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CORNELL UNIVERSITY LIBRARY 
 
 3 1924 085 503 773 
 
Cornell University 
 Library 
 
 The original of this bool< is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924085503773 
 
A TREATISE 
 
 ON 
 
 EQUITY JURISPRUDENCE, 
 
 With particular reference to the present conditions of Jurisprudence 
 in the United States. 
 
 BY 
 
 Christopher G. Tiedeman, 
 
 Author of " Real Property," " Police Power," " Sales of Personal Property," Etc., 
 and Professor of Law in the University of the City of New York. 
 
 ST. LOUIS: 
 
 THE F. H. THOMAS LAW BOOK CO. 
 
 1893. 
 
I3^^m 
 
 Entered according to Act of Congress, in the year 1893, by 
 
 CHRISTOPHER G. TIEDEMAN, 
 In the Office of the Librarian of Congress, at Washington. 
 
 St. Louis, Mo.; 
 Press of Continental Priatir.g Co. 
 
PREFACE. 
 
 In this one volume, the author has succeeded, with the 
 ingenious aid of the publishers, in presenting the entire sub- 
 ject of equity jurisprudence, as it now obtains in the United 
 States. All temptations to enter into historical and philo- 
 sophical disquisitions upon this remarkable branch of law 
 have been successfully resisted, in order to bring within the 
 compass of one portable volume, an exposition of all the 
 principles of equity jurisprudence which now control human 
 action, and determine civil rights. Inasmuch as the entire 
 remedial law has undergone a radical change in a majority of 
 the states, and has been materially modified in the remaining 
 states, and in consideration of the demand for space in the 
 presentation of the substantive principles of equity, which 
 have not been materially affected by this modern legislation, 
 the author has contented himself with a general discussion of 
 equitable remedies and their nature, and has left the details 
 of equity procedure and practice, as modified by statute, to be 
 found in works upon procedure and practice. It is believed 
 that the book has thereby been made more acceptable to the 
 profession, as well as to the student. 
 
 C. G. T. 
 
 UNrVBKSITY OP THE CiTY OF NeW YoKK, 
 
 April 3, 1893. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 THE ORIGIN AND DEVELOPMENT OP EQCTTT JURISPRrDENCE. 
 
 Section 1. The meaning of equity in general. 
 
 2. The CBguUas in the Roman law. 
 
 3. Equity in the English law. 
 
 4. Establishment of separate court of equity and system of jurisprudence. 
 
 5. The meaning of equity as a branch of American and English juris- 
 
 prudence. 
 
 6. Subdivision of equity jurisprudence. 
 
 7. Nature and extent of equity jurisdiction. 
 
 8. Exclusive, concurrent and auxiliary jurisdiction. 
 
 9. Equity jurisdiction in the United States. 
 
 10. Equity jurisdiction in the United States Courts. 
 
 11. Divisions of the subject of equity jurisprudence and order of discussion. 
 
 CHAPTER II. 
 
 THE FUNDAMENTAL, PRINCIPLES AND MAXIMS OF EQUITY JURISPRUDENCE. 
 
 Section 13. General propositions. 
 
 14. Utdjus, ibi rermedium — Where there is a right, there is a remedy. 
 
 15. Equity follows the law. 
 
 . 16. Vigilantiims non dormienlnbus, ceqwitas subvenit — Equity relieves the 
 vigilant, not those who sleep upon their rights. 
 
 17. He who comes into equity must come with clean hands. — He that hath 
 
 committed iniquity shall not have equity. 
 
 18. He who seeks equity must do equity. 
 
 19. Equity looks to the intent rather than to the form. 
 
 20. Equity imputes an intention to fulfill an obligation. 
 
 21. Equity looks upon that as done which ought to have been done. 
 
 22. Equality Is equity. 
 
 23. Where the equities are in all other respects equal, the first in order of 
 
 time shall prevail. 
 
 24. Where there Is equal equity the law must prevail. 
 
 CHAPTER III. 
 
 EQUITABLE RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 Section 25. Penalties and forfeitures defined. 
 
 26. Penalties defined and distinguished from liquidated damages. 
 
 27. To secure payment of money or loan. 
 
 28. Liquidated damages. — General description. 
 
 29. Rule for determining liquidated damages and penalties. 
 
 30. Election to pay penalties or liquidated damages. 
 
 31. General principles governing the relief against forfeitures. 
 
 V 
 
VI TABLE OF CONTENTS. 
 
 Section 32. Relief against forfeiture in mortgages. 
 
 33. Agreements to repurchase. 
 
 34. Forfeitures arising from the sale of shares of stock. 
 
 35. Forfeitures in conveyances and leases. 
 
 36. Forfeiture in contract for the sale of land. 
 
 37. Equity will not enforce forfeitures. 
 
 CHAPTER IV. 
 
 EQUITABIiE DOCTRINE OV PBIOBITT, AND HEKEIN OF THE BIGHTS OF 
 BONA FIDE FURCHASEBS. 
 
 Section 40. Fundamental principles of the doctrine of priority. 
 
 41. To what estates and interests the doctrine applies. — Not to legal estates. 
 
 42. Subsequent equity protected by the legal title. 
 
 43. Priority of time among equal equities. 
 
 44. Superior and inferior equities. 
 
 45. Inequality of equity determined by collateral circumstances. 
 
 46. Superior equity of a boTiafide purchaser. — General doctrine. 
 
 47. The doctrine of txmaflde purchase as modified by the recording acts. 
 
 48. Gases to which the doctrine of bona fide purchase applies. 
 
 49. Suit by holder of an equity. 
 
 50. AiErmative relief to a bona fide purchaser. 
 
 51. What constitutes a bona fide purchase. 
 
 52. What is a valuable consideration. 
 
 53. Antecedent debts as consideration. 
 
 54. Priority of unrecorded mortgages over judgment creditors. 
 
 55. Payment of consideration. 
 
 56. Effect of notice. 
 
 57. Time of giving notice. 
 
 58. Effect of notice on purchaser of equitable interest. 
 
 59. Effect of purchase without notice from an earlier purchaser. 
 
 60. Good faith necessary. 
 
 61. The doctrine of bona fide purchase applied to assignments of things in 
 
 action. 
 63. Equities in favor of the debtor. 
 
 63. Notice to debtor necessary. 
 
 64. Equities between successive assignors and assignees. 
 
 65. Acquisition by such subsequent assignee of the legal title. 
 
 66. Assignment of things in action to successive assignees by same assignor. 
 
 67. Some principles applying to successive assignments by cestui gu.e trust. 
 
 68. Principles applying to assignments of certificates of stock. 
 
 69. Diligence of the assignee. 
 
 70. Equities in favor of third persons. 
 
 71. Effect of statutory provisions concerning assignments of things In 
 
 action. 
 
 CHAPTER V. 
 NOTICE. 
 
 Section 73. General statement and definition of notice. 
 
 74. Notice distinguished from knowledge. 
 
 75. Kinds of notice, actual or constructive. 
 
 76. Actual notice established by direct and indirect evidence. 
 
 77. What amount of information necessary to constitute actual notice. 
 
 78. By whom may the information be given. 
 
TABLE OF CONTENTS. vii 
 
 Section 79. When presumption from constructive notice is conclusive. 
 
 80. When presumption from constructive notice Is rebuttable. 
 
 81. What constitutes a due inquiry. 
 
 82. How far one can rely upon information received 
 
 83. Registration of deeds and other instruments. 
 
 84. Requisites of a proper record. 
 
 85. To whom Is record constructive notice. 
 
 86. Of what is record constructive notice. 
 
 87. From what time does priority take effect. 
 
 88. Effect of other kinds of notice In the absence of registration, 
 
 89. Constructive notice arising from extraneous facts. 
 
 90. Recital In muniments of title. 
 
 91. Constructive notice arising from possession. 
 
 92. Extent and effect of the notice. 
 
 93. Nature and time of possession. 
 
 94. Whether presumption of notice from possession Is conclusive. 
 
 95. Lis pendens as constructive notice of rights. 
 
 96. To what kinds of statutes does the notice lis pendens apply. 
 
 97. What persons are affected by the notice. 
 
 98. A statutory notice of lis pendens. 
 
 99. Notice by judgment. 
 
 100. Notice as between principal and agent. — General statement of the 
 
 scope and application of the doctrine. 
 
 101. Essential requisites of the constructive notice to principal. 
 
 102. Presumption of notice to principal not conclusive. 
 
 CHAPTER VI. 
 
 THE DOCTRINE OF EQUITABLE ESTOPPEL. 
 
 Section 106. Equitable estoppel defined. • 
 
 107. Essentials of an equitable estoppel in pais. 
 
 108. What conduct necessary to constitute an estoppel. 
 
 109. How far fraud Is necessary to estoppel in pals. 
 
 110. Knowledge of the truth by the party estopped. 
 HI. Ignorance of the truth by the other party. 
 
 112. The party estopped must have intended to influence the conduct of 
 
 others. 
 
 113. The representation or concealment must have Influenced the conduct 
 
 of another. 
 
 114. Operation and extent of estoppel as to persons. 
 
 115. Qxtosi-estoppel In the case of acquiescence. 
 
 CHAPTER VII. 
 
 THE EQUITABLE DOCTRINE OF MERGER. 
 
 Section 117. Legal merger. 
 
 118. Equitable doctrine of merger. 
 
 119. Merger In cases of Incumbrances. 
 
 120 Cases of merger where the mortgage or incumbrance Is paid. 
 181. Law of merger as applied to equitable easements. 
 
 CHAPTER VIII. 
 
 ELECTION. 
 
 Section 123. The fundamental principles of the doctrine, 
 
 124. The scope and effect of the doctrine. 
 
 125. Doctrine applies both to wills and deeds. 
 
Till TABLE OF CONTENTS. 
 
 Section 126. Intention to convey another's property essential. 
 
 127. Intention where donor has partial interest in property disposed of. 
 
 128. An independent substantial benefit necessary. 
 
 129. Ordinary cases of election where grantor has no interest in property. 
 
 130. Cases of election arising under powers of appointment. 
 
 131. Cases of election where the testator has attempted to dispose of his 
 
 property by will which is inoperative. 
 
 132. Cases In which the donor has a partial interest in property donated. 
 
 133. Election by widow between her dower and the testamentary provision. 
 
 134. From what circumstances intention of election may be implied. 
 
 135. Statutory changes in this rule. 
 
 136. Election and devise of community property. 
 
 137. Election in the case of statutory provisions for widow's share in in- 
 
 heritance of husband's property. 
 
 138. Who may elect, persons under disabilities. 
 
 139. Time of election. 
 
 140. Mode of election. 
 
 141. Effect of an election. 
 
 142. Equitable jurisdiction in matters of election. 
 
 CHAPTER IX. 
 
 EQUITABLE DOCTRINES OF SATISFACTION, ADEMPTION AND 
 PERFOKMANCE. 
 
 Section 145. Election distinguished from the subject of this chapter. 
 
 146. Admissibility of parol or extrinsic evidence. 
 
 147. Satisfaction and ademption distinguished. 
 
 148. Ademption of legacies by portions and advancements. 
 
 149. Donor in loco pa/rentis. 
 
 150. Subsequent jortion or advancement less than the legacy. 
 
 151. Circumstances which affect and do not affect the presumption. 
 
 152. Gift to husband of legatee. 
 
 153. Effect of subsequent codicil. 
 
 154. Satisfaction of legacies between strangers. 
 
 155. Satisfaction of portions or advancements by legacies. 
 
 156. Satisfaction of legacy by subsequent legacy. 
 
 157. Satisfaction of debts by legacy. 
 
 158. What prevents the presumption of satisfaction of debts by legacies. 
 
 159. Debt owing to a child or wife. 
 
 160. Legacy by a creditor to his debtor. 
 
 161. Equitable doctrine of performance distinguished from satisfaction. 
 
 CHAPTER X. 
 
 EQUITABLE DOCTRINE OF CONVERSION AND RECONVERSION. 
 
 Section 164. Definition or general explanation. 
 
 165. What words are sufficient to produce conversion. 
 
 166. Conversion in a contract of sale. 
 
 167. Time from which conversion takes place. 
 
 168. Effect of conversion. 
 
 169. Conversion as between life tenant and remainder-man. 
 
 170. Conversion by paramount authority. — Involuntary sales under statute 
 
 and by order of court. 
 
 171. Reconversion defined. 
 
 172. Double conversion. 
 
 173. Resulting trust upon failure of the purpose of conversion. 
 
 174. Conversion by deed. 
 
TABLE OF CONTENTS. IX 
 
 CHAPTER XI. 
 KQCITABLE BELIEF ON THE GROUND OF ACCIDENT AND MISTAKE. 
 
 Section 175. Limitation of jurisdiction in cases of accident. 
 
 176. Cases in whicli the court will not grant relief from accident. 
 
 177. Equitable relief in suits on lost instruments. 
 
 178. Defective executions of powers. 
 
 179. Equitablerelief in non-execution of powers. 
 
 180. Accidental forfeitures. 
 
 181. Judgments at law, 
 
 182. Failure of subject-matter of the contract or bequest. 
 
 183. Mistake defined and distinguished from accident, fraud and negligence. 
 
 184. Kinds of mistake. 
 
 185. Mistakes of law. — General rule. — IgnoranUa juris non exoiisat. 
 
 186. Mistake of law accompanied by inequitable conduct of the other 
 
 party. 
 
 187. Mistake of law between parties in relation of trust. 
 
 188. Mistakes common to all parties. — Mistakes as to legal effect of 
 
 written instruments. 
 
 189. Relief where mistake is as to existent legal rights. 
 
 190. Compromises and settlements of disputes over legal rights as affected 
 
 by mistakes of law. 
 
 191. Payment of money under mistake of law. 
 
 192. Mistakes of fact. — General statement. 
 
 193. The requisites to relief in mistakes of fact. 
 
 194. Compromises and speculative contracts. 
 
 195. Remedies and nature of relief. 
 
 196. Illustrations of cases in which affirmative relief may be granted. — Re- 
 
 lief in cases of wills. 
 
 197. How mistakes may be proven. — When parol evidence is admissible. 
 
 198. Parol evidence in suits for specific performance. 
 
 199. Effect of the Statute of Frauds upon the admissibility of parol evidence. 
 
 CHAPTER XII. ^ 
 
 ACTUAL FRAUD. 
 
 Section 303. Definition and general statement.— Kinds of fraud. 
 
 203. Material misrepresentation of facts. 
 
 204. Material misrepresentation by the seller. 
 305. Special fraud in auction sales. 
 
 206. Fraudulent devices of buyers. 
 
 207. Combination of bidders. 
 
 208. Fraudulent intent not to pay. 
 
 309. Seller's expression of opinion. — Dealer's talk. — His statement as to 
 
 value and price. 
 
 310. Expressions of opinion by buyer. 
 211. When concealment is fraudulent. 
 
 313. Seller's concealment or silence, when a fraud. 
 313. Concealment of material facts by the buyer. 
 214. Intention to influence the conduct of another. 
 
 315. When and how far fraudulent intent is necessary in actual fraud. 
 
 316. Misrepresentation or concealment as defense in actions of specific 
 
 performance. 
 
 217. Reliance upon representation.— Deceit must be successful. 
 
 218. Parties must be justified in relying upon misrepresentations. 
 
 i 
 J 
 
X TABLE OP CONTENTS. 
 
 Section 219. Damage to parties deceived. 
 
 220. Liability of principals, partners, and joint owners of agent's fraudu- 
 
 lent misrepresentations. 
 
 221. Remedies in general for actual fraud. 
 
 222. Equity jurisdiction over fraud.— Cancellation and reformation. 
 
 CHAPTER XIII. 
 
 CONSTRUCTIVE FRAUD. 
 
 Section 226. Definition, essential elements, and classification. 
 
 227. Constructive fraud arising out of illegal contracts. — Equitable juris- 
 
 diction for relief'in eases of illegal contracts. 
 
 228. Constructive fraud in cases of sales for an unlawful purpose. 
 
 229. Constructive fraud arising out of inadequacy of consideration. 
 
 230. Constructive fraud inferred from the condition and the relation of the 
 
 immediate parties to the contract. 
 
 231. Constructive fraud arising from the mental incapacity of the party to 
 
 the transaction. 
 
 232. Duress and undue influence. 
 
 233. Constructive fraud implied from confidential and fiduciary relations 
 
 between parties. 
 
 234. Constructive fraud, how affected by acquiescence and lapse of time.- 
 
 235. Gifts made between parties in confidential relation to each other. 
 
 236. Frauds on creditors. — Transfers without consideration.— Voluntary 
 
 conveyances. — Transfers for the purpose of hindering or delaying 
 creditors. 
 
 237. Preferences by insolvents in transfer of property in payment of debts, 
 
 when fraudulent. — Voluntary assignments for benefit of creditors. 
 838. Delivery, how far essential to transfer of title as against creditors and 
 subsequent purchasers. 
 
 239. What delivery is sufficient as against creditors and subsequent pur- 
 
 chasers. 
 
 240. Conflicting claims of vendor and vendee's creditors. 
 
 CHAPTER XIV. 
 JURISDICTION OVER PERSONS NON SUI JURIS. 
 
 Section 244. Who are persons norisuijv/rls? 
 
 245. Origin of the equitable jurisdiction over infants. 
 
 246. Conditions of acquiring jurisdiction. 
 
 247. Extent and mode of exercising jurisdiction. 
 
 248. Jurisdiction over the custody of infants., 
 
 249. Jurisdiction over persons of unsound mind. 
 
 CHAPTER XV. 
 ANCIENT USES AND STATUTE OF USES. 
 
 Section 252. Origin and history. 
 
 253. What is a use. 
 
 254. Enforcement of the use. 
 
 255. Distinction between uses and trusts. 
 
 256. How uses may be created. 
 
 257. Same— Resulting use. 
 
 258. Same — By simple declarations. 
 
TABLE OI^ CONTENTS. XI 
 
 Section 259. Who might be /eo^ees to itse and eesfuis Qtteitse. 
 360. What might be conveyed to uses. 
 
 261. Incidents of uses. 
 
 262. Aliejiation of uses. 
 
 263. Estates capable of being created in uses. 
 
 264. Disposition of uses by will. 
 
 265. How lost or defeated. 
 
 266. History of the Statute of Uses. 
 
 267. When statute will operate. 
 
 268. A person seised to a use and i/n, esse. 
 
 269. Freehold necessary. 
 
 270. Use upon a use. 
 
 271. Feoffee and cestui que use. — Same person. 
 273. A use in esse. 
 
 273. Cestui que vise in esse. 
 
 274. Words of creation and limitation. 
 375. Active and passive uses and trusts. 
 276. Uses to married women. 
 
 377. Cases In which the statute will not operate. 
 
 278. Future uses. 
 
 379. Contingent future uses. — How supported. 
 
 280. Contingent uses. 
 
 281. Springing uses. 
 
 282. Shifting uses. 
 
 283. Future uses in chattel interests. 
 
 284. Shifting and springing uses. — How defeated. 
 
 285. Incidents of springing and shifting uses. 
 
 CHAPTER XVI. 
 MODERN TRUSTS. 
 
 Section 286. What is a trust. 
 
 337. Class of trusts.— Modern legislation in regard to the same. 
 
 388. Active and passive trusts. 
 
 389. Modern statutory changes. 
 
 290. How express trusts were created. 
 
 291. Express trusts inferred by construction. 
 
 393. Power in trust distinguished from trust estates. 
 
 293. Executed and executory trusts. 
 
 294. Alienation of trust estate. 
 
 395. Merger of Interests. 
 
 396. Statute of Frauds as to trusts in real estate. 
 
 SSn. Trusts of personalty when within the Statute of Frauds. 
 
 398. Words of limitation in the creation of trusts'in lands. 
 
 399. Doctrine of remainders applied to trusts. 
 
 300. Voluntary trusts. 
 
 301. Interest of the cestui que trust. 
 303. Liability for debt. 
 
 303. Classes of active trusts. 
 
 304. Voluntary assignments for the benefit of creditors. 
 
 305. Deeds of trusts to secure debts. 
 
 306. Public and charitable trusts. 
 
 307. Certainty or uncertainty in the creation of a charitable trust. 
 
 308. Trusts arising by operation of law.— Classes. 
 
xa TABLE OF CONTENTS. 
 
 Section 309. Implied trusts. 
 
 310. Resulting trusts to donor. 
 
 311. Resulting trusts to parties paying considerations. 
 
 312. Constructive trusts. 
 
 CHAPTER XVII. 
 
 POWERS, DUTIES AND LIABILITIES OE TRUSTEES. 
 
 Section 313. How trusts are affected by want of a trustee. 
 
 314. Refusal of trustees to serve. 
 
 315. Rights and powers of surviving trustees. 
 
 316. Removal of trustees. 
 
 317. Duties and liabilities of trustees in general. 
 
 318. Trustees must conform to the directions of the trust. 
 
 319. Trustees must use due care and diligence. 
 
 320. Duty of trustees as to investments. 
 
 321. Good faith in dealing with trust property. 
 
 322. Trustee cannot delegate his authority. 
 
 323. Trustee's duty to account. 
 
 324. Duty to surrender trust property. 
 
 325. Right to compensation and allowance for expenses. 
 
 326. Breach of trust and liability therefor. 
 
 327. Right of contribution among co-trustees. 
 
 328. Liability of third persons for performance of the trust. 
 
 329. Liability of qxtosi- trustees or other fiduciary persons. 
 
 CHAPTER XVIII. 
 
 POWERS OE APPOINTMENT. 
 
 Section 330. The nature of powers in general. 
 330 a. Powers of appointment. 
 330 b. Kinds of powers. 
 330 c. Suspension and destruction of powers 
 330 d. How powers may be created. 
 330 e. Powers distinguished from estates. 
 330 f. Powers enlarging the interest, with which it is coupled. 
 330 g. Who can be donees. 
 330 h. By whom the powers may be executed. 
 330 k. Mode of execution. 
 330 1. Who may be appointees. 
 330 m. Execution by implication. 
 330 n. Excessive execution. 
 330 p. Successive execution. 
 330 s. Revocation of appointment. 
 
 330 1. Defective executions and non-executions. — How and when cured. 
 330 u. Rules of perpetuity. 
 330 V. Rights of donee's creditors in the power. 
 330 w. The rights of creditors of the beneficiary. 
 
 CHAPTER XIX. 
 
 BIGHTS OE PROPERTY AND CONTRACTUAL POWERS OF MARRIED WOMEN 
 
 IN EQUITY. 
 
 Section 331. Legal status of married women. 
 
 332. A married woman's equitable separate estate. 
 
 333. By what modes and instruments separate property may be settled. 
 
TABLE OF CONTENTS. XUl 
 
 Section 334. Her power of disposition. 
 
 335. Restraint upon anticipation. 
 
 336. Disposition of separate estate on death of wife. 
 
 337. The condition of the law in the American states. 
 
 338. Contracts of married women.— General doctrine. 
 
 339. Married women's power to contract In the United States. 
 
 340. Statement by wife in fraud of the marriage. 
 
 341. Wife's equity to a settlement. 
 842. Husband's estate by the curtesy. 
 
 343. Maintenance. 
 
 344. Pin-money and paraphernalia. 
 
 345. Alimony. 
 
 CHAPTER XX. 
 
 ABMHaSTKATION OF DECEDENTS' ESTATE, AUD HEREIN OF GIFTS CAUSA 
 
 MORTIS. 
 
 Section 347. Foundation for jurisdiction of equity. 
 
 348. Effect of establishment of probate courts upon the equitable jurisdic- 
 
 tion. 
 
 349. Kinds of legacies. 
 
 350. Ademption of specific legacies. 
 
 351. General legacies. 
 
 353. Demonstrative legacies. 
 
 353. Annuities. 
 
 354. Abatement of legacies. 
 
 355. Effect of appropriation of funds by executor. 
 
 356. Lapsed legacies. 
 
 357. Gifts causa mortis; distinction from testamentary disposition. 
 
 358. Equitable jurisdiction over gifts causa mortis. 
 
 359. The characteristics of dcmatio mmtis causa. 
 
 CHAPTER XXI. 
 
 CONTRACTS IN EQUITY. 
 
 SECnoN 361. A general statement as to contracts in law and equity. 
 363. Whether a seal imports a consideration. 
 
 363. Equitable easements arising from covenants. 
 
 364. Equitable contracts by representation and acts. 
 
 365. Contracts for necessaries supplied to parties under legal disability 
 
 366. Liability of the estate of a deceased joint debtor in equity. 
 
 367. Equitable remedies for the enforcement of contracts. 
 
 CHAPTER XXII. 
 
 EQUITABLE ASSIGNMENT. 
 
 Section 371. Assignments of chosesin action at law and in equity.— Present state of 
 the law in respect to the same. 
 
 372. What things in action are not assignable? 
 
 373. Assignments of mere possibilities and expectancies. 
 
 374. Assignments of property to be acquired in the future.— The rale in 
 
 law. 
 
 375. The rule in equity. 
 
 376. Requisites of an assignment of after-acquired property.— The extent 
 
 of the doctrine. 
 
 377. Rationale of the doctrine. 
 
XIV TABLE OF CONTENTS. 
 
 Section 378. Equitable assignments of a fund by order or otherwise. — General 
 doctrine. 
 
 379. The effect of a bill of exchange. 
 
 380. Bill of exchange for apart of fund. 
 
 381. Bill of exchange for whole of fund. 
 
 383. The right of cheek-holder to sue the bank. 
 
 CHAPTER XXIII. 
 
 BQUIXABI.B I.IX;NS. 
 
 SECTioif 384. Their general nature and definition. 
 
 385. Liens arising from express contract. 
 
 386. Equitable lien on property to be acquired in the future. 
 
 387. Form and nature of the agreement. 
 
 388. Lien or mortgage by deposit of title deeds. 
 
 389. Continued — Notice to subsequent purchasers. 
 
 390. Continued — Their recognition in this country. 
 
 391. Continued — Foreclosure. 
 
 393. Liens arising from Implied contracts. 
 
 393. Liens upon joint owners and co-tenants. 
 
 394. Expenditure by a life tenant. 
 
 395. Improvements made upon the land of another. — Betterment laws. 
 
 396. Equitable lien on life insurance policies. 
 
 397. Vendor's and grantor's liens distinguished. 
 
 398. Characteristics of the vendor's lien. 
 
 399. Grantor's lien. 
 
 400. Continued— Discharge of waiver of the lien. 
 
 401. Continued — In whose favor raised. 
 403. Vendee's lien. 
 
 403. Grantor's lien by express reservation. 
 
 404. Enforcement of grantor's, vendor's and vendee's lien. 
 
 405. Liens arising from charges by will or by deed. 
 
 406. Liens by express charges. 
 
 407. Liens arising from the implied charges. 
 
 408. Mechanics' and maritime liens. — Statutory liens. 
 
 CHAPTER XXIV. 
 
 MOKTGAGES OI" BEAL ESTATE AS AFFECTED BV EQUITY. 
 
 Section 411. Mortgage at common law. 
 413. Equity of redemption. 
 
 413. The mortgage in equity. 
 
 414. Influence of equity upon the law. 
 
 415. The form of a mortgage. 
 
 416. The defeasance clause in equity. 
 
 417. The admissibility of parol evidence. 
 
 418. The mortgagor's interest. 
 
 419. The mortgagee's interest. 
 
 430. Devise of the mortgage. 
 
 431. Merger of interests. 
 
 433. Possession of the mortgaged premises. 
 
 433. Special agreements in respect to possession. 
 
 434. Rents and profits. 
 
 435. Mortgagee's liability for rents received. 
 
 436. Insurance of the mortgaged premises. 
 
TABLE OF CONTENTS. XY 
 
 Sectiow 437. Assignment of the mortgage. 
 
 428. Assignment under the lien theory. 
 
 439. Assignment of the mortgagor's interest. 
 
 430. The effect of a discharge. 
 
 431. When payment will work an assignment. 
 433, Action for waste. 
 
 433. Process to redeem. 
 
 434. Who may redeem. 
 
 435. Accounting by the mortgagee. 
 
 436. Continued— What are lawful debits ? 
 
 437. Continued— What are lawful credits ? 
 
 438. Making rests. 
 
 439. Balance due. 
 
 440. Foreclosure.— Nature and kinds of. 
 
 441. Continued — Who should be made parties ? 
 
 442. Parties to foreclosure— Continued. 
 
 443. Effect of decree in foreclosure upon the land. 
 
 444. The effect of foreclosure upon the debt. 
 
 445. Mortgages with power of sale. 
 
 446. Character of the mortgagee in relation to the power. 
 
 447. Purchase by mortgagee at his own sale. 
 
 448. Extinguishment of the power. 
 
 449. Application of the purchase money. 
 
 450. Deeds of trust. 
 
 451. Contribution to redeem. — General statement. 
 
 453. Mortgagor v. his assignees. 
 
 458. Contribution between the assignees of the mortgagor. — Effect of re- 
 lease of one of them. 
 
 454. Contribution between the surety and the mortgagor. 
 
 455. Between heirs, widow, and devisees of the mortgagor. 
 
 456. Between the mortgaged property and the mortgagor's personal estate. 
 
 457. Special agreements affecting the rights of contribution and ex- 
 
 oneration. 
 
 458. Marshaling of assets between successive mortgagees. 
 
 CHAPTER XXV. 
 
 CHATTEL MORTGAGES AND FLEDGES IN EQUITY. 
 
 Section 463. Chattel mortgages defined. — Conflict of common law and equitable 
 theories. — Equity of redemption. 
 
 464. Parol defeasance, when enforcible. 
 
 465. Can a chattel mortgage cover after-acquired property ? 
 
 466. How far mortgages of after-acquired property is invalid. — The mort- 
 
 gage in equity. 
 
 467. The mortgagor's right of redemption. 
 
 468. The mortgagor's right of possession after forfeiture. 
 
 469. Foreclosure of the mortgagor's equity of redemption in equity and at 
 
 law. 
 
 470. Pledges. 
 
 CHAPTER XXVI. 
 
 GENEBAIi EXPLANATION CONCERNING EQUITABIiE REMEDIES. 
 
 Section 473. General statement. 
 
 473. General classification. 
 
 474. Equitable remedies operating <l/n personam And inrem. 
 
 475. Remedies in personam beyond territprial jurisdiction. 
 
XVI TABLE OF CONTENTS. 
 
 CHAPTER XXVII. 
 INJUNCTION. 
 
 Section 478. Fundamental principle and general nature of injunction. 
 
 479. Kinds of injunctions. — Interlocutory, perpetual, and mandatory. 
 
 480. Injunction when resorted to for the protection of equitable interests 
 
 and in aid of equitable remedies. 
 
 481. Injunction to prevent violation of contracts. 
 
 482. Contracts for personal service. 
 
 483. Private rights protected by injunction. — Miscellaneous cases. 
 
 484. Nuisances when restrained by injunction. 
 
 485. Violation of easements enjoined. 
 
 486. Injunctions for protection of patents, copyrights, rights in literary 
 
 property in general, trade-marks. 
 
 487. Slander or libel; wrongful use of names. 
 
 488. To restrain actions or judgments at law. 
 
 489. When jurisdiction is not exercised for restraining actions at law. 
 
 490. When the jurisdiction may be exercised. 
 
 491. Equitable jurisdiction to restrain actions at law under modern pro- 
 
 cedure. 
 
 CHAPTER XXVIII. 
 
 SPECIFIC PERFORMANCE OF CONTRACTS AND FIDUCIARY OBLIGATIONS. 
 
 Section 492. General statement as to ground of jurisdiction. 
 
 493. Inadequacy of action for damages for breach of contract. — Distinction 
 
 between sales of real estate and personal properly. 
 
 494. Impracticability, or want of a legal remedy. 
 
 495. Specific performance of verbal contracts partly performed. 
 •496. Jurisdiction discretionary. 
 
 497. Essential elements to the exercise of jurisdiction. 
 
 498. Performance by plaintiff how far a condition precedent. 
 
 499. When tender of performance by plaintiff is necessary. 
 
 500. How far right to specific performance is affected by time. 
 
 501. The effect of events occurring without the agency of the parties in 
 
 contract for the sale of lands. 
 
 502. Damages when given in place of decree for specific performance. 
 
 503. Specific performance of trustees. 
 
 504. Suits against corporations to compel transfer or issue of stock. 
 
 CHAPTER XXIX. 
 REFORMATION AND CANCELLATION OF LEGAIi INSTRUMENTS. 
 
 Section 506. General statement as to the nature and object of the remedy. 
 507. Reformation and re-execution of instruments. 
 • 508. Cancellation and surrender of instruments. 
 
 CHAPTER XXX. 
 
 bills of peace OB CASES OF EQUITABLE JURISDICTION IN AVOIDANCE 
 OF A MULTIPLICITY OF SUITS. 
 
 Section 511. Multiplicity of suits as a ground for equitable jurisdiction. 
 
 513. Original application of the principle. — Bills of peace and to quiet title. 
 
 513. Cases in which the principle will now be applied. 
 
 514. First class of cases. 
 
 515. Second class. 
 
TABLE OF CONTENTS. XVU 
 
 Section 516. Third and fourth classes. 
 
 517. Several proprietors injured by the one wrong. 
 
 518. Equitable relief from illegal taxes and assessments. 
 
 519. Additional cases under the third and fourth classes. 
 
 CHAPTER XXXI. 
 
 CONCURRENT EQUITABI,E REMEDIES FOR THE ENFORCEMENT AND 
 RECOVERY OF L,E6AIi RIGHTS AND INTERESTS. 
 
 Section 531. General statement. 
 
 533. Assignment of dower. 
 
 533. Partition of lands. 
 
 534. Partition of personal property. 
 
 535. Establishment of disputed boundaries. 
 
 CHAPTER XXXII. 
 
 EQUITABLE SUITS FOR THE RECOVERY OF PECUNIARY REMEF. 
 
 SECTrosr 537. Subdivision of subject. 
 
