 in a savings bank in her own name as trustee for W., a lad who did errands for A, and A informed W.’s pareijis of the deposit. A kept the book, and afterward drew out all the deposit, together with the interest, appropriating it to her own use. At her death, she left a will, not mentioning the deposit, and not giving anything to ~W.—Held, that the gift was complete at the time of the deposit, and that A could not subsequently revoke it. Minot v. Bogers, 40 Conn. 512; also, Thompson v. Gordon, 3 Slrobh. 196; Prowell v. Carr away, 10 Heisk. 104; Marston v. Marston, 21 N. H. 491; Adams v. Nicholas, 1 Miles 90, 2 Whart. 17; Huntington v. Gilmore, 14 Barb. 243; Jones v. Selby, Pree. in Ch. 300; Merchant v. Merchant, 2 Bradf. 432; Parker v. Picks, 8 Jones 447; Hambroke v. Simmons, 4 Buss. 25.</p> <p>A deposited $460 in a savings bank for E. K., her niece, and it was entered on the books of the bank “ E. K.—M. K., guardian,” and A informed the guardian thereof. The book was delivered to A, who retained it, and after-wards had the money transferred to her by M. II.—Held, a complete gift, and beyond revocation. Kerrigan v. Bautigan, 43 Conn. 17.</p> <p>A deposit in trust for C has been held to raise a presumption that it was ■the money of O. Millspaugh v. Putnam, 16 Abb. Pr. 880.</p> <p>Where D deposited money in .the name of “ D, for C,” and took a note therefor payable “D, for 0,”—Held, that C could recover the amount after D’s death. Smith v. Lee, 2 T. & G. (H. Y.) 591.</p> <p>A deposited a sum to the credit and in the name of his son G, and, shortly before his death, gave a box to G, slating that it contained his bank-book, and that he intended it for G, but he retained the key of the box until his death.— Held, that G could recover. Vandermark v. Vandermark, 55 How. Hr. 408.</p> <p>S deposited $500, “ in trust for 0,” and afterwards drew out the interest herself. After S’s death, the bank paid the amount to her administrator.— Held, that the title to the deposit vested in C at the time it was made, and that the subsequent payment to S’s administrator was no defence to C’s action for the fund. Boone v. Citizens Bank, 21 Hun 235; also, Marlin v. Funk, 75 H. Y. 134; Hunter v. Wallace, 14 U. C. Q. B. 205.</p> <p>A deposit was made subject to the order of the depositor or his daughter. On the death of the depositor, the daughter claimed that he had given her the bank-book and the money credited therein, to be held in trust by her for herself and her brothers and sisters.—Held, that the administrator was entitled to it, and not the daughter. Murray v. Cannon, 41 Md. 456; also, Taylor v. Henry, 48 Md. 550; Brown v. Brown, 23 Barb. 565 ; Homan Catholie Asylum, v. Strain, 2 Bradf. 34; Sheegog v. Perkins, 4 Baxter 273.</p> <p>Whether a gift of a savings bank book, by delivery, is valid as a donatio causa mortis, Beak v. Beak, L B. (13 Eg.) 489 ; McConnell v. Murray, 3 Irish Eg. 460; Ashhrook v. Byon, 2 Bush 228 ; Case v. Denison, 9 B. I. 88 ; French v. Baymond, 39 Vt. .623; Tillinghast v. Wheaton, 8 B. I. 536 ; Sheedy v. Boaeh, 124 Mass. 472; Brooks v. Brooks, 12 8. C. 422 ; Fiero v. Fiero, 2 Hun 600; Pierce v. Boston Sav. Bank, 129 Mass. 425; Conser v. Snowden, 54 Md. 175; or, as a gift inter vivos, Camp’s Appeal, 38 Conn. 88; Hill v. Stevenson, 63 Mo. 364, 58 Me. 499; Penfield v. Thayer, 2 E. D. Smith 805; Curry v. Powers( 70 N. Y. 212; Davis v. Hey, 125 Mass. 500.</p> <p>See, further, 1 White & Tudor’s Lead. Cas. in Eg. *905.—Rep.</p>

<p>Bill for relief. Ou general demurrer.</p>

<p>Bill for relief. On general demurrer. On briefs of counsel.</p>

<p>C. was the administrator of his wife’s father, sole acting executor of her 'brother and sole executor of her mother, and complainant (C.’s wife) had an interest in each of those estates. On bill filed after her husband’s death, •against his executors to recover her several unpaid shares—Held,</p> <p>(1) That they must account for the principal and interest of securities, •standing in O.’s name, which were taken by the complainant as part of her father’s estate, and which 0., instead of assigning to her, caused them ,to be assigned to himself.</p> <p>(2) That complainant’s receipts for payments on account of her shares, given to C. at different times, are conclusive as against her unsupported testimony, if it were competent (hut, under the circumstances, it is not), denying the several payments, because they show that, if the payments were never in fact made, she voluntarily discharged C. therefrom.</p> <p>(3) That complainant’s testimony is not competent to disprove allegations in the answer, where the answer itself, although in one sense responsive, i^ not evidence; nor can she, under P. L. of 1880p. 52, testify as to transactions with her husband, either by general or detailed statements.</p>

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>Bill to quiet title. On final hearing on bill and answer and. statement of facts agreed upon.</p>

<p>Bill for a legacy.</p>

<p>Bill to foreclose. On final hearing on pleadings and proofs.</p>

<p>Lands were bought and paid for-by a corporation, but the deed, by mistake, ■was drawn in the individual name of its treasurer, as grantee. The corporation, however, openly used and occupied the premises thereafter.—Held, •that personal judgments against the treasurer were not liens on the premises, and that the corporation was entitled to relief against the purchaser at •sheriff’s sale, under such judgments, notice of the corporation’s rights having •been given at the sale, and that the corporation was not estopped by bidding at such sale.</p>

Petition that receiver pay the petitioner the amount of a deposit of cash and checks made by him in the bank on the day before its failure.