 528. Suits for foreclosure. 
 
 529. Creditor's suit. 
 
 530. Exoneration and contribution distinguished. 
 
 531. Subrogation. 
 
 533. Marshaling of securities. 
 
 533. Suits for accounting. 
 
 534. Accounting between partners. 
 
 535. Accounts stated. 
 
 536. Taking the account. 
 
 CHAPTER XXXIII. 
 
 BLLI^S QUIA TIMET, INCLUDING BIM-S TO PERPETUATE TESTIMONY AND 
 TO REMOVE ClOUDS FROM TITLE. 
 
 Section 539. General statement. 
 
 540. Covenants to indemnify and securities. 
 
 541. Trust estates, and estates for life. 
 
 542. Bills to perpetuate testimony. 
 
 543. Bills to remove cloud from title. 
 
 544. Statutory suits to quiet title. 
 
 545. Statutes to construe or establish wills. 
 
 546. Relief granted In bills quia timet. 
 
 CHAPTER XXXIV. 
 
 BLLLS OF DISCOVERY AND EQUITABLE SUITS FOR TAKING TESTIMONY. 
 
 Section 549. General explanation of jurisdiction. 
 
 550. Bills of discovery. 
 
 551. The effect of modern statutes in suits for discovery. 
 553. What judicial proceedings will be aided by discovery. 
 
 553. Who can file the bill for discovery? 
 
 554. Prom whom can discovery be required? 
 
 555. What matters the bill of discovery may include. 
 
 556. Privileged communications. 
 
 557. Manner of making discovery. 
 
 558. Production and inspection of documents. 
 
 559. To what extent the answer in the suit for discovery may be used »s 
 
 evidence. 
 
XVUl TABLE OF CONTENTS. 
 
 Section 560. Equitable provisions for examination of witnesses. 
 561. Suits to take testimony of witnesses debe)ieesse. 
 568. Suits to examine witnesses In foreign countries. 
 
 CHAPTER XXXV. 
 
 INTBBPIiEADEB. 
 
 Section 566. General principles. 
 
 567. Essential requisites to an action for Interpleader, 
 
 568. The same thing, debt, or duty. 
 
 569. The adverse claims must be derived from the same source 
 
 570. Plaintiff must be a disinterested party. 
 
 571. Independent liability to one claimant. 
 
 572. Interpleader by bailees, agents, tenants, and parties to contracts. 
 
 573. What the bill of interpleader should contain. 
 
 574. Interpleader In legal actions under modern statutes. 
 
 CHAPTER XXXVI. 
 
 RECEIVERS. 
 
 Section 577. General statement as to jurisdiction of equity. 
 
 578. Exercise of power discretionary. 
 
 579. Cases In which a receiver may be appointed. 
 
 580. Continued — Cases In which a receiver may be appointed. 
 
 581. Effect of appointment of receivers. 
 583. Duties of receivers. 
 
 583. Powers and authority of receivers. 
 
 584. Suits against receivers. 
 
 585. Liability of the corporation for the acts of the receiver. 
 
 586. Removal of receiver. 
 
 587. Compensation of receiver. 
 
 588. The receiver's certificate.— How far negotiable. 
 
A TREATISE 
 
 Equity Jurisprudence, 
 
 CHAPTER I. 
 
 THE ORIGIN AND DEVELOPMENT OF EQUITY JURISPRUDENCE. 
 
 The meaning of equity in general 
 The CEcpiitas in the Eoman law . 
 Equity in the English law 
 Establishment of separate court of equity 
 
 and system of jurisprudence 
 The meaning of equity as a branch of 
 
 American and English jurisprudence 
 Sabdiylsion of equity jurisprudence 
 
 Sectiox 
 1 
 
 Seotios' 
 
 Nature and extent of equity jurisdiction 
 
 Exclusive, concurrent and auxiliary juris- 
 diction 
 
 Equity jurisdiction in the United States . 
 
 Equity jurisdiction in the United States 
 Courts . 
 
 Divisions of the subject of equity juris- 
 prudence and order of discussion 
 
 10 
 
 § 1. The meaning of equity in general. — I have elsewhere ^ more 
 fully explained, how every le^al rule, when reduced to its funda- 
 mental elements, "will be found to be the expression of the popular 
 sense of right, the resultant of all the social forces at play in an 
 organized society. The legal rule is, however, a reflection of the 
 popular sense, which prevails at the time when the rule was enun- 
 ciated, and not necessarily a reflection of the popular sense of right 
 at any subsequent time, except so far as the blind obedience of prece- 
 dent, enforced by the popular sense of right as a rule of law, com- 
 pels a compliance with a previously enunciated principle or rule of 
 law in subsequently occurring cases, notwithstanding such principle 
 or rule ceases to represent the untrammeled sense of right of the 
 people. The private interests, that are always built up around an 
 enunciated principle of law and in reliance upon the continuance of 
 its application to future cases, exert all their influence in the direction 
 of rigidity and unchangeableness of the law. They oppose the 
 
 iTledeman's Unwritten Constitution, Ch. 1. 
 1 
 
§ 1 EQUITY JUEISPEUDENCE. [CH. I. 
 
 slightest deviation from the enunciated rule or principle, and often 
 give to the law in general a conservative character far beyond what 
 is really necessary to the conservation of well-founded rights, and 
 which often is the cause of infliction of rank injustice. 
 
 This evil tendency of conservatism in the law is most marked in the 
 earliest stages of development of a system of jurisprudence. At that 
 time, which is always coeval with popular ignorance and barbaric cus- 
 toms, the word is taken for the thought or principle which it really 
 only imperfectly represents, and the letter of the law is alone consid- 
 ered, while its underlying spirit is altogether ignored, in its appli- 
 cation to subsequent causes of litigation. As has been stated by Dr. 
 V. Jhering in his ' ' Geist des Eoemischen Rechts" :^ "A close adherence 
 to the letter is a mark of unripeness everywhere, and especially so in 
 law. The history of law might write over its first chapter, as a motto. 
 ' In the beginning was the word. ' To all rude peoples the word appears 
 something mysterious, whether it be written or solemnly uttered as a 
 formula, and their simple faith fills it with supernatural power. '" A 
 literal interpretation of the law is rigidly adhered to, and the result is 
 very often a frustration, instead of a furtherance, of justice. If it were 
 possible to put all one's meaning into the words we employ, and by 
 careful qualification of them prevent others from infusing into them a 
 meaning one did not intend, a blind adherence to the letter of the law 
 anight not produce such disastrous results. But the ability of giving 
 ■exact expression in words of the popular will and sense of right is 
 :always in inverse proportion to the degree of respect, which is shown 
 tto the letter of the law and the disregard of its spirit. The more 
 enlightened the people become, the better they understand the poverty 
 and unreliability of language as a vehicle of thought, and the less they 
 rely upon the phraseology of the law in determining the rule of civil 
 conduct. But this extension of knowledge of the true rules of inter- 
 pretation is ordinarily of very slow growth, and the prevalence of the 
 erroneous literal interpretation has had time to create a conservative 
 sentiment in opposition to the innovation of the more liberal interpre- 
 tation according to the spirit and hidden meaning of the law, and to 
 ^ive to the law a rigid and irrational formalism. When that untoward 
 result is effected, the popular sense of justice is violated, and is often so 
 aroused as to produce a popular objection to the offending rule of 
 law, strong enough to secure in some way, that is not inconsistent 
 with the binding force of the existing law, a conformance of the rule 
 of positive law to the popular sense of what it ought to be. This 
 popular sense of what the law ought to be is what is known in univex'- 
 sal law as equity. It is not a part of positive law, but rather a branch 
 of legal ethics. It is a legal ideal, the jus naturale of the Romans, and 
 becomes a part of positive law only so far as it reflects and conforms 
 
 1 Band n, Theil 2, 487. appendix to his edition of Lieber's Hermeneu- 
 
 ^ Translation of Dr. W. G. Hammond In ties, p. 362. 
 
 2 
 
CH. I.] ORIGIN AND DEVELOPMENT. § 2 
 
 to the moral habits of the people. This is the meaning of equity, 
 when applied to universal jurisprudence, and in that sense done can 
 that term be properly applied, except as a branch of English and 
 American jurisprudence. 
 
 § 2. The seqnitas in the Roman law. — Whatever Blackstone, 
 and many other common law writers and judges, may think of the 
 common law's independence of the influence of the Eoman law, it is 
 undeniable that whatever is best and most worthy of preservation in 
 our existing private law, has been derived in a more or less modified 
 form from the Eoman jurisprudence. Hence, in this particular con- 
 nection, it is of importance to start out with the consideration of the 
 important branch of law, which constitutes the subject of this volume, 
 with a general understanding of the meaning of equity in the Roman 
 system. In regard to the relation of law in general to the doctrine of 
 equity, as was explained in the first section, the Roman law consti- 
 tutes no exception. Notwithstanding the high development which the 
 Roman jurisprudence attained in the days of the empire, culminating 
 in the most remarkable body of law which the world has ever known, 
 its beginnings were as simple and crude as any other system of law 
 known to history. In the earliest stages of the Roman jurisprudence 
 there was the same blind adherence to the literal interpretation of the 
 law, and the same superstitious observance of the word rather than 
 the intelligent consideration of its spirit, which were claimed to be the 
 characteristics of the early stages of every system of jurisprudence. 
 "Nowhere was this faith in the word more powerful than in the 
 ancient Rome. The cultus of the word pervades all relations of 
 public and private life, of religion, of morals, and of law. To the 
 ancient Roman the word is power; it binds and looses; it has the 
 power, if not to move mountains, at least to remove crops into another 
 field. With what rigid pedantry, therefore, the letter was treated by the 
 ancient jurisprudents, we might infer from the whole tone of national 
 thought. There was a time, and a long one, when the same word- 
 catching of the jurists, which afterwards fm-nished so happy a theme 
 for the ridicule of Cicero, and was gravely condemned by jurists and 
 emperors, passed in the people's eyes as a proof of acuteness and 
 superiority in the lawyer who employed it; and when on the other 
 hand, that freer interpretation which the later law employed, espe- 
 cially upon contract of the jus gentium, would not only have failed to 
 be understood, but would have met with the most decided opposition. 
 It took many centuries to bring the law and the people alike to the 
 capacity for this freer kind of interpretation.'" 
 
 With this understanding of the early condition of the Roman law 
 and this narrow-minded respect for the word and strict adherence to 
 the literal construction and interpretation, one would expect the 
 
 'Dr. Hammond's condensed translation on v. Jliering's Gelst des Eoemischen Kechts, Band 
 II, Then 3, pp. 427-465. 
 
§ 2 EQUITY JURISPRUDENCE. [CH. I^ 
 
 same conflict in the course of the development of the law between, 
 the positive law and its ethical criticism, as was displayed in 
 the course of the development of the English jurisprudence. Cer- 
 tainly in the very earliest stages of the development of the Roman 
 jurisprudence that was the fact, as is very fully explained by v. Jhering^ 
 and more particularly by Gains in his institutes. And there likely 
 would have been the same distinct separation of the law and equity in 
 the Roman jurisprudence, had the conditions of civilization and the 
 character of the legal procedure of 'the Romans been the same. 
 
 It must be observed that the first form of the Roman law was that 
 of a system of rules of conduct, designed only to determine the legal 
 rights and obligations of Roman citizens with each other, and was very 
 technical in all its forms and limitations. The early Roman looked 
 upon a foreigner, whether he was resident or non-resident, as possess- 
 ing no rights which he was bound to respect or accord. The jus civile 
 bore no relation whatever to the foreigners, either in their disputes 
 between themselves or with Roman citizens. As, however, the inter- 
 national and commercial intercourse of Rome with other countries 
 increased in importance and extent, and the number of foreign visitors 
 within the Roman provinces became larger, it was necessary for the 
 government of Rome to provide for some mode of settling disputes 
 and enforcing claims between Romans and foreigners and between the 
 foreigners themselves. In order that provision may be made, a 
 special judicial officer was created whose duty was to settle all of 
 these disputes. In consequence of the fact that the parties liti- 
 gant came from all parts of the world, and therefore had varying con- 
 ceptions of legal right and wrong, this judicial officer, called the prae- 
 tor, who was given charge of this litigation, disregarded the techni- 
 calities of the Jus civile. For to apply this technical and arbitrary law 
 in all its strictness to the adjudication of the rights of strangers, would 
 have resulted often in the infliction of wrong rather than the attain- 
 ment of justice. Instead, therefore, of deciding these causes of action 
 according to the jus civile, the Roman praetor rendered his juilgments 
 in accordance with those rules and principles of law, which he found 
 to be the common property of all nations. In the course of his judi- 
 cial experience, there grew up alongside of the jus civile a distinct 
 and separate system of jurisprudence, which was known as the jv^ 
 gentium or the law of nations. The determined purpose of the prse- 
 tor to render his decisions in these causes of action according to the 
 common sense of right, which he found prevalent among nations in 
 general, gave to the jus gentium a far more rational and less technical 
 character than what distinguished the^ws civile. The greater ration- 
 ality of the jus gentmm undoubtedly gave to that system of law an 
 advantage in the contest for supremacy between the two systems of 
 jurisprudence; and if the consciousness of national life and the powers 
 of the judicial officers had been the same among the Romans as was 
 4 
 
<^H. l.J ORIGIN AND DEVELOPMENT. § 2 
 
 the case in early England, these two superior systems of law would 
 have probably continued as sop:irate and distinct systems of jurispru- 
 dence for a much longer period than was actually the case. But the 
 praetors were authorized at the beginning of their term of office to 
 issue edicts whereby they would announce to the people the principles 
 and rules of law by which they would be governed in their adjudica- 
 tion of the causes of action brought before them. Each praetor would 
 in his edict make whatever modifications his sense of justice or the 
 popular sense of right through its influence upon him, compelled him 
 to make in the edicts of his predecessors, retaining whatever of the 
 last edict conformed to the prevalent sense of riglit. This power of 
 the praetor was subject to no legal limitations whatever, and he was 
 permitted td make whatever changes in the prior law that were neces- 
 sary to make it conform to his own sense of legal propriety. The 
 popular will seemed to be in favor of a liberal and intelligent exercise 
 of this power, hence we find in the course of years that the wall of 
 partition between the jus civile and thejMS gentium was completely 
 broken down, and the Eoman law emerged therefrom as one insepa- 
 rable and organic system of jurisprudence. About the same time 
 the Eoman lawyers, together with other serious and thoughtful men 
 of the day, revolting from the prevalent profligacy, became infatuated 
 with the stoic philosophy, and drew from that philosophy the Greek 
 idea of natural law. Instead of the_;MS gentium, being received as a 
 body of rules found to be generally enforced by all nations, it became, 
 in its reduction to the forms of a science, the jus naturale, an ideal 
 law which one in his imagination would conceive to be in force in a 
 state of perfect nature. Jus naturale is the scientific, idealized form 
 of ihejv^ gentium. 
 
 The jus natv/rale was nothing more than the ethical conception of 
 equity, which has been already explained to be the character of equity 
 in general, and as apart from the use of the term in the English and 
 American jurisprudence. It may be, therefore, stated in conclusion 
 that the Roman equity, or jus naturale., constitutes that ideal law 
 which the ethical conception of the people from time to time held up 
 for imitation and guidance in the creation and development of posi- 
 tive law, and that the Eoman equity only became a part of the actual 
 law, so far as its conceptions represent the spontaneous practice and 
 general habits of the people. Inasmuch as the Roman procedure and 
 the national characteristics of the Romans threw no obstacles in the 
 way of the gradual and natural absorption by the positive law of the 
 improvements and growth in the ethical conceptions of the people as 
 to the question of right and wrong; we find the Roman law naturally 
 and gradually eliminating everything that was harsh, technical and 
 barbarous, and gradually becoming more rational and more just in its 
 regulations as to the protection of private rights, until finally it reached 
 its final state of comparative perfection in the Corpus Juris Civilis of 
 Justinian. 5 
 
§ 3 EQUITY JUEISPEUDENCB. [CH. I. 
 
 § 3. Eqnity in the English law. — Inasmuch as the Koman law 
 attained its final state of growth before the English nation acquired 
 its national consciousness, and therefore when its jurisprudence was 
 in its crudest state, we are inclined to compare one with the other to 
 the great disadvantage of the English law ; forgetting that the true 
 parallel is to be drawn when one compares the Roman jurisprudence, 
 prior to the twelve tables, with the early conditions of the English 
 law. As stated in the opening paragraph, crudity and gross techni- 
 cality are the characteristics of the early days of every system of 
 jurisprudence; and the struggle of the national consciousness to free 
 itself from this barbaric conception, will vary, as to the time consumed 
 in the attainment of success, with the conditions of civilization and 
 the peculiarities of the national character. It is not expected, in this 
 connection, to give any very extensive historical account of the strug- 
 gles against the barbaric common law of the Anglo-Saxon and Normans, 
 and the efforts to substitute therefor the more equitable and more just 
 principles of the Roman law. Within the limitations which necessarily 
 circumscribe the author of an elementary book upon existing equity 
 jurisprudence, nothing more than a mere summary of the important 
 facts of legal history in connection with the subject can be attempted. 
 It suffices to say that the English common law, like the early Roman 
 law, was barbarously technical and crude. Our English ancestors 
 knew no rule which would involve the recognition of anything more 
 than the literal construction of the law. The jurisdiction of the com- 
 mon law courts was declared to emanate from the crown, somewhat 
 in the form of a special grant of royal prerogative, and therefore 
 must be subject to the strictest construction against the extension by 
 implication of the powers of the judicial officer. The Courts of 
 Common Law, the Courts of King's Bench, Common Pleas and of 
 Exchequer, derived their authority for adjudicating causes of action 
 directly from royal grants or writs. Never had these courts bad the 
 authority to decide a cause of action, until each party plaintiff had 
 obtained from a member of the King's Council, known as the chan- 
 cellor, a writ running in the king's name, directing the judge of 
 one of these three courts to hear the cause of action and render judg- 
 ment between the pai'ties. In consequence of the barbaric conception 
 of law prevailing at the time, these writs assumed a very technical 
 form, and were rigidly adhered to and were limited in number. When- 
 ever an application was made for a writ, the clerks in chancery would 
 issue a writ to the common law courts, only when they could find a 
 form which would correspond to the cause of complaint which arose 
 between the parties. These writs, however, being crude and limited 
 in scope, did not provide for the increasing complications and develop- 
 ments of causes of action, and the result was that the parties litigant 
 frequently failed to attain any redress whatever. This marked differ- 
 ence between the form of procedure of the early English law and the 
 6 
 
CH. I.J OEIGIN AND DEVELOPMENT. § 3 
 
 Roman praetor's right to issue edicts and his freedom from all royal 
 or executive control, in very large measure explains the difficulty 
 which was experienced at this early day to secure a rational develop- 
 ment of the English law. But that in itself will not be a satisfactory 
 explanation; for in recognition of the defects in the English proced- 
 ure and the necessity of an enlargement of the scope of the English 
 courts, in the reign of Edward the First, the following statute was 
 passed: " Whensoever from henceforth it shall fortune in chancery 
 that in one case a writ is found, and in a like case falling under like 
 law and requiring like remedy is found none, the clerks of the chan- 
 cery shall agree in making the writ, or the plaintiff may adjourn it 
 into the next Parliament, and let the cases be written in which they 
 are not agreed, and let them refer themselves to the next Parliament, 
 and by consent of men learned in the law a writ shall be made, lest it 
 should happen after, that the court should long time fail to administer 
 justice unto complainants." 
 
 Had the same unusual liberality prevailed among the early English, 
 as that found to be the case among the early Romans, in respect to the 
 power of the prsetor to modify the existing law by his edict, there would 
 have been very little occasion for the crfeation and establishment of a 
 separate court and separate system of jurisprudence, in order to attain 
 the ends of justice. But the common law judges influenced by the 
 national conservatism and opposition to change, which is almost as 
 marked now as it was then, subjected the statute to the most 
 narrow and the strictest construction, and held that no writs were per- 
 mitted under the statute, except in cases "falling under like law and 
 requiring like remedy." Although the chancellor's clerks, under the 
 more liberal influence of the legal members of the privy council, had 
 devised a great number of new writs, which would have enlarged the 
 jurisdiction of the common law courts, and liberalized the common 
 law, the judges of the common law Courts, asserting their authority to 
 decide upon the validity of those writs, refused to recognize any cause 
 which did not fall under like law or require a like remedy, and thus a 
 beneficent provision for reform was largely shorn of its beneficial 
 results. Notwithstanding, however, this opposition to reform in the 
 procedure, the law was finally permitted to operate beneficially so 
 far as to create the three new writs, viz., of trover, assumpsit and 
 trespass on the case, which all writers upon pleading never fail to 
 extol as the chief mstruments for the extension of the common law 
 jurisdiction. 
 
 Writers attempt to explain more fully the obstacles in the way of a 
 rational development of the law on lines of equity, by referring to 
 che influence of the feudal system and to the peculiar character of the 
 procedure. But all these are mere manifestations of a prevalent national 
 characteristic, viz., that of hostility to everything of foreign extrac- 
 tion; even the Englishman of to-day opposes everything of foreign 
 
 7 
 
§ 3 EQUITT JUEISPEUDENCE. [CH. I. 
 
 origin, and is a slave to the power of precedent in law as well as in 
 public policy. The Eoman, with his desire to absorb every nation 
 and to make his own other people and other habits of life, would 
 under the same circumstances and limitations have no doubt wrought 
 out a different result. As it is, however, the English objection to 
 foreign influence, and the obstacles thus thrown in the way of their 
 absorption in a natural way of the principles of equity, which were to 
 be found already made for them in the Roman jurisprudence, simply 
 postponed instead of preventing the adoption and thorough amalgamar 
 tion of the two systems of jurisprudence into one. 
 
 There are some historical faqts, such as the contest between the 
 Eoman church and the English government, even in the days of 
 Stephen and the early Edwards, which will account for the rejection 
 of the influence of the Eoman jurisprudence in the development of 
 tbeir own law, which had at an early day been exerted to a most 
 marked degree. For, when Bracton wrote his law book on the laws 
 and customs of the English nation, he was able in the presentation of 
 that law to write a book one-third of which was almost a literal 
 translation from the institutes of Justinian. At the University of 
 Oxford, a distinguished civilian was appointed a professor and charged 
 with the giving of instruction in the Eoman law. The school of 
 Eoman law established by him at the University of Oxford rose to 
 be second in eminence in Europe, only to those in Paris and Bologna. 
 But the contest between the English government and people and the 
 Eoman pontiff, and pecuniary exactions by the latter, made the Eoman 
 law — which was represented in England, as well as elsewhere on the 
 continent of Europe, during the middle ages by ecclesiastics — odious 
 and objectionable to the English. Their strong sense of national 
 independence revolted at the acceptance of even a benefit at the hands 
 of those whom they detested. This same national conceit prevented 
 the common law judges and the common law lawyers, even at a very late 
 date, from appreciating the superiority of the Eoman law, as it became 
 adopted by the courts of equity and incorporated by them in the 
 English equity jurisprudence as a branch of the English law. Mr. 
 Spenoe, in his work on equity jurisdiction, refers to a writer of the 
 reign of James I., who styles himself a sergeant, who, criticising the 
 equity jurisdiction as being against the common "weal of the realm," 
 declares that the common law ' ' commandeth all that is good to be 
 done." Among other things that he criticises is the judgment of a 
 court of equity, that a debtor whose debt is represented by a bond 
 or other instrument under seal, cannot be compelled to pay a 
 second time the same debt because he had failed to obtain a release 
 of the bond; the common law rule being that a bond can be recov- 
 ered on any number of times, as long as it has not been formally 
 canceled or released or surrendered up. In criticism of the different 
 ruling of a court of equity, this writer proceeds to say, "When a bill 
 8 
 
CH. I.J ORIGIN AND DEVELOPMENT. § 4 
 
 has been made to the chancellor that such a man should have great 
 wrong to be compelled • to pay two times for one thing, the chan- 
 cellor, not knowing the goodness of the common law (?), has temer- 
 ously directed a subpoena to the plaintiff (in the action of law) ; and 
 the chancellor, regarding no law, but trusting to his own wit and 
 wisdom, giveth judgment as it pleaseth him."^ 
 
 It is not surprising, therefore, that the national objection to the 
 more liberal and more advanced principles of equity should have been 
 strong enough at an earlier day to have prevented their gradual 
 absorption into the ordinary common law of the land. It would 
 probably be more surprising, if that absorption had taken place. 
 The fact was that the national character had not been sufficiently 
 removed at that time from the days of barbarism, to be able to 
 appreciate the superiority of the Roman jurisprudence and of its 
 principles over the prevalent rules of law. In other words, the prin- 
 ciples of right and wrong of the Roman law did not reflect the popular 
 sense of right; and having a strong sense of national independence and a 
 vigorous national consciousness, they resisted any attempt on the part 
 of foreign powers or of foreign influence to change the national juris- 
 prudence. This gi-eat obstacle to the natural and gradual development 
 of the English law, instead of successfully preventing the exclusion from 
 the kingdom of the influence of the Roman jurisprudence, served only 
 to direct that influence into a different and separate channel. t 
 compelled the establishment of a separate court of equity and a dis- 
 tinct system of equity jurisprudence. 
 
 § 4. Establishment of separate court of equity and system of 
 Jurisprudence. — Under the early Norman kings, in the exercise of 
 its prerogatives, the crown was aided by two councils, one, known as 
 the general council, which only assembled occasionally, and was the 
 original form of the more modern Parliament; and the other known 
 as the special council, smaller in number, in more or less constant 
 attendance upon the king, and which corresponds to the modern privy 
 council. This privy council was composed of several officers, among 
 them being the chancellor and the chief justiciary. It was the duty 
 of the members of this council to assist the crown in the active per- 
 formance of its various duties and in the exercise of its many preroga- 
 tives. As was explained in a different connection, the early Norman 
 king claimed to be, and he actually constituted, the original source of 
 judicial power; and whenever any other branch of the government, 
 or any other officer exercised the judicial power, it had to rest upon a 
 writ issuing from the crown, authorizing such exercise of judicial 
 power. The chancellor was the special member of the privy council, 
 who was charged with the superintendence of judicial affairs, and the 
 writs which authorized the trial of causes in the common law courts 
 proceeded from the chancellor, and were issued by the clerks who 
 
 1 1 Spence Eq. Jurisd , p. 347. 
 
 9 
 
§ 4: EQUITY JUBISPEUDENCE. [CH. I. 
 
 were known as clerks in chancery. Inasmuch as the crown was con. 
 sidered to be the court of ultimate resort,- the fountain of justice, 
 whenever there was any failure of justice in the ordinary common 
 law courts, or these courts refused under their narrow and technical 
 construction of their powers to administer justice or provide an ample 
 and adequate remedy to the parties litigant, the disappointed ones were 
 in the habit of appealing directly to the crown to provide some addi- 
 tional or extraordinary remedy, as a matter of royal grace. In the 
 very earliest days of the Norman rule, when the executive affairs of 
 the kingdom were not sufficiently grave and important to occupy the 
 entire time of the king, these pleas for extraordinary judicial remedy 
 were made directly to him, and he would himself hear and decide the 
 matter. When, however, the cares of government increased, and it 
 became impossible and inconvenient for the king to hear the pleas in 
 person, he would direct some member of the privy council to act in 
 his stead and to furnish the extraordinary aid. Usually the matter 
 Was referred to the chancellor, and in the course of time the practice 
 of referring all such cases to the chancellor became a fixed and estab- 
 lished one. Still it was necessary that the appeal for extraordinary 
 aid of this kind should be made in the first instance to the king, and 
 in each particular case there would be a reference to the chancellor. 
 But in the twenty-second year of the reign of Edward III., the king 
 issued a general writ in which he ordered that all judicial matters that 
 were of grace, should be referred to and disposed of by the chancellor 
 or by the keeper of the privy seal. From this writ, it is generally 
 claimed, that the court of chancery as a separate and independent 
 court is dated; and this is certainly true, so far as the origin of the 
 court of chancery depends for its beginning upon the royal decree 
 of a general character. But this royal decree succeeded instead of 
 preceding the practice of referring all such cases to the chancellor, or 
 other member of the council. It simply confirmed as a general rule, 
 what had already become the custom and dispensed with the necessity 
 of first formally making an appeal to the king in quest of the extra- 
 ordinary aid. The court of chancery, thus established and filled, 
 as it was until a very late date, by ecclesiastics who were thoroughly 
 versed in the Roman law, constituted a ready means for supplying the 
 deficiencies of the common law, occasioned, as already explained, by 
 the narrow-mindedness of the common law judges in refusing to loose 
 themselves from the barbarous technicalities of the early law. When 
 the common law judges refused to decide causes of action according 
 to their natural justice, and violated the public conscience by blind 
 adherence to the ancient precedents, the parties suffering from this 
 mistaken zeal would apply to the chancellor, or other member 
 of the court of chancery, for extraordinary aid and relief. Justices 
 of the court of chancery were through their education as priests well 
 versed in the fundamental principles of the Eoman law and the canon 
 10 
 
CH. I.] ORIGIN AND DEVELOPMENT. § 5 
 
 law of the church. And in deciding the cases that were brought 
 befere them, these judges would resort to the Eoman and canon 
 law for the principles which should guide them in their adjudications. 
 This is, in short, the way in which the court of chancery became 
 established as a court having parallel jurisdiction with common law 
 courts. And through these courts of chancery arose a separate and 
 distinct system of jurisprudence, in which the harsh exactions of the 
 common law were relieved against and a closer conformity to natural 
 justice and reason established. 
 
 § 5. The meaning of equity as a branch of American and Eng- 
 lish jnrisprndence. — In a preceding section, it was explained that in 
 universal law the term, equity, means the ideal conception of justice 
 and right which stands outside of positive law, and serves only as tests 
 for the ethical criticism of the rules of positive law. In the Roman law, 
 mquitas is only another name for the/iis natwrale. Inasmuch as the 
 Roman prsetor had at the beginning of his term the authority to modify 
 by his edict the rules of positive law, so as to bring such law into stricter 
 conformity with the popular sense of right then prevalent, under the 
 influence of the philosophy of the jus naturale, he exercised this 
 authority to the extent that such changes were necessary, to bi-ing 
 the positive law into conformity with '■'• ArbH/rium honi viri." 
 In the English and American jurisprudence, the word represents 
 a distinct and separate system, not of ethics but of . positive 
 law, and hence a different conception must prevail in this connection 
 as to the scope of equity. The Roman jurist in discussing what was 
 equity was limited by nothing but natural reason and logic, and the 
 fact that a particular rule of law did not comport with natural reason 
 and justice, was sufficient to justify his condemnation of the inequity 
 of the rule of law. If the prsetor agreed with the jurisprudent in his 
 condemnation of the rule of law under inquiry, he would in the edict 
 which he published at the beginning of his term of office change the 
 rule so as to conform to the agreed-upon conception of what was equi- 
 table. Undoubtedly the same conception of equity was also enter- 
 tained by the earlier chancellors of England and the writers of 
 English law in the early days of the court of chancery, as can be 
 ascertained from the passages quoted in the note below. ^ Undoubt- 
 
 1 In the " Doctor and Student" (Dial. 1, Ch. of equity is to amplify, enlarge, and add to the 
 16j, equity is thus described: " In some cases letter of the law." " Chancery is ordained to 
 it Is necessary to leave the words of the law, supply the law, and not to subvert the law." 
 and to follow what justice and reason re- InFonblanqueonEquity (Bk.l, Ch. l,§3),itls 
 quireth, and to that extent equity is ordained, stated : " So there will be a necessity of having 
 that is to say, to temper and mitigate the rigor recourse to natural principles, that what is 
 of the law. * * » And so it appeareth that wanting to the definite may be supplied out of 
 equity taketh not away the very right, but only that which is indefinite. And this is properly 
 that such seemeth not to be right by the gen- what is called equity in opposition to strict 
 eral words of the law. * * * Equity is law. * * * And thus in chancery every par- 
 righteousness that considereth all the partiou- ticular case stands upon its own particular 
 lar circumstances of the deed, which is also circumstances; and although the common law 
 tempered with the sweetness of mercy." In will not decree against the general rule of law. 
 Finch's Law (p. 20), it issaid: "Thenature yet chancery doth, so as the example introduca 
 
 11 
 
§ 5 EQUITY JUKISPEUDENCE. [CH. I. 
 
 edly, these quotations constitute a reasonable and accurate description 
 of the character of equity and the scope of the powers of the court 
 of chancery, in modifying and departing from the rules of law, in the 
 earlier days of the existence of the court of chancery. For, in these 
 days, the court of chancery sat as a court of extraordinary power, 
 bound by no particular rules of law, and having by the general writ 
 of Edward III. the full authority to modify the requirements of the 
 common law, whenever they were compelled to do so, in securing to 
 parties litigant the just relief from the exactions of the common law. 
 Naturally, the personality of the chancellor was an extremely impor- 
 tant element in determining, how far he would depart from the positive 
 law of the land, and to what extent he would adopt in its stead rules 
 of law based upon the principles of justice as he understood them. 
 Selden's criticism of the rules of equity, which is so commonly quoted, 
 if applied to the court of chancery in its earliest days, would be 
 more or less reliable.^ 
 
 But the court of chancery, as well as the common law courts, was 
 influenced by the national characteristics of conservatism and blind 
 adherence to precedents; and under that influence the original charac- 
 ter of the court, and the unlimited power of the chancellor in controll- 
 ing the developments of the court's jurisdiction, could not remain 
 unchanged. In the course of time, the judicial precedents of the 
 court of chancery became as numerous as the precedents of the courts 
 of law, and each successive chancellor felt himself more or less bound 
 by the judgments of his predecessors, in determining when and how 
 far the court would go in modifying the limitations and harsh exactions 
 of the common law. And while the older modes of expression of the 
 couits were retained; as for example, where it was described to be a 
 court of conscience; instead of meaning that the case would be decided 
 according to the personal conscience a,nd sense of right of the par- 
 ticular chancellor who heard the cause, it would mean simply that 
 the chancellor decided the questions according to those prin- 
 
 not a general mischief . Every matter, tliere- and delude the common law, whereby such as 
 fore, that happens inconsistent with the design have undoubted right are made remediless, 
 of the legislator, or is contrary to natural jus- And this is the office of equity, to protect and 
 tiee, may find relief here. For no man can be support the common law from shifts and eon- 
 obliged to anything contrary to the law of trivances against the justice of the law. 
 nature; and indeed, no man in his senses can Equity does not, therefore, destroy the law 
 be presumed willing to oblige another to it. nor create it. but assists It." 
 Butif the law hath determined a matter with 'Table Talk, tit. Equity: "Equity Is a 
 all its circumstances, equity cannot intermed- roguish thing. For law we have a measure 
 die." So likewise in Dudley ». Dudley, Free. and know what we trust to. Equity is accord- 
 in Ch. 241, 844, Sir John Trevor, M. P., said: Ing to the conscience of him who is chancel- 
 " Now equity is no part of the law, but a moral lor ; and as that is larger or narrower, so Is 
 virtue which qualifies, moderate-, and reforms equity. ' Tis all one as if they should make 
 the rigor, hardness and edge of the law, and his foot the standard for the measure we call 
 is a universal truth. It does also assist the law a chancellor's foot. What an uncertain meas- 
 where it is defective and weak in the constitu- ure would this be? One chancellor has a long 
 tion, which is the life of the law; and defends foot, another a shoH foot, a third an indiSfer- 
 the law from crafty evasions, delusions, and ent foot. *Tls the same thing to the chancel- 
 new subtleties invented and contrived to evade lor's conscience." 
 