<p>Bill for relief. Motion to dismiss bill for want of prosecution.</p>

On petition and depositions. Motion that the sheriff be directed to receive money tendered in payment of certain mortgage claims, which, according to the exigency of the execution (for sale of mortgaged premises), are to be raised under that writ.

<p>Bill for relief. On final hearing on pleadings and proofs..</p>

<p>The managers of a building and loan association are not personally liable for losses resulting from an honest mistake in estimating the value of stockholders’ lands on which they loaned money, nor for a defect in the acknowledgment of a mortgage, which rendered it worthless. But they are liable for losses from loans made on personal security of the stockholders, in violation of a by-law limiting the amount of such loans.</p>

<p>Bill for relief. On final hearing on pleadings (original bill, answer and replication), and proofs and supplemental bill and general demurrer thereto.</p>

<p>1. Where one insured in a mutual company notified their agent that he had obtained other insurance on the premises, and the agent afterwards referring to the matter informed him that his insurance was all right—Held, that the company was bound by the notice and declaration of the agent.</p> <p>2. One of the additional policies having afterwards been canceled and another for the same amount written in another company, and the same agent, on inquiry by the insured, having stated that notice of such substitution was unnecessary—Held, that the company was bound by the notice to him.</p> <p>3. The partnership in whose name the policy was issued was dissolved before the fire, and the retiring partner’s interest transferred to his copartner, who continued the business, and the company paid a dividend to him after such transfer—Held, that they, by the payment, waived any objection they might have had on that score.</p> <p>Note.—A part or joint-owner of property may insure his interest therein, Franklin Ins. Co. v. Drake, 2 B. Mon. 47; Turner v. Burrows, 5 Wend. 541, 8-Wend. 144, %4 Wend, 276 ; Pratt v. Phoenix Itis. Co., 1 Browne (Pa.) 267 ; Converse v. Citizens Ins. Co., 10 Cush. 37; Pitney y. Glens Falls Co., 61 Barb. 335, 65 N. Y. 6 ; and such insurance does not ordinarily cover the interest of the other owners, although the policy may be for the full value of the property, Irving v. Excelsior Ins. Co., 1 Bosw. 507; Graves v. Boston Ins. Co., 2 Oraneh 419; Bailey Y. Sope Ins. Co., 56 Me. 474; Peoria Ins. Co. v. Hall, 12 Mich 202; Murray Y. Columbia Co., 11 Johns. 302 ; Harvey v. Cherry, 12 Hun 354, 76 H. Y. 436 ■ Miller v. Eagle Ins. Co., 2 E. D. Smith 26S; Millaudon v. Atlantic Ins. Co., 8 La. 557; Finney v. Bedford Ins. Co., 8 Mete. 348; McCormick Y. Ferrier, Hay. <fc Jon. 12; Ohl v. Eagle Co., 4 Mason 172; but the policy may be reformed so as to cover all the interests, if a mistake be shown, Keith Y. Globe Ins. Co., 52 III. 518; Manhattan Ins. Co. v. Webster, 59 Pa. St. 227; Snell Y. Atlantic Ins. Co., 98 U. S. 85; or such insurance may be ratified after-wards by the other owners, Turner v. Burrows, 8 Wend. 144.</p> <p>One joint owner may recover his portion from the other, Starks v. Sikes, 8 Oray 609; Manhattan Ins. Co. v. Webster, 59 Pa. St. 227; Briggs v. Call, 5 Mete. 504.</p> <p>If a joint insurance be averred, proof of insurance to only one cannot be shown, Burgher v. Columbian Ins. Co., 17 Barb. 274; Tate v. Citizens Co., 13 Cray 79; nor the converse, Stetson v. Ins. Co., 3 Phila. 380 ; but if the policy be issued to A and B,' loss first payable to A, he may recover, Westchester Ins. Co. v. Foster, 90 III. 121;</p> <p>An insurance for the benefit of the actual responsible partner is good, although taken in the name of the firm and not disclosed, Phoenix Ins. Co. v. Hamilton, 14 Wall. 504; Gould v. York Ins. Co., 47 Me. 403.</p> <p>An insurance by another joint-owner of his interest, without notifying the •company of the prior insurance of another owner, does not affect the latter, Franklin Ins. Co. v. Drake, 2 B. Mon. 47; or, a claim of a homestead by one partner in violation of a condition in the policy, West Uockingham Ins. Go. v. Sheets, 26 Gratt. 854.</p> <p>A stockholder may insure his interest in the corporation, Warren v. Davenport Ins. Co., 31 Iowa 484; see Phillips v. Knox Ins. Co., 30 Ohio 174; Sweeny v. Franklin Ins. Co., 30 Pa. St. 337; Shawmut Co. v. Hampden Ins. Co., 13 Gray 540.</p> <p>A conveyance of an undivided interest, by the assured, avoids the policy, Western Ins. Co. v. Piker, 10 Midi. 379. See West Branch Co. v. Helfenstein, 40 Pa. St. 389 ; Stetson v. Mass. Co., 4 Mass. 330.</p> <p>Aliter, as to an acquisition of such interest, where the grantee had a policy on the premises in another right, Burbank v. McCluer, 54 H. H. 339; Heaton v. Manhattan Ins. Co., 7 P. I. 503; Cowan v. Iowa Ins. Co., 48 Iowa 551. See Peoria Ins. Co. v. Hall, 13 Midi. 303; Pankin V. Andes Ins. Co., 47 Vt. 144■</p> <p>. Partners cannot have insured as their property, lands of which one partner holds the title, although the firm has the use thereof, Citizens Ins. Co. v. Doll, 35 Md. 89. See Costner v. Farmers Ins. Co. (Mich.), 7 South. Law Pev. 483; Peck v. Hew London Ins. Co., 33 Conn. 575.</p> <p>A conveyance of the property insured does not carry with "it an assignment of the policy of insurance thereon, Hobbs v. Memphis Ins. Co., 1 Sneed 444; Kitts v. Massasoit Ins. Co., 66 Barb. 177; Sherwood v. Agricultural Ins. Co., 10 Hun 693. See Hamilton v. Baldwin, 15 Beav. 232.</p> <p>The death of the assured does not terminate the policy, and his heirs or representatives may recover, Oeo. Home Ins. Co. v. Kinnier, 28 Qratt. 88; Burbank v. Bockingham Ins. Co., 24 N. H. 550; Lappin v. Charter Oak Ins. Co., 58 Barb. 325; so, a surviving partner, Oabnan v. Dorchester Ins. Co., 98 Mass. 57; Wood v. Butland Ins. Co., 31 Vt. 552. See 'Work v. Merchants Co., 11 Cush. 271; and a loss before the deed has been delivered in a partition among the heirs, has been held recoverable, Oates v. Smith, 4 Edw. Ch. 702. See Clinton v. Hope Ins. Co, 45 H. T. 454; or, sale by the orphans court to pay debts of the decedent, before confirmation, Farmers Ins. Co. v. Gh'aybill, 74 Pa. St. 17. Aliter after partition consummated, Barnes v. Union Mui. Ins. Co., 51 Me. 110. (See Allison v. Phoenix Ins. Co., 3 Dillon 480, 486).</p> <p>A transfer by one partner or tenant in common to another, has been held not to be an alienation, within the meaning of the usual condition in a policy, so as to avoid it, in the following cases: McMcisters v. Westchester Ins. Co., 25 Wend. 379; Wilson v. Oenesee Co., 16 Barb. 511; Hoffman v. JElnalns. Co., 19 Abb. Pr. 825, 1 Roberts. 501, $2 N. Y. 405; Insurance Co. v. Thompson, 5 Otto 547, 550; Burnett v. Puf aula Ins. Co., 40 Ala. 11; Lermani v. Home Ins. Co., 26 La. Ann. 69; Lockwood v. Middlesex Assurance Co., 47 Conn. 553; Pierce v. Nashua Ins. Co., 50 N. H. 297; Terns Ins. Co. v. Cohen, 47 Tex. 406; West v. Oitisems Ins. Co , 27 Ohio St. 1; Cowan v. Ipwa Ins. Co., 40 Iowa 551; Hobbs v. Memphis Ins. Co., 1 Sneed 444■ See Mann v. Western Assurance Co., 19 U. C. Q. B. 314; Hutchinson v. Niagara Ins. Co, 39 U. C. Q. B. 433.</p> <p>But a contrary rule has been held in Hartford Ins. Co. v. Ross, 23 Ind. 179; Lix v. Mercantile Ins. Co., 22 III.. 272; Heeler v. Niagara Ins. Co., 16 TPi's. 550; Lreher v. JEtna Ins. Co., 18 Mo. 128; Card v. Phoenix Ins. Go., 4 Mo. App. 4^4; Murdock v. Chenango Ins. Co., 2 N. Y. 210; Tilloú v. Kingston Ins. Co., 5 N. Y. 405; Howard v. Albany Ins. Co., 3 Lenio 301; Baltimore Ins. Co. v. McCowan, 16 Md. 47; Finley v. Lycoming Ins. Co., 30 Pa. St. 311; Buckley v. Garrett, 47 Pa. St. 204; Portsmouth Ins. Co. v. Brinckley (Va.), 2 Ins. Law Jour. 842. See, further, Collins v. Charlestown Ins. Co., 10 Gray 155; Ley v. Poughkeepsie Ins. Co., 23 Barb. 623; Keeney v. Home Ins. Co., 3 N. Y. Supr. Ct. 478, 71 N. Y. 396 ; Shuggart v. Lycoming Ins. Co., 55 Cal. 408; Home Ins. Co. v. Hauslein, 60 III. 521.—Hep.</p>