 12 
 
CH. 1.] ORIGIN AND DEVELOPMENT. § 5 
 
 ciples, which had been established by the judgment of the long line 
 of chancellors, and which serve as precedents, setting forth and 
 limiting the powers and the jurisdiction of the court. "With 
 such a conscience as is only naturalis and interna^ this court has 
 nothing to do; the conscience by which I am to proceed is merely 
 civills and poUtica, and tied to certain measures." ^ But the develop- 
 ment from the ancient idea of equity as a system of legal ethics to a 
 branch of positive law, and the consequent curtailment of the liberty 
 of the jurists of the court of chancery, as to the principles upon which 
 they would decide a cause of action, is one of slow and gradual growth. 
 And the exact point when the modern conception was fully adopted is 
 difficult, if at all possible, to determine; as may be demonstrated by 
 the difference of opinion which was shown to prevail among the judges 
 in the old case of Fry v. Porter. ^ During the argument C. J. Key- 
 linge cited an old case at which C. J. Vaughan said: "I wonder to 
 hear of citing precedents in matter of equity, for if there be equity in a 
 case, that equity is a universal truth, and there can be no precedent in 
 it, so that any precedent that can be produced, if it be the same 
 with this case, the reason and equity is the same with itself; and if the 
 precedent be not the same case with this, it is not to be cited." To 
 this Lord Keeper Bridgman replied : ' ' Certainly precedents are very 
 necessary and useful to us, for in them we may find the reason of the 
 equity to guide us; and besides the authority of those who made them 
 is much to be regarded. We shall suppose they did it upon great 
 consideration and weighing of the matter, and it should be very strange 
 and very ill if we should disturb and set aside what has been the 
 course for a long series of time and ages." 
 
 The modern equity court is not like the ancient court of chan- 
 cery, free from the binding effect of precedent in its adjudications. 
 They are as much bound by the rules of positive law as any 
 other court, the only difference between the two separate courts, 
 where they still continue to be separate and parallel courts, is, 
 that the common law court is bound by the rules of the common 
 law; while the court of equity is controlled in its determinations by 
 those principles which the court of chancery laid down ages ago for 
 the determination of the scope of equity jurisprudence. ' The truth of 
 these statements will be very fully understood as the whole subject 
 of equity jurisprudence is unfolded, and particularly when we come 
 to the consideration of the general principles of equity and the equi- 
 table maxims which serve as guides in the determination of the scope 
 
 J Cook V. Fountain, 13 Sw. 585, 600. more discretionary power than courts of com- 
 
 2 1 Mod. 300 & 307 (22 Car. II.). men law. They decide new cases as they 
 
 8 Lord Kosedale, in Bond v . Hopkins, 1 Sch. arise, but the principles on which former cases 
 
 &Lef 413 429 said: " There are certain prin- hare been decided, and may thus illustrate 
 
 ciples on which courts of equity act, which are and enlarge the operati m of these principles, 
 
 very well settled. The cases which occur are but the principles are as fixed and certam as 
 
 various, but they are decided on fixed princi- the principles on which the courts of common 
 
 pies. Courts of equity have in this respect no law proceed." 
 
 13 
 
§ Y EQUITY JURISPKUDENCE. [CH. I. 
 
 of equity. In tHe present connection, one needs but read Blackstone's 
 Criticisms of the Court of Equity and of Equity Jurisprudence, in 
 modifying and abating the exactions and cruelties of the common 
 law. 
 
 § 6. SubdiTision of equity jurisprudence.— It has been made to 
 appear in the course of the historical inquiry into the origin of 
 English and American equity jurisprudence, that the inefficiency of 
 the common law, both substantive and remedial, is the occasion for the 
 existence, in America as well as in England, of a separate court of 
 equity, and a separate system of positive law known as equity juris- 
 prudence. Equity jurisprudence, therefore, must consist of all those 
 rules and principles of law which are enforced by a court of equity 
 and which do not find recognition in the common law, and which are 
 not enforced by the common law courts. Equity jurisprudence, 
 must, therefore, consist not only of a statement of the extraordinary 
 remedies for the enforcement of rights existing at common law, but 
 likewise of equitable rights and interests which only the court of 
 equity will recognize, and which are unknown to the common law. 
 And furthermore, it would include principles of justice, which are 
 applied by the court of equity to substantive and remedial rights, and 
 which do not obtain any recognition in the common law. Hence, 
 equity jurisprudence will be divided into, three distinct parts: First, 
 principles of right which courts of equity recognize and enforce, and 
 which do not involve the creation or recognition of any distinct or 
 special right or interest; but which affect the character of other 
 special rights and interests whether legal or equitable in origin, and 
 control the character of the remedial rights in equity. Second, 
 all those distinct interests or rights of person or property, which 
 the court of equity have recognized, and which were denied by 
 the common law courts. Third, equity includes all remedies w^hich a 
 court of equity considers necessary to the attainment of justice 
 between parties on account of the inadequacy or absence of common 
 law remedies. 
 
 § 7. Nature and extent of equity jurisdiction.^- Jurisdiction of a 
 court may be defined to be the limitations within which the court has 
 the power to adjudicate individual causes of action. It is to be dis- 
 tinguished from the jurisprudence which the court administers; the 
 jurisprudence being the rules and principles of law which govern the 
 court in rendering its judgment, while the question of jurisdiction 
 
 i"Itls said that it is the business of a court heir should not he liable to simple contract 
 of equity in England to abate the rigor of debts of the ancestor or devisor, although the 
 the common law But no such power is con- money was laid out in the purchase of the 
 tended for. Hard was the case of a bond very land; and that the father shall never 
 creditor whose debtor devised away his real immediately succeed as an heir to the real 
 estate; rigorous and unjust the rule which estate of his son. But a court of equity can 
 puts the devisee in a better condition than the give no relief, though in both instances the 
 heir ; yet a court of equity has no power to artificial reason of the law, arising from feu- 
 interfere Hard is the common law still sub- dal principles, has long since ceased." 3 
 slating that land devised or descending to the Black. Com. vol. 3, p. 430. 
 
 14 
 
CH. I.] ORIGIN AND DEVELOPMENT. § 7 
 
 involves an inquiry into the power of the court to entertain the suit 
 at all. Equity jurisprudence, therefore, is not to be taken as a synonym 
 of equity jurisdiction, and the failure to distinguish one from the other 
 at times makes confusion in respect to the metming of terms, and the 
 force and effect of the principles of equity jurisprudence. Thus, for 
 example, if a party applies to a court of equity for a specific perform- 
 ance of a contract, or its cancellation or recission, the fact that the 
 party asks for that peculiar kind of relief, which can be granted by a 
 court of equity alone, at once determines the fact that the case falls 
 within the jurisdiction of the court of equity. But whether the relief 
 shall be granted in that particular case or not, is not a question involved 
 in the inquiry into the equity jurisdiction, but it is a question of equity 
 jurisprudence; and the court may conclude in that particular case that 
 the relief shall be denied because the facts of the case do not come 
 within the limitations of the principles of equity which control the 
 extent to which the relief asked for shall be granted, without at the 
 same time reaching the conclusion that the case does not come within 
 the jurisdiction of the court of equity. In this sense is the term juris- 
 diction employed in this connection.^ 
 
 The historical sketch of the growth and development of a separate 
 court of equity, and, of a separate equity jurisprudence, furnished 
 the explanation of the existence of a separate equity jurisdiction and 
 shows the necessity for that jurisdiction. The scope of the equity 
 jurisdiction can only be determined by the consideration of the his- 
 torical facts which made the court of equity as a separate court a 
 necessity. The jurisdiction extends, or was made to extend, as far 
 as the necessities of the judicial situation required. Now, it will be 
 borne in mind what has been stated in the preceding paragraph, that 
 the distinctions between the jurisdiction of the common law and of 
 the equity law courts were of a two-fold character, viz. : A difference 
 in the recognition or rejection of sound rules of right and. justice and 
 of private interests, which ought to be recognized and protected on 
 the one hand, and on the other a failure of the court to provide ample 
 remedy for the protection of rights in general. It is manifest, that, 
 where the provisions of the common law fail to recognize or concede 
 a right or interest which the public conscience requires to be recog- 
 nized and protected, the court of equity could alone be expected to 
 take charge of, and to furnish for the protection of such rights, the 
 necessary remedial aid. Equitable estates or rights could find pro- 
 tection only in the equity procedure and necessarily, therefore, the 
 court of equity would have jurisdiction over such rights. In deter- 
 mining the extent of the jurisdiction of the court of equity, which 
 rests upon the ineflSciency of the common law remedies for the pro- 
 tection and enforcement of rights, a different consideration suggests 
 itself. Here the ground for the assumption of j urisdiction is the inade- 
 
 1 See 1 Pom. Eq. Jur., § 139. 
 
 15 
 
§ 7 EQUITY JUKISPEUDENCE. [CH. I. 
 
 quacy of the common law remedy. That fact or circumstance is the gen- 
 eral reason for the court of equity to assert jurisdiction over that class 
 of cases; and if that expression is used in the broadest sense, it might 
 be taken as an all-sufficient reason for the assumption by the court of 
 equity of jurisdiction over causes of action in aid and support of legal 
 rights and interests. For while authors frequently speak of the avoid- 
 ance of a multiplicity of suits as being one of the reasons for the 
 court of equity to assume jurisdiction over suits; — as for example, m 
 suits for quieting titles and preventing a repetition, of successive 
 actions of ejectment, in relation to the same title of the same property ; — 
 after all, that is but one of many manifestations of the inadequacy 
 of the common law procedure, upon which rests the justification for the 
 existence of the equity jurisdiction; and hence the statement may be 
 taken as being without qualification, that whenever the remedy at law 
 proves to be inadequate, whether that inadequacy relates to the ineffi- 
 ciency of the judgment of the court or the increase in the cost 
 of proceedings at law through the multiplicity of suits, the court 
 can claim the assumption of the jurisdiction on the ground of 
 inadequacy of consideration.^ As will be explained in a subsequent 
 paragraph, a number of equitable remedies are ancillary or auxiliary 
 to the many causes of action; as for example, the equitable bill of 
 discovery, which was formerly frequently i-esorted to for the purpose 
 of discovering information in the possession of a defendant which was 
 necessary to the successful maintenance of the plaintiff's cause of 
 action. And because it could not be obtained in any common law 
 proceeding, the court of equity would issue a decree of discovery. 
 Now, the general rule has been held to be, that whenever a court of 
 equity has assumed jurisdiction of a cause of action for any limited 
 purpose, as like the cause for a suit for discovery; or where a suit is 
 entertained for the foreclosure of a mortgage; instead of leaving the 
 parties to resort to a court of law for the further prosecution of their 
 claims, the court would proceed to settle the entire cause of action 
 between the parties and render judgment in accordance with the rights 
 of the parties, notwithstanding the fact that but for the partial remedy, 
 which gives to the court its jurisdiction over the cause of action, the 
 ultimate remedy secured by the action could not have been obtained 
 from a court of equity.^ Hence a court of equity could not take 
 
 1 Bolman v. Overall, (Ala.) 2 So. Rep. 624; 28 Fed. Rep. 261; M. Bto. R. Co. v. Woodruff, 
 Green v. Spaulding, 76 Va. 411; Youngblood 26 Ark. 649; Seago v. Harrison, 42 Ga. 189; 
 V. Youngblood, 54 Ala. 486; Huff v. Ripley, 58 Huff !). Ripley, 68 Ga. H; Cavedos. Billings! 
 Ga. 11 ; but compare Smith ». Griswold, 60reg. 16 Fl-a. 261 ; Knight ». Ashland, 61 Wis. 246- 
 440; Hartford «. Chipman, 21 Conn. 488; Scott Denison Co. v. Robinson Co., 74 Me. 116; Gal- 
 V. Scott, 38 Ga. 103; Church*. Church, 26 How. Teston, Etc. R. Co. v. Hume, 59 Tex. 47; Per- 
 Pr. (N. Y.) 72; MeConihay ». Wright, 121 U. S. kins ». Hendryx, 23 Fed. Rep. 418; Sultan of 
 201; Hunt B Danforth, 2 Curt. (U. S. C. C.)592; Turkey «. Tool Co., 23 Fed. Rep. 572; Appeal 
 Bunce V. Gallagher, 5 Blatchf . (U. S.) 481 ; Wil- of Brush Electric Light Co., 114 Pa. St, 574. 
 ter V. Arnett, 8 Ark. 57; McDaniels ». Lee. 37 " Trotter v. Hecksher, 42 N. J. Eq. 254; Col- 
 Mo. 204; Morris u Thomas, 17 111. 112; Mc- lina». Co'ley, (N. J.) 11 Atl. Rep. 118; Hawley 
 Alpine V. Tourtelotte, 24 Fed, 69; Jenkins 9. v. Simons, (111.) 14 N. E. Rep. 7; Pool «. 
 Hannan, 26 Fed. Rep. 657; Allen v. Halliday, Docker, 92 111. 501; Blakey v. Blakey, 9 Ala 
 
 16 
 
CH. l.J ORIGIN AND DEVELOPMENT. § 8 
 
 jurisdiction of cases in torf or criminal cases/ or where it is a mere 
 question of damages;' or any other case in which the legal remedy is 
 shown to be adequate to the attainment of the ultimate relief.* 
 
 § 8. Exclusire, concurrent and auxiliary jurisdiction.— The 
 jurisdiction of a court of equity may be subdivided into three classes 
 or kinds, designated by the names of exclusive, concurrent and aux- 
 iliary jurisdiction. 
 
 The exclusive jurisdiction, as its name implies, includes all those 
 cases in which the jurisdiction of a court of equity over the cause of 
 action is exclusive of a similar jurisdiction by the court of law. 
 
 The concurrent jurisdiction includes on the other hand all those cases 
 in which the jurisdiction of a court of equity is concurrent and par- 
 allel with the similar jurisdiction on the part of the court of law. 
 
 The auxiliary jurisdiction includes all those cases in which the court 
 of equity has no jurisdiction over the ultimate cause of action, but 
 assumes jurisdiction only for the purpose of providing an auxiliary 
 remedy, which is to be employed in aid of the enforcement of the 
 pending cause of action; the jurisdiction over the pending cause of 
 action being in the common law courts, except for the reason that 
 this auxiliary interference by the court of equity is needed, for the 
 advancement of the interests of the party plaintiff. The auxiliary 
 jurisdiction includes the bills for discovery and suits for the per- 
 petuation of testimony, preliminary injunctions and the like. 
 
 The concurrent jurisdiction would include all those cases in which 
 the cause of action is legal in its origin, and in respect to which a 
 
 391; Pearson?). Darrington, 81 Ala. 169 ; Martin jd. 315,534; McKenzie v. Johnston, 4 Madd. 
 
 V. Tidwell, 36 Ga. 332; Keeton«. Spradling, 13 373; Rathbone v. Warren, 10 Johns. 587, 596; 
 
 Mo. 331; Sounder's Appeal, 57 Pa. St. 498; King ?). Baldwin, 17 JA 384 ; Cornelius «. Mor- 
 
 Sanborn v. Kittredge, 20 Vt. 632; Barnes v. row, 12Heisk. 630; Farrar v. Payne, 73 III. 82, 
 
 Dow, 59 Vt. 530; McMurray «. Van Gilder, 56 gi; Pratt ». Northam, SMason, 95, 105; Thomp- 
 
 lowa, 605; Bouldin u. Reynolds, 50 Md. 171; son «. Brown, 4 Johns. Ch. 619, 631-643; Walker 
 
 Stevenson 1). Buxton, 15 Abb. Pr. (N. T.) 352; ». Morris, 14 Ga. 333. 325; Handley's Ex'r v. 
 
 McFarlan v. Morris Canal & Banking Co., 34 Fitzhugh, 1 A. K. Marsh. 24. 
 
 N. J. Eq. 369; but compare Barlow v. Scott, 1 Meres v. Chrisman, 7 B. Mon. (Ky.) 422; 
 
 24 N. T. 40; Chambers v. Cannon, 62 Tex. Brown b. Wabash Ry. Co . , 96111. 297; Bank v. 
 
 693; Hebert®. Ins. Co., 8 Sawyer, (tl. S.) 198; Debolt, 1 Ohio St. 591; Foundry v. Ryall, 68 
 
 and see Hayden «. Snow, 14 Fed. Rep. 70; Cal. 416; Scott v. Means, 80 Ky. 460; Kennedy 
 
 Whiting V. Boot, 52 Iowa, 292; Osborne «. ». Guise, 62Ga. 71. 
 
 Barge, 30 Fed. Rep. 805; Keeton «, Spradling, 2 statfe v. Uhrig, 14 Mo. App. 413. 
 
 13 Mo. 321, 323: Stateof M;o. «. McKay, 43 Id. 3 Stanford v. Lyon, 37 N. J. Bq. 94. 
 
 594, 598; Sounder's Appeal, 57 Pa. St. 498, 502; 4 Bank ». Mumford, 2 Barb. Ch. (N. T.) 596; 
 
 Sanborn v. Kittredge, 20 Vt. 638, 636; Zetelle v. Heilman v. Canal Co., 37 Pa. St. lOO; Wolcott ». 
 
 Mvere, 19 Gratt. 68, 67; Ferguson v. Water, 3 Bobbins, 26 Conn. 236; Doggett t). Hart, 5 Fla. 
 
 Bibb, 303; Mlddletown Bk. ■». Buss, 3 Conn. 215; Dickerson v. Stott, 8N. J. Eq. 294; Topp 
 
 135, 140; Isham v. Gilbert, 3 Id. 166, 170, 171; ». Williams, 7 Humph. (Tenn.) B69; Bresler v. 
 
 Armstrong v. G;llchrist, 2 Johns. Cas. 424, 430, Pitts, 58 Mich. 347; Behnw. Young, 21 Ga. 807;, 
 
 431 ; Hawley V. Cramer, 4 Cow. 717; Oelriehs v. Massee v. Sneed, 29 Ga. 51 ; Coquillard v. Suy- 
 
 Spain, 15 Wall. 211, 228; Clarke v. White, 12 dam, 8 Blackf. (Ind.) 24; Turnpike Co. v. 
 
 Pet. 178, 187, 188; HepberntJ. Dunlop, 1 Wheat. Jewell, 8 B. Mon. (Ky.) 140; Perkins ». Per- 
 
 179, 197; Phelps «. Harris, 51 Miss. 789, 794; kins, 16 Mich. 161. Baley n. Umatilla County 
 
 BzelleD. Parker, 417(2. 520, 526, 527; Jesus Coll. (Oregon), 13 Pac. Bep. 890 ; Lanier ». Alison, 
 
 V. Bloom, 3 Atk. 263, 363; Ambl. 54; Yates v. 31 Fed. Bep. 100; and see Leonard v. Hart, (N. 
 
 Hambly, 8 Atk. 237, 360; Byle v. Haggle, 1 J. & J.) 7 Atl. Bep. 865; Ambler v. Chouteau, 107 V. 
 
 W. 234, 337; Corp'n of Carlisle v. Wilson, 13 S. 586; Husband ». Aldrich, 135 Mass. 317. 
 Ves. 276, 278, 279; Adley v. Whitstable Co., 17 
 
 17 
 
§ 9 EQUITY aXTEISPRITDENCE. [CH. I. 
 
 remedy is provided at the common law; but on account of the inade- 
 quacy of such common law remedy, or because it is not possible at 
 the common law to join a great many parties in one suit for the settle- 
 ment of their conflicting interests and in order to avoid a multiplicity 
 of suits, it is necessary to resort to a court of equity. Examples of 
 the concurrent jurisdiction would involve a reference to equitable 
 suits for protection of joint estates, assignment of dower, creditor's 
 suits and the like. 
 
 The exclusive jurisdiction would involve all those suits in equity 
 which could not be maintained at all in a court of law. There are 
 two kinds; viz., the jurisdiction of equity over equitable rights and 
 interests, and the jurisdiction which a court of equity assumes over 
 legal rights and interests for the purpose of aflfording to the owners of 
 them remedies which can alone be employed in the court of equity. 
 The enforcement of trusts would be one example of the first branch 
 of the exclusive jurisdiction; and a suit for specific performance of a 
 contract would be an illustration of the second branch of the exclusive 
 jurisdiction. 
 
 § 9. Equity jurisdiction in the United States.— When the 
 American colonies became independent states, statutes were passed in 
 a great many of them declaring, that the English law as it obtained 
 at a certain day, together with the statutes passed modifying such law 
 prior to the mentioned day, would be adopted by the American courts 
 as American common law. And along with this declaration as to the 
 common law, in many states a similar declaration was made recogniz- 
 ing and adopting the equity jurisdiction of the English courts of 
 chancery. In other states, the foundation for the American juris- 
 prudence upon the English jurisprudence has been left for settlement 
 to the adjudication of the courts. But it may be stated that, with 
 the exception of four states in the union, the extraordinary jurisdic- 
 tion of the English courts of chancery has been transferred to and 
 adopted by the courts of the American states without limitation as to 
 scope and nature. The four exceptions were originally, Massachu- 
 setts, Maine, New Hampshire and Pennsylvania. . In New Hamp- 
 shii-e and Massachusetts later statutes have removed the limitations 
 of the equity jurisdiction within their borders, so that the states of 
 Pennsylvania and Maine are probably the only states now in which 
 the general jurisdiction of the court of equity is still limited. There 
 have been a number of statutory modifications of the jurisdiction 
 in many of the states; as for example, in regard to the jurisdic- 
 tion of the court of equity over suits for administration of 
 decedents' estates.^ But in this connection, it would be an impos- 
 sibility to do anything more than to give a general subdivision 
 or classification of the states, in respect to their equity jurisdic- 
 tion. The details of such jurisdiction in any particular state 
 
 1 See post, §§ 260, 861. 
 18 
 
OH. I.] ORIGIN AND DEVELOPMENT. § 9 
 
 can only be ascertained by the close study of the decisions and 
 statutes of that state. In this general classification, bearing in mind 
 the limited character of the jurisdiction in the few states already 
 mentioned, the states will be divided into three classes. In the first 
 class would be included all those states in which separate courts of 
 equity are still existing; viz., New Jersey, Delaware, Tennessee, 
 Mississippi, Alabama and Vermont. In each the court of equity has 
 general jurisdiction throughout the state as a court of nisiprius, but 
 there is but one appellate court for the consideration of all appeals. 
 In Kentucky and Virginia, there are special chancery courts for 
 particular circuits or counties, whereas in ^ Arkansas the constitution 
 of the state provides for separate chancery courts, wherever the 
 legislature considers them to be needed. In the second class of 
 states wiU be found all those in which the separate court of equity 
 has been abolished, the same court and same judge administering 
 both law and equity; but the distinctions as to form of action and of pro- 
 cedure, as well as to the principles of the substantive law, are retained; 
 the common law forms of actions being employed by such courts in 
 the maintenance of common law actions, and the chancery practice 
 being resorted to in the maintenance of equitable suits. These 
 states are, Maine, New Hampshire, Massachusetts, Rhode Island, 
 Connecticut, Maryland, Virginia, "West Virginia, Georgia, Illinois, 
 Texas, Michigan, Florida, Iowa, Arkansas, Pennsylvania, Oregon 
 and New Mexico. The third class of states includes all those states, 
 in which not only have the separate courts of equity been abolished, 
 but also all distinctions as to forms of action and of pleadings between 
 actions at law and in equity; and the code of procedure adopted in 
 the place of both of them, which declares that all forms of action 
 heretofore known in law or in equity are thereby abolished, and but 
 one action be entertained in their place, which shall be known as 
 a civil action. This third class includes. New York, North Carolina, 
 South Carolina, Ohio, Wisconsin, Minnesota, Indiana, Missouri, 
 Nevada, Nebraska, California, Colorado, Kansas, Louisiana, Dakota, 
 Idaho, Wyoming, Montana, Utah and Washington. 
 
 As can be very well understood, the greatest change in the 
 equity jurisdiction has been effected in those states in which the 
 reformed procedure thus explained has been adopted; for there, not 
 only does the one court exercise the legal and equitable jurisdiction; 
 but both have been blended into one jurisdiction, and all distinc- 
 tions between them as to 'forms of procedure have been abolished. 
 
 The natural impulse, upon a consideration of these facts, is to con- 
 clude that with this abolition of all distinction between legal and 
 equitable jurisdiction, there is a necessary abolition of equity juris- 
 prudence. But this is not the case; it has had only the effect of 
 changing the rules of procedure. This reform in procedure is 
 expressly declared, and held by the courts, to have been intended to 
 
 19 
 
§ 10 EQUITY JURISPKUDENCB. [CH. I, 
 
 secure no interference or modification of the existing rules and princi- 
 ples of equity, so far as these rules and principles do not involve ques- 
 tions of equity pleading and procedure; or so far as their enforcement 
 and recognition do not rest upon the separate and distinct character of 
 the equity jurisdiction. So while equity jurisdiction, as separate and 
 distinct from legal jurisdiction, cannot be treated as existing in those 
 states in which the reformed procedure has been adopted, yet in these 
 states, as well as in the others in which the distinctions as to forms of 
 procedure are retained, although the separate court of equity haa 
 been abolished, the principles of equity jurisprudence still remain a 
 part ofthe law, and are applied under the reformed procedure to all 
 cases, to which they would have been applied in the olden days by a 
 separate court of equity. " To sum up this result in one brief state- 
 ment, all equitable estates, interests, and primary rights, and all the 
 principles, doctrines, and the rules of the equity jurisprudence by 
 which they are defined, determined and regulated, remain absolutely 
 untouched, and in their full force and extent, as much as though a 
 separate court of chancery were still preserved. In like manner all 
 equitable remedies and remedial rights — that is, the equitable causes 
 of action, and the rights to obtain the relief appropriate therefor — 
 and the doctrines and rules of equity jurisprudence which define and 
 determine these remedies and remedial rights, and the doctrines and 
 rules of equity jurisdiction which govern and regulate, not the mere 
 mode of obtaining them, but the fact of obtaining such remedies, also 
 remain wholly unchanged, and still control the action of courts in the 
 administration of justice." ' 
 
 § 10. Equity jnrisdiction in the United States courts. — It remains 
 to be stated, that the United States courts have by the statutes of the 
 United States the same equity jurisdiction which was accorded to the 
 English courts of chancery; and in the exercise of that jurisdiction it 
 may employ any of the remedies and apply all the principles which 
 were found to have been developed by the English courts of chancery. 
 In consequence of the fact that the United States courts have by the 
 acts of Congress and by the provisions of the constitution of the United 
 States, jurisdiction over many causes of action on account of foreign 
 citizenship, which but for that fact would fall within the exclusive 
 jurisdiction of the state courts, frequent cases of conflict between the 
 state and federal regulations of equity jurisdiction will arise. As 
 has already been explained, in some of the states the equity jurisdic- 
 tion is limited as to scope; in some, separate courts of equity are still 
 retained; while in still others again, the entire distinction, as to 
 procedure and practice, between law and equity has been abolished, 
 all materially affecting in each state the scope and nature of the 
 equity jurisdiction. But in the presence of this conflict and varia- 
 tion of equity jurisdiction in the different states, the United States- 
 
 1 1 Pom. Eq. Jar. 381. 
 20 
 
CH. I.] ORIGIN AND DEVELOPMENT. § 11 
 
 courts have held that, although on account of the foreign citizenship 
 of the plaintiff, or for some other cause, the United States courts may 
 assume jurisdiction over causes of action, which under the statutory 
 modification in the particular state would bring such cause of action 
 M'ithin the legal jurisdiction, the question as to equity jurisdiction, 
 as applied to that case by the United States courts will be determined 
 by the general provisions of the United States constitution and the 
 acts of Congress, and be unaffected by any state legislation in respect 
 to it. In other words, the equity jurisdiction of the United States 
 courts over causes of action, over which the state courts have con- 
 current jurisdiction, will be in nowise affected by state legislation. 
 The equity jurisdiction of the United States courts cannot be thereby 
 curtailed or limited.^ 
 
 On the other hand, while th^ state legislation, limiting the equity 
 jurisdiction, cannot limit the scope of the equity jurisdiction of the 
 United States courts, yet if in a particular state the equity jurisdic- 
 tion has been enlarged by legislation, and a case falling under that 
 jurisdiction is brought into the United States courts on some constitu- 
 tional grounds, the United States court is permitted to take advantage 
 of the enlargement of the equity jurisdiction by the state legislation; 
 and administer under this new equity jurisdiction the remedy thus 
 provided for under the state hiws.^ 
 
 § 11. Divisions of tiie subject of equity jurisprudence and order 
 of discussion. — In the presentation of the subject of equity jurispru- 
 dence in the following pages, it is deemed to be wise to adopt the 
 following order of discussion. At the outset, the principles and 
 maxims of equity will be explained and unfolded. Secondly, the 
 rules of equity which materially affect a great many rights and 
 interests and causes of action in general. Third, the equitable estates 
 or interests. And fourth, the equitable remedies. 
 
 iBodley i,. Taylor, 5 Cranch, 191, 221, 223; 402; Byrd v. Badger, 1 7ii. 443, 444 ; Lorman u. 
 
 Livingstone! Story, 9 Tel. 633; Clark t) . Smith, Clarke, 8 McLean, 568; Putnam v. City of 
 
 13 Pet 195 203; Watkins v. Holman, 16 Id. 25, Albany, 4 Bisa. 365; Shuford n. Cain, 1 Abb. TJ. 
 
 S6 58 59; Bennetts. Butterworth, llHow.669, S. 303, 305; Par ons!). Bedford, 3 Pet. 447; Eob- 
 
 674 675-' Stlnson v. Dousman, 80 Id. 461, 464; Inson v. Campbell, 3 Wheat. 213; V.S.v. How- 
 
 Greer J Mezes 24 Id. 268,377, ^C7- Grier, J. ; land, 4 Id. 108; Pennsylvania v. Wheeling 
 
 Lessee of Smith i>. McCann, 24 Id. 398, 403; U. Bridge Co., 13 How. 519. 
 
 S Rev Stat § 914 (Laws of 1872, Ch. 855, §5; « Noonan v. Lee, 2 Black, 499; B09; Living- 
 
 Stat atLarge vol 17, p. 197); Barber». Baeber, ston v. Story, 9 Peters, 632; Clark v. Smith, 13 
 
 21 Pet 582 591 592- Noanan d. Lee, 8 Black, Pet. 195, 803; Putnam ». New Albany, 4 Biss. 
 
 489 609- Thompson '■». Railroad Co., 6 Wall. 365; Prattw. Northam, 5 Mason, 95, 105; Lorman 
 
 134' isr-'nunphyi) Klejnsmuth, 11 Id.6W. 614; v. Clarke, 8 McLean, 568; Livingston V. Van 
 
 Wa'lker'ti Dreville, 12 Id. 440; Basey !>. Galla- Ingen, 1 Paine, 45; Canal Co. V. Gordon, 6 
 
 eher 20 Id 670 679- S C, 1 Mont. Ter.457; Wall. 561,568; Barber v. Barber, 21 How. 588, 
 
 Case'of Broderick's Will, 21 Wall. 503; Shuford 591, 592; Case of Broderick's Will, 21 Wall. 
 
 « CainlAbb TJ S 302, 305 ; Loring !). Downer, 503; Robinson v. Campbell, 3 Wheat. 818; 
 
 I'neAll. 360, 368; Mezes v. Greer, 1 Id. 401, United States «. Howland, 4 Wheat. 108, 115. 
 
 21 
 
CHAPTER II. 
 
 THE FUNDAMENTAL PRINCIPLES AND MAXIMS OF EQUITY 
 JURISPRUDENCE. 
 
 Section 
 General propositions ... 13 
 
 Ubi jus, ibi remedium— Where there is a 
 
 right, there is a remedy . . .14 
 
 Equity follows the law ■ . 15 
 
 VigUantibus non dormientibus, csquitas sub- 
 
 venit — Equity relieves the vigilant, not 
 
 those who sleep upon their rights . 
 He who comes Into equity must come with 
 
 clean hands— He that hath committed 
 
 iniquity shall not have equity . 
 He who seeks equity must do equity . 
 