<p>Bill to foreclose. Motion in behalf of purchaser at sheriff’s sale for order for possession.</p>

<p>•On objections to sheriff’s sale, and petition to set aside sale.</p>

<p>A legacy to A, with the “request” that, upon his death, he leave it to B, C and D, is imperative, and’ creates a trust in favor of B. O and D which is not defeated by the death of A before the testator.</p> <p>Note.—Ordinarily, a “request” by a testator is construed as imperative, and creates a trust, Pierson v. Garnet, 3 Pro. C. G. 38, 336,- Fade v. Fade, 5 Madd. 118; Bernard v. Minslmll, Johns. (Eng.) 376; O’Bierne’s Case, 1 Jon. & La Touche'353; Shelley v. Shelley, L. R. (6 Eq.) 5Jfl; Finlay v. Fellows, 14 Grant’s Gh. 66; Bohon v. Barret (Ey.), 11 Reporter 839, 13 Gent. L. J. 543.</p> <p>But even “ request” may be subject to explanation or qualification by other clauses in the will, Foose v. Whitmore, 83 N. Y. 405; Batchelor v. Macon, 69 N. G. 545; Barry v. Sturdivant, 53 Miss. 401; Bland v. Bland, 3 Cox C. G.351. See Whipple v. Adams, 1 Mete, (ilfciss.) 444; Edwards v. Smith, 35 Miss. 197; Sehmucker v. Reel, 61 Mo. 592; MeNeeby v. McNeely, 82 N. C. 183; Stableton v. Ellison, 21 Ohio St. 527 ; Van Arnee v. Jackson, 35 Vt. 173 ; Lesesne v. Witte¡ 5 Rich. {N. S.) 450; Cox v. Rogers, 77 Pa. St. 160.</p> <p>So, where “request” is employed in connection with asimilar expression, as “wish and request,” Foley v. Parry, 2 Myl. & K. 138; or, “request and desire,” Williams v. Worthington, 49 Md. 572; or, “requested and entrusted,” Spurgeon v. Seheible, 43 Ind. 216 ; or, “ require and entreat,” Taylor v. George, 3 Ves. & B. 378; or, “will and desire,” Anderson y. Hammond,, 3 Lea 381 Lines y. Barden, 5 Fla. 51; Cale y. Cranor, SO Ind. 393; Reid y. Porter, 54-Mo. 365; Collins y. Hope, 30 Ohio 49%; or, “ wish and will,” MeRee y. Means, 84 Ala. 349 ; or, “ wish, and desire,” Phebe y. Quillin, 31 Ark. 490 ; Cockrill v. Armstrong, 31 Ark. 580; Oobb y. Battle, 34 Ca. 458; Barrett y. Marsh, 136 Mass. 313; Brasher y. Marsh, 15 Ohio St. IOS; Baby y. Miller, 1 U. G. E. & A. 318; or, “wish and direct,” Neff y. Neff, 3 W. L. G. (Ohio) 67; see also-</p> <p>4 Am. Law Rev. 617.—Rep.</p>

<p>A non-resident monomaniac was made a party to proceedings in partition. She had never been declared a lunatic, and a guardian ad lilem was appointed to protect her interests in the suit. The premises were sold, and her share of the proceeds paid into court in 1871. Prom 1871 to 3878 she was confined in an insane asylum in Pennsylvania, but from 1878 until her death in 1880, she lived at her own home in that state. She frequently declared her intention of obtaining the money paid into court as her share, but died without having done so.—Held; that the fund, including the accrued interest, was personalty, and payable to her administrator.</p> <p>Note.-—Courts may authorize a change of a lunatic’s-lands into personal property, or vice versa, Salisbury’s Case, 3 Johns. Oh. 347; Ex parte Bromfield, 1 Ves. 453, 3 Bro. O. O. 510; Sergeson v. Sealey, 2 Ath. 414; Price v. Tngg, 10 Leigh 406; Rogers v. Clark, 5 Sneed 665; Phillips’s Case, 19 Ves. 123; Dyer v. Dyer, 34 Beav. 504; Livingston’s Case, 9 Paige 440; Paul v. York, 1 Tenn. Oh. 541; Singleton v. Love, 1 Head 357. See Starkweather v. Am. Bible Soc., 72 III. 50; May v. May, 109 Mass. 252, 256.</p> <p>The proceeds of a lunatic’s lands, sold under the direction of a court, are personalty, Oxenden v. Oompton, 2 Ves. 69, 4 Bro. C. C. 231, 5 Russ. 152; Batteste v. Maunsell, L. R. (10 Irish Eq.) 97, 314; Emerson v. Cutter, 14 Pick. 108. See Smith’s Case, L. R. (10 Oh. App.) 79; Jones v. Creen, L. R. (5 Eq.) 555; Berry v. Rogers, 2 B. Mon. 308; Collins v. Champ, 15 B. Mon. 118 ; Salter v. Salter, 6 Bush 624; Armstrong v. Miller, 6 Ohio 59.</p> <p>The proceeds of an infant’s or lunatic’s lands sold by virtue of a private act of the legislature, are real estate, Snowhill v. Snowhill, 3 Gr. Ch. 20, 3 C. E. Gr. 350; Tilghman’s Case, 5 "Whart. 44; Carr v. Ellison, 2 Bro». C. O. 56; Thomas v. Pullis, 56 Mo. 211; Campbell v. Campbell, 19 Grant's Ch. 254; Holland v. Adams, 3 Gray 188. See Cadman v. Cadman, L. R. (13 Eq.) 470.</p> <p>The proceeds of an infant’s land sold in partition are personalty, McOime’s Appeal, 65 Pa. St. 450; Davison v. De Freest, S SanaIf. Oh. 456; Foreman v. Foreman, 7 Barb. 215; Pennell’s Appeal, 20 Pa. St. 515; Scull v. Jernigan, 2 Dev. & Bat. Eg. 144 ; Large's Appeal, 54 Pa. St. 383 ; Steed y. Preece, L. it. (18 Eg.) 192 ; Arnold v. Dixon, L. it. (19 Eg.) 113; but see Idorton v. McCoy, 47 N. Y. 21; Shaffner v. Briggs, 36 Ind. 55; Hamer v. Bethea, 11 S. C. 416; Allison v Robinson, 78 N. C. 222; Dudley v. Winfield, Busb. Eg. 91. See also . Wilson y. Duncan, 44 Miss. 642 ; Bateman y. Latham, 3 Jones Eg. 35; Shivers v. Latimer, 20 Qa. 737-; or a feme covert’s lands, Biggert v. Biggert, 7 Watts 563 ; Kneeland v. Ensley, Meigs 620; Jones v. Walkup, 5 Sneed 135; Moore’s Case, 3 Head 171; Biggert’s Estate, 20 Pa. St. 17; Mobley's Case, 2 Rich. Eg. 56 ; Vensel’s Appeal, 77 Pa. St. 71; Hay’s Appeal, 52 Pa. St. 449; Hammond v. Stier, 2 G. & J. 81; State v. Krebs, 6 H. & J. 31; Jones v. Plummer, 20 Md. 416; Hall v. Short, 81 N. C. 273. See Mildmaye y. Quick, L. R. (6 Ch. Div.) 553 ; 2 Story’s Eg. Jur. 1212—1214.</p> <p>Surplus money arising from lands sold to pay a decedent’s debts is land, Hoey v. Kinney, 10 Abb. Pr. 400; Griswold v. Frink, 22 Ohio St. 79; Fidler v. Higgins, 6 G. E. Gr. 188; Jenny v. Preston, 18 Sim. 356; Oberle v. Lerch, 3 C. E. Qr. 346, 575; Betts v. Wirt, 3 Md. Ch. 113; March v. Berrier, 6 Jred. Eg. 524; Cooke y. Dealey, 22 Beav. 196 ; Walker v. Bradbury, 15 Me. 207 ; Read v. Bostick, 6 Humph. 321; but see Grider v. McClay, 11 Serg. & it. 224; .Turnbull v. Turnbull, MS. 19 Grant’s Ch. 258; Graham v. Dickinson, 3 Barb. Ch. 169; Vincent v. Platt, 5 Harring. 164; Overdeer v. Hpdegraff, 69 Pa. St. 110 ; Oronise y. Hardt, 47 Md. 433 ; Pence v. Pence, 11 Ohio St. 290.</p> <p>The surplus arising from a sale of lands to satisfy a decedent’s mortgage is land, Dunning y. Ocean Nat. Bank, 61 N Y. 497 ; Weld v. Tew, Beatt. 266; Deeming's Case, 8 De G. F. & J. 43 ; Cox v. Me Burney, 2 Sandf. 561; Sweezy v. Thayer, 1 Duer 286 ; Morris y. Murgatroyd, 1 Johns. Ch. 130; Jones v. Lack-land, 2 Gratt. 81; Bourne v. Bourne, 2 Hare 35; Shaw y. Hoadley, 8 Blaekf. 1651 Unless otherwise specified in the mortgage itself, Varnum v. Meserve, 8 Allen 160; Freeman v. Filis, 1 II. <& HI. 758. See Wright v. Rose, 1 Sim. & Stu. 323 ; Bogert v. Furman, 10 Paige 496; Sweezey v. Willis, 1 Bradf. 