 16 
 
 Section 
 Equity looks to the intent rather than to 
 
 the form ... ... 19 
 
 Equity imputes an intention to fulfill an 
 
 obligation SO 
 
 Equity looks upon that as done which 
 
 ought to have been done . . . 31 
 
 Equality is equity .... .22 
 
 Where the equities are in all other respects 
 
 equal, the first in order of time shall 
 
 prevail 23 
 
 Where there is equal equity the law must 
 
 prevail . . .... 24 
 
 § 12. General propositions. — As has been explained in the histori- 
 cal sketch, presented in the preceding chapter, Equitj Jurisprudence 
 is the result of a successful struggle against the rude and unbending 
 foi'malism of the common law, which aimed more at the defence of 
 the rules of logic and the literal interpretation of the law, than at the 
 doing of justice between man and man. In the pursuit of the remedy 
 for this undoubted evil, the English Courts of Chancery enunciated 
 from time to time certain maxims, setting forth fundamental prin- 
 ciples of judicial morality, by which they claimed to be, and were, 
 governed in their contests with the courts of law for jurisdiction. 
 And while, already explained, this contest of the courts is now at an 
 end in most of the states and in England, since in these states the one 
 trial court assumes both legal and equitable jurisdiction, the equity jur- 
 isprudence which grew up in consequence of this contest still remains, 
 and its principles very sensibly influence the course of judicial 
 legislation. At the very threshold of the subject, the student is 
 confronted with the maxims of equity, the careful study and digestion 
 of which is essential to a thorough understanding and appreciation, 
 not only of the principles of equity jurisprudence, but also of its 
 importance and relation to what is known as the law. The prin- 
 ciples, contained in the maxims, are fundamental in character, and 
 the more important of them apply to almost every branch of equity 
 jurisprudence. 
 
 § 13. TIM jus, ibi remedium — Where there is a right, there is 
 a remedy. — Unquestionably the first promptings for the assump- 
 tion by the court of chancery of jurisdiction over causes of action 
 proceeded from the inefficiency or absolute want of a remedy in the 
 22 
 
*^- II- J PRINCIPLES AND MAXIMS. § 14 
 
 law courts. As a justification of his assumption of jurisdiction, the 
 chancellor laid down the broad proposition of law, that wherever 
 there is a right an efficient remedy should be provided, and claimed 
 the right, as the keeper -of the king's judicial conscience, to supply 
 that remedy whenever the courts of law failed to do so. 
 
 But in the consideratien of the effect of this maxim in determining 
 the scope of equity jurisprudence, caution should be observed in the 
 study of its meaning. In the first place, the court of chancery would 
 supply a remedy for the infringement, not of moral claims of one 
 person upon another, but of legal rights. A legal right must first be 
 established before any court, either legal or equitable, will furnish a 
 remedy for its protection. Under the operation of other maxims of 
 equity, even a court of equity does not recognize every moral right as 
 entitled to its protection. There are limitations on the power of the 
 court of equity in this regard, which will be unfolded as we proceed. 
 But whenever a right is recognized as legal or equitable, the court of 
 equity, under this maxim, stands pledged to supply a remedy.* But, 
 in the second place, the court of equity will supply a remedy, only 
 when the courts of law, either do not furnish any remedy at all, or 
 they offer an inadequate remedy. If the legal remedy is ample for 
 the protection of the right, there is no ground for the interference of 
 equity. 
 
 § 14. Equity follows the law.— This maxim is to be understood 
 and applied in two senses, viz. : First, that equity will obey the law and 
 the conclusions of courts of law, in its assumption of jurisdiction over 
 causes of action based upon legal rights;^ Secondly, that in the con- 
 struction of equitable estates and rights, and the ascription of char- 
 acteristics and limitations to them, equity follows the law. ' But if 
 
 lEeea^. Watertown, 19 Wall. 121; Heine ». court,said: " The law is clear, and courts of 
 Leree, Com'rs, 19 Wall. 658; Finnegan v. Per- equity'ought to follow it in their judgments. 
 nandlna, 15 Fla. 379. concerning titles to equitable estates; other- 
 2 Heard ». Stamford, Cas. Temp. Tabl. 173. wise great uncertainty and confusion would 
 In this ease the court refused to compel the ensue. And though proceedings in equity are 
 husband to pay the wife's debts after her death, B&idio'besecuncl.u'm discretionem boniviri^yGt 
 In consequence of his having acquired a for- when it is asked, vlr bonus est quisfiiLe answer 
 tune from her. The failure of the creditors to Is qui eonsuUa patrum, qui leges juraque servat. 
 bring action against the husband during life- Audit is said in Rooke's Case (5 Co. Rep. 99b.) 
 time of the wife, debarred, at law, the recovery that discretion Is a science not to act arbitrarily 
 of judgment against him. Lord Chancellor according tomen's wills and private affections. 
 Talbot said: "There are instances, indeed. So the discretion which is executed here, is to 
 in which a court of equity gives a remedy, be governed by the rules of law and equity, 
 where the law gives none ; but where a partic- which are not to oppose, but each. In its turn, 
 ular remedy is given by the law, and that rem- to be subservient to the other. This discre- 
 edy bounded and circumscribed by particular tion. In some cases, follows the law Implicitly ; 
 rules. It would be very improper for this court in others, assists it and advances the remedy ; 
 to take It up where the law leaves it, and to ex- in others again, it relieves against the abuse, or 
 tend it further than the law allows." allays the rigor of it: but in no case does it 
 ' Cowper v. Cowper, 2 P. Wms. 720, 752. In contradict or overturn the grounds or princi- 
 this case, the court of chancery hesitatingly pies thereof, as has been sometimes ignorantly 
 applied to equitable estates, the legal canon of imputed to this court. That Is a discretionary 
 descent which prefers the whole to the exclu- power, which neither this, nor any other court, 
 Bion of the half-blood, although the latter may not even the highest, acting In any judicial 
 be more nearly related to the ancestor. In capacity, is by the constitution intrusted 
 making this ruling, Sir Joseph Jekyll, for the with." 
 
 23 
 
§ 15 EQUITY JUEISPKUDENOE. [CH. U. 
 
 the student were to apply this maxim, as just explained, to every 
 question of equity jurisdiction, the maxim would only prove mislead- 
 ing. It is true that in the two cases, which have been cited, and in 
 very many others, which will be explained" or stated in the proper 
 place, equity does follow the law, and the courts have refused to 
 depart therefrom at the solicitation of one, on whom the legal rule has 
 worked a hardship.^ But equity abounds with cases, in which the 
 court of equity has not only refused to follow the law, but has openly 
 repudiated the rule of law, whenever such rule is considered in its 
 operation to violate some fundamental principle of equity. For 
 exanaple, equity ignores the rule of law which makes the mortgagee's 
 estate absolute upon breach of the condition, and grants to the mort- 
 gagor the power to redeem his property by payment of the debt and 
 interest; ^ Thirdly, equity refused to permit all the technicalities of 
 the common law in respect to the seisin of lands, to be applied to the 
 equitable estates, permitting curtesy to attach to the same, and deny- 
 ing the wife's dower therein.' Indeed the maxim is perhaps not prop- 
 erly considered as a fundamental principle of equity, certainly not in 
 the form in which it has been presented in the judicial utterances 
 ■which have already been quoted. It may, however, be safely stated, 
 as a general and fundamental principle, that equity aims to deviate as 
 little as possible from the principles and doctrines of the common law, 
 and wherever the court of equity, in the pursuit of the ends of justice 
 and equity, does not consider itself obliged to depart from the law, 
 it will follow the law in the enunciation of its decrees.' 
 
 § 15. Vigilantibns non dormientibus, aeqaitas subvenit— Equity 
 relieves the vigilant, not tliose who sleep upon their rights.— A 
 court of equity professes always to be loath to interfere with the 
 operations of the law and of the courts of law, and will interfere only 
 when there is great urgency. Where the party, who ultimately 
 appeals to the court for its aid, has not been impelled to a speedy 
 resort to the court of equity, the presumption is against his case 
 being one of urgency or great severity; and hence the maxim, that 
 equity relieves the vigilant, but not those who sleep upon their 
 rights. Where, therefore, the case is not one of peculiar and 
 manifest wrong and severity, the courts of equity will refuse their 
 aid to parties who have not been reasonably diligent in the pursuit 
 of their equitable remedy.^ This principle is employed, not only 
 as ground for presumption against the urgency and need of equita- 
 
 1 See, for another striking illuBtration, the 6 " ^ court of equity which is never active 
 rule of equity, In respect to contingent uses in relief against conscience or public con- 
 having the peculiar characteristics of contin- venience, has always refused its aid to state 
 gent remainders. Tiedeman Real Prop. § 482 demands where the party has slept upon his 
 andpo«<, §880. rights, and acquiesced for a great length of 
 
 2 Tiedeman Real Prop. §§ 899-301 and 3)0««, time. Nothing can call forth this court into 
 §411-414. activity but conscience, good faith, and rea- 
 
 S Tiedeman Real Prop. §§447-481,jpos«, § 863j sonable diligence." Lord Camden, in Smith ». 
 Pomeroy Bq: Jur. § 426. Clay, 3 Bro. Ch. 638. 
 
 4 Tiedeman Real Prop. §447. 
 
 24 
 
CH. n.] PRINCIPLES AND MAXIMS. § 16 
 
 ble relief, but also as a means of applying by analogy to equitable 
 actions, the limitations which are provided by statute for actions 
 at law. Although in many of the states, the statutes of limitation 
 are made expressly to apply alike to equitable and legal actions; in 
 other states now, and at an earlier day everywhere, the statutes of 
 limitation operated as a bar only to legal actions. But in pursuance 
 of the equitable maxim under discussion, the courts of equity have 
 adopted the limitations prescribed for actions at law, and applied them 
 to the corresponding equitable actions. Under the influence of this 
 maxim, limitations as to time have been imposed upon all sorts of 
 equitable causes of action,^ with one possible exception, in favor of 
 actions against trustees for the enforcement of express trusts.^ 
 
 § 16. He who comes into equity, must come with clean hands. — 
 He that hath committed iniquity shall not have equity. — The head- 
 lines of this paragraph present the one fundamental principle and 
 maxim under two different forms. Inasmuch as a court of equity 
 professed to exert its extraordinary jurisdiction and powers in the 
 furtherance of justice, untrammeled by the technicalities of the law, 
 it was a manifest propriety to withhold its aid from one who had him- 
 self been guilty of unrighteous or inequitable conduct towards the 
 person, against whom the powers of a court of equity were asked to be 
 exerted. If, in the dealings with each other, the petitioner for equi- 
 table interference had been guilty of unconscionable conduct, he has 
 failed to display his own respect for the principles of equity and good 
 conscience, which he is asking the court of equity to require of the 
 other party. This the court will not do. It will refuse its aid to one 
 who cannot show a clean record, one not stained by his own violation 
 of any principle of equity. In sustaining this principle, the court 
 enforces in a modified form the golden rule, do unto others as you 
 would home them do unto you.^ But it must not be understood by 
 the foregoing statement, that the court of equity will refuse its aid 
 
 'Great Western Ey. v. Oxford, &o. Ey., 3 SOo. 228; Cooper v. Hubback, 30 Beav. 160; 
 
 DeG. M. & G. 341; Derbisblre K.Hoine, 3DeG. Graham «. Birkenhead, &c. Ey., 2 Macn. &G. 
 
 M. & G. 80; Att'y-Gen. v. Sheffield Gas Co., 146; Wright v. Vanderplank, 8 De G. M. & G. 
 
 3 De G. M. & G. 304; Coles V. Sims, 5 De G. 133; Laoon V. Briggs, 3Atk. 105 ; Ellison » . Mof- 
 
 M. & G. 1; Kay, 56, 70; Buxton v. James, 5 fatt, 1 Johns. Ch. 46; Germantown, &c. Co. v. 
 
 DeG. M. &. G. 80; Gordon 1). Cheltenham Ey., Felter, 60 Pa. St. 124, 133; Neely's Appeal, 85 
 
 5 Beav. 229, 237; Eockdale Canal Co. «. King, Pa. St. 387; Colwell v. Miles, 2 Del. Ch. 110; 
 
 2 Sim. s. s. 78; Senior ». Pawson, L. E 3 Barnes v. Taylor, 27 N. J. Bq. 259; King ii. 
 
 Eq. 330; Bankart v. Houghton, 27 Beav. 425, Wilder, 75 111. 275; Hathaway v. Noble, 55N. 
 
 428; Bassett V. Salisbury Mfg. Co., 47 N. H. H. 608; Blanchard v. Williamson, 70 111. 647; 
 
 426,439; Fuller®. Melrose, lAUen, 166; Briggs HuUii. Eussell, 3Sawyer, 506; Butler, in re, 2 
 
 J). Smith»5 E. I. 213; Littles. Price,! Md. Ch. Hughes, 247; Paschall v. Hinderer, 28 Ohio St. 
 
 182; Burden v. Stein 27 Ala. 104; Borland*. 668; Johnson v. Diversey, 82111. 446; Preston 
 
 Thornton, 12Cal. 440; Phelps «;. Peabody, 7 Cal. ». Preston, 95 U. S. 200; Philips v. Prevost, 4 
 
 50; Pillow v. Thompson, 20 Tex. 206; Binney's Johns. Ch. 205. 
 
 Case, 2 Bland Ch. 99; Grey ». Ohio & Pa. E. E. ^Colwellu. Miles, 2 Del. Ch. 110. Seeposi, 
 
 Co., 1 Grant's Cas. 412; Tash ». Adams, 10 §328. 
 
 Cush. 252; Peabody v Flint, 6 Allen, 52; Odlin 3 Overton v. Banister, 3 Hare, 603; Johns v. 
 
 V. Gove, 41 N. H. 465; Att'y-Gen. i>. Lunatic Norris, 7 C. E. Green, 102; Walker v. Hill, 7 C. 
 
 Asylum, L. E. 4Ch. 146; Wood v. Sutcliffe, 2 E Green, 513; Bleakley's Appe 1, 66 Pa. St. 
 
 Sim N s 78; Att'y-Gen v. Eastlake, 11 Hare, 187; Weakley v. Watkins, 7 Humph. 356, 357; 
 
 25 
 
§ 16 EQUITY JUEISPEUDENCE. [OH. U. 
 
 to anyone, who is shown to have been at some time guilty of some 
 immoral or wrongful conduct towards his neighbors. Such a rule 
 would, if its attempted enforcement did not prove nugatory, involve 
 the enforcement of the golden rule without modifications. The court 
 of equity limits its aim to the more practical requirement that the 
 plaintiff in an equitable suit must not have done any inequitable thing 
 to the defendant in the same transaction, out of which the supposed, 
 cause of action arose. ^ 
 
 The common case for the application of the principle arises in dis- 
 putes between persons, who have been engaged in fraudulent practices, 
 over the results of the fraud. If one of the parties has the possession 
 of the entire proceeds of the fraudulent transaction, the court of 
 equity will not aid the other in recovering his share of the same, but 
 will leave him to his own resources.^ Nor will it afford to such parties 
 any other equitable relief, such as cancellation of agreements or res- 
 toration of property or funds, which had been embarked in the fraudu- 
 lent enterprise. ' Equity will also refuse its aid in the enforcement of a 
 contract, not only to one who has in the same transaction successfully 
 practiced a legal fraud upon the other party* but, likewise, to one 
 who had been guilty of unconscionable conduct, which, while it offends 
 the ordinary moral sense, does not amount to a legal fraud. And 
 even where the inequity of his conduct is not sufficiently great to war- 
 rant the court in granting to the other party any relief looking to a 
 cancellation of the contract, or other prevention of its enforcement in 
 a court of law, yet the court will refuse to enforce the contract at the 
 petition of the guilty party. In such cases, ordinarily the plaintiff 
 asks for specific performance of the contract. And although the con- 
 tract may be enforcible at law, the court of equity will refuse its 
 decree for specific performance, if the contract is an unconscionable 
 bargain, or had its inception in trickery or deception. ° 
 
 Another application of the same principle is to the case of illegal 
 
 Gannett ti. Albree, 103 Mass. 378; Paines. Lake 510; Bolt v. Rogers, 3 Paige, 156; Freeman v. 
 
 Erie, &o. K. K. Co.,31Ind. 383; Maroyii.Dun- Sedwiok, 66111,28; Creath c. Sims, 5 How. (u! 
 
 lap, 5 Laus . 365 ; Atwood v. Fisk, 101 Mass. 363 ; S.) 198 ; Wheeler v . Sage, 1 Wall. 518. 
 Creath v. Sims, 5 How. (U. S.) 108; Wilson v. ^Marey v. Dunlap, 5 Lans. 365; Wright v. 
 
 Bird, 28 N. J. Eq. 358; Lewis' Appeal, 67 Pa. Snowe, 8 De G. & Sm. 321 ; Nelson v. Stocker, 
 
 St' 166. 4 De G. & J. 458; Cory v. Gertchen, 8 Madd. 40; 
 
 'Lewis' Appeal, 67 Pa. St. 166; Meyer u. Evroy b. Nicholas, 8 Eq. Cas. Abr. 488 ; Overton 
 
 Tesser, 38 Ind. 294. v. Banister. 3 Hare, 503. 
 
 2 Johns V. Norris, 7 C. E. Gre^n, IDS; Walker = Willard v. Tayloe, 8 Wall. 557, 565; Pish v. 
 V. Hill, 7C.B Green, 513; Musselmanj). Kent, Leser, 69 111. 394, 395 ; Quinu w. Eoath, 37 Conn. 
 33 Ind. 452; Hibernia, &c. Soe. v. Ordway, 38 16,84; Brack v. Tucker, 48 Cal. 346; Weise's 
 Cal.679; Hershey v. Welting, 14 Wright, 844; Appeal, 72 Pa. St. 351, 354; Blackwilder ii. 
 Odessa Tramways Co. v. Mendel, L. E. 8 Ch. D. Loveless, 21 Ala. 371, 374; Eastman v. Plumer, 
 836; Hunt v. Rowland, 88 Iowa, 349; Bleakley's 46 N. H. 464: Plummer v. Kepler, 26 N. J. Eq. 
 Appeal, 66 Pa. St. 187. 481 ; Smoot v. Rea, 19 Md. 398 ; Anter ii. Miller, 
 
 3 Reynell v. Sprye, 1 De G. M. & G. 660, 688; 18 Iowa, 405; Miss. &o, R. R. Co. v. Cromwell, 
 Paine v. Lake Erie, &o. R. R. Co., 31 Ind. 283; 91 U. S. 643; Lamare v. Dixon, L. R. 6 H. H. L.' 
 White D. Crew, 16 Ga. 416, 480 Stewart «. Igle- 414; Burke v. Seely, 46 Mo. 334; Phillips v. 
 hart, 7 Gill & J. 132; Stark's Ex'rsu. Llttlepage, Stanch, SO Mich. 369; Sherman w. Wright, 49 N. 
 4Kand, 372; Janey«. Bird's Adm'rs, 3 Leigh, Y. 227; Crane ». De Camp, 21 N.J. Eq. 414- 
 
 26 
 
CH. II.J PRINCIPLES AND MAXIMS. § 16 
 
 contracts and transactions. The general rule is that, if parties enter 
 into an illegal contract or transaction, and one party receives, in the 
 course of the transaction, some benefit or thing of value from the other, 
 or takes undue advantage of, or commits a fraud upon, the other, in 
 all such cases, as a general rule, the court of equity will refuse to give 
 relief to the party who has been wronged. The court requires such a 
 party to suffer the wrong as the merited penalty of engaging in illegal 
 transactions.^ Where, however, the parties are not in pari delicto, 
 one being more guilty than the other, and more especially where the 
 illegality consists of a malum prohibituTn, and not an innate offense 
 against morality, and the public interest in the enforcement of the 
 prohibition is subserved by granting the equitable remedy to the less 
 guilty party, the relief will be granted, notwithstanding the maxim 
 under inquiry. The public interest requires that the remedy be given 
 to the one whose hands are comparatively clean, or less unclean.^ 
 
 Another apparent exception to the general application of this maxim 
 to illegal contracts is, when the court of equity grants an appropriate 
 remedy to the party to an illegal contract, after it has been performed, 
 for the recovery from a third party money or property, which has been 
 delivered to such third party by the other party, in performance of the 
 illegal contract. The court would not enforce such an illegal contract. 
 But when, in the performance of the illegal contract, property is 
 delivered to a third party, a carrier, for example, by one of the parties 
 for the benefit of the other party, notwithstanding the illegal source 
 of the property, the court will compel its delivery to the party for 
 whose benefit it was received by such third person. That is not, 
 however, the enforcement of an illegal contract, but of a strictly legal 
 
 Seymour c. De Lancey, 6 Johns. Ch. 222,284; Chester, 5 Beav. 103 ; Franco u. Bolton, 3 Ves. 
 Snell jj. Mitchell, 65 Me. 48, 50 ; Astoil r. Robin- 368; Dillon ti. Jones, 5 Ves. 290; Bainham ». 
 son,49Miss. 348, 351; Cooper ii. Pena, 21 Cal. Manning, 2 Vern. 242; Whaley v. Norton, 1 
 403,411; Stone ». Pratt, 25111.25, 34; Marble Co. Vern. 482; Benyon v. Nettlefold, 3 Macn. & 
 o. Eipley, 10 Wall. 339, 356, 357. Seeposi!, §§ 216. Gord. 94, 102, 103. SeeiJOsi, § 327, 530. 
 222,231.232. 2 EeynoU u. Spyre, 1 De G. & M. & G. 660, 
 1 Aubin V. Holt, 2 K. & J. 66, TO; Johnson v. 679, Knight Bruce, L. J., saying: "But where 
 Shrewesbury, &c. Ey., 3 De G. M. &G. 914; the parties to a contract against public policy, 
 Carey v. Smith, 11 Ga. 539, 547; Eegby v. Con- or illegal, are not in pari delicto (and they are 
 nol, L. E. 14 Ch. D. 482, 491 ; Thomson v. Thom- not always so,) and where public policy is con- 
 son, 7 Ves. 470; Skykes v. Beadon, L. E. 11 Ch. sidered as advanced by allowing either, or at 
 D. 170, 183, 197 ; South Wales, &0. Co., In re, L. E. least the more excusable of the two, to sue for 
 2Ch.D.763; Arthur Average Ass'n, to »•«, L. E. relief against the transaction, relief is given to 
 lOCh. 542; Swartzer C.Gillette, IChand. (Wis.) him, as we know from various authorities." 
 207, 209. 210; Atwood u. Pisk, 101 Mass. 363; See, also, to the same effect, Tracy d. Talmage, 
 Harrington v. Bige'ow, 11 Paige, 349; Pyke, ex 14 N. Y. 162; Osborne v. Williams, 18 Ves. 379; 
 pari*, 8 Ch.D. 754, 756, 757; Paine i>. France, 26 Whiten. Franklin Bank, 22 Pick. 186; Bellamy 
 Md. 46; Weakley v. Watkins, 7 Humph. 356, «. Bellamy, 6 Fla. 62, 103; Eastabrook ii. Scott, 
 357; Hall v. Palmer, 3 Hare, 533; Marchionness 3 Ves. 456; McNeill v. CahiII,'2 Bligh, 228; Ben- 
 of Annandale v. Harris, 2 P. Wms. 432 ; Clark v. yon u. Nettlef old, 3 Macn. & G. 94 ; Davis v. Lon- 
 Periam, 2Atk. 333; Eobinson i>. Cox, 9 Mod. don, &c. Co., 8Ch. D. 469; Pyke, OTparCs, 8 Ch. 
 263; Matthew v. Hanburg, 2 Vern. 187; Knye v. T).75i\ Odessa Tramways Co. v. Mendel, 8 Ch. 
 Moore, IS. &S. 61; Sismey ». Eley, 17 Sim. 1 ; D. 235; Worthington v. Curtis, L. E. 1 Ch. 
 Grayu. Mathias, 5 Ves. 886; Hill». Spencer, D. 419; Cullingworth v. L yd, 2 Beav. 385, 
 Ambl. 641, 836; Cray v. Eooke, Forest Cas. 390; Lowell c. Boston, &c. E. R. Co.,23 Pick. 
 Temp. Talb. 153; Priest v. Parrot, 2 Ves. Sr. 32; Prescott v. Norris, 32N. H. 101; Curtis d. 
 160; Smyth v. Griflln, 13 Sim. 245; Batty v. Leavitt, 15N. Y. 9. 
 
 27 
 
§ 17 EQUITY JXJKISPKUDENCE. [CH. H. 
 
 and unexceptionable contract, viz.: tiie transfer of goods or other 
 property from one party to another.^ 
 
 It may be stated in conclusion, that the refusal of the court to enforce 
 a fraudulent or illegal contract is not peculiar to the court of equity. 
 Courts of law will also refuse their remedies for the enforcement of 
 such contracts. The doctrine only assumes the peculiar form of a 
 principle of equity, when it is applied to a contract, which, being 
 neither illegal nor fraudulent, is enf orcible in a court of law, but which 
 will not be enforced by the emplo^'^ment of equitable remedies, because 
 it is tainted by some phase of inequity, falling short of a legal fraud. 
 Such a contract can be enforced in a court of law, but the right to a 
 resort to equity is denied.^ 
 
 § 17. He who seeks equity must do equity. — This maxim is the 
 affirmative complement of the maxim, which was explained and 
 discussed in the preceding paragraph: He who comes into equity 
 MUST come with CLEAN HANDS. Not Only must the petitioner for 
 equitable relief be free from any charge of iniquitous conduct towards 
 the defendant in the same transaction, out of which his own cause of 
 action grows; but he must also have satisfied, or be willing and ready 
 to satisfy, every legal or equitable counter-claim of the defendant, as 
 a condition precedent to his procurement of the equitable relief which 
 he is seeking of the defendant. The court will compel him to do 
 equity, before he can himself receive equity." 
 
 But it must not be understood that the plaintiff can be required in an 
 equitable action to satisfy every equitable or moral claim, which the 
 defendant may hold against him. Although it has been held by some of 
 the authorities, that every such claim, must be satisfied before a court of 
 
 1 Sykes v. Beadon, L. E. 11 Oh. D. 170, 193, L. E. 1. H. L. 200; Osbaldlston v. Simpson, 13 
 
 197, Sir George Jessel saying: "You cannot Sim. 513; Powell «. Knowler, 2 Atk. 824; Brooks 
 
 ask the aid of a court of justice to carry out an u. Martir, 2 Wall. 81. 
 
 illegal contract; but in caseswliere the contract 2 gee posty Chapt. XIII, on Constructive 
 
 Is actually at an end, or is put an end to, the Fraud. 
 
 court will interfere to prevent those who have, ' Lewis v. Baird, 3 McLean, 56, 83 ; Linden v. 
 
 under the illegal contract, obtained money Hepburn, 3 Sandf. 668; Munford v. Am. Life 
 
 belonging to other persons, on the representa- Ins. & T. Co., 4 N. Y. 463, 483 ; Eiohardson v. 
 
 tions that the contract was legal, from keeping Linney, 7 B. Mon. 574; Lanning v. Smith, 1 
 
 that money. * * * * It does not follow Pars. Eq. 16; Peacock v. Evans, 16 Yea. 518; 
 
 that you cannot, in some cases, recover Blibank «. Montolieu, 5 Ves. 737; Kirkhamu. 
 
 money paid over to third persons in pur- Smith, 1 Ves. Sr. 258; Shishc. Poster, 1 Vea. Sr. 
 
 suance of the contract ; and it does not f ol- 88 ; Bradburne v. Amand, 3 Carth. 87 ; Towers 
 
 low that you cannot, in other cases, obtain, d. Davys, IVern. 480; Smithson v. Thompson, 
 
 even from the parties to the contract, moneys lAtk. 520; Shuttleworth v. Layoock, 1 Vern. 
 
 which they have become possessed of by 844; Anon. 2 Shower, 882; Murray v. Elibank, 
 
 representations that the contract was legal, 10 Yes. 84 ; 1 Eq. Lead. Gas. 623, 639, 670 ; Pau- 
 
 and which belong to the persons who seek to ning v. Dunham, 5 Johns. Ch. 122 ; Cosby v. 
 
 recover them." See, also, in support of the Bean, 44 Mo. 379; Sporrer v. Eiffler, 1 Heisk. 
 
 text. Tenant v. Elliott, IB. &P. 3; Thomson v. 636; N. Y. & Harlem E. E. Co. ii. Mayor, &c., 1 
 
 Thomson, 7 Ves. 470; Parmer v. Eussell, 1 B. Hilt. 562, 587; Creath's Adm'r v. Sims, 5 How. 
 
 & P. 196; Joy 1). Campbell, 1 Sch. & Lef. 328, U. S. 192, 204; Phillips v. Phillips, 50 Mo. 603; 
 
 339; McBlair 17. Gibbes, 17 How. (U. S.)237; Boskowitz v. Davis, 12 Nev. 446; Andersons. 
 
 Tracy r. Talmage, 14 N. Y. 162; Sharp i>. Tay- Little, 26 N. J. Eq. 144; Lanning v. Smith, I 
 
 lor, 2 Phil. 801 ; 'Worthington v. Curtis, L. E. 1 Pars. Eq. 16; Lohman v. Crouch, 19 Cratt. 331; 
 
 Ch. D. 419, 423, 424; Daviea «. London, <fcc.Ins. Scammon ji. Kimball, 5 Biss. 431; Kinney v. 
 
 Co., L. E. 8 Ch. D. 469, 477 ; Williams v. Bayley, Con. Virg. M. Co., 4 Saw. 383. 
 
 28 
 
CH. II. J 
 
 PRINCIPLES AND MAXIMS. 
 
 § ir 
 
 equity will grant the relief asked, it matters not whether such counter- 
 claim has or has not any connection whatever with the transaction, out 
 of which the direct cause of action grows:' it is nevertheless the gen- 
 eral and better rule, that a court of equity will require of the plaintiff, 
 as a condition precedent to the procurement of the equitable relief 
 which he is seeking, only to satisfy the claims of the defendant, which 
 grow out of the plaintiff's cause of action, or out of the same trans- 
 action, which is the common source of both claims or classes of claims. 
 If the claims grow out of different transactions, and are in nowise 
 connected as to origin, the court will not require the plaintiff to 
 satisfy the one held against him, before it will give him equitable 
 relief on the other which he holds against the defendant." 
 
 In very many cases, in which the maxim is applied, the plaintiff is 
 required to satisfy claims, which the defendant could successfully 
 enforce against him in an appropriate action;' and according to some 
 of the authorities, these are the only claims which a court of equity can 
 require the plaintiff to satisfy, before he secures the desired equitable 
 relief.* But it is unquestionably the more correct rule that equity will 
 
 1 Secrest i. McKenna, 1 Strobh. Eq. 356, 
 where in an action for specific performance, 
 the court refused to grant a decree in favor of 
 the vendee, although he had paid the purchase 
 price in full, until he had paid to the vendor 
 a debt which he owed on account of an alto- 
 gether different obligation. See, also, Walling 
 V. Aiken, 1 McMuU. Eq. 1, where a mortgagor 
 was refused a decree for the redemption of his 
 property from the mortgage, until he had paid 
 certain other independent debts which the 
 mortgagee held against him. See, also, to the 
 same effect. Com. Dig. Lit. Chancery, 3 F. 3, 
 Bradburn v. Amand, 2 Ch. Cas. 87. 
 
 2 ' ' The rule referred to will be applied where 
 the adverse equity grows out of the very trans- 
 action before the court, or out of such circum- 
 stances as the record shows to be a part of its 
 history, or where it is so connected with the 
 cause in litigation as to be presented in the 
 pleadings and proofs, with full opportunity 
 afforded to the party thus recriminated to ex- 
 plain or refute the charges." Church, C. J., in 
 Comstock V. Johnson, 46 N. T. 615, in which 
 the plaintiff was denied the decree for the re- 
 moval of obstruction to his mill-race privi- 
 leges, until he had removed a, buzz-saw, to 
 which he was applying the water-power, in ex- 
 cess of the rights granted to him, and to the 
 detriment of the defendant, who had a right 
 to the use of the same water-power, and over 
 ■whose land the water privileges of the plaintiff 
 rested as a servitude. See, also, to the same 
 effect, Finch v. Finch, 10 Ohio St. BOl, 507; eas- 
 ier e. Shlpman, 35 N. Y. 533; McDorald v. Keil- 
 son, 2 Cow. 139; Whitaker v. Hall, 1 Glyn. & 
 Jam. 213 ; Tripp v. Cook, 26 Wend. 143 ; Hanson 
 V. Keating, 4 Hare, 1, 5, 6; Calvin v. Hartwell, 
 5Ch. & Fin. 484; N. Y. & N. H. R. R. Co. u. 
 Schuyler, 38 Barb. 534, 554. 
 
 3 Thus, for example, a court will refuse spe- 
 cific performance to a vendee, unless he has. 
 first paid or tendered payment of, the consid- 
 eration of the contract. Hanson v. Keating, 4 
 Hare, 1, 4, 5. So, also, an equitable decree for 
 partition will not be granted to one co-tenant, 
 until he has made provision for the payment 
 of his proportion of a mortgage debt which 
 incumbers the whole property. Campbell v. 
 Campbell, 21 Mich. 338. And where a court of 
 equity grants injunctions for restraining the 
 collection of illegal assessments and taxes, the 
 injunction will be refused until the lawful tax 
 or assessment is paid. Board of Com'rs. v Els- 
 ton, 32 Ind. 27 ; Merrill v. Humphrey, 24 Ind. 
 170; Dean v. Charlton, 23 W:s. 590; Morrison ii. 
 Hershire, 32 Iowa, 271 ; Smith v. Auditor-Gen- 
 eral, 20 Mich. 398. So, likewise, will the court 
 refuse decree for specific performance, where 
 the vendor has misdescribed the property to 
 the injury of the vendee, until the misdescrip- 
 tion has been corrected, or compensation made 
 to the vendee. Foley v. Crow, i7 Md. 51 ; Shaw 
 V. Vincent, 54 N. C. 690; Scott v. Hanson, 1 
 Russ. & My. 128; Hughes u. Jones, 3 De G. P. 
 & J. 307, 315;Knatchbull v. Grueber, 1 Madd. 
 153; Richardson v. Smith, L. R. 5 Ch. 648; Da- 
 vison V. Perrine, 22 N. Y. Eq. 87. 
 
 * " My opinion Is, that the court can never 
 lawfully impose merely arbitrary conditions 
 upon a plaintiff, only because he stands in that 
 position upon the record, but can only require 
 him to give the defendant that which by the 
 law of the court, independently of the mere 
 position of the party on the record, is the right 
 of the defendant in respect of the subject of 
 the suit. A party, in short, does not, by be- 
 coming plaintiff in equity, give up any of his 
 rights or submit those rights to the arbitrary 
 disposition of the court. He subm'ts only to 
 
 29 
 
§ 17 
 
 EQUITT JUEISPEUDENCE. 
 
 [cH. n. 
 
 compel the plaintiflE" in many cases to do equity when the court would 
 not grant any independent or affirmative aid in the enforcement of 
 such an equity. The court either could or would not enforce the 
 equity against the plaintiff at the independent suit of the defendant; 
 but the court will compel the plaintiff to do such equity as a condition 
 precedent to the procurement of his own relief against the delinquency 
 of the defendant. This position is abundantly supported by authori- 
 ties.* Thus, for example, a court of equity recognized the husband's 
 common law right of absolute appropriation of his wife's general 
 property so far as to deny to her any direct remedy or protection 
 against his claims or those of his creditors over her property. But 
 if, in order to secure the possession or control of the wife's property, 
 the husband or his creditors had to resort to a court of equity for aid, 
 the court would refuse its aid, until the plaintiff husband or husband's 
 creditors had done equity to the wife by setting apart out of the prop- 
 erty in question sufficient to constitute a comfortable provision for her 
 support.^ In England and in most of the United States, the husband's 
 
 ■give the defendant his rights in respect of the 
 Bubject-matter of the suit, on eonditicfa of the 
 plaintiff obtaining his own. Cases may per- 
 "haps be suggested in which a question never 
 can arise except against plaintiff; but as a 
 general proposition, it may, I believe, be cor- 
 rectly stated, that a plaintiff will never, in that 
 ■character, be compelled to give a defendant 
 anything but what the defendant might, as 
 plaintiff, enforce, provided a cause. of suit 
 arose." Wigram.V. C, in Hanson v. Keating, 
 4 Hare, 1, 4, citing Elibank v. Montolieu, 5 
 Ves. 737 J Sturgis v. Champneys, 5 My. & Cr. 
 lOS. 
 
 1 " There are many cases in which this court 
 TVill not interfere with a right, which the 
 possession of a legal title gives, although the 
 effect be directly opposed to its own principles 
 as administered between parties having equi- 
 table interests only, such as in cases of sub- 
 sequent Incumbrances without notice gaining 
 a preference over a prior incumbrance by pro- 
 curing the legal estate. It may be to be re- 
 gretted that the rights of property should thus 
 depend upon accident, and be decided upon, 
 not according to any merits, but upon grounds 
 purely technical. This, however, has arisen 
 from the jurisdiction of law and equity 
 being separate, and from the rules of equity, 
 though applied to subjects without its own 
 ■exclusive jurisdiction, not having, in many 
 cases, been extended to control matters prop- 
 erly subject to the jurisdiction of the courts of 
 common law. Hence arises the extensive and 
 beneiicial rule of this court, that he who asks 
 for equity must do equity; that is, this court 
 refuses its aid to give to the plaintiff ■what the 
 law would give him, if the courts of common 
 law had jurisdiction to enforce it, without 
 imposing upon him conditions which the court 
 considers he ought to comply with, although 
 the subject of the condition should be one 
 
 30 
 
 which this court would not otherwise enforce' 
 If, therefore, this court refuses to assist a hus- 
 band who has abandoned his wife, or the 
 assignee of an Insolvent husband who claims 
 against both, in recovering the property of the 
 wife, without securing out of it for her a 
 proper maintenance and support, it not only 
 does not violate any principle, but acts In 
 strict conformity with a rule by which It regu- 
 lates Its proceedings in other cases." Lord 
 Cottenham, in Sturgis v. Champneys, 5 My . & 
 Or. 97, 101. In Comstoek v. Johnson, 46 N. T. 
 615, Chief Justice said: " It is not Indlspen 
 sable to the application of this rule that the 
 fault of the plaintiff should be of such a char- 
 acter as to authorize an Independent action 
 for an injunction against him." 
 
 2 Jewson ti. Monlson, 3 Atk. 417; Bosvil v. 
 Brander, 1 P. Wms. 459; Smith v. Kane, 8 Paige, 
 303; Short i». Moore, 10 Vt. 446, 451; Tucker ti. 
 Andrews, 13 Me. 124, 128; Duvall v. Farmer's 
 Bk., 40111 & J. 283, 290; Gardner v. Hooper, 3 
 Gray, 398; Page v. Estes, 19 Pick. 269, 271j How- 
 ard V. Moffatt, 3 Johns. Ch. 806, 208; Haviland 
 V. Bloom, 6 Johns. Ch. 178, 180; Carter v. Tag- 
 gart, 1 De G. M. & G. 386; Ford, in re, 32 Beav. 
 621 ; Dunkley v. Dunkley, S De G. M. & G. 390, 
 396; Scott V. Spashett, 3 Maon. & G. 699; Pugh, 
 exp., 1 Drew, 202; Coster u. CostPr, 9 Sim. 597; 
 Gleaves ». Paine, 1 De G. J. & S. 87;TiddB. 
 Lister, 10 Hare, 140; 3 De G. M. & G. 857, 870; 
 Stanton i;.Hall, 3 Russ. & My. 175; Elliott » Cor- 
 dell, 6Madd. 149; Mitford v. Mitford, 9 Ves. 87: 
 Brown v. Clark, 3 Ves. 166; Ball v. Montgomery, 
 4 Bro. Ch. 338; Turner's Case, 1 Vern. 7i' Bur- 
 den ». Dean, 8 Ves. 607; Macauley v. Philips, 
 4 Ves. 19; Oswell v. Probert, 3 Ves. 680; Pryor 
 D.Hill, 4 Bro. Ch. 139; Freeman v. Parsley, 3 
 Ves. 481 ; Wright v. Morley. 11 Ves. 12; Vaughan 
 V. Buck, 13 Sim. 404; Wilkinson v. Charles- 
 worth, 10 Beav. 384; Norton, exp., 8De G. M. 
 & G. 258; Spirett v. Williams, 3 De G. J. & S. 
 
OH. n.] PRINCIPLES AND MAXIMS. , § 17 
 
 common law rights in and to his wife's general property have been 
 abolished by statute to a greater or less degree, and the wife's belong- 
 ings are declared to be her sole and separate property without any 
 special settlement on her. This application of the maxim does not 
 now possess the importance it once did, although in some of the states 
 the law still remains unchanged.' 
 
 The principle, involved in the maxim now under discussion, finds 
 modern application in the case of the borrower, in an usurious loan, 
 seeking the aid of equity for the recovery and cancellation of the bond 
 or other obligation, which the usury law declares to be void. The 
 court of equity, ignoring the purpose and express direction of the law 
 for the prevention of usury, will refuse to give such aid to the bor- 
 rower, unless he first does equity by paying the lender the principal 
 of the loan and lawful interest to date, even though the statutes 
 declares the whole obligation void, as a penalty for the exaction of an 
 usurious rate of interest. A court of equity considers it iniquitous 
 to inflict such a penalty and will not assist in enforcing it,^ although it 
 will not assist the lender to escape the penalty and recover his money 
 in a direct suit.' The same rule is applied to all petitions for equitable 
 aid by an obligor of an illegal obligation, where the obligor has 
 received a valuable consideration for the same. Equity refuses its 
 aid to such a person, until he has made restitution of the benefits 
 which he has received under the illegal contract.* 
 
 In application of this maxim, it is also held that where a contract 
 for the sale of land, made when the currency of the country was gold 
 and silver, and the vendee tenders in payment of the price the depre- 
 ciated treasury notes, which have been declared by law to be legal 
 tender in payment of all public and private debts, the court of equity 
 
 293; L. E. 1 Ch, 520, 5S2; Bagshaw v. Winter, 5 Ch. 436; SpOrrer v. Eifler, 1 Heisk. 633, 638; 
 
 DeG.& Sm. 486; Napier v. Napier, 1 Dree. & Buddell v. Ambler, 18 Ark. 369; Ballinger v. 
 
 War. 407; Gilchrist ii. Cator, 1 De G. & Sin. Edwards, 4 Ired. Eq. 449; Rogers u. Eathburn, 
 
 188; Barrow v. Barrow, 5 De G. M. & G. 782; 1 Johns. Ch. 367; Corby v. Bean, 44 Mo. 370. 
 
 Marshall v. Fowler, 16 Beav. 249; Kenny o. » Mason ii. Gardiner, 4 Bro. Ch. 437; Kuhner 
 
 Udall, 5 Johns. Ch. 464; Davis o. Newton, 6 v. Butler, 11 Iowa, 419; Smith u. Eobinson, 10 
 
 Met. 544; Glen v. Fisher, 6 Johns. Ch. 33, 36; Allen, 130; Sporrer v. Eifler, 1 Heisk. 633, 636; 
 
 Cfassett ». Grout, 4 Met. 486, 489 ; Durr v. Bow- Hart v. Goldsmith, 1 Allen, 145 ; Union Bank v. 
 
 yer, 2 McCord Eq. 368, 372; Groyerman v. Dif- Bell, 14 Ohio St. 200. 
 
 fenderflfer, 11 Gill & J. 15, 22 ; Chase •». Palmer, * Mumford v. Am. Life Ins. & T. Co., 4 N. T. 
 25 Me. 342, 348 ; Barron ». Barron, 24 Vt. 375. 463,483. In a bill for restraining the collection 
 According to a few of the English authorities, of an illegal tax or assessment, the injunction 
 the wife was subsequently given the right to will be refused, unless the plaintiff first pays 
 afarmatively claim this provision for her sup. the lawful tax or assessment. Board of Com'rs 
 port. See Elibank v. Montolieu, 5 Ves. 737; v. Elsion, 32 Ind. 27; Merrill v. Humphrey, 24 
 Hanson v. Keating, 4 Hare, 1, 6; Osborn v. Mich. 170; Dean u. Charlton, 23 Wis. 590; Mor- 
 Morgan, fl Hare, 432, 434; Eedes v. Eedes, 11 risen v. Hershire, 32 Iowa, 271 ; Smith v. Audi- 
 Sim. 569- Sturgis «. Champneys, 5 My. & Cr. tor-General, 20 Mich. 398. See, for other instan- 
 101 105. But the authorities generally deny to ces of the same kind, Eichardson v. Linney, 7 
 the wife any independent remedy in this con- B. Mon. 574 (suit of ward for cancellation of 
 nection. deeds to guardian) ; McLaughlin ii. MoLaugh- 
 
 i See post Ch. XVIII. lln, 5 C. B. Green, 190;(widow suing for dower) ; 
 
 « Fanning v. Dunham, 5 Joons. Ch . 122, 142, Creed v. Scruggs, 1 Heisk . 590 (co-security seek. 
 
 143 144- Williams v. Fitzhugh, 37 N. T. 444; ing to be relieved from a judgment obtained 
 
 Ware u.' Thompson, 2 Beasley, 66; Noble v. against him for the whole debt); Tongue i>. 
 
 Walker 32 Ala 456 • Mason v. Gardiner, 4 Bro. Nutwell, 31 Md. 302 ; Eeed. .v. Tyler, 58 UL 288. 
 
 31 
 
§ 18 , EQUITY JUKISPKUDENCE. [CH. H. 
 
 — waiving the question of constitutionality of a law which makes such 
 notes legal tender ^ — will refuse to decree specific performance, unless 
 the vendee pays the price in coin. " 
 
 Not only does this principle furnish a rule for the control of the 
 bestowal of equitable relief in general, as has already been explained, 
 but it is likewise the origin of some of the distinct equitable doc- 
 trines, notably that of election between two or more benefits, which 
 were intended to be substitutional,' and that of the marshaling of 
 assets.* 
 
 § 18. Equity looks to the intent rather than to the form.— One of 
 the great evils of the ancient common law, which the court of chancery 
 undertook to abolish or at least to diminish, was its barbarous formal- 
 ism, with all its attending unjust consequences. The court did not 
 have the power to abolish this formalism outright; but whenever its 
 observance in any particular case operated to the oppression of one, 
 or to the violation of what would be his rights in or under some con- 
 tract or legal rule, if the intent of such contract or law were followed 
 rather than its form; a court of equity would follow the intent, and 
 by ignoring the legal consequences of the form, do substantial justice 
 to all the parties to the transaction. Hence the equitable maxim, 
 
 EQUITY LOOKS TO THE INTENT EATHEB THAN TO THE FORM. It haS a 
 
 very general application, inasmuch as formalism was the distinctive 
 feature of the early common law. This formalism is not now so pro- 
 nounced or so unjust in its consequence, as it once was; but the change 
 in the common law in this regard is due to the reflex influence of this 
 once exclusively equitable principle. But with this change in the law, 
 the principle has become of universal application. All courts now 
 profess to be governed by it in their judgments, and they all do in 
 fact, more or less. The most common and best known illustrations 
 of the application of this maxim, are in the case of the enforcement 
 of penalties and forfeitures for the breach of contracts. If the obliga- 
 tion of the contract consists of the payment of a liquidated sum of 
 money, the court of equity would disregard the formal obligation to 
 pay the stipulated penalty or suffer the forfeiture, and restrain the 
 enforcement of such penalties and forfeitures, upon payment of the real 
 debt and lawful interest.* Not only would a court of equity restrain 
 the enforcement of a penalty or forfeiture in a court of law, where 
 
 I'As to whioh, see Tiedeman's Limitations of Kendall v. New Bng. Co., 13 Conn. 384; House 
 
 Police Power, § 90, and Tiedeman's Commer- v. Thompson, 3 Head, 513 ; Dorr v. Shaw, 4 
 
 olal Paper, § 375. Johns. Ch. 17; Heyman v. Dubois, L. E. 13 Eq. 
 
 aWillard i>. Tayloe, 8 Wall. 557; McGoon «. 158; Hughes o. Williams, 3 Macn. & G. 690. 
 
 Shirk, 54 111.408; Wales u. Coffin, 105 Mass. 388. 6 Peachy v. Duke of Somerset, 1 Stra. 477; 
 
 8 See post, Ch. VIII ; Grelton v. Howard, 1 Sw. Elliott v. Turner, 13 Sim. 477; Griggs v. Landis, 
 
 433; Streatfield t?.Streatfield, Cas. Temp. Tal- 21 N. J. Eq. 494; Hagar v. Buck, 44 Vt. 285; 
 
 hot, 1T6; 1 Eq. Lead. Cas. 503, 510, 541; Noys Hill v. Barclay, 16 Ves. 402; 18 Ves. 56, 62; 
 
 i;. Mordaunt, 2 Vern. 581. White«. Warner, 2 Meriv. 459; Green u.Bridges, 
 
 « See j)0«<, §§458,532; Lanoyti.Dukeof Athol,2 4 Sim. 96; Gregorys. Wilson, 9 Hare, 683; Pal- 
 
 A,tk. 446; Tidd v. Lister, 10 Hare, 1.57; 3 De G. meru. Ford, 70 111 . 369 ; Warner v. Bennett, 31 
 
 M. & 6. 857 ; Evertson v. Booth, 19 Johns. 486 ; Conn . 468 ; Kagan v . Walker, 1 Wis. 527 • Ort 
 
 32 
 
CH. II.] PRINCIPLES AND MAXIMS. § 18 
 
 the contract called for the payment of a liquidated sum of money; 
 but it would refuse in any^case to aid in the enforcement of any pen- 
 alty or forfeiture whatsoever. The enforcement of the unobjectionable 
 penalties and forfeitures, i. e. , the case of unliquidated obligations, is 
 left entirely to courts of law, wherever the two courts are still sepa- 
 rate tribunals.^ This doctrine is now of universal application, i. e., as 
 to penalties and forfeiture, and is enforced alike by all courts; and yet 
 in some parts of this country, the ancient bond is still used, which pro- 
 vides for the payment, of double the amount of the loan, and to become 
 void upon payment of the real indebtedness when it falls due. 
 Formalism is not yet quite extinct. 
 
 Another ancient formalism of the common law, which has been 
 done away with by the application of this maxim, is the effect of a 
 sealed instrument. The seal was said to import a consideration, and 
 to estop all inquiry into the existence and presence of the same. 
 Except in one solitary case, viz. : that of deeds of conveyance of lands 
 where one is estopped, by the acknowledgment of a consideration 
 under seal, from invalidating the deed as a conveyance, by showing 
 the actual want of consideration;^ this whole doctrine has been 
 repudiated by all courts alike, and the fact of consideration must be 
 affirmatively established, if denied; and the presumption of con- 
 sideration, if such presumption exists, may be disproved.^ So, also, 
 the court of equity refused to be bound by the common law rule that 
 a sealed instrument could only be discharged by a writing under seal, 
 and that if not so discharged it could be enforced, although it has 
 already been fully performed. This technical rule was ignored by the 
 courts of equity, and the obligee was obliged by an injunction to 
 deliver up the instrument, whenever there had been a full per- 
 formance of the obligation.* 
 
 V Zimmerman, 63 Mo. 73; Kobinson v. Loomis, Houghton v. Lees, 1 Jur. N. S. 862, 863; Coch- 
 51 Pa. St. 78; Smith v. Jewett, 40 X. H. 530; rane b. Willis, 34 Beav. 359; HerTeyt;. Eudland, 
 Croft V . Goldsmid, 84 Beav . 312 ; Elliott «. Tnr- 14 Sim. 531 ; Vasser v. Vasser, 33 Miss. 378 ; Bur- 
 ner, 13 Sim. 477; Ex parte Vaughan, Turn. & ling». King, 66 Barb. 633; Stone v. Hackett, 13 
 E. 434; Reynolds v. Pitt, 19 Ves. 134; Giles v. Gray, 327 ; Webb's Estate, 49 Cal. 541, 545; Min- 
 Austin, 38 N. Y. Super. Ct. 315 ; Sloman v. Wal- turn v. Seymour, 4 Johns. Oh. 497; Shepherd v. 
 ter. 1 Bro. Ch. 418; 8 Eq. Lead. Cas. 2014, 3033, Shepherd, 1 Md. Ch. 344; Meek v. Kettlewell, 1 
 2044. See post, Ch. III. Phil. 342; 1 Hare, 464; Jefferys v. Jefferys, Cr, 
 
 iLlvingston ». Tompkins, 4 Johns. Ch. 415, & Ph. 138, 141; WycherleyB.Wyoherley, 2Bden, 
 
 431; houp V. Cook, 1 Carter, 135; Lefforge v. 177; Wasson v. Colburn, 99 Nass. 343; Jones v. 
 
 West, 2 Ind. 514, 516; Clark v. Drake, 3 Chand. Lock, L. E. 1 Ch. 25; Kekewich v. Manning, 1 
 
 (Wis.) 253, 259; Gordon ». Lowell, 21 Me. 251, De G. M. & G. 176; overruling some earlier 
 
 357; Beecher v. Beecher, 43 Conn. 556; Orr v. cases in which voluntary agreements were 
 
 Zimmerman, 63 Mo. 73; Palmer v. Ford, 70 111. held to be enforcible because they were under 
 
 369; Pitzhugh v. Maxwell, 34 Mich. 138; Bvel- seal. See Beard v. Nuthall, 1 Vern, 487; Tyr- 
 
 eth V . Little, 16 Me. 374, 377; Smith v. Jewett, rell v. Hope, 2 Atk. 562; Edwards i>. Countess of 
 
 40 N. H. 530, 534; Warner ». Bennett, 31 Conn. Warwich, 2 P. Wms. 176; Wiseman v. Roper, 1 
 
 468, 478; McKim v. Whitehall, 2 Md. Ch. 510. Ch. Cas. 84. 
 See post, § 36. ' Cross v. Sprigg, 6 Hare, 552; Teomans v. Wll- 
 
 2 See Tiedeman on Heal Prop., §801. But liams, L. K. 1 Eq. 184; Hurlbut v. Phelps, 30 
 
 even in this case, the estoppel does not pre- Conn. 43; Kidder v. Kidder, 33 Pa. St. 368; Tay- 
 
 clude an inquiry into the fact of payment of lor v. Manners, L. II. 1 Ch. 48; Rees v. Berring- 
 
 the consideration. ton, 2 Ves. .540; 2 Eq. Lead. Cas. 1867, 1870, 1896. 
 
 aOrd V. Johnston, 1 Jur. N. S. 1063, 1065; See ;)0s<, § 608. 
 
 33 
 
§ 19 EQtJITT JUBISPBUDENCE. [CH. II. 
 
 The most modern application of the principle is to the character 
 and characteristics of a mortgage. At common law, the mortgage 
 was held to be the conveyance of an immediate estate upon condition 
 subsequent, and the rights of the parties thereto were materially 
 determined by this doctrine. The mortgagee was held to be the tenant 
 of the freehold. But equity, looking to the intent rather than to the 
 form, declared the mortgage to be merely a lien on the property 
 mortgaged, to be enforced when the debt fell due and remained 
 unpaid, and not a present conveyance of an estate in such property. 
 Acting upon this principle, the court of equity recognized the mort- 
 gagor as being still the owner and entitled to the possession, and 
 refused to recognize in the mortgagee any rights which are the ordi- 
 nary incidents of present ownership. This subject is more fully treated 
 of in a subsequent connection.^ 
 
 § 19. Equity imputes an intention to fnlflll an obligation. — This 
 principle applies to all cases, where a duty to do something rests upon 
 someone, usually to buy or sell property for another, and to hold or 
 transfer such property to someone; and the duty has been partially 
 performed, redounding to the benefit of the obligor, rather than 
 to that of the person for whom it was to have been done. In such 
 cases, the court of equity, imputing to the obligor an intention to 
 perform rather than to violate his duty, will hold that such obligor 
 acquired such benefits in trust for the person, who was originally 
 intended to be the beneficiary. This principle constitutes the main 
 foundation for a large part of the law of resulting and constructive 
 trusts; and is applied wherever persons, in the performance of fiduci- 
 ;ary duties, buy property with the funds of another and take the 
 title in their own names. ^ The principle is also applied to one who 
 covenants in his marriage articles to purchase lands and to settle them 
 jipon his wife, and who purchases the lands in question but fails to 
 make the settlement;' and the one who covenants to sell lands who does 
 not then possess them, but who afterwards does purchase them and 
 fails to make the transfer in accordance with his covenant.* 
 
 1 See post, 411-414, and in Tledeman Eeal Barb. 399. To guardians, Bancroft v. Cousen, 
 
 JTop., §§ 299-301. 13 Allen, 50; Johnson v. Douglierty, 3 Green's 
 
 'i As applied to trustees, see Beg v. Deg, 2 V. Ch.406. To agents in general.Ilobh'a Appeal, il 
 
 Wms. 414j Perry v. Philips, 4 Ves. 107; 17 Ves. Pa. St. 45; Bridenbaoker v. Lowell, 32 Barb. 10. 
 
 173; Ferris v. Van Vechten, 73 N. T. 113; Han- See post, § 312. 
 
 C0Ckt».Titus,33Mi8a.224; McLaren ». Brewer, ' Wilcocks v. Wilcocks, 2 Vern. 558; 2 Eq. 
 
 Bl Me. 402; Sohlarfer v. Corson, 32 Barb. 510; Lead. Gas. 833. Seepost, § 174. 
 
 Lane v. Dighton, Ambl. 409; to partners, see *Deaconu. Smith, 3Atk.323; Wellesly». Wel- 
 
 Smith V. Burnham, 3 Sum. 435; Homer v. lesly, 4 M. G. & Or. 581. See ^os<, § 147. If the 
 
 Homer, 107 Mass. 85; Jenkins v. Frink,30Cal. lands purchased are of less value than those 
 
 586; Settembre*. Putnam, 30 Cal. 490; OHveri;. bargained for, such purchase shall be oonsid- 
 
 Piatt, 3 How. (Cr. S.) 401. To executors and ad- ered as part performance of the covenant. 
 
 ministrators. Barker v. Barker, 14 Wis. 131 ; Lechmere v. Earl of Carlisle, 3 P. Wms. 211 ; 
 
 Stow V. Kimball, 28 HI. 93; White v. Drew, 42 Snowden v. Snowden, 1 Bro. Ch. 582; 3 P. Wms. 
 
 Me. 561. To directors and otlier officers of cor- 228n ; Lechmere v. Lechmere, Cas. Temp. Talb. 
 
 porations. Church v. Sterling, 16 Conn. 388. 80. 
 To committees of lunatics, Heed i,. Fitch, 11 
 
 34 
 
CH. II. J 
 
 PEINCIPLES AND MAXIMS. 
 
 § 20 
 
 § 20. Equity looks upon that as done which ought to have 
 been done.* — Not only will equity impute an intention to fulfill an 
 obligation, where there has been a part or irregular performance of 
 the same; but, if and whenever it is necessary for the attainment of 
 the ends of justice, a court of equity, in applying the maxim, equity 
 
 LOOKS UPON THAT AS DONE WHICH OUGHT TO HAVE BEEN DONE, wiU treat 
 
 both the subject-matter of, and the parties to, the obligation, as if the 
 obligation had been fully performed; and determine the rights of the 
 parties, and of all others in privity with them who are not honafide 
 purchasers, in accordance with such presumption of a performance of 
 the obligation. Although some of the authorities are apparently 
 inclined to give the maxim only the limited application to the cases of 
 equitable conversion,^ the better opinion is that the maxim finds an 
 effective application, whenever, in consequence of the non-performance 
 of an obligation, someone's rights will be materially and injuriously 
 affected. For the protection of these interests, the court will consider 
 and determine the rights of all parties, as they would have been, if 
 the obligation had been fully performed, and render its decree 
 accordingly.' The maxim is not only applied to the doctrine of equi- 
 table conversion,* which is fully treated in a subsequent connec- 
 
 1 story's Eq. Jur. | 64g. "What ought to be 
 done is considered in equity as done," Adam's 
 Eq. 135. "Equity regards that as done which 
 «ught to be done," Pomeroy Eq. Jur., §363. 
 
 2 Story Eq. Jur., § 64g; Snell's Eq. 37. 
 
 ' " ' What ought to be done. Is considered in 
 •equity as done ' ; and its meaning is that when- 
 ever the holder of property is subject to an 
 ■equity in respect of it, the court will, as between 
 the parties to the equity, treat the subject-mat- 
 ter as if the equity had been worked out and 
 was impressed with the character which it 
 would then have borne. The simplest operation 
 of this maxim is found in the rule that 
 trusts and equities of redemption are treated 
 as estates; but its eflFect is most obvious 
 in the constructive change of property from 
 real to personal property and vice versa, 
 so as to introduce new laws of devolution 
 and transfer, ' Adam's Equity, *135 [295 6th 
 Am. Ed.]. "It (the maxim) is In fact the 
 source of a large part of that division of equity 
 jurisprudence which is concerned with equita- 
 ble property; the doctrine and rules which 
 create and define equitable estates or interests 
 are in great measure derived from its operation. 
 So far from the maxim being confined to ex- 
 press executory contracts, and to those disposi- 
 tions of property which give rise to an equi- 
 table conversion, it has been employed by the 
 most eminent courts to all classes of equities; 
 to every instance where an equitable ought 
 with respect to the subject-matter rests upon 
 one person towards another ; to every kind of 
 case where an aflirmative equitable duty to do 
 some positive act devolves upon one party, 
 and a corresponding equitable right is held 
 
 by another party." 1 Pom. Eq. Jur., §365. 
 See Burgess v. Wheate, 1 W. Bl. 123, 129; 
 lEden 177; Brewer v. Herbert, 30 Md. 301; 
 Jordan v. Cooper, 3 Serg, & E. 585; Peter ji. 
 Beverly, 10 Pet. 534, 563; Commonwealth ». 
 Martin, 5 Munf. 117, 122; Coventry v. Barclay, 
 3 De G. J. & S. 320, 328; Pratt t>. Taliaferro, 3 
 Leigh, 428; Taylor v. Benham, 5 How. (U. S.) 
 234,269; Gardiner ». Gerrlsh, 23 Me. 46; McCaa 
 V. Woolf, 42 Ala. 389; Lechmere v. Earl of Car- 
 lisle, 3 P. Wms. 211; Craig V. Leslie, 3 Wheat. 
 563, 577; Douglass Co. v. Union Pac.R. R., 5 
 Kans. 615; Daggetc. Rankin, 31 Cal. 321,326. 
 In Frederick v. Frederick, 1 P. Wms. 710, it was 
 held that a widow of one who had contracted 
 to become a citizen of London, but who had 
 died without having performed this agreement 
 by taking up his civic freedom, may claim the 
 share in her husband's personal estate, which, 
 according to the customs of London, is allotted 
 to the widow. 
 
 * Fletcher II. Ashburner, 1 Bro. Ch. 497; 1 Eq. 
 Lead. Gas. 1118, 1123, 1157; Crabtreec. Bramble, 
 3 Atk. 680; Lechmere v. Earl of Carlisle, 3 P. 
 Wms. 211; Wheldale v. Partridge, 5 Ves. 396; 8 
 Ves. 227; Elliott iJ. Fisher. 12 Sim. 505; Pedder, 
 in re, 5 De G. M. & G. 890; Craig v. Leslie, 3 
 Wheat. 563, 577; Lorillard v. Coster, 5 Paige, 173, 
 218; Kandc. Gott, 24 Wend. 641,660; Morrow u. 
 Brenizir, 2 Rawle, 185, 189 ; Leadenbam v. Nich- 
 olson, 1 Har. & Gill 267, 277;Pratt«. Taliaferro, 
 3 Leigh, 419, 421; Commonwealth v. Martin's 
 Bx'r, 5 Munf. 117,121; Peter »). Beverly, 10 Pet. 
 534, 563; Taylor v. Benham, 5 How. (TJ. S.) 234, 
 269; Smith v. McCrary, Ired. Eq. 204, 207; Taze- 
 well V. Smith's Adm'rs, 1 Rand. 213, 320; Siter 
 ». McClanachan, SGratt. 280; Hurtt r. Fisher, 1 
 
 35 
 
§ 20 
 
 EQUITY JTJEISPRUDENCE. 
 
 [CH. 
 
 II. 
 
 tion;^ but it is likewise the foundation of all kinds of equitable 
 property; not only trusts, which are implied from an executory con- 
 tract of sale, whereby, before the completion of the sale, the vendor 
 is treated as trustee of the subject-matter of the sale for the vendee, 
 and the vendee the trustee for the vendor of the purchase-money;^ as 
 well as all other trusts arising by operation of law, such as construct- 
 ive trusts;' but likewise the whole law of express trusts may be said 
 to be based upon this maxim, that equity looks upon that as done 
 which ought to have been done, whenever provision is made that one 
 shall have the beneficial interest in propei'ty, under circumstances 
 which would debar his recognition in a court of law as the possessor 
 of the legal title. Equity, looking upon that as done, which ought to 
 have been done, will treat such beneficiary as the real owner of the 
 property. Hence the law of uses and trusts. An equitable estate is 
 nothing more than the right of the beneficiary to an enjoyment of the 
 land, whose legal title is in another, developed by the rules of equity 
 into a vested protected right in and to the property.* 
 
 The principle also applies to all cases of equitable assignments of 
 property, which could not be assigned at common law, such as possi- 
 bilities, choses in action, of property not yet acquired, etc' The 
 mortgagor's equity of redemption, as M'ell as equitable liens of all sorts, 
 are the outgrowth of the application of this very fruitful maxim." 
 
 Har. & Gill 88, 96; Allison v. Wilson's Bx'r, 13 
 Serg. & R. 330, 338; Gott v. Cook, 7 Paige, 523, 
 534; Dunscomb v. Dunseomb, 1 Johns. Gh. 508; 
 Ashbyo. Palmer, 1 MeriT. 296; Harcourtii. Sey- 
 mour, 2 Sim. N. s. 45; Stead v. Newdigate, 2 
 Meriv.521; Sweetapple v. Bindon, 2 Vern. 536; 
 Guidot V. Guidot, 3. Atk. 254; BMblngton v. 
 Greenwood, 1 P. Wms. 532; Ketterby v. At- 
 wood, t Vern. 298. 
 
 ^ Bee post. Oh. IX. 
 
 s Haughwont v. Murphy, 22 N. J. Eq. 531 ; 
 King V. Euokman, 21 N. J. Eq. B99; Huffman 
 V. Hummer, 17 N.J. Eq. 264;Hoaglandv. Latou- 
 rette, 1 Green's Ch. 254; Crawford v. Bertholf, 
 Saxton, 460; Downing v. Hisley, 2 McCarter, 
 94; Story «. Lord Windsor, 3 Atk. 631; Murray 
 V. Ballou 1 Johns. Ch. 566, 581 ; Yates v. Comp- 
 ton, 2 P. Wms. 308; Trelawney v. Booth, 2 Atk. 
 307; Maokreth v. Symmons, IB Ves. 329, 336; 
 Kirkmans;. Miles, 14 Ves. 338; Taylor 'i>. Ben- 
 ham, 5 How. (U. S.) 234; Wood v. Cone, 7 Paige, 
 472; Worrall v. Munn, 38 N. Y. 139; Seaman v. 
 Van Eenselaer, 10 Barb. 86; Eobbii. Mann, 1 
 Jones, 300; Brewer v. Herbert, 30 Md. 301; 
 Philips?). Sylvester, L. B. 8 Ch. 173, 176; Lind- 
 say V. Pleasants, 4 Ired. Eq. 381; Richter v. 
 Selin, 8 Serg. & E. 425, 440; Kerr v. Day, 2Harr. 
 118; Thompson o. Smith, 63 N. Y. 301, 303; 
 Wood 0. Keyes, 8 Paige, 365; Champion v. 
 Brown, 6 Johns. Ch. 403; Peters u. Beverly, 10 
 Pet. 533, 533; Eose v. Cunynghame, 11 Ves. 554; 
 PoUexfen v. Moore, 3 Atk. 873; Green v. Smith, 
 1 Atk. 573, 573; Fletcher v. Aihburner, 1 Bro. 
 Ch. 497; Sohroppel n. Hopper, 40 Barb. 485; 
 
 36 
 
 Moore v. Burrows, 34 Barb. 173; Adams v. 
 Green, 34 Barb. 176; Lewis v. Smith, 9 H. Y. 502,. 
 510; Jackson B. Small, 34 Ind. 241; Siter's Ap- 
 peal, 86 Pa. St. 180: Eevell v. Hussey, 8 Ball. & 
 B. 887; Rawlins v. Burgis, 2 V. & B. 387; Paine 
 V. Meller, 6 Ves. 349; Harford v. Furrier, 1 
 Madd. Ch. 5' 2; Burgess v. Wheate. 1 W. Bl. 123, 
 129; 1 Eden 177. See post, §§ 147, 309. 
 