495; Graham y. Dickinson, 3 Barb. Ch. 180; Smith v. Smith, 13 Mich. 258; Rag-land v. Justices, 10 Ga. 65.</p> <p>The proceeds of lands condemned under eminent domain proceedings are land, Cramer’s Case, 1 Sm. & Giff. 32; Harrop’s Case, 3 Drew. 726; Horner’s Estate, 5 De G. & Sm. 483; Ballou v. Ballou, 78 N. Y. 325; Platt v. Bright, 4 Stew. Eq 84, note ; Simonds v. Simonds, 112 Mass. 157. See Midland Counties R. R. v. Oswin, 1 Coll. 74; Hawkins’s Case, 13 Sim. 569; Handy’s Case, 30 Beav. 206 ; Emerson v. Cutter, 14 Pick. 108.</p> <p>The court may elect for a lunatic. Marriott’s Case, 2 Moll. 516; Parsons y. Kinzer, 8 Lea 81ft; Kennedy v. Johnston, 65 Pa. St. 451. See Lewis v. Lewis, 7 Ired. 72; Haggard v. Benson, 3 Tenn. Ch. 268; Robertson v. Stevens, 1 Ired. Eq. 247; Ashby v. Palmer, 1 Meriv. 286; Seely V. Jago, 1 P. Wms. 389 ; Turner v. Street, 2 Rand. 404; Pratt v. Talliaferro, 3 Leigh 419 ; Curd y. Bonner, 4 Coldw'. 632 ; Taylor v. Taylor, 10 Hare 475 ; 2 Serib. on Dower 471; Addison v. Bowie, 2 Bland 606; McQueen v. McQueen, 2 Jones Eq. 16; Weeks y. • Weeks, 77 N. C. Iftl; Paddock v. Shields, 57 Miss. 31fl; MeElwain’s Case, 29 III. 41ft; Brown v. Brown, L. R. (2 Eq.) 4ftl.</p> <p>Proceedings in partilion where one tenant in common is a lunatic, Moore-head v. Moorehead, L. R. (2 Irish Eq.) 492; Hafhide v. Robinson, L. R. (9 Ch. App.) 373 ; Bloomads Case, 2 De G. F. <fc J. 164; Underhill v. Jackson, 1 Barb. Ch. 73; Gorham v. Gorham, 3 Barb. Ch. 24.</p> <p>How far chancery will protect the property of a non-resident lunatic, Armándole’s Case, Amb. 81; Gamier’s Case, L. R. (13 Eq.) 532; Miller v. Birdsong, 7 Baxt 531; Ilartland y. Ateherly, 7 Beav. 53; Hardin v. Smith, 7 B. Mon. 398; Ganse’s Case, 9 Paige 416; Taylor’s Case, Id. 611; Allison v. Campbell, 1 Dev. cfc Bat.. Eq. 152; Colah’s Case, 6 Daly 308; Wing v. Dodge, 80 111. 564; Clanton v. Wright, 2 Tenn. Ch. 342; Stark’s Case, 2 Macn. & G. 174; Campbell’s Case, 2 Bland 209 ; Stwrges v. Longworth, 1 Ohio St, ■544; Driskell v. Ilanks, 18 B. Mon. 855. See Bradford v. Abend, 89 III. 78.</p> <p>A monomaniac may be a witness, Coleman v. Com., 25 Qratt. 865 ; Spittle v-Walton, L. B. (11 Eq.) 420 ; Sarbach v. Jones, 20 Kan. 497 ; Eormby v. Wood, 19 Qa. 581; 1 Whart. Eoid. §£ 402, IflS. See Armstrong v. Timmons, 3 Earring. 342.</p> <p>How far monomania on another matter affects a contract, Boyce v. Smith, 9 Qratt. 704; Lemon v. Jenkins, 48 Qa. 313 ; Creagh v. Blood, 8 Irish Eq. 4341 Baker v. Cartwright, 10 C. B. (N. S.) 124; Ferguson v. Barrett, 1 E. & E. 613 ;■ McDonald v. McDonald, 16 Grants Ch. 37/ Young v. Young, 10 Id. 365 / Alston v. Boyd, 6 Humph. 504 ; Gillespie v. Shuliberner, 5 Jones 157 / Jacox v. Jacox, Ifi Mich. 4~3; Searle v. Galbraith, 73 III. 269 / Carpenter v. Carpenterr 8 Bush 283/ Hall v. Unger, 2 Abb. (U. S.) 507/ Staples v. Wellington, 58 Me. 453 / Burgess v. Bollock, 53 Iowa 273 ; Wiser v. Lockwood, 42 Vt. 720 ; Crouse v, Holman, 19 Ind. 30 / Dennett v. Dennett, 44 H. H. 531 / Titcomb v. Vantyle, 84 III. 371 / or a tort, Horner v. Marshall, 5 Munf. 460 ; Dickinson v. Barber, 9 Mass. 218-; Jetties v. Seed, 4 Blackf. 463. See People v. Frauds, SS Gal. 183; Boberts v. State, 3 Ga. 810 / Kelly’s Case, 3 Sm. & Marsh. 518 / or prevents the statute of limitations from running, Witte v. Gilbert, 10 Neb. 539 / Wright v. West, 2 Lea 78/ Clark v. Trail, 1 Mete. (Ky.) 35 / Oliver v. Berry, 53 Me. 206; Oldham v. Oldham, 5 Jones Fq. 89; Scmford v. Sanford, 62 N. Y. 553; Dichen v. Johnson, 7 Ga. 484; Combs v. Beatty, 3 Bush 613 / Fair-weather v. McMonagle, 6 Allen (N. B.) 297 / Botts v. Hines, 57 Miss. 735; Little v. Downing, 37 N. H. 355; Dodge v. Cole, 97 III. 338; Butherford v. Folger, Spen. 304.</p> <p>How far the English statutes, in regard to the control and disposition of lunatics’ lands etc. (17 Edw. II. e. 9 and 43 Geo. III. e. 75), have been recognized in this counlry, see Berry v. Bogers, 2 B. Mon. 309 / Latham v. Wiswall, 2 Ired. Eq 298; Latham’s Case, 4 Ired. Eq. 234/ Barker’s Case, 2 Johns. Ch. 237; Gorham v. Gorham. 3 Barb. Oh. 37; Brasher v. Van Cortlandt, 2 Johns. Ch. 246, 403 / Ecksltin’s Case, 1 Pa. L. J. Bep. *139, *141, 1 Pars. Eq. 62, 64; Lloyd v. Hart, 2 Pa St. 478 ; Wrights Appeal, 8 Pa. St. 59 ; Salisbury’s Case, 3 Johns. Ch. 348; Dodge v. Cole, 97 III. S4I.—Rev.</p>