 3 Stump V. Gaby, 2 De G. M. & G. 683; Gresley 
 V. Mousley, 4 De G. & J. 78; Uppington v. Bul- 
 len, 2 Dr. & War. 184. In Stump v. Gaby, a con 
 veyance was fraudulent against the grantor. 
 He died, leaving a will, in which he made a 
 devise of this property. In determining th© 
 effect of this attempted devise. Lord St. Leon- 
 ards said : " What then is the interest of a 
 party in an estate which he has conveyed under 
 circumstances which would give a right in 
 this court to have the deed set aside? In the 
 view of this court he remains the owner, and 
 the consequence is that he may devise the 
 estate, not as a legal estate, but as an equitable 
 estate. The testator, therefore, had a devisa- 
 ble interest." See post, § 313. 
 
 * 1 Pomeroy Eq. Jur . , § 374. See post, Ch. XVj 
 XVI, XVII. 
 
 5 1 Pomeroy Eq. Jur., §373. See ^osi, Ch. 
 XXI. 
 
 » 1 Pomeroy Eq. Jur. , §§ 373, 376. In Daggett 
 V. Eankin, Oh. J. Curry, in explaining equita- 
 ble liens, said : " The doctrine seems to be 
 well established that an agreement in writing 
 to give a mortgage, or a mortgage defectively 
 executed, or an imperfect attempt to create a 
 
CH. II. J PRINCIPLES AND MAXIMS. § 21 
 
 § 21. Equality is equity. —This maxim, as its words import, 
 breatlaes the very spirit of equity, for the word egndty really means 
 equality; and whenever a court of equity acquires jurisdiction over a 
 cause of action, which involves the enforcement of a joint-right or a 
 joint-obligation, or the distribution of property among several claim- 
 ants, it seeks always to apply this principle of equality. The maxim 
 does not furnish in any particular case sufficient ground for the assump- 
 tion of jurisdiction; nor will a court of equity, in the application of the 
 maxim, ever enjoin one from enforcing his legal rights in a court of 
 law: but in many such cases, if the court of equity acquires juris- 
 diction on some other ground, it will ignore the rules of law more or 
 less, and give judgment in accordance with the principle, equality is 
 equity. Perhaps one reason, why the court of equity never attempted 
 to force the recognition of this principle on the law courts, is that the 
 latter courts were of their own accord disposed to accept and apply 
 the maxim, or were forced to do so by the mandate of the legislature. 
 For in most of the instances, which will be referred to as illustrative 
 of the application of the maxim, the legal rule has been altogether 
 superseded by the more just rule of equity. 
 
 The most striking instances of the application of the principle are 
 in the case of the insolvency of a debtor, and the death of one of 
 two or more joint-debtors or joint-creditors. In the first case, the 
 ordinary legal rule is, that the creditor who first secures judgment and 
 execution against the insolvent debtor can claim full satisfaction of his 
 debt, to the exclusion of other creditors, although there be not enough 
 to give full satisfaction to all the creditors. And this is still the legal 
 rule in English-speaking countries, wherever it has not been changed 
 by the enactment of so-called insolvent and bankruptcy laws. But if 
 a creditor had to resort to equity for aid in the enforcement of his claim 
 against thedebtor, the court would at the same time inquire into the 
 entire financial condition of the embarrassed debtor; and if it was 
 found that he had not sufficient assets to settle in full all his liabilities, 
 the court of equity would arrange for the proof of all the claims held 
 against the debtor defendant, and decree a ratable distribution of all his 
 assets among all his creditors, who proved their claims.^ This is but 
 the application of the principle, equality is equity, and the bankruptcy 
 laws of modern times are built upon it. 
 
 The other important instance is that of the death of one of two or 
 more joint-debtors or joint-creditors. According to the early common 
 law, which distinguished between joint, and joint and several, obliga- 
 tions, on the death of one of the joint-debtors or joint-creditors, the 
 
 mortgage, or to appropriate specific property to that equity will treat the subject-matter, as to 
 
 the discharge of a particular debt will create a collateral circumstances and Incidents, in the 
 
 speciflc (equitable), lien on the property in- same manner as if the final acts, contemplated 
 
 tended to be mortgaged. Themaximof equity, by the parties, had been executed exactly as 
 
 upon which this doctrine rests, is, that equity they ought to have been." S&&po8t, Ch. XXII. 
 
 looks upon things agreed to be done as actu- i See post, § 539. 
 
 ally performed ; the true meaning of which is. 
 
 37 
 
21 
 
 EQUITY JTJEISPKUDENCE. 
 
 [CH. n. 
 
 liability and right of action would attach, respectively, to the surviving- 
 joint-debtors and joint-creditors. The estate of the deceased joint-debtor 
 would not be liablef or the debt; neither would the estate of the deceased 
 joint-creditor have any claim to a participation in the proceeds of the 
 enforcement of the joint-obligor.^ But a court of equity could not 
 enforce such a rule, for it is in violation of the principle, equality is 
 equity. The early equity rule, however, so far recognized the legal rule 
 as to require the creditor to first exhaust his remedy at law against the 
 survivors, before he could seek aid in equity against the estate of the 
 deceased joint-debtor. But if he had exhausted his remedy at law, 
 without avail, the court of equity would give him the aid he asks for.^ 
 But the later rule in England and in some of the American states per- 
 mits the court of equity to grant the relief against the estate of the 
 deceased joint-debtor without first resorting to the legal remedies 
 against the survivor or survivors.' There is, however, one exception 
 to the operation of this equity rule, viz. : in respect to the joint-sureties. 
 Some of the courts hold that, if the deceased joint-obligor is a surety 
 instead of the primary debtor, a court of equity will not hold his estate 
 liable, on the ground that he has a^superior equity, because his legal 
 liability does not rest upon any personal benefit.* In many of the Uni- 
 ted States statutory provisions are now found, making all joint-obliga- 
 tions joint and several. In those states, the equity rule has ceased to 
 have any peculiar value, as these statutes have converted it into an uni- 
 
 1 See ex parte Kendall, 17 Ves. 525; Weaver v. 
 Shryook, 6 Serg. & K. 262, 264; Jones v. Keep, 
 23 Wis. 45; Morehouse i>. Ballon, 16 Barb. 289; 
 Cannes v. O'Bleness, 40 Wis. 469; Gray v. Chis- 
 trell, 9 Ves. 118, 
 
 sVoorhiS'P. Child's Ex'r, ITN. Y. 354; Pope 
 V. Cole, 55 N. Y. 134; Bentz v. Thurber, 1 T. & 
 C. 645; Hasten v. Blaokwell, 8 Hun, 313 ; Maples 
 L). Geller, 1 Ney. 233, 237, 239; Barlow v. Scott's 
 Adm'r, 12 Iowa, 63; Marsh v. Goodrell, 11 
 Iowa, 474; People v. Jenkins, 17 Gal. 500; May v. 
 Hanson,6Ca]. 642; qualified by Bank of Stock- 
 ton ti. Howland, 42 Gal. 129; Hunt v. Eousman- 
 iere, 8 Wheat. 212 213; 1 Pet. 16; Kendall, ex 
 parte, 17 Ves. 514, 586, 527; Gray v. Ghiswell, 9 
 Ves. 118; Gowellu. SikeB,2Eu5e. 191 ; Simpson «. 
 Vaughan, 8Atk.31;Towers«. Moor, SVern. 98; 
 Campbell D, MuUett, 2 Sw. 574,575; Euffln, ex 
 parte, 6 Ves. 125, 126 ; Devaynes v. Noble, 1 Meriy. 
 538, 539; Hamersley v. Lambert, 3 Johns. Oh. 
 509, 510; Williams v. Scott's Adm'r, 11 Iowa, 475; 
 Pecker v. Gannon, 11 Iowa, 20; Fowler v. Hous- 
 ton,, INev. 469, 472; Bradley v. Burwell, 3 
 Denio, 61; Yates v. Hoffman, 5 Hun, 113; Lane 
 V. Doty, 4 Barb. 534; Eichter v. Poppenhausen, 
 42 N. Y. 373. 
 
 8 Wilkinson v. Henderson, 1 My. & K. 682; 
 Brown v. Weatherby, 12 Sim. 6. 11; Thorpe «. 
 Jackson, 2 Y. & G. 653, 661, 582; Freeman v. 
 Stewart, 41 Miss. 138; Devaynes v. Noble, 2 
 Euss. & My. 495; Braithwatte v. Britain, 1 Keen, 
 219. The same rule is enforced in some of the 
 states, on the strength of a provision of the 
 
 38 
 
 code of procedure, which abolishes all distinc- 
 tions between actions at law and suits in. 
 equity. This is notably the case in Indiana, 
 and California. See Braxton v. State, 25Ind. 
 82; Owenc State, 25 Ind. 371; Klussmann ». 
 Oopeland, 18 Ind. 306; Eaton v. Burns, 31 Ind. 
 390; Myers v. State ex rel. McCray, 47 Ind. 293, 
 297; Voris v. State ex rel. Davis, 47 Ind. 345^ 
 349,350; Bostwick r. McEvoy, 55 Gal. 
 
 * "If the joint-obligor so dying be a surety^ 
 not liable for the debt irrespective of the j oint- 
 obligation, his estate is absolutely discharged 
 both at law and in equity, the survivor only 
 being liable. In such a case, where the surety 
 owed no debt outside and irrespective of the 
 obligation, he signs a joint-contract and in- 
 curs a, joint-liability, and no other. Dying 
 prior to his oo-maker, the liability all attaches 
 to the survivor." Getty v. Binsse, 49 N. Y. 385, 
 388, 389; Pickersgill v. Lahens, 15 Wall. 140; 
 Hariison v. Field, 2 Wash. (Va.) 136; Mo. «. 
 Fauk, 51 Mo. 98; Simpson «. Field, 2 Gas. in Gh. 
 22; Other v. Iveson, 3 Drew. 177; Jones v. 
 Beach, 2 De G. M. & G. 886; Wilmer v. Gurrey, 
 2 De G. & Sm. 347 ; Eichardson v. Horton, 6 
 Beav. 185; Sumner i>. Powell, 2 Meriv. 30; S. C. 
 1 T. &Eu8s. 423; Weaver v. Shryock, 6 Serg. & 
 E. 262, 264, 265; United States v. Price, 9 How. 
 (U. S.) 92; Wood v. Fisk, 63 N. Y. 245. Long v. 
 Stafford, 103 N. Y. 274; Richardson v. Draper, 
 87 N. Y. a37. But see contra, Myers v. State, 47 
 Ind. 293, 297; Voris v. State, 47 Ind. 349, 350. 
 
CH. II. J PRINCIPLES AND MAXIMS. § 21 
 
 versal rule, and provide generally that the estate of the deceased 
 obligor remains bound.* In other states, the statute merely provides, 
 as a special exception to the character of a joint-obligation which 
 otherwise still obtains, that the estate of the deceased obligor shall be 
 liable to the creditor.* 
 
 Similar results are reached by the application of this equitable 
 maxim, where a court of equity undertook to deal with a joint-owner- 
 ship of property. The common law rule recognized the joint-owner- 
 ship, as a joint-tenancy, which passes in its entirety, on the death of 
 one of the co-owners, to the survivor or survivors. And the court of 
 equity likewise submitted to this doctrine, except that this court took 
 advantage of any reasonable evidence of an intention of the parties to 
 the contrary, to hold that the joint-estate was a tenancy in common, 
 in which each co-owner's share upon his death, went to his heir or 
 personal representative, according as the property in question was real 
 or personal.^ And in accordance with this greater inclination of 
 equity to find in attending circumstances an intention of the parties 
 to make a tenancy in common, instead of a joint-tenancy, we find 
 courts of equity holding that where the shares of the co-tenants are 
 unequal in value the property is a tenancy in common.* The same 
 equitable principle is applied to mortgages held by two or more jointly. 
 The joint-mortgagees are presumed to be tenants in common, the 
 share of each co-owner passing on his death to his personal represent- 
 ative.* This application of the equitable maxim has, however, lost its 
 special value, through the enactment of statutes which declare that all 
 joint-ownerships are tenancies in common, unless the parties have 
 expressly declared them to be joint-tenancies. ° 
 
 The most modern examples of the application of the maxim, eguality 
 is equity, are the pro rata distribution of property among general 
 legatees of a will, where the testator did not leave enough property 
 to satisfy all the legacies,^ and the contribution between joint-obligors, 
 
 1 Such statutes are to be found in New Jersey, Harris v. Ferguson, 16 Sim. 308; Aveling v. 
 Illinois, Kansas, Delaware, Tennessee, Mis- Knipe, 19 Ves. 441; Davis v. Symonde, 1 Cox, 
 Bouri, Arkansas, Colorado, Montana, Alabama, 402. 
 
 New Mexico. In California and Dakota, joint- * Maybnrry v. Brien, 15 Pet. 21, 36; Cuyler v. 
 
 obligations are by statute made joint and sev- Bradt, 2 Caine'a Cas. 326j Overton v. Lacy, 6 
 
 eral only when all the obligors are primary Mon. 13, 15; Gurrieu. Tibb's Heirs, 5 Monroe, 
 
 debtors. Stimson Am. Stat. Law, § 4113. 440, 443; Caines v. Lessee of Grant, 5 Binn. 119, 
 
 2 As in Maine, Vermont, Pennsylvania, In- 120; Duncan®. Porrer, 6 Binn. 193, 196; Rigden 
 dlana, Minnesota, Nebraska, Maryland, Vir- ». Vallier, 3 Atk. 735; 2 Ves. Sr. 258; Lake v. 
 ginia, West Virginia, Kentucky, Mississippi. Gibson, 1 Bq. Cas. Abr. 294; 1 Bq. Lead. Cas. 
 In Rhode Island, only after the remedies 264, 268. 
 
 against the surviving debtors have been ex- ' Petty ». Styward, 1 Ch. Hep. 3; Morley v. 
 
 hausted. Stimson Am. Stat. Law, § 4113. See Bird, 3 Ves. 631 ; Randall u. Phillips, 3 Mason, 
 
 to same effect, Richardson v. Draper, 87 N. Y. 378, 384; Goodwin v. Richardson, 11 Mass. 469; 
 
 337; Long v. Stafford, 103 N. Y. 274, where it is Lingsley v. Abbott, 19 Me. 430, 434; Appleton o. 
 
 held that in New York the death of one of two Boyd, 7 Mass. 131. 134; Robinson v. Preston, 4 
 
 joint primary obligors does not release his K. &J. 505, 511; Rigden v. Vallier, 2 Ves. Sr. 
 
 estate from liability. See N. Y. Cod. Civ. Proc. 258. 
 
 1 758. ' Such statutes are to be found in almost all of 
 
 8 Lake ». Gibson, 1 Eq. Cas. Abr. 290. PI. 3; the states. See Tiedeman Real Prop., §§ 237-840. 
 
 Bigden i>. Vallier, 3 Atk. 735; 2 Ves. Sr. 258; ' See ^os<, § 353. 
 
 39 
 
§ 22 
 
 EQUITY JDEISPEUDENOE. 
 
 [CH. n. 
 
 where one of them has been compelled to pay the whole claim. ^ But 
 both of these rules have long since become part of the general law. 
 Indeed, as was stated in the beginning of this section, the maxim has 
 almost ceased to be purely equitable, the only case of purely equitable 
 application being in the case of pro rata distribution of insolvent's 
 estates among creditors, in the absence of bankruptcy laws. 
 
 § 22. Where the equities are in all other respects equal, the 
 first in order of time shall prevail.— This maxim is not strictly 
 accurate, as it is ordinarily given, viz. : Whsre there are equal equi- 
 ties, the first in order of time shall prevail; or as it is given in Latin, 
 qui prior est tempore, potior est jure. If priority of time is recog- 
 nized, then the equities are not equal. The rule, when correctly stated, 
 declares that when two or more people have equitable interests in 
 property, which are m all other respects equal, then whichever is 
 prior in point of time shall prevail.^ But priority of time is the last 
 consideration, in determining which is the better equity. The prior 
 equity is only permitted to prevail, when the two or more adverse 
 equities are in fact, in every other respect, equal. If inequality is 
 established between them by other considerations, there is no oppor- 
 tunity for the application of this maxim, and the relative superiority 
 of the equities is determined without any consideration of the priority 
 of time.' This maxim constitutes the fundamental principle of the 
 
 1 See post, % 530. 
 
 ^ " If the court will Interfere to enforce the 
 right of one against the other on any ground 
 whatever, say on the ground of priority of 
 time, how can it be said that the equities of 
 the two are equal, i. e., in other words, how can 
 it be said that the one has no better right to 
 call for the interference of a court of equity 
 than the other? To lay down the rule, there- 
 fore, with perfect accuracy, I think it should be 
 stated in some such form as this: As between 
 persons having only equitable interests, if 
 their interests are in all other respects equal, 
 priority in time gives the better equity . " Eice 
 V. Eice, 2 Drew, 73. 
 
 8 " In a contest between persons having only 
 equitable interests, priority of time is the 
 ground of preference last resorted to, i. e., 
 that a court of equity will not prefer the one 
 to the other on the mere ground of priority of 
 fme, until it finds, upon an examination of 
 their relative merits, that there is no other 
 suflacient ground of preference between them, 
 or in other words, that their equities are 
 In all [other] respects equal; and that if 
 the one has on other grounds a better equity 
 than the other, priority of time is immate- 
 rial. In examining into the relative merits 
 (or equities) of two parties having adverse 
 equitable interests, the points to which the 
 court must direct its attention are obvi- 
 ously these: the nature and condition of 
 their respective equitable interests, the cir- 
 cumstances and manner of their acquisition, 
 and the whole conduct of each party with 
 
 40 
 
 respect thereto. And in examining into these 
 points it must apply the test, not of any 
 technical rule, or any rule of partial applica- 
 tion, but the same broad principles of right 
 and justice which a court of equity applies 
 universally in deciding upon contested rights." 
 Eice V. Eice, 2 Drew, 73. In this case, a grantor 
 claimed vendor's lien for purchase-money, on 
 land in the conveyance of which there was an 
 acknowledgment of the receipt by him of the 
 consideration, against the subsequent equitable 
 mortgagee by deposit of title deeds, who loaned 
 money to the grantee on this equitable security. 
 The grantor claimed priority in point of time ; 
 but the court held th;it the equitable mortga- 
 gee's equity was in other respects superior, 
 especially on account of his being misled 
 by the acknowledgment in the deed of the 
 receipt of the consideration, and hence this 
 rule, as to priority In point of time, could not 
 apply. See, also, to the same effect. Philips v. 
 Philips, 4 De G. F. & J. 808, 215; Newton v. 
 Newton, L. E. 6 Eq. 135, 140, 141; Becket v. 
 Cordley, 1 Bro. Oh. 353, 358; Loveridge v. 
 Cooper, 3 Euss. 30; Cory v. Byre, X De G. J. & 
 S. 149; Berry v. Mut. Ins. Co., 2 Johns. Oh. 603; 
 Cherry v. Monro, 2 'Barb. Ch. 618; Eexfordw. 
 Eexford, 7 Laus. 6; Eooney v. Soule, 45 Vt. 303; 
 Tharpe v. Dunlap, 4 Heisk. 674; Bowan v. State 
 Bank, 45 Vt. 160; Van Meter v. McFaddin, 8 B. 
 Mon. 435; Muir v. Schenck, 3 Hill, 228; Fitz- 
 simmons v. Ogden, 7 Cranch, 2; Case v. James, 
 2 De G. F. & J. 256; Peto v. Hammond, 30 Beav. 
 495 ; Mackreth v . Symmons, 15 Ves. 354 j Brace 
 V. Duchess of Marlborough, 2 P. Wms. 491 . 
 
CH. II.] PRINCIPLES AND MAXIMS. § 23 
 
 equitable rules in respect to priorities and notice, which are fully dis- 
 cussed in a subsequent connection.^ 
 § 23. Where there is equal equity, the law must prevail. — The 
 
 meaning of this maxim is that, wherever two or more persons have in 
 the same property adverse equitable interests, which are in every 
 respect equal; and a court of equity cannot, by application of any of 
 the principles or maxims of equity discover any ground of superiority 
 in the equity of any one of them: if in such a case one of these parties 
 should acquire the legal title to the property, he will be held to have 
 thereby acquired superiority in equity as well as in law; and in both 
 courts the other interests would have to give way to his equity, which 
 has become superior, in consequence of becoming united with the legal 
 title. ^ This principle is applied to all cases of otherwise, equal equi- 
 table interests in property where they have been received without 
 notice of adverse interests. The acquisition of the legal title by one 
 of the equitable owners destroys the equality of equities, which other- 
 wise would have enabled the prior equity in point of time to prevail.' 
 
 > See Ch. IV. Mason, 269; Boone v. Chiles, lO.Pet. 177; Eowan 
 
 2 Thorndike v. Hunt, 3 De G. & J. 563, 570, 571 ; v. State Bank, 45 Vt. 160 ; Eexf ord v. Hexf ord, 
 
 Fitzslmmons v. Ogden, 7 Cranch, 3, 18; Bassett 7 Laus. 6; Vattier v. Hlnde, 7 Pet. 258; Wood v. 
 
 V. Nosworthy, Eep. Temp. Pinch, 102; 2 Eq. Mann, 1 Snmn. 507; Wallwyn v. Lee, 9 Ves. 24; 
 
 Lead Gas. 1; Philips v. Philips, 4 De G. P. & J. Pilcherr. Eawlins, L. E. 7 Ch. 259; Le Neve v. 
 
 208; Jerrard v. Saunders, 3 Ves. 454; Payne v. Le Neve, Ambl. 436; 2 Eq.JLead. Gas. 109. 
 
 Compton, a T, & C. 457; McNeill v. Magee, 5 ' See post, Chapt. IV 
 
 41 
 
CHAPTEK III. 
 
 EQUITABLE EBLIEF AGAINST PENALTIES AND FORFEITURES, 
 
 Sectiok 
 Penalties and forfeitures defined . 85 
 
 Penalties defined and distinguished from 
 
 liquidated damages 
 
 To secure payment of money or loan , 
 Liquidated damages.— General description 
 Bule for determining liquidated damages 
 
 and penalties 
 
 Election to pay penalties or liquidated 
 
 87 
 
 Sectioit 
 General principles governing the relief 
 
 against forfeitures 31 
 
 Relief against forfeiture in mortgages . 32 
 Agreements to repurchase . . . .33. 
 Forfeitures arising from the sale of shares 
 
 of stock 34 
 
 Forfeitures in conveyances and leases . <6 
 Forfeiture in contract for the sale of land 36 
 Equity will not enforce forfeitures . . 37 
 
 § 25. Penalties and forfeitures defined. — A penalty is a sum of 
 money, Imposed upon an obligor for the non-performance of his obli- 
 gation. Forfeiture is a deprivation or destruction of some right of 
 property or other right, in consequence of the non-performance of 
 some obligation or condition. It will be seen from these two defini- 
 tions that the two words have the same general meaning, the only 
 diflference being in respect to the things affected by their imposition. 
 Both are in the nature of a punishment, inflicted upon one for the non- 
 performance of some duty or obligation. Because of this penal char- 
 acter, a court of equity has always opposed the enforcement of both 
 penalties and forfeitures; in fact, a court of equity never will lend its- 
 aid to the enforcement of a forfeiture or a penalty, the parties will be 
 left to their action at law.^ The enforcement of the penalty and for- 
 feiture, in many cases, worked a hardship upon the obligor, greatly 
 disproportionate to the damage suffered by the obligee, in consequence 
 of the non-performance of the obligation in question. Wherever this, 
 disproportion existed and could be proven beyond a reasonable doubt, 
 an opportunity, as well as a justification, was furnished to the court 
 of equity for interference with the enforcement of suoh penalties or 
 forfeitures in the common law courts; in order that the obligee might 
 not be compelled to pay more than the amount of the damages, which 
 followed from his wrongful act. A court of equity, however, does 
 not propose to deny the enforcement of all penalties and forfeitures. 
 The purpose of the interference is simply to prevent the enforcement 
 of such penalties and forfeitures, which involve the recovery of more 
 than what can be established to be the damage following from the 
 wrongful act of the obligee. The fundamental principle, therefore, upon 
 which a court of equity will alone interfere in behalf of the obligee, is 
 that the obligee must show affirmatively that the penalty, or forfeit- 
 
 1 Marshal v Vixburg, 15 Wall. 149, MoCor 
 mick V, Rossi, 70 Calt 4'i4, Manhattan Life Ins. 
 
 42 
 
 Co. V. Smith, 44 Ohio St. 167. See, also, Tiede- 
 man Real Prop., § 879 and post § 37. 
 
CH.HI.] PENALTIES AND FOKFEITUEES. § 2© 
 
 ure, does not exact of him more than what the obligor has suffered 
 from the breach of the obligation. Whenever this fact is not estab- 
 lished, or cannot be established from the nature of the transaction and 
 of the obligation, a court of equity will refuse to grant relief. In 
 pursuance of this general proposition therefore, it will be found to be 
 the general rule, that a court of equity will grant relief against the 
 enforcement of penalties and forfeitures, whenever the obligation 
 consists of the payment of a sum of money or the doing of some act of 
 such a character, as that complete compensation can be made to such 
 obligee for the breach of the undertaking. If the act is of such a 
 nature, that the damage following from the Isreach of the undertaking 
 cannot be estimated in money, then the court will refuse relief: 
 against the penalty or forfeiture.^ 
 
 When the two courts of common law and of equity were separate 
 tribunals, the form of the remedy, in which the court of equity 
 provided relief against a penalty or forfeiture, was that of a suit 
 brought by the debtor to secure a cancellation and surrender of the 
 agreement, or a release from the forfeiture upon payment of the debt 
 or damages suffered by the obligor. Accompanying this decree, for 
 such surrender or release, the court would also enjoin any action at 
 law for the enforcement of the penalty or forfeiture. Inasmuch as 
 these two courts have now become united in one in most of our states, 
 the form of the remedy is changed; and the common method of reliev- 
 ing against forfeiture is to set up as defense, in the action for the 
 enforcement of the penalty or forfeiture, the equitable right of relief, 
 upon the payment of the actual debt or damage due to the obligor. 
 The principles, however, underlying the right to such relief, have not 
 been materially affected by this change in procedure. 
 
 § 26. Penalties defined and distinguished from liquidated dam- 
 ages. — In consequence of the interference of the court of equity in 
 behalf of the obligee, to prevent the enforcement of the penalty, 
 where the amount of such penalty could be proven to be in excess of 
 the damage suffered by the obligee from the non-performance of the 
 obligation; a distinction has arisen in the law between the penalties, 
 from which equitable relief will be given, and those from which such 
 equitable relief will be refused. The term ' ' penalty " is now confined 
 in meaning to those penalties against which equity will relieve, while 
 another name is given to those penalties against which no relief can be 
 bad. 
 
 13 Eq. Lead. Gas. and notes pp. 2014, 2023, Super. Ct. 215j Hardy v. Martin, 1. Bro. Ch. 
 2044 (4th Am. ed.); Reynolds v. Pitt, 19 Ves. 419, n; S. C, 1 Cox, 26; Benson «. Gibson, 3 Atlc. 
 140; Bowser ». Colby, 1 Hare, 128; Gregorys. 395; Errington i). Arnesly, 2 Bvo, Ch. 341,343; 
 Wilson, 9 Id. 683; Bracebridge v. Buckley, 2 Skinner i;. Dayton, 2 Johns. Ch. 534, B35; Bowen 
 Price, 200; Gibbon, 3 Drew. 681; Bargent v. v. Bowen, 20 Conn. 127; Gould v. Bugbee, 6. 
 Thomson, 4 Giff. 473; Hagarc.Buck, 44 Vt. 285; Gray, 371, 375; Hagar «. Buck, 44 Vt. 285 ; Pitts- 
 Hancock V. Carlton, 6 Gray, 39; Thompson v. burg B. R. v. Mt. Pleasant R. R., 26 P. F. Smith 
 Whipple, 5 R. I. 144; Walker v. Wheeler, 2 (76 Pa. St.), 481, 490; Hackett «. Alcock, 1 Call, 
 Conn. 299; Michigan St. Bank v Hammond, 1 463. 
 Doug. (Mich.) 527; Giles v. Austin, 38 N. Y. 
 
 43 
 
§ 27 EQUITY JURISPRUDENCE. [CH. tJI. 
 
 Inasmuch as the ground for refusing the equitable relief to this latter 
 class of penalties is that the sum of the penalty cannot be clearly 
 proven to be in excess of the damage suffered, on account of the inability 
 to prove the amount of such damage in money, the name of liquidated 
 dmnages is given to this class of penalties; in other words, the rule is 
 recognized and laid down by equity, that the parties to a contract 
 can also agree upon the payment of a fixed sum of money in the 
 settlement of the claim for damages from the non-performance of the 
 contract, whenever the character of the contract is such that a jury or 
 the court could not correctly measure the damages of the breach. It 
 becomes, therefore, necessary to a thorough understanding of this sub- 
 ject, and the scope of the equitable rule for relief against penalties, to 
 note in detail when a stipulation for the payment of the sum of money 
 is held to be a penalty, or an agreement for liquidated damages. 
 
 § 27 To secure payment of money or loan. — In the first place, 
 where the contract calls for the payment of a sum of money with 
 interest and provides, that upon the failure to pay such a sum of 
 money and accrued interest the obligor shall pay a sum larger than 
 the debt and accrued interest; then this stipulation for the payment of 
 such a large sum will be held to be a penalty against Avhich a 
 court of equity will grant relief.^ There are, however, some excep- 
 tions to the rule which must be referred to: in the first place, it is not 
 a penalty, where a creditor after maturity of the debt agrees to accept 
 an obligation in the place of the old debt, to pay a smaller sum of 
 money, the payment of which is properly secured, subject to the con- 
 dition, that if the non-performance of the agreement to pay such a 
 smaller sum is broken, that the original debt for the larger sum may be 
 enforced. In such a case the right to enforce the larger sum, as a 
 consequence of the failure to perform the new substituted obligation, 
 is not held to be a penalty, against which equity will relieve, because 
 the effect of the failure of the security, which constituted the con- 
 sideration for the reduction in the amount of the original debt, cannot 
 be estimated accurately in dollars and cents. ^ It has also been held, 
 where a contract for the payment of money contains a stipulation 
 for the acceleration of the payment of an entire debt, upon the failure 
 
 1 SMnner v. Dayton, 2 Jolins. Ch. 535; 17 whole debt; but If you do not make payment 
 Johns. 357; Deforest v. Bates, 1 Edw. Ch. 394; of it on that day, then the whole debt shall 
 Giles V. Austin, 38 N. T. Supr. Ct. 215; Browen remain due to me, and I shall be at liberty to 
 V. Browen, 20 Conn. 126; Carpenter v. Wesoott, recover it;' and this is the view which a court 
 4 R; I. 225; Walling v. Aiken, 1 McMuUen Eq. of equity will adopt. If you were to put that 
 1; Moore v. Platte, 8 Mo. 467; Bright V. Row- proposition to any plain man walking the 
 land, 3 How. (Miss.) 398. streets of London, there would be no doubt at 
 
 2 Thompson v. Hudson, L. R. 4 H. L. 1, revers- all that he would say that it is reasonable and 
 Ing S. C, L. R. 2 Bq. 612; L. E. 2 Ch. 265. Lord accordant with common sense. But if he was 
 Westbury in the same case said (p. 27) : " It is told that it was requisite to go to those tribunals 
 Tight and rational for a creditor to say to his before you could get that plain principle and 
 debtor, 'Provided you pay me half of the debt conclusion of common sense accepted as law, 
 or two-thirds of the debt on an appointed day, he would undoubtedly hold up his hands 
 I will release you from the rest, and will ae- with astonishment at the state of the law." 
 cept the money so paid in discharge of the 
 
 44 
 
CH. m.J PENALTIES AND FORFEITURES. § 27 
 
 to pay an instalment of the interest or principal of the debt, that such 
 declaration is not a penalty against which equity will afford relief. 
 This is generally supported by the authorities.^ This rule must, how- 
 ever, be taken subject to the qualification, that the amount of interest 
 which might be collected on the debt itself would be proportionately 
 reduced, where the creditor decided to accelerate the payment of 
 the debt; in other words, if with the acceleration of the time of pay- 
 ment of the whole debt, the debtor was nevertheless required to pay 
 the entire amount of interest directly, or indirectly, which he would 
 have been called upon to pay in the absence of such acceleration of 
 the time of payment; it is clear that in such a case the creditor will 
 have gained from the transaction, a sum of money in excess of the 
 actual loss; and upon the general grounds heretofore presented, the 
 court would be justified in declaring such a stipulation to be a penalty, 
 and aflbrd relief against it. The cases cited in the preceding note did 
 not clearly make this distinction; but in the cases cited below, the 
 point is sustained and affirmatively asserted.^ A further exception is 
 recognized by an English case where the obligation is in the alterna- 
 tive; namely, that under certain circumstances a larger sum of money 
 is to be paid than what is called for under the general terms of the 
 contract. In this case, the court of arbitrators awarded that dofentl- 
 ant should pay to plaintiff for her life an annuity of £1,200 a year; 
 and in order to secure this annuity, the defendant was directed within 
 two months to purchase for the plaintiff a government annuity of 
 £1,200, and if the defendant should fail to make such a purchase 
 within the two months stipulated, he should be liable to pay £100 for 
 every month thereafter in which he should fail to purchase the annu- 
 ity, in addition to the regular income occurring from the annuity.^ 
 Vice-Chancellor Bacon, held that this additional £100 was liquidated 
 damages, and could be recovered in addition to the regular income 
 from the annuity. In rendering the decision of the court, he says: 
 "Whenever the defendant saw fit he might have relieved himself 
 from the obligation of that payment [the £100 a month] by perform- 
 ing the other branch of the contract, namely, the purchase of a 
 government annuity. Nothing can be clearer and plainer. ' Penalty ' 
 it is, but penalty in order to secure the performance of the other 
 branch of the contract, with perfect power and liberty for the person 
 upon whom the burden is cast to relieve himself from that penalty or 
 
 1 stanhope v. Manners, 2 Eden, 197; People v. Id. 448; MaJIory v. West Shore, &c. R. R., 35 N. 
 Superior Court of N. Y., 19 Wend. 104; Noyesu. Y. Supr. Ct 175; Willis v. O'Brien, 35 Id. 536; 
 Clark, 7 Paige, 179; Ferris». Ferris, 38 Barb. 29; Gulden v. O'Byrne, 7 Phila. 93; Mobray v. Lee- 
 Baldwin V. Van Vost, 2 Stockt. Ch. 577; Martin tie, 42 Md. 474; Wilcox v. Allen, 36 Mich. 160; 
 V. Melville, aid. 222; Robinson v. Loomis, 1 P. Harper v. Ely, 56 111. 170; Meyer v. Graeber, 19 
 F. Smith (51 Pa. St.), 78; Schooley v. Romain, KanS. 165; Pope v. Hooper, 6 Neb. 178; Howell 
 31 Md. 574. 579; OttawaPlankR. Co. ■». Murray, v. Western R. R., 4 Otto, 463; contra Mayo v. 
 15 111. 337; Basse v. Gallegger, 7 Wis. 442; Jubah, 5 Munf. 495. 
 
 Maine Bank «. International Bank, 9 Id. 57, 68; " See Tiernon «. Hariman, 16 111. 400; Sterne 
 
 BerrinkottB. Traphagen, 39Id. 219; Bennetts;. v. Becks, 1 Dej. J. & S. 595, 600 & 601. 
 
 Stevenson, 53 N. Y. 508; Malcolm v. Allen, 49 ' see Parfltt v. Chambre, L. R. 15 Eq. 336, 
 
 45 
 
§ 28 EQUITY JUEISPKUDENCE. [CH. IH. 
 
 additional payment whenever he shall think fit. That is not a penalty 
 ■which courts of common law or courts of equity can allow to be relin- 
 quished or satisfied, except upon the terms of performing that very 
 thing which the introduction of the penalty imposes in order to effect- 
 uate it." It is doubtful whether the position of the English court in 
 this case can be sustained on the principles heretofore set forth ; and 
 by which the distinction between penalties and liquidated damages is 
 determined. 
 
 §28. Liquidated damage. — General description. — As has already 
 been stated, whenever the obligation to pay a sum of money is attached 
 as a penalty for the non-performance of some act of such a character, 
 that the damage following from the non-performance of it cannot be 
 accurately ascertained or measured in money; in such a case the penalty 
 is held to be liquidated damages, and as such can be enforced by the 
 courts, and against which equity will not afford a relief. The term 
 ' ' liquidated damages " means, that the parties have substituted for the 
 judicial ascertainment of the damage, resulting from the non-perform- 
 ance of the contract, an agreement as to the amount which can be 
 recovered for the breach of such a contract, and this substituted agree- 
 ment is enforced as and under the name of liquidated damages.^ It 
 is, however, very difficult sometimes to determine whether the agree- 
 ment for the recovery of the fixed sum as damages should be con- 
 sidered as a penalty against which equity will relieve, or as liquidated 
 damages which the courts can enforce. The answer to this question 
 does not depend upon the words employed in the composition of the 
 contract, but rather upon the construction of the whole instrument, 
 and the circumstances surrounding the parties and the transaction. 
 Hence the construction placed upon the transaction will in nowise 
 depend upon the employment in the contract of the words, penalties, 
 or liquidated damages; in other words, the parties cannot make the. 
 obligation one for liquidated damages by calling it such. The courts 
 will pronouce it to be a penalty, if under the circumstances of the case 
 and upon the application of principles heretofore presented, the obli- 
 gation must be considered to be a penalty. Where, however, the 
 intent of the parties and the character of the transaction is doubtful, the 
 tendency of the court is in favor of considering the same as a penalty.^ 
 If or is the. mere largeness of the sum of money agreed to be paid on 
 
 >Bagleyi». Peddle, 16 N. T. 469; Mottv. Mott, 2 Cushlngw. Dr6w,97Mass. 445; Shuter.Tay. 
 
 11 Barb. 187; Dakin v. Williams, 17 Wend. 447; lor, 5 Mete. 61; WalliSD. Carpenter, 13 Allen, 19; 
 
 ^ Id. 201; Smitlu). Coe, 33 N. Y. Supr. Ct, 480; Lyndeii. Thompson, 2 Id. 456; Streeper ». Will- 
 
 O'Donnell v. Rosenberg, 14 Abb. Pr. (N. S.) 59; iams, 48 Pa. St. 450; Hatch v. Pogarty, 33 N. Y. 
 
 Shute V. Hamilton, 3 Daly, 468; Wolfe Creek, Supr. Ct. 166; Hahn v. Horstman, 18 Bush, 249; 
 
 &c. Co. ■.-. Shultz, 71 Pa. St, 180; Streeper 11. Yenner v. Hammond, 36 Wis. S77 (the word 
 
 Williams, IS Wright, 4B0; Pierce v. Puller, 8 "penalty" used, but construed to be llqui- 
 
 Mass. 323; Gushing i;. Drew, 97 Id. 445; Tingley dated damages); White v. Arlith, IBond, 319; 
 
 V. Cutler, 7 Conn. 291; Gammon v. Howe, 14 Hamaker v. Schroers, 49 Mo. 406; Shute v. 
 
 Me. 350 ; Peine v. Weber, 47 111. 41 ; Low v. Nolte, Hamilton, 3 Daly, 462 ; Gillis v. Hall, 7 Phila. 
 
 16 Id. 478; Brown v. Maulsby, 17Ind. 10; Hamil- 423; S. C, 2 Brews. 348. In White v. Arlith, 1 
 
 ton ». Overton, 6 Blackf. 206; Yenner «. Ham- Bond, 319, it was held that if a sum agreed 
 
 mend, 36 Wis. 977. upon to be paid on the breach of a contract is 
 
 46 
 
CH. III.] PENALTIES AND FOEFEITURES. § 29 
 
 the breach of the contract necessarily a circumstance which would force 
 ■the courts to pronounce the obligation to be a penalty. ^ But while 
 this is true, that the disproportion of the sum agreed to be paid to the 
 damage resulting from the breach of the contract, will not of itself be 
 a sufficient reason for pronouncing the agreement to be a penalty; yet 
 it is a circumstance which tends to weaken the claim, that the agree- 
 ment is one for liquidated damages; and where this construction of the 
 character "of the agreement has the support of other attending circum- 
 stances, this conjunction of circumstances will change the presumption 
 to that in favor of the obligation being a penalty.^ 
 
 § 29. Rule for determining liquidated damages and penalties. 
 — The general rule for determining when an agreement is one for 
 liquidated damages is the following: Where the agreement is for the 
 performance of one act, and the damages flowing from the non-per- 
 formance of that agreement cannot be adequately estimated in money; 
 the parties may by a separate clause of the contract stipulate, that 
 upon failure to perform the contract, the parties so failing shall pay 
 to the other a definite sum of money, which shall be taken by him in 
 the place of and as satisfaction of his claim for damages. The exam- 
 ples that might be cited in illustration of the application of this rule 
 are numerous and varied in character. One very common illustration 
 is in the case of the sale of the good-will of a business, in which the 
 party selling stipulates that he will not carry on that trade in the same 
 place, and if he violates that agreement he will pay the vendee a stipu- 
 lated sum of money as damages.^ Another common illustration is 
 that of a stipulation in a building contract, that the contractor will pay 
 a fixed sum of money as damages for each day transpiring subsequent 
 to the time agreed upon for the completion of the building, in which 
 he fails to so complete it.* It is also held to be liquidated damages, 
 . when a lessee agrees to pay a fixed additional sum for any unusual use 
 of the land.' It is also the rule, that a contract to pay a sum of money 
 ior the breach of a contract of sale of land will be considered and 
 treated as liquidated damages;" and so, likewise, if the contract was for 
 the sale of goods or wares of such a special character, as that the ven- 
 
 called in the contract by the name of penalty, = Barry v. Wisdom, 5 Ohio St. 241 ; Perkins v. 
 
 the court will treat it as a penalty whatever Lyman, 11 Mass. 78; Lynde v. Thompsou, 8 
 
 may belts real character; while If the name Allen, 456, 459; Hodgson v. King, 7 Met. 583; 
 
 liquidated damages is given to the sum agreed Streeper v. Williams, 12 Wright, 450; Curry ti. 
 
 to be paid in the contract, the courts will in- Larer, 7 Barr. 410; Colwell v. Lawrence, 38 
 
 quire into the real facts of the case, in order Barb. 643; 38 N. Y. 
 
 to ascertain the character of the obligation ' Green v. Price, 13 M. & W. 695; Streeter v. 
 
 ^part from the declaration- of the parties. Rush, 25Cal. 67; Oushings. Drew, 97Mass. 445. 
 
 This case, however, is otherwise unsupported * O'Donnell v. Rosenberg, 14 Abb. Pr. N. S. 59. 
 
 by authority and is directly opposed to the ^ Rolfe v. Peterson, 2 Bro. P. C. 436 (Toml. 
 
 cases above cited. ed.); Woodward v. Gyles, 2 Vern. 119; Jones v. 
 
 1 Clement ». Cash, 21 N. Y. 253; Sheill v. Mc 
 NItt, 9 Paige, 101 ; Dwinel v. Brown, 54 Me. 468 
 Morse ». Eathbum, 42 Mo. 606; Gowerr. Salt 
 marsh, 11 Id. 27; Peine v. Weber, 47 111. 41 
 Gamble v. Llnder, 66 Id. 137; Williams v. 
 .Green, 14 Ark. 313; Hodges w. King, 7 Met. 68C, 
 
 Green, 3 Y. & J. 298; Hardy ii. Martin, 1 Cox, 
 27; French v. Macale, 2 Dr. & War. 274. 
 
 « Jemmison v. Gray, 29 Iowa, 537; Leev. Over 
 street, 44 Ga. 507; Shreve v Brereton, 51 Pa. St. 
 (1 P. F. Smitti) 17.1.183; liu-r » Todd,5Wright, 
 208; Taylor V. The Marcella, 1 Woods, 308. 
 
 47 
 
§ 29 EQUITY JUKISPKUDENCE. [CH. IH. 
 
 dee could not readily find in the market substitutes therefor, as where 
 some rare or unusual painting or statue was the subject-matter of 
 the sale; in such a case, the damages flowing from the breach of the 
 contract could not be readily estimated in dollars and cents, and 
 hence the court would pronounce a stipulation for the payment of 
 a fixed sum of money to be an agreement for liquidated damages.^ If, 
 however, in this case the stipulated sum of money is very greatly in 
 excess of a reasonable valuation of the goods sold, the stipulation 
 would very likely be considered as a penalty, notwithstanding the 
 uncertainty as to the amount of the damage sufiered.^ Whether the 
 stipulation for liquidated damages in a contract for the sale of personal 
 property will be treated as liquidated damages, depends, upon the 
 character of the contract. In the case of the contract for the sale of 
 real property, the uncertain personal valuation placed by persons upon 
 the ownership of a particular piece of land, is the justification for 
 treating as liquidated damages, a stipulation for the payment of a fixed 
 sum of money for the breach of a contract of sale. But in ordinary 
 contracts for the sale of personal property, the damages sufiercd by 
 the breach of the contract, is the difference between the contracted 
 price and what would have to be paid in the market for goods of the 
 same character; hence the damages flowing from the breach of such a 
 contract can be readily computed in this case, and therefore the courts 
 would declare a stipulation for the payment of a fixed sum of money 
 on the breach of the contract of sale to be a penalty. 
 
 These cases in application of the rule of the text may be continued 
 indefinitely and in the note below additional cases are added.' It must 
 be added, that the rule referred to applies only to those cases in which 
 the agreement to pay a stipulated sum is attached to the contract for 
 the performance of one single act; for where the contract provides for 
 the performance, or non-performance of more than one act, of several 
 distinct and separate acts, and the sum of money stipulated for as 
 liquidated damages will, under the terms of the contract, be pay- 
 able to the obligee, not only upon the non-performance of aU 
 of the acts agreed upon, but likewise for the non-performance 
 
 1 Lynde v. Thompson, 8 Allen, 460; per Bige- 339; Pearson v. Williams, 84 Wend. 246; 24 Id. 
 low, C. J.; Gammon «. Howe, 14 Me. SaO; 630; Brewster v. Edgerly, 13 N. H. 275; Curtis d. 
 Chamberlain «. Bagley, 11 N. H. 234; Mead v. Brewer, 17 Pick. 513; Paunce v. Burke, 4 Har- 
 Wheeler, 13 Id. 361 ; Tingley v. Cutler, 7 Conn. ris, 469; Berrikott v. Traphagen, 39 Wis. 220; 
 291 ; Shiell v. MoNitt, 9 Paige, 101, 103 ; Clement Leggett v. Mut. Life Ins. Co. , 50 Barb. 616 ; Gob- 
 «. Cash, 21 N. T. 253; Knapp v. Maltby, 13 ble u. Linder, 76 Ind. 157; Eyan ji. Martin, 16 
 Wend. 687; Streeper v. Williams, 12 Wright, Wis. 57; Hise v. Poster, 17 Iowa, 23; Morse i;. 
 450; Hise v. Foster, 17 Iowa, 23; Morse v. Euth- Eathbun, 42 Mo. 594; Streeter v. Rush, 25 Cal. 
 burn, 42 Mo. 594; Williams v. Green, 14 Ark. 67; Lightnem. Menzel, 35 Cal. 452. In thefol- 
 315, 327. lowing oases, the sum was held to be a penalty : 
 
 2 See Spencer v. Tilden, 5 Cow. 144; Halde- Colwell v. Lawrence, 38 N. Y. 71; Green v. 
 man B. Jennings, 14 Ark. 329; Williams t). Tweed, 13 Abb. Pr. (N. S.) 427; Staples t). Par- 
 Green, 14 Id. 315, 326; Burr v. Todd, 5 Wright, ker, 41 Barb. 648; Wallis v. Carpenter, 13 Allen, 
 ^^- 19; LongtJ. Towl, 43 Mo. 545; Eangeri). Great 
 
 8 Wolf Creek & Co. v. Shultz, 71 Pa. St. {21 P. Western Ey. Co., 5 H. L. Cas. 72. 
 F. Smith) 180; Powell c/. Burroughs, 54 Pa. St 
 
 48 
 
CH. III.] PENALTIES AND FORFEITURES. § 29 
 
 of any one of the acts; the obligee would, at least, in the case of 
 a partial breach, recover more than he has lost by the breach of the 
 contract. In that case, the stipulation is declared to be a penalty, 
 notwithstanding the uncertain character of the damage suffered for 
 the breach of the contract.^ So, also, where the agreement contains 
 provision for the performance, or non-performance of several acts of 
 different values, the damages flowing from one of them can be defi- 
 nitely estimated. In that case, the agreement for a sum of money to 
 be paid, is to be treated as a penalty and not as liquidated damages. 
 But often where the agreement does contain provision for the per- 
 formance of more than one act, if the stipulation for the payment of 
 a sum of money for the breach of the contract applies only to the 
 breach of one of these provisions of the contract, then this stipulation 
 will be treated as liquidated damages, instead of as a penalty.' So, 
 also, will the stipulation be treated as an agreement for liquidated 
 damages, where it is only to be paid for a general breach of the con- 
 tract, in respect to all of its provisions.* So, likewise, the contract 
 will not be considered as sepai'ate agreements for the performance of 
 several distinct acts, merely because it calls for the performance of 
 several acts. These acts may in fact constitute only parts of one trans- 
 action; and in such a case, the contract is in legal contemplation a con- 
 tract for one transaction and not for many. ^ Finally, it must be stated, 
 that wherever the payment of a larger sum of money is provided for, 
 in settlement of the breach of a contract for the payment of a smaller 
 sum, it will be treated as a penalty, however disguised the real char- 
 
 1 Jemmison v. Gray, 29 Iowa, 537; Lee v. Over- the exception to the general rule Is recognized 
 street, 44 Ga. 507; Hamaker v. Schroers, 49 Mo. only when one of the provisions of the con- 
 406; Taylor v. The Marcella, 1 Woods, 302; tract is for the payment of a sum of money: 
 Lyman v. Babcock, 40 Wise. 503; Dallaghen v. Cotheal v. Talmadge, 9 N. Y. 551; Ruggles, J., 
 Fitch, 42 Id. 679; Hx parte Pollard, 17 Bank. Clement v. Cash, 31 N. Y. 253, 2a9; Bagley i). 
 Beg. 228; Savannah E. E. v. Callaghan, 56 Ga. Peddle, 16 Id. 470. 
 
 331; Shreve v. Brereton, 51 Pa. St. (1 P. F. s Shute u. Hamilton, 3 Daly, 463; Mott«. Mott, 
 
 Smith) 175; Curry v. Larer, 7 Barr, 470; Perkins 11 Barb. 134; Dakin v. Williams, 17 Wend. 447; 
 
 V. Lyman, 11 Mass. 76; Lampman v. Cochran, 22 Id. 201; Pearson v. Williams, 24 Id. 244; 26 Id. 
 
 16 N. T. 269, 37T. In the leading case of Jem- 630; Mead v. Wheeler, 13 N. H. 301; Hodges v. 
 
 mison v. Gray, supra, the contract was to de- King, 7 Met. 583; Lange v. Week, 2 Ohio St. 519; 
 
 liver 60,000 railroad ties to be paid for when Watts v. Sheppard, 2 Ala. 425, 445. 
 
 delivered, with the exception of ten per cent. * Hall v. Orowly, 5 Allen, 304; Chase v. Allen, 
 
 which was to be retained by the buyer as a se- 13 Gray, 42; Young v. White, 5 Watts, 460; 
 
 curity for the final completion. This ten per Powell v. Burroughs, 54 Pa. St. (4 P. F. Smith) 
 
 cent, was considered to be a penalty and not 329, 336; O'Donnell v. Eosenberg, 14 Abb. Pr. 
 
 liquidated damages. (N. S.) 59; Leary v. Laflin, 101 Mass. 334; 
 
 2 Trower v. Elder, 77 111. 452, and cases cited; Dwlnel v. Brown, 54 Mo. 458; Clement v. Cash, 
 First Orthodox Ch. v. Walruth, 27 Mich. 232; 21 N. Y. 253; Cotheal v. Talmadge, 9 Id. 551; 
 Cook V. Finch, 19 Minn. 407; Morris v. McCoy, 7 Bagley v. Peddle, 16 Id. 470. 
 
 Nev. 399; Dullaghen II. Fitch, 43 Wise. 679; Ly- 6 Clement ti. Cash, 21 N. Y. 253; Bagley v- 
 
 man v. Babcock, 40 Id. 503; Savannah E. E. v. Peddle, 16 Id. 470; Cotheal v. Talmage, 9 Id. 
 
 Callahan,56Ga. 331; Shreve II. Brereton, 51 Pa. 551; Leary ji. Laflin, 101 Mass. 334. In Clem- 
 
 St. (1 P. F. Smith) 175, 180; Nlver v. Eossman, ent v. Cash, supra, Wright, J., applied the 
 
 ISBarb. 50; Jackson v. Baker, 3Edw. Ch. 471; rule as follows: "The contract in question. 
 
 Cheddick v. Marsh, 1 Zabr. 363; Whitfield v. in legal effect, provided but for the perform- 
 
 Levy, 6 Vroom, 149 ; Berry v. Wisdom, 3 Ohio ance of a single act on each side, and at th& 
 
 St. 344; Basye v. Androse, 28 Mo. 39; Long«. same period of time, viz., the execution andl 
 
 Towle, 42 Id. 648. In New York the rule, as delivery of a deed of the land of the defend 
 
 stated In the above text, is modified so that ant, and payment therefor by the plaintiff: 
 
 49 
 
§ 31 EQUITY JURI8PEUDENCE. [OH. HI. 
 
 acter of the transaction may be.^ The court will look below the sur- 
 face of the transaction for the ascertainment of its true character. 
 
 § 30. Election to pay penalties or liquidated damages. — As a 
 consequence of the opposition, both of the courts of law and of equity, 
 to the enforcement of the penalty for the non-performance of a con- 
 tract, the obligor is never permitted to elect to pay a penalty and 
 thus escape the obligation to specifically perform the contract; his 
 election to do so is never treated as an obstacle to the enforcement of 
 the specific performance of the contract.^ Where, however, the 
 agreement for the payment of a sum of money for the breach of a con- 
 tract is held by the courts, under the circumstances of the case, to be 
 an agreement for liquidated damages, and the obligor elects to pay the 
 liquidated damages, equity will refuse to decree specific performance in 
 behalf of the obligee, and leave the injured party to his remedy at 
 law.' 
 
 § 31. General principles governing the relief against for- 
 feitures. — It has often been stated and accepted without question, 
 that relief would be granted against forfeiture in identically the same 
 cases where relief is aflforded against the enforcement o5P a penalty; 
 in other words, that wherever the obligation is the payment of a sum 
 of money, or where the damages flowing from a non-performance of 
 the agreement can be estimated in money, in all such cases relief will 
 be aflbrded against the forfeiture provided for; and that equity will 
 not relieve against foi-feiture wherever the damages from the non- 
 performance of the agreement cannot be estimated in money. It is 
 certainly true, that where the stipulation of a forfeiture is intended to 
 secure the performance of an act in which the damages from the non- 
 performance cannot be estimated, the relief will be denied unless 
 
 That the defendant agreed to receive In pay- Barb. 50; Davis v. Hendrie, 1 Mont. Ter. 499; 
 
 ment for his deed, and the plaintiff to pay Hardee v. Howard, 33 Ga. 533: Sutton v. Howard, 
 
 simultaneously with its delivery, the consid- Id. 536; Goldsworthy v. Strutt, 1 Exch. 659, 665; 
 
 eration in money and other property, cannot Lynde v. Thompson, 2 Allen, 456, 459. 
 
 divest what was to be done of the character of 'i Jones (/.Heavens, L. E. 4 Gh. D. 636; In re 
 
 a single transaction. If the defendant failed Dagenham Dock Co., L. R. 8 Ch. 1028; Bwing 
 
 to convey, or the plaintiff to make payment in ». Gordon, 49 N. H. 444; Gillis v. Hall, 7 Phila. 
 
 the way covenanted, there was a total non- 422j 2 Brews. 342; Dooley v. Watson, 1 Gray, 
 
 performance. The consideration to be paid 414; Hooker ». Pynchou, 8 Id. 550; Fisher v. 
 
 was nine thousand dollars, of which four Shaw, 42 Me. 32; Hull v. Sturdlvant, 46 Id. 34; 
 
 thousand was to be In cash, and five thousand Dailey v. Lichfield, 10 Mich. 29; Whitney «. 
 
 in securities, the cash and transfers of the Stone, 23 Gal. 275; Dike ». Green, 4 E. I. 288 
 
 securities to be passed over to the defendant 295. It must, however, be observed, that 
 
 on receipt of the deed." where the election is made by the creditor or 
 
 > Lampman v. Gochran, 16 N. Y. 275; Clem- obligee, to take, or recover the sum of money, 
 
 ent V. Cash, 21 N. Y. 253, 260; Bagley v. Fed- and he has been permitted to recover a judg- 
 
 die, 16 N. Y. 469, 471 ; Dakin v. Williams, 17 ment for damages, he cannot then ask for a 
 
 Wend. 447; 82 Id. 401; Tiernan «. Hamman, 16 specific performance of the contract, his resort 
 
 111. 400; Kuhn v. Meyers, 37 Iowa, 351; Morris to the legal remedy precludes his employment 
 
 V. McCoy, 7 Nev. 399; Spear v. Smith, 1 Denio, of the equitable remedy. Fox v. Soard, 33 
 
 465; Hoag». McGinnis, 22 Wend. 163; Niverj). Beav. 327, ^er Sir J. Eomily, M. E. 
 
 Eossman,' 18 Barb. 50; Gregg v. Crosby, 18 » Eanger «. Great Western By. Co., 5 H. L. 
 
 Johns. 819, 226; Curry v. Larer, 7 Barr. 400; Ca8.73; Shieel*. McNitt,9Paige,101; St. Mary's 
 
 Whitfield V. Levy, 6 Vroom, 149; Shiell V. Mc- Church ». Stockton, 4 Halst. Gh. 580; Bodine v. 
 
 Nitt, 9 Paige, 101, 108; Niver v. Eossman, 18 Gladding, 9 Harris, 50; Holdman v. Jennings, 
 
 50 
 
OH. III.] PENALTIES AND FORFEITURES. § 32 
 
 special circumstances justif\' the grant of such relief:^ and it is also 
 true, that wherever the agreement secured is a debt, and the forfeit- 
 ure is intended as a security for the payment of the debt, equity will 
 afford relief against forfeiture.^ But there are many cases in which 
 equity will not relieve against forfeitures, even though compensation 
 can be made:' and also, where the compensation cannot be made or esti- 
 mated, equity will afford relief from the forfeiture, on account of the 
 special circumstances of the cases which make the enforcement of the 
 forfeiture peculiarly inequitable. Thus, for example, where the forfeit- 
 ure has been occasioned by accident, fraud, surprise or mistake of the 
 obligor, the court will ordinarily grant the relief against the forfeiture, 
 although the obligation is not one which would permit of the accurate 
 estimation of the damages of the breach .* The courts of equity will also 
 relieve or prevent the enforcement of a forfeiture where, subsequent to 
 the breach of the agreement, the obligee waives the right of forfeiture 
 or acquiesces in the breach, by receiving benefits from the obligor in 
 the further performance of the agreement, or stands by and permits 
 the obligor to continue the performance of the agreement.' On the 
 other hand, if the obligor is guilty of negligence or willfulness in the 
 non-performance of the agreement, and, therefore, the agreement is 
 not due to misfortune; the court of equity will refuse to grant relief 
 against the forfeiture in any such case, whatever may be its peculiar cir- 
 cumstances.' The general principles here set forth will now be to 
 special cases of more or less common occurrence. 
 
 § 32. Relief against forfeiture in mortgages. — In application of 
 the proposition set forth in the preceding paragraph, it is a well-known 
 fact that a court of equity will relieve a mortgagor from the forfeiture 
 of his estate as a consequence of the condition, namely, the non-pay- 
 
 14 Ark. 329; Skinner ». Dayton, 2 Johns. Oh. ■'Eaton i>. Lyon, 3 Ves. 693, per Lord Alvan- 
 
 536; City Bank of Baltimore v. Smitli, 3 Gill. & ley; Hill v. Barclay, 18 Ves. 58, 62, per Lord 
 
 J. 265; Jaquith v. Hudson, 5 Mich. 123; Hahn Eldon; Harman ». South London Water Co., 2 
 
 t!. Concordia Soc, 42 Md. 460. Meriv. 61; Bamford v. Creasey, 3 Giff. 675; 
 
 1 Gregory v. Wilson, 9 Hare, 683; Skinner v. Duke of Beaufort «. Neeld, 12 CI. &. Pin. 248; 
 
 Dayton, 2 Johns. Ch. 526, 535; Baxter i). Lan- Meek v. Carter, 6 W. E. 852. 
 
 sing, 7 Paige, 350; Drenkler v. Adams, 20 Vt. 6 Lilly ». The Fifty Associates, 101 Mass. 432; 
 
 415; Clarke ■». Drake, 2 Chand. (Wise.) 253; Helme v. Philadelphia Ins. Co. 61 Pa. St. (11 P. 
 
 Gregg ». Landis, 4 C. E. Green, 850, 6 Id. 494, P. Smith) 107; Gregg v. Landis, 4 C. E. Green, 
 
 511; Ottawa PI. Ed. Co. v. Murray, 15 III. 336. 356; 6 Id . 494, 507; 2 Washb. on Real Prop. 19; 
 
 ^Bracebridge v. Buckley, 2 Price, 200; Skin- Co. Lit. 2nb; Andrews v. Senter, 32 Me. 397; 
 
 'ner ». Dayton, 2 Johns. Ch. 535; 17 Johns. 339; Gray v. Blanchard, 8 Pick. 281; Hubbard?). 
 
 Hagars. Buck, 44 Vt. 285; Hancock v. Carlton, Hubbard, 97 Mass. 192; Doe v. Glaudwin, 6 Q. 
 
 6 Gray, 39; Carpenter v. Westcott, 4 R. I. 225; B. (51 Eng. C. L.) 953; Gild v. Eichards, 16Gray, 
 
 Thompson v. Whipple, 5 Id. 144; Walker v. 336; Chalkerji. Chalker, 1 Conn. 79; Jackson ®. 
 
 Wheeler, 2 Conn. 229; Hart v. Homlier, 8 Har- Crysler, 1 Johns. 126; Gluck v. Elkan, 36 Minn. 
 
 ris, 248; Bright v. Rowland, 3. How. (Miss.) 80; Hubbard ». Hubbard, 97 Mass. 192; Coon®. 
 
 398; Moore v. Platte, 8 Mo. 467; Walling v. Brocket, 2 N. H. 153; Ohalker v. Chalker, 1 
 
 Aiken, 3 McMullin Eq.l; Eoyand t). Walker, 1 Conn. 79; Jackson v. Crysler, 1 Johns. 126; 
 
 Wis. 527; Giles v. Austin, 38 N. Y. Super. Ct. Crouch v. Wabash, Ac. R. R. Co., 22 Mo. App. 
 
 215; Orr v. Zimmerman, 63 Mo. 72; Palmer v. 315. 
 
 Ford, 70 111. 369. "Hancock v. Carlton, 6 Gray, 39; Clarke v. 
 
 3 Eaton *. Lyon, 3 Ves. 692,693; Germantown Drake, 3 Chand. (Wis.) 223; Horsburg v. 
 
 &c. R, R. V. Filler, 60 Pa. St. (10 P. F. Smith) 131 ; Baker, 1 Peters, 236. 
 Dunklee v. Adams, 20 Vt. 415 See also post § 33. 
 
 51 
 
§ 33 EQUITY JURISPRUDENCE. [CH. HI. 
 
 ment of the debt.* Not only will the court refuse to enforce the for- 
 feiture and prevent the enforcement of the forfeiture, where the con- 
 veyance is a mortgage; but it will not permit the parties themselves 
 by any contemporaneous agreement to waive the right to its relief. 
 The mortgagor cannot by any agreement contemporaneous with the 
 execution of the mortgage, deny to himself upon the breach of the 
 condition his right of redemption.^ Not only is this the case; but 
 wherever the relation of debtor and creditor exists, however informal 
 or obscure may be the character of the transfer, the agreement would 
 be held to create a mortgage although the parties did not intend that 
 that should be the effect of the transaction.^ 
 
 § 83. Agreements to repurchase. — If in connection with the 
 transfer of property an agreement is made between the vendor and 
 vendee, that if the vendor should tender the payment of a certain 
 sum of money, in the time stipulated, he shall have the right to 
 regain the estate, the transaction may be either a mortgage to secure 
 the payment of a debt or an agreement simply to permit the vendor 
 to repurchase the estate. The difference in the legal effect of the two 
 transactions is very great. If the agreement be merely to repurchase 
 upon certain specified terms, or at the time stipulated, a failure to 
 comply with the terms of the agreement destroys the right to repur-. 
 chase, and the grantor has no equity of redemption, of which he can 
 afterwards avail himself in a court of equity. If it is a defeasance, he 
 has that right, the conveyance being a mortgage. Wherever a doubt 
 exists whether the agreement is one to repurchase or a defeasance, the 
 courts are inclined to the latter construction. And where the relation 
 between the parties is that of debtor and creditor, and the intention 
 of the parties, as shown on the face of the deed, is that the agreement 
 should operate as a security for the debt, the presumption becomes, 
 conclusive that the agreement is a defeasance. And generally, under 
 such circumstances, parol evidence will not be admissible to rebut this 
 
 1 See j)Os<§§ 411-414. «. Thompson, 69 Pa. St. 305. See Tiedeman, 
 
 2 Wing V. Cooper, 37 Vt. 181; Clark i>. Henry, Real Prop., § 308. 
 
 2 Cow. 334; Henry v. Dayis, 7 Johns. Ch. 40; s Nugent «. Riley, 1 Mete. 117; Hebron v. 
 
 Waters v. Randall, 6 Meto. 479; Bailey ». Centre Harbor, 11 N. H. 571; Holmes ». Grant, 
 
 Bailey, 5 Gray, 505; Vanderhaize v. Haques, 13 8 Paige Ch. 243; Laufair «. Lanfair, 18 Pick. 
 