<p>1. "Where the owner of the equity of redemption in mortgaged lands liasassigned for the benefit of his creditors, he retains such an interest that he may apply to set aside a sale of the lands under foreclosure, notwithstanding the assignment.</p> <p>2. In this case, he had made no defence to the foreclosure suit, and in his petition to set aside the sale, claimed, as one ground, that the mortgage was-only collateral, and that the principal security for the debt had not been resorted to or exhausted.—Held, that that ground was not available to him under the circumstances.</p> <p>3. The object of the fourth section of the act of 1880 (P. L. of 1880 p. 2S5), is merely to prevent the sacrifice of property at foreclosure sales, so far as it may be done by requiring proof, to the satisfaction of the court, that at the sale the property brought the best price then obtainable for it at a foreclosure sale for cash. The legislature did not intend by it to authorize the court to protect * the property from sacrifice by setting aside sales until an adequate price should be obtained for it.</p>

<p>Bill .to foreclose. On final hearing on pleadings and proafs.</p>

<p>A bill to redeem, a past-due mortgage, and for an account of the rents and'profits of the premises during the mortgagee’s possession, and for a discovery as to the present holder of the mortgage, was filed by the mortgagor. On demurrer—Held, that complainant was entitled to the account sought, but not to redeem; it appearing by the mortgagee’s answer that he had assigned the mortgage to a person whom he mentioned. But, a tender of the amount due on the mortgage having been made to the mortgagee before the filing of the bill, held, also, that sueli tender bound the assignee of the mortgage so far as interest thenceforward was concerned, since he had neglected to have his assignment recorded, and the mortgagee, on inquiry at the time of the tender, refused to divulge his name, and the mortgagor had no notice of the assignment. The tause was directed to stand over to enable the mortgagor to bring in the assignee.</p>

<p>1. Dower, when founded on a legal seizin, is a pure legal right, and while-courts of equity have concurrent jurisdiction with courts of law of suits for dower, yet, when no equitable principle is involved, they govern themselves by the same rules which control courts of law.</p> <p>2. In such cases, a court of equity will not try a question of- legal title; if the dowress comes to equity, in the first instance, for a remedy, and the defenclant denies her legal right, equity will defer giving her relief until the question of title is determined at law.</p> <p>3. If A agrees with B to purchase land for him, and have it conveyed to him, so that A is not the vendor, but a mere intermediary between the vendor and B, and A afterwards takes title in his own name, he will hold the land as trustee of B, and A’s widow will not, in equity, be entitled to dower.</p> <p>4. But, in such case, B can only defend successfully by resorting to the aid of a court of equity.</p> <p>5. The first requisite of a good custom is that it shall have been used so long that the memory of man runneth not to the contrary; customs, therefore, like those of gavelkind and borough-English, cannot prevail here, for they . cannot have the requisite antiquity to give them validity.</p> <p>6. Common error sometimes passes as law, but no error can be raised to that dignity until it has been declared to be law by a judicial tribunal of superior jurisdiction, and is afterwards so far adopted as law, in practice, as to render a return to the true rule of law destructive of existing interests.</p>

<p>1. A transfer of title, by operation of law, can only be effected within the limits of tlie territory where the law prevails; and, as the laws of a state have no extra-territorial force, it follows that the title to property located in one state cannot be passed by force of the laws of another, except in virtue of the comity or courtesy which prevails among different nations and states by force of international law.</p> <p>2. No state is bound to give effect to the law of a foreign state when, to do so, will prejudice either the rights of its citizens or the interests of the state; but where a transfer of property is valid by the lex loei, no just rule of comity requires the courts of the state where the property happens to be located, to adjudge such transfer to be invalid at the instance of citizens of other states, simply on the ground that it is incompatible with its laws.</p> <p>3. A debtor cannot discharge his liability to his creditor by seeking some person whom his creditor happens to owe, and paying his debt to him.</p> <p>4. Suit by receiver of an insolvent bank to recover moneys of the bank received by one of its creditors, subsequently to his appointment.—Held, that the complainant could have no relief by petition, but only by bill, and that the fact of his being an officer of .the court entitled him to uo privilege not accorded to other suitors.</p>

<p>On motion to dissolve injunction, heard on bill and answer.</p>

<p>1. Several persons may join in a suit to restrain a nuisance which is common to all, and affects each in the same way ; but where several persons owning distinct parcels of land, or occupying different dwellings, and having no common interest, seek to restrain a nuisance in consequence of the special injury done to each particular property, each must bring a separate suit, and obtain relief, if at all, on his own special wrong.</p> <p>2. Relief by injunction to restrain a business in itself lawful, is not a matter of right, but rests in discretion. If the legal right is not clear, or the injury is doubtful, eventual or contingent, equity will give no aid.</p> <p>3. If the fact of an actionable nuisance is established, the court is bound to compare consequences, and if it appears doubtful whether greater injury will not be done by granting than by withholding the injunction, it ih the duty of the court to decline to interfere.</p> <p>4. The law does not regard every trifling injury or annoyance as an action,able nuisance. No man is under a legal duty to consult the taste or preferences of his neighbor in the use of his property, but he is bound to respect his neighbor’s legal rights.</p> <p>5. In such cases, the court should consider the customs of the people, the nature and character of their employments, the uses to which they generally devote their property, and the circumstances and surroundings of the business which is alleged to be a nuisance. What would constitute a nuisance in •one place would be perfectly legitimate in another.</p> <p>6. Complainants and defendant occupied adjoining buildings, the walls touching in places. The force of the defendant’s machinery caused the building of the complainants to vibrate to such an extent(as to seriously interfere with the business of the complainants.—Held, that the defendant was guilty of a nuisance which it was the duty of the court to restrain.</p> <p>Note.—In the following cases, vibration, either alone or in connection with, noise, smoke, soot &c., was held to be a nuisance: Wood on Nuisance §§ 553-568; MeKeon v.' See, 28 How. Pr. 238, 4 Bobt. 449, 51 N. T. 300; Wesson v. Washburn Marnuf. Co., 13 Allen 95; Dennis v. Echhardt, 3 Grant’s Cas. 390, 54 Pa. St. 274, 2 Am. Law Beg. (N. S.) 166; Wallace v. Auer, 10 Phila. 356; Dittman v. Bepp, 50 Md. 516; Bobinson v. Baugh, 31 Mich. 290 ; Farrell v. Foster, 34 Leg. Int. 88; Scott y. Firth, 4 F. & F. 349; Crump v. Lambert, L. B. (3 Eg.) 409; Heather v. Pardon (1878), Eng. Ch. Liv. 17 Alb. L. J. 17; Barlow v. Kinnear, 2 Kerr 94; Ball v. Bay, L. B. (8 Ch.) 467. But see Mumford v. Oxford Bailway Co., 36 E. L. & E. 580, 1 11. & N. 34; Gilbert y. Shower-man, 23 Mieh. 448; Green v. Lane, 54 Miss.540; Goodall v. Orofton, 38 Ohio St. 271; Pool v. Coleman, 8 Daly 113.</p> <p>As to the rumble and jarring of railroad cars, see Wood on Nuisance ¡ 748; First Baptist Church y. Schenectady B. B., 5 Barb. 79; First Baptist Church v. Utica B. B., 6 Barb. 3tl; Williams v. Few York Central B. B., 18 Barb. 222; Bundle v. Pacific B. B., 65 Mo. 325; Sparhawk v. Union B. B ,57 Pa. St. 374; or noise and hammering in a forge, Bay y. Lynes, 10 Ala. 63; JDoellner v. Tynan., 38 How. Pr. 176; Forcross v. Thoms, 51 Me. 503; Whitaker v. Hudson {Qa.), 10 Cent. L. J. 897; Butler y. Boyers, 1 Stock. 487; Fish v. Bodge, 4 Benio 311.</p> <p>An acquittal on an indictment is no bar to a subsequent injunction for the same nuisance, Minke v. Hopeman, 87 111. 450. See Crowder v. Findler, 19 Fes. 616; Atty.-Qen. y. Fichol, 3 Meriv. 686, 16 Ves. 333; Ollendorff v. Black, 4 Be 6. & Sm. 211; Hyatt v. Myers, 73 F. C. 232; Taylor y. Commonwealth, 29 Cratt. 780; Hazeltine y. Case, 46 Wis. 391; Bastirían v. Amoskeag Co, 47 F. H. 71; Bassett y. Salisbury Co., Id. 4%6; Penn. Lead Co.’s Appeal, 11 Be-porter 246; Saull y. Browne, L. B. {10 Ch.) 64.—Rep.</p>

<p>1. A debtor possesses tlie right, even when in insolvent circumstances, of ■giving one or more of his creditors preference over the others; but it must always be exercised for honest ends and according to legal methods.</p> <p>2. The law will not permit a thing to be done by indirect means which it is not lawful to do by direct means.</p> <p>3. Equity cares very little about mere matters of form : it endeavors to deal with the substance of affairs, and to regulate its judgment according to the real purposes which have controlled parties in the matters brought before it for relief or correction.</p> <p>4. A creditor has a right to have his debtor’s property applied to the discharge of his debts by due course of law, and any disposition which the debtor may attempt to make that has the effect to defeat this right, is a fraud against the creditor.</p> <p>5. A executed a mortgage to three of his creditors, to secure notes made to them and some other of his creditors, payable in installments, in one, two, three, four and five years. A also confessed judgment to one of his creditors, under which his personal property was sold, and bought by one of his said three creditors, and transferred by him to the wife of A, upon her executing a chattel mortgage for the full amount of the purchase-money. The object of the mortgage and judgment, as stated by A, was to prevent the sale of his property, so that he might, from its advance in value and the profits of his business, be 'able to pay all his creditors in full.—Held, that the mortgage and judgment were in contravention of both the statute regulating assignments and the statute of frauds.</p>

<p>On order to show cause why an injunction should not issue, heard on bill and affidavits, and answer and affidavits.</p>

<p>On motion to dismiss bill</p>

The bill was filed Septembér 8th, 1880, to foreclose a mortgage for $1,000, dated May 1st, 1857, on lands in the city of Rahway. It asks for decrees for deficiency against some of the defendants, who became grantees of the mortgaged premises,.subject to the mortgage, and with assumptions to pay and discharge it expressed in the conveyances made to them respectively.

<p>1. The court will decree specific performance of a contract to give a mortgage upon lands, where the contract, although by parol, has been executed on complainant’s part.</p> <p>2. A party claiming to he a bona fide purchaser, must deny notice not only at the time of his purchase,, but also before or at the time when his deed was executed and consideration paid.</p> <p>Note.—This opinion of Chancellor Bloomfield must have been delivered about 1810, and is here inserted because .none of his opinions seem to have been published, and also because the precise point of the case has never been decided in New Jersey. It is cited in Stewart’s Big. 1006 $ 162 a, 1016 ? 319 a.</p> <p>Equity may decree the specific performance of a contract to give a mortgage, Walker v. Barnes, 3 Madd. 24-7; Section v. Twyford, L. It. {11 Eq.) 591; Ashton v. Corrigan, L.B. {13 Eq.) 76; Herman v. Hodges, L. B. {16 Eq.) 18; Humble’s Case, 11 Irish Ch. 132; Hunter „y. Langford, 2 Moll. 272; Strand Music Hall'Co. Case, 3 Be C. J. & S. 147; Qould v. Hamilton, 5 Grant's Ch 193; McKay v. Reed, 1 Oh. Gham. 308; Nichols v. Wdliams, 7 O. E. Or. 63; Oole v. Dealham, 13 Iowa 551; McOlintock v. Laing, 33 Mich. 313; Alexander v. Qhiselin, 5 Qill 138; Cole v. Cole, 41 Md. 301; Ogden v. Ogden, 4 Ohio St. 183; Robinson v. Cathcart, 3 Oraneh C. C. 590; Johnson v. Slawson, Rail. Eq. 463; Richardson v. Sawlelt, S3 Ark. 337; Laurences. Laurence, 43 N. Id. 109; Arnold v. Cord, 16 Ind. 177. See Jones on Mart. § 163 ; Thompson v. Clark, 3 F. & F. 181; or, to charge lands with an annuity, Lyde v. Mynn, 4 Sim. 505, 1 Myl. & K. 683; Wellesley v. Wellesley, 4 Myl. & Or. 561; Woodburn v. Grant, 33 Beav. 483; or, to assign choses in action to indemnify a surety or lender, Shockley y. Davis, 17 Ga. 177; Triebert v. Burgess, 11 Md. 453; Brooks v. Muff, 37 Ala. 371. See Jones on Chat. Mort. 13; Ceas v. Bromley, As' Hun 187; Collins v. Much, 63 Me 459; Tiernan v. Granger, 65 111.-351; Moseley’s Case, 2 Moll. 454; or, a parol contract to cancel a mortgage, Bennett v. Abrams, 41 Barb. 619; Malins v. Brown, 4 N. Y. 403; Weir v. Mundell, 3 Brewsi. 594; Stark v. Wilder, 36 Yt. 752 ; Barkley v. Barkley, 14 Mich. Mq. 12 ; Adda v. Ackla, 6 Pa. St. 228 ; Neal v. Speigle, 33 Ark. 63; but not a contract to borrow a specified sum of money on a mortgage, Mogers v. Challis, 27 Bean. 175 ; or, to make a loan, in default of performing an agreement, Sichel v. Mosenthal, 30 Bean. 371. See Goodrich v. Nichols, 2 Moot 498; or, to deposit a collection of paintings witli an auctioneer for sale, to re-imburse him for'advances, Chinnock v. Sainsbury, 6 Jur. (N S.) 1318. See, further, Canadian Law Journal, March, 1880.—Rep.</p>

<p>Appeal from decree of Monmouth orphans court.</p>

<p>A creditor of a decedent who presents his claims! at any time before the-decree of the orphans court barring creditors is actually taken, is in time, although the nine months limited in the order may have expired.</p>

<p>By statute, certain appeals from orders of the orphans court must be demanded within three months. On June 18th, 1880, an order was signed, and on the same day marked filed by the surrogate, who did not know its contents. It remained in the surrogate’s office until July I7th, 1880, when it was inadvertently sent up to the prei-ogative court with the papers in another appeal between the same parties, on a decree rendered in the settlement of the same estate. It remained thei'e until discovered on February 10th, 1881, when it was taken back to the surrogate’s office, and, by order of the orphans court, on February 18th, 1881, marked refiled. The evidence showed that the surrogate had been frequently applied to, in the meanwhile, by the proctor of the appellants, and, in ignorance or forgetfulness of the order', had informed him that no order in the case had been made. Careful search for the order was also made’in the surrogate’s office, by the surrogate and the proctor.—Meld, that the orphans court had no power to direct the order to be refiled, so as to extend the time for appealing, but, nevertheless, that the appellant could not, by the mistake of the surrogate, be deprived of his right of appeal</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Ferdon v. Miller, 7 Stew. Fq. 10.</p>

<p>1. A complainant, being excluded as a witness in the proceeding in equity, because one of the adverse parties stands before the court in a representative capacity, cannot retry the same issue in a court of law, after an adverse decree in the chancery suit.</p> <p>2. The fact that she can be a witness in the second suit, and could not in the first, will not give such right.</p> <p>3. The doctrine of res judicata discussed.</p> <p>(a) Note.—Simson v. Hart was reversed in Simson v. Hart, 14 Johns. 63. But see, Gordon v. Lewis, 3 Sumn. 628, 634; Barnum v. Reynolds, 38 Cal. 643, 647, which criticise the reversal; and see further, Ross v. Wood, 70 N. Y. 8; Riggs v. Pursell, 74 N. Y. 370 ; Carpenter v. Providence Ins. Co., 4 How. (U. S.) 185, 233; Railroad Co. v. Neal, 1 Woods 353, 355.</p> <p>The case does not appear to have been referred to in Welles Res Adjudieata. —Rep.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported 'in Bentley v. Heintze, 6 Stew. Eq. 4-05.</p>

<p>1. When a person whose mind is enfeebled by disease or old age, is so-placed as to be subjected to the influence of another person, and makes a voluntary disposition of property by gift in favor of such person, the court requires proof of the fact that the donor understood the nature of the act, and that the act was not done through the influence of the donee.</p> <p>2. Where it is obvious that a gift made by such person is intended to operate as a will, it presents an additional reason for imposing upon the donee the burden of showing convincingly the validity of the act.</p>