 N. J. 244; Oldenbaugh v. Bradford, 67 Pa. St. 299; Austin «. Dower, 25 Vt. 558; Stewart ». 
 
 104; Eankin v. Mortimere, 7 Watts, 372; Baxter Hutchlngs, 13 Wend. 485; Carey v. Rawson, 8 
 
 1). Child, 39 Me. 110; Johnston v. Gray, 16 Serg. Mass. 159; Gilson v. Gilson, 2 Allen, 115; Hicks 
 
 & R. 361; Murphy ». Galley, 1 Allen, 107; Clark w. Hicks, 5 Gill. & J. 75; Breokenridge V. Auld, 
 
 V. Gondit, 18 N. J. Bq. 358; Batty «. Snook, 5 1 Robt. 148; Read v. Gaillard, 2 Desau. 552; 
 
 Mich. 231; Thompson v. Davenport, 1 Wash. Harrison «. Lemon, 3 Blackf. 51; Carr i>. Hol- 
 
 (Va.) 125; Eaton v. Whiting, 3 Pick. 484; Davis brook, 1 Mo. 240; Belton «. Avery, 2 Root, 279; 
 
 V. Stonestreet, 4 Ind. 101; Wynkoop ». Cowing, Marshall ». Stewart, 17 Ohio, 356; Pugh v. Holt, 
 
 21111.570; Robinson v. Parrelly, 16 Ala. 472; 27 Miss. 461; Batty «. Snook, 5 Mich. 231; Gillis 
 
 Cherry ». Browen, 4 Sueed, 415; Lee v. Evans, v. Martin, 2 Dev. Eq. 470; Ogden v. Grant, 6 
 
 8 Gal. 424; Pierce v. Robinson, 13 Gal. 125; Dana, 473; Goldwell v. Woods, 3 Watts, 188; 
 
 Rogan V. Walker, 1 Wis. 527; Plato v. Roe, 14 Kenkle v. Wolfersberger, 6 Watts, 126; Wat- 
 
 Wis. 453; WillettsB. Burgess, 34111. 494; Miami kins n. Gregory, 6 Blackf. 118; Peterson©. 
 
 Ex. Co. V. U. S. Bank, Wright (Ohio), 253; Clark, 15 Johns. 205; Rice v. Rice, 4 Pick. 349; 
 
 Youle 0, Richards, 1 N. J. Eq. 534; McClurkan Pearce «. Wilson, 111 Pa. St. 14. 
 
 52 
 
CH. III.] PENALTIES AND FOEFEITUEES. ■ § 35 
 
 presumption, although such evidence is freely admitted to rebut the 
 contrary presumption.' 
 
 § 34. Forfeitures arising from the sale of shares of stock. — It 
 seems to be an invariable rule, that the court will refuse to grant relief 
 against the forfeiture of the shares of stock in a corporation, which has 
 been incurred by the failure of the stockholder, or subscriber, to pay 
 the instalment due thereon, under the charter or the by-laws of the 
 company. The court will refuse relief, except where the failure to 
 comply with these provisions of the charter is due to fraud or unavoid- 
 able mistake.^ 
 
 § 35. Forfeitures in conveyances and leases. — Where a lease 
 contains a condition that the lessor may re-enter for the non-payment 
 of rent, equity will aflPord relief against forfeiture; not only before 
 the lessor has regained the possession, or before he brings his action 
 of ejectment for the recovery of possession, but even afterward; that 
 is, even after the action of ejectment has resulted in a judgment for 
 the recovery of the possession, or the lessor has in any way acquired 
 the possession. In such a case, the forfeiture is held to be nothing 
 more than a provision for compelling the payment of a debt.' But if 
 the forfeiture of the lessee's estate is enforced for the breach of the 
 covenants, other than the covenant to pay rent, then relief will be 
 granted or denied according to the character of these covenants; deny 
 ing the relief, where the other covenants are of such a character, that 
 the damages flowing thei-efrom cannot be estimated in money.* It 
 is the general rule, that unless the case is attended with peculiar cir- 
 cumstances which call for the extraordinary use of the powers of 
 equity, relief will be granted against a forfeiture which arises from the 
 breach of the other ordinary covenants of a lease; on the ground, 
 that exact compensation in money can be made for the breach of them. 
 This rule is applied to all covenants to repair the premises:^ the 
 
 1 Kelly V. Thompson, 7 Watts, 401 ; Wing v. Payne, 19 Wend. 518. See Tiedeman, Eeal Prop,, 
 
 Cooper, Sr Vt. 179; Tueks v. Lindsay, 18 Iowa, §§ 305-304. 
 
 605; Trull J). Skinner, 17 Pick. 216; Page «. Eos- 2 Sparks ». Company, &c. of Liverpool Water- 
 
 ter, 7 N. H. 392; Conway «. Alexander, 7 Cranch, works, 13 Ves. 428, 433, 434, per Sir Wm. Grant, 
 
 218; Flagg v. Mann, 14 Pick. 483; Weathersly M. R. 32; Sudlow i). Dutch, &c. Ey. Co., 31 
 
 V. Weathersly, 40 Miss. 469; Pearson «. Seay, Beav. 43; Germantown, &c. R. E. B. FitlSr,«) 
 
 35 Ala. 612; Rich®. Doane, 35 Vt. 125; De France Pa. St. (10 P. F. Smith) 124, 131; Small v. Her- 
 
 -». De France, 34 Pa. St. 385; Watkins v. Greg- kimer Man. Co., 2 N. Y. 335. 
 
 ory, 6 Blackf. 113; Rice v. Rice, 4 Pick. 349; ' Bowser v. Colby, 1 Hare, 109, 128., ISO-182; 
 
 Haines «. Thompson, 70 Pa. St. 438; Woodson Atkins v. Chilson, 11 Met. 1J2; Sanborn v. 
 
 V. Wallace, 22 Pa. St. 171; Peterson v. Clark, 15 Woodman, 5 Gush. 360; Stone V. Ellis, 9 M. 55; 
 
 Johns. 205; Robinson v. Cropsey, 2 Edw. Ch. Palmer®. Ford, 70 111. 369. 
 
 138; s. c. 6 Paige, 480; Brown®. Dewey, 1 Sandf. * Bowser v. Colby, 1 Hare, 109; Home*. 
 
 Ch. 56; Hughes®. SheafF, 19 Iowa, 335; Sears V. Thompson, 1 Sausse & Scully, 615; Wadman®. 
 
 Dixon, 33 Cal. 326; Poindexter ®. MoCannon, Calcraft, 10 Ves. 67; Davis ®. West, 12 Id. 475; 
 
 1 Dev. Eq. 373; Davis ®. Stonestreet, 4 Ind. Nokes ®. Gibbon, 3 Drew. 693. 
 
 ICI: Heath ®. Williams, 30 Ind. 495; Cornell v. ' Hill ®. Barclay, 16 Ves. 403, 406; 18 Vea. 58, 
 
 Hall, 22 Mich. 377; Pennington ®. Hanby, 4 61, per Lord Eldon; the earlier cases of Hack 
 
 Munf. 140; Henly ®. HotaIing,41 Cal. 22;Snyder ®. Leonard, 9 Mod. 90, per Lord Macclesfield; 
 
 ®. Griswold, 37 111. 216; McCarron ®. Cassidy, 18 and Sanders ®. Pope, 12 Ves. 282, 290, per Lord 
 
 Ark. 34; Montgomery®. Chadwick, 7 Iowa, 114; Erskine. 
 Kearney ®. McComb, 16 N. J. Eq. 189; Glover v. 
 
 53 
 
§ 37 EQUITY JtJKISPRUDENOE. [CH. HI, 
 
 covenant against assignment and subletting:^ the covenant to insure' 
 and all covenants regulating or limiting the use of the land/ 
 
 § 36. Forfeiture in contractfor the sale of land.— The question, 
 when a vendee shall lose his rights under an executory contract for the 
 sale of land for the breach of his own obligation therein, will depend 
 upon the relation of the obligation to the contract of the vendor. 
 That is, where the matter of time in the performance of his contract 
 to pay the consideration is deemed to be essential to the full perform- 
 ance of his agreement, then equity will not afford relief; but where 
 the time is not essential, and the substantial rights of the vendor 
 can be obtained by the performance of the contract at a later day, 
 the relief will be afforded. The question, when time is of the 
 essence of the contract, cannot be fully presented here. It must 
 suffice in this connection to say, that when the payment of a con- 
 sideration by the vendee is a condition precedent to the perform- 
 ance of the contract by the vendor, equity will, as a general rule, refuse 
 relief against forfeiture. But where the stipulation for the payment 
 of the consideration is a condition subsequent, then the provision for 
 forfeiture of the rights of the vendee under the contract is treated as 
 a security for the payment of the debt, and equity will in such cases 
 grant relief to the vendee against forfeiture:* where the court refused 
 to interfere for the relief of the vendee. 
 
 § 37. Equity will not enforce forfeitures. — While equity will in 
 many cases refuse to interfere for the relief of an obligor against for- 
 feiture for the breach of the obligation, it is a well-settled rule to 
 which there are no real, if apparent exceptions, that the court of equity 
 will refuse to interfere on behalf of the party entitled to the forfeiture: 
 he must look solely to the courts of law for aid. In the enforcement 
 of such a forfeiture, a court of equity never lends its aid.^ 
 
 1 Hill V. Barclay, 18 Ves. 36, per Lord Eldon; 327; Eoyan v. Walker, 1 Wis. 527; Benedict v. 
 Baxter 1). Lansing, 7 Paige, 350; Gregg 1>. Lan- Lynch, 1 Johns. Oh. 370. 
 
 dis, 6 C. B. Green, 494, 514. 5 Livingston v. Tompkins, 4 Johns. Ch. 415, 
 
 2 Gregory i>. Wilson, 9 Hare, 683; Havens v. 431; Baxter v. Lansing, 7 Paige, 350, 353; Gor- 
 Middleton, 10 Hare, 641. don«. Lowell, 21 Me. 251; Smith v. Jewett, 40 
 
 3 Hills V. Rowland, 4 De G. M. & G. 430; Ma- N. H. 530, 534; Atlas Bank ». Nahant Bank, 
 chert). Foundling Hospital, 1 V. &B. 187; Des- 3 Met. 581; Warner o. Bennett, 31 Conn. 461, 
 carlett v. Dennett. 9 Mod. 22. 468; Oil Creek E. E. v. Atlantic & G. W. R. E., 
 
 4 Wells V. Smith, 2 Bdw. Ch. 78; 7 Paige, 22, 57 Pa. {7 P. F. Smith) 65; Meig's Appeal, 62 
 24; Edgerton v. Peckham, 11 Id. 352, 359; San- Pa. St. (12 P. F. Smith) 28, 35; McKlm v. White 
 borns. Woodman, 5Cush. 36; De Campw. Flay, Hall Co. , 2 Md. Ch 510; White B. Port Huron, 
 5 S. &R. 333, 326; Eemingtont). Irwin, 2 Harris, &o. R. R., 13 Mich. 356; Michigan Bank w. 
 143, 145; Jones ■». Robbins, 29 Me. 351; Clark «. Hammond, 1 Dougl. (Mich.) 527; Lawl v. Hyde, 
 Lyons, 25 111. 106; Snyder ». Spaulding, 57 Id. 39 Wis. 353; Eveleth «. Little, 16 Me. 374, 377; 
 480,484; MoClartey«.Gokey, 31 Iowa, 505; Steele Clarke?;. Drake, 3 Chand. (Wis.) 253, 259; Fitz- 
 V. Branch, 40 Cal. 3; Farley v. Vaughn, 11 Id. hugh v. Maxwell, 34 Mich. 138; Beeoher o. 
 
 54 
 
 Beeoher, Conn. 556. 
 
CHAPTER IV. 
 
 EQUITABLE DOCTKINE OF PRIORITY, AND HEREIN OP THE RIGHTS OF 
 BONA FIDE PURCHASERS. 
 
 Sbotion 
 Fundamental principles of the doctrine of 
 
 priority . . .... 40 
 
 To what estates and interests the doctrine 
 
 applies.~Not to legal estates . . .41 
 Subsequent equity protected by the legal 
 
 title .48 
 
 Priority of time among equal equities . 43 
 Superior and inferior equities . . .44 
 Inequality of equity determined by collat- 
 eral circumstances . . .45 
 Superior equity of a bona fide purchaser.— 
 
 General doctrine . .... 46 
 
 The doctrine of bona fide purchase as 
 
 modified by the recording acts . . .47 
 Cases to which the doctrine of bona fide 
 
 purchase applies ... . 48 
 
 Suit by holder of an equity . . 49 
 
 Affirmative relief to a bona fide purchaser 50 
 What constitutes a bona fide purchase . 51 
 What is a valuable consideration . . 52 
 
 Antecedent debts as consideration . . 63 
 Priority of unrecorded mortgages over 
 
 judgment creditors ... .54 
 
 Payment of consideration . 55 
 
 Effect of notice .... 56 
 
 Section 
 
 Time of giving notice ,57 
 
 Effect of notice on purchaser of equitable 
 
 interest 53 
 
 Effect of purchase without notice from an 
 earlier purchaser ... . 59 
 
 Good faith necessary 60 
 
 The doctrine of bona fide purchase applied 
 
 to assignments of things in action . , 61 
 Equities in favor of the debtor . . 62 
 
 Notice to debtor necessary . . . .63 
 Equities between successive assignors and 
 
 assignees . . .64 
 
 Acquisition by such subsequent assignee 
 
 of the legal title .... 65 
 
 Assignment of things in action to succes- 
 sive assignees by same assignor 66 
 Some principles applying to successive as- 
 signments by cestui que trust . . 67 
 Principles applying to assignments of cer- 
 tificates of stock . . 68 
 Diligence of the assignee 69 
 Equities in favor of third persons . 70 
 Effect of statutory provisions concerning 
 assignments of things in action . . 71 
 
 § 40. Fandamental principles of the doctrine of priority.— The 
 
 question, which of two conflicting interests or claims upon the prop- 
 erty of another shall have priority, is one involving the application 
 of two equitable maxims, which have been discussed in a previous 
 chapter,' and are as follows: First, where there are equal equities, the 
 first in order of time shall prevail; and Secondly, where there is equal 
 equity, the legal title must prevail.' The meaning of these maxims is, 
 that whenever equities are equal and one of them becomes attached to 
 the legal title, the person so owning both the equity and the legal title 
 shall have the priority of claim over the one who only owns the 
 equity.^ When, however, the legal title is owned by some third 
 person, to whom the question of priority of equitable rights is foreign; 
 in other words, whenever the question of priority between equitable 
 claims is not affected by the possession by one of the claimants of the 
 legal title, then the equality, or the inequality of the character 
 of the equities determines their relative priority. Under these cir- 
 
 1 In this connection, the term "equity'' is 
 used in the sense of an equitable claim of 
 some sort. 
 
 ^Thorndilfe v. Hunt, 3 De G. & J. 663, 570, 
 571; Fitzsimmons ». Ogdrn, 7 Cranch, 2, 18; 
 Newton!). McLean, 41 Barb. 865. 
 
 55 
 
§ 41 EQUITY JUEISPKUDENCE. [CH. IV, 
 
 cumstances, if the equities are equal in their claims for consideration 
 by the court of equity, then the first in order of time will prevail.^ 
 Finally, as a corollary of the preceding rules, if the equities are 
 unequal in character and value, the equity which is superior in point of 
 fact will prevail over the inferior equity, although the superior equity 
 may be inferior in order of time.^ In the subsequent paragraphs 
 these general principles will be successively applied to particular 
 cases. 
 
 § 41. To what estates and interests the doctrine applies. — Not 
 to legal estates. — At the outset of the discussion of this doctrine, it 
 must be borne in mind that this is an equitable doctrine; and that the 
 equit^ible doctrine of priority does not apply to legal estates in the 
 absence of any statutory modifications. The priority between legal 
 estates, or legal claims upon property, is completely controlled by the 
 order of time. The invariable legal rule is, that when a valid 
 legal conveyance of property is made, the grantor has nothing left in 
 him which he can transfer to another, and hence the first conveyance 
 must have the precedence, even though the second vendee takes his 
 deed without any notice of the prior conveyance, and pays full value 
 for it.^ The equitable doctrine of priority, therefore, can only apply 
 to equitable estates and interests, in claims of priority over other equi- 
 table or legal estates; that is, these rules can be resorted to for 
 .advancing the interest of an equitable estate over a legal estate, but 
 it cannot apply where the conflicting estates are both legal.* This 
 exclusion of conflicting legal estates from the government of their 
 Telative priority by the equitable doctrine under discussion has, how- 
 .ever, been seriously modified by statutes which provide for the rec- 
 ognition of some other rule than that of time, in the determination of 
 the priority between two successive legal conveyances. The first is 
 that of the statute of 13 Eliz., c. 5, by which conveyances of lands or 
 titles which are made for purposes of delaying or defrauding creditors, 
 are declared to be void as against such creditors and their representa- 
 tives. So also, by the statute of 27 Eliz., c. 4, the same provision is 
 applied to grants of land, made for the purpose of defrauding subse- 
 quent purchasers. In such cases, what would otherwise be a valid 
 
 iPhmipas. PWUips, 4 De Q. F. & J. 208, S15 sBasset «. Nosworthy, S Eq. Lead. Gas. 1; 
 
 per Lord Westbnry ; Shirras v. Craig, 7 Cranch, Le Neve, a Eq. Lead. Cas. 109, U7, 144. 
 
 34,48; Boone». Chiles, 10 Pet. 177 ; Watson ». Le aQainesu. New Orleans, 6 Wall. (U. S.)642, 
 
 Eow. 6 Barb. 481, 485 ; Berry v. Mutual Ins . Co., 716, per Davis, J. ; Euckman v . Decker, 23 N. j! 
 
 2Johns. Ch. 603,608; Lynch ». Utica Ins. Co., Eq. (8 C. E. Green) 283; Van Amringe ». Mor- 
 
 18 Wend. 236, 253; Grosvenor v. Allen, 9 Paige, ton, 4 Whart. 382; Wade v. Withington, 1 Al- 
 
 74, 76; Downer V. The Bank, 39 Vt. 25; Bellas len, .561 ; Waring ». Smyth, 2 Barb. Ch. 119, 133; 
 
 0, MoCarty, 10 Watts, 13; Kramers. Arthurs, Arrisont). Harmstead, 2 Barr. 191, 197; Jones 
 
 7 Barr. 165; Sumner v. Waugh, 56 111. 531 ; Pen- v. Jones, 3 Sim. 633. 
 
 ponneau v. Bleakley, 14 111. 15; Cherry ■». * Basset «. Nosworthy, Eep. Ump. Finch, 
 
 Monro, 2 Barb. Ch. 618, 76; Thorp ». Durbon, 45 102; 2Eq. Lead. Cas. 1,31, 46; Le Keve ». Le 
 
 Iowa, 192; Hoadley ». Hadley, 48 Ind. 452; Neve, Ambl. 436;2Eq. Lead. Cas. 109, 117;New- 
 
 Stevenst). Watson, 4Abb. App Dec. 302; Lit- ton». Newton,L. E. 6Eq. 135. 
 tlefieI4 ». Nichols, 42 Cal. 372; Walker v. Mat- 
 thews, SSni. 196. 
 
 56 
 
CH. IV. j DOCTRINE OF PRIOEITY. § 42 
 
 legal conveyance is postponed to the satisfaction of the claims of 
 creditors or of a subsequent purchaser, and in both cases the claim 
 which is given priority is the one which is acquired subsequently. 
 Similar statutes are in force in the American states, and in the bank- 
 rupt and insolvent laws are found additional provisions of the same kind. 
 The more important and more general modification of this rule is to 
 be found in the recording laws of the various states, which provide 
 that every conveyance which is not recorded shall be considered void 
 as against a subsequent purchaser for a valuable consideration.^ 
 
 § 42. Subsequent equity protected by the legal title. — As has 
 already been stated, if a second or other subsequent equitable title or 
 interest, which would otherwise be po'Stponed to the earlier equity on 
 the ground that the equities are equal, is attached to the legal estate 
 or title, this conjunction of the legal title and the later equity in the 
 one person gives the owner of that equity a priority over the earlier 
 equity which he could not otherwise claim; but in order that this 
 priority might be claimed, it is held by some authorities to be essen- 
 tial that the owner of the later equity acquires the legal title without 
 notice of the prior equitable interest.^ Whenever a subsequently 
 acquired equity is acquired with notice of the existence of a prior 
 equitable claim, the later equity cannot claim precedence over the 
 prior equity, whether the legal title or equity is first acquired. The 
 notice of the prior equity destroys whatever claim to priority might 
 otherwise exist.' But whether the acquisition of the legal estate, 
 after notice of a prior equity, will prevent the claim of priority by 
 one who acquires the later equity without notice of the prior equity, 
 is a question upon which the authorities difier. The later English 
 cases adopt the rule, that in order that priority may be acquired by 
 the later of two equal equitable interests, in consequence of the 
 possession of the legal estate, that not only must the later equitable 
 estate be acquired without notice of the prior equity, but that the 
 legal estate must also be so acquired; so that the claim for priority will 
 be lost where the legal estate is acquired after notice of the prior 
 equity, although the later equity was acquired by the same person 
 without such notice, and he secured the legal title for the express 
 purpose of acquiring this priority.* But, on the other hand, the propo- 
 sition is maintained by a number of cases that, whenever the later 
 of two equal equities is acquired without notice of the prior equity, 
 
 1 See post, i 47 for a consideration of the re- Meekreth i>. Sjrmmons, 15 Ves. 329, 350; Tour- 
 cording acts. vlUe V. Nalsh, 3 P. Wms. 307; Mundrell a. 
 
 2 Cave V. Cave, L. E. 15 Oh. D. 639; Hunter v. Mundrell, 10 Ves. 346, 271 ; Merry v. Abney, 1 
 Walters, L. E. 7 Ch. 75; Katolifife v. Barnard, L. Chan. Gas. 38; Earl Brook v. Bulkeley, 2 Ves. 
 E. 6 Ch. 652; Hewitt v. Loosemore, 9 Hare, 449; ^en. 498; Van Meter V. MoFaddln, 8 B. i on. 435; 
 Fltzslmmons «. 0gden,7 Craneh, 2;Newtonj). School Dist. v. Taylor, 19 Kans. 887. In re 
 McLean, 41 Barb. 285; Beall v. Butler, 54 Ga. Sands Brewing Co. 3 Bias. 175. 
 
 43; Jones V. Lapham, 15 Kans. 540; Fox v. < Mumford v. Stohwasser, L. E. 18 Eq. 556, 
 
 Palmer, 25 N. J. Bq. (10 C. E. Green) 416; Straus 563, E63; Allen v. Knight, 5 Hare, 272; Sharpies 
 
 m. Kemgood, 31 Gratt. 584. v. Adams, 32 Beav. 213; Carter v. Carter, 3 K. & 
 
 8 Monteflore v. Browne, 7 H. L. Cas. 211, 259; .:. 617. 
 
 57 
 
§ 44 EQUITY JURISPKUDENCE. [CH. IV. 
 
 such later equity may be given priority by the acquisition of the legal 
 estate, even though the legal estate is taken with notice of the prior 
 equity.^ 
 
 § 43. Priority of time among equal equities. — It has already 
 been explained that where equities are equal, and neither of the claim- 
 ants to priority has the legal estate, the general rule is that the first 
 in point of time shall have priority. This doctrine is fully recognized 
 and generally applied by the American courts.* This priority of time 
 is, however, very often modified by the controlling influence of the 
 recording laws; that is, although as between the original parties 
 who acquire these successive equal equities, the rule governs the 
 question of priority, yet where the later equity is transferred to a 
 hona fide purchaser who takes the property for value without notice 
 of the prior equity, such iona fide purchaser of the later equity 
 acquires under the recording laws a priority which his assignor could 
 not claim. ^ 
 
 § 44. Superior and inferior equities. — The deduction from the 
 two maxims which constitute the foundation of equitable priority is, 
 that where one of two equities is superior in fact, that is which has 
 a greater claim on the courts of equity for a recognition of priority 
 in consideration, the original claim of priority in order of time must 
 give way, so that the equity which is superior in fact shall have prece- 
 dence over that which is inferior. This is a negative consequence of 
 the maxim, that the priority in the order of time can only apply 
 where the equities are equal. Now an equity may be superior to 
 another intrinsically, or the superiority may be due to some collateral 
 circumstance. In the first case, the nature of the equity appeals more 
 strongly for protection to the court of equity, and gives to the claim 
 for precedence of the other equity a more or less unconscionable char- 
 acter. For example, where two mortgages are given simultaneously 
 over the same land, and one of them is to secure the purchase-money, 
 it would be but reasonable for the court of equity to hold that the 
 purchase-money mortgage shall, in case of conflict of interest, have 
 precedence over the mortgage given to secure some independent debt ; 
 and such is the ruling of the courts, sometimes in conformity with a 
 statutory provision, but equally so in the absence of statute.* The 
 
 ' Leaoh ». Ansbacher, 55 Pa. St. (5 P. F. Sm.) ols, 42 Cal. 378; Walker v. Matthews, 58 111. 196. 
 
 85 i Baggerly v. Galther, 8 Jones, Eq. 80 ; Carroll s Morse ». Brookett, 67 Barb. 234 ; Van Aken v. 
 
 V. Johnston, 2 Id. 120, 123; Fitzsimmons ». Gleason, 34 Mioh. 477; Gausen v. Tomlinson, 
 
 Ogden, 7 Cranch, 2, 18; Siter «. MoClanaohan, 23 N. J. Eq. (8 C. B. Green) 405; Gauseu v. 
 
 2 Gratt. 280, 283; ZoUman v. Moore, 81 Id. 313j Tomlinson, aupra; Howard v. Chase, 104 Mass. 
 
 Osborn v. Carr, 12 Conn. 195, 208; Gibler v. 249; Green v. Warnick, 64 N. Y. 220; Eodes v. 
 
 Trimble, 14 Ohio, 823; Campbell «. Bracken- Canfield, 8 Paige, 545; Jones v. Phelps, 2 Barb, 
 
 ridge, 8 Blackf. 471; Grimstone V. Carter, 3 Ch. 440; Pomeroy v. Latting, 15 Gray, 435; 
 
 Paige, 421, 437; Fash v. Eevesles, 32 Ala. 451. Sparks ». State B'k, 7 Blackf. 469; Corning «. 
 
 i^BerryD.Mut. Ins.Co., 2 Johns.Ch. 603; Cherry Murray, 3 Barb. 65S; Clark «. Brown, 3 Allen, 
 
 V. Monro, 2 Barb. Ch. 618; Grosvenor v. Allen, 509; Dusenbury v. Hulbert, 2 T. & C. 177. 
 
 9Paige, 74, 76; Thorpe d. Durbon, 45 Iowa, 192; 4Heuisler«. Nickum, S8Md. 270; Aldersont). 
 
 Hoadley v. Hadley, 48 Ind. 452; Stevens «. Wat- Ames, 6 Id. 53, 56; Clabaugh v. Byerly, 7 Gill, 
 
 sou, 4 Abb. App. Deo. 302; Littlefield ». Nich- 354; Stansele ». Roberts, 13 Ohio, 148; Ahem v. 
 
 58 
 
CH. IV.] DOCTRINE OF PEIORITY. § 45 
 
 purchase-money mortgage also is given precedence over the liens and 
 interests which attach thereto immediately upon the acquisition of 
 the estate, such as mechanic's liens and judgment liens, where the 
 judgment or lien has been procured prior to the acquisition of the 
 property.^ It is also a familiar rule, that a wife's dower attaches to 
 the husband's estate subject to a purchase-money mortgage.^ The 
 same priority is conceded to the vendor's lien, wherever such lien is 
 recognized as existing,' 
 
 § 45. Inequality of equity determined by collateral circum- 
 stances. — The inequality of equity may also be determined by collat- 
 eral circumstances. For example, if the owner of a prior equity 
 should fraudulently mislead a would-be subsequent purchaser of an 
 equitable claim, or legal title to the same property, by denying the 
 existence of his own claim, then the priority which he could claim in 
 favor of his earlier equity as against the equity or legal interest sub- 
 sequently acquired, will be lost because of his misrepresentation in 
 response to the inquiry of such subsequent purchaser. The owner of 
 the prior equity will under these circumstances be estopped from 
 asserting his claim for priority against one, who acquires the subse- 
 quent interest in reliance upon the former's denial of all claim of the 
 land. This doctrine of estoppel will destroy the priority of the earlier 
 equity, not only as against a subsequent equity, but also against the 
 legal title which one might acquire subsequently.* Not only will the 
 otherwise superior equity in point of time lose such priority, where 
 
 White, 39 Md. 409; Heulsler v. Nickum, 38 Id. Dyok, 1 Sanf. Ch. 7Bj ClarkD. Munroe, 14Mass- 
 
 270; Cake's Appeal, 83 Pa. St. 186; Poster's 351; Young *. Tarbell, 37 Me. 509; Birnie v. 
 
 Appeal, 3 Id. 78; Banning «. Edes, 6 Minn. 408; Main, 39 Ark. 591 ; BuUard «. Bowers, 10 N. H. 
 
 Stephenson v. Haines, 16 Ohio St. 478; May- 500; Moore v. Rollins, 45 Me. 493; Young d. 
 
 bury V. Brien, 15 Pet. 21 ; Curtis v. Root, 20 111. Tarbell, 37 Me. 509; Strong v. Converse, 8 Allen, 
 
 53; Fitts r. Davis, 43 Id. 391; Grant K.Dodge, 559; Holbrooke. Pinney, 4 Mass. 666; Hindss. 
 
 43 Me. 489; Banning v. Edes, 6 Minn. 402; Ballou, 44 N. H. 630; Stow v. Tiftt, 15 Johns. 
 
 Bolles V. Carli, 12 Id. 113; Beebe v. Austin, 15 458; Mills v. Van Vorhies, 35 Barb. 135; Reed v. 
 
 Johns. 477; Haywood v. Nooney, 3 Barb. 643; Morrison, 12 Serg. & R. 18; Bogie*. Rutledge, 
 
 Adams •!). Hill, 9 Post. 202; Curtis v. Root, 20 1 Bay, 312; Henagan v. Harllee, 10 Rich. Eq. 
 
 jjj_ 53_ 285; Chase's Case, 1 Bland. 206; 5IoCluet). Har- 
 
 1 Curtis V. Root, 20ni. 63; Pitts v. Davis, 42Id. ris, 12 B. Mon. 261 ; Klinok v. Keckeley, 2 Hill, 
 391; Grant v. Dodge, 43 Me. 489; Banning v. Ch. 250; Shelden v. Hotnagle, 51 Hun. 478; 
 Edes, 6 Minn. 403; Bolles v. Carli, 13 Id. 113; Stewart v. Smith, 36 Minn. 82; Hugunin v. 
 Virgin V. Brubaker, 4 Nev. 31; Guy v. Carriere, Cochrane, 51 111. 302; 3 Am. Rep. 303; Warner 
 5 Cal. 511; Strong ■». Van Deusen, 23 X. J. Eq. v. Van Alstyne, 3 Paige, 513; Ellioott v. Welch, 
 (8 C. E. Green) 389; Lamb v. Cannon, 38 N. J. 2 Bland, 343; Millerj). Stump, 3GiH. 304; Barnes 
 Law, 362; Macintosh v. Thurston, 25 N. J. Eq. v. Gay, 7 Iowa, 86; McClure V. Harris, 12 B. 
 (10 C. E. Green) 242; Bolles B. Carli, 12 Minn. Mon. 261; Crane V. Palmer, 8 Blackf. 120; 
 113; Monia v. Pate, 31 Mo. 315; Hopper v. Park- Thompson v. Cochrane, 7 Humph. 72. 
 
 inson, 5 Nev. 233; Nichols v. Overacker, 16 a Hugunin «. Cochrane, 51 111. 302; 2 Am. Rep. 
 
 Kans 54; Pratt v. Topeka B'k, 12 Id. 570; Carr 303; Warber v. Van Alstyne, 3 Paige, 513; Elli- 
 
 V Caldwell, 10 Cal. 380; Magee v. Magee, 51 111. cott v. Welch, 3 Bland. 212; Miller v. Stump, 3 
 
 500- Aliens Hawley, 66 Id. 164, 168; Austin v. Gill. 304; Barnes V. Gray, 7 Iowa, 26; McClure 
 
 Underwood, 37 Id. 438; Amphlett v. Hibbard, V. Harris, 12 B. Mon. 261; Crane v. Palmer, 8 
 
 39 Mioh. 298; New England, &c. Co. v. Mer- Blackf. 120; Thompson v. Cochrane, 7 Humph, 
 
 riam, 3 Allen, 391; Lane v. Collier, 46 Ga. 680; 72. 
 
 Clarke V. Brown, 3 Allen, 509; Deusenburyi). *Lee v. Munroe, 7 Cranch, 366; Wendell V. 
 
 Hulbert 2 T. & 0. 177. Van Renselaer, 1 Johns. Ch. 344, 354; Storrs v. 
 
 2 Mills' «. Van' Vorhies, 30 N. Y. 413; Mc- Barker, 6 Jo!. 166, 168; Otis v. Sill, 8 Barb. 102; 
 Gowan v Smith, 44 Barb. 232; Kittle V. Van Lesley ■«. Johnson, 41 .'"d. 359; Crocker v. 
 
 59 
 
§ 46 EQUITY JUEISPEUDENCE. [CH. IV. 
 
 there is a fraudulent concealment or denial of the existence of such 
 equity; but there will also be a loss of such priority, whenever the 
 owner of the earlier equity negligently permits another to acquire a 
 subsequent interest in the same property in reliance upon the appar- 
 ently unincumbered condition of the title, under circumstances which 
 make it the duty of the owner of the prior equity to warn such would- 
 be subsequent purchaser of the existence of his own claim. ^ But it 
 is not every failure to notify a purchaser of the existence of the equity, 
 which would destroy the priority which he might claim in point of 
 time; the circumstances of the case must create an obligation to 
 notify others of the existence of such equity.^ The general doctrine 
 underlying this question is that which relates to the equitable doctrine 
 of estoppel, which constitutes the subject of a subsequent chapter, to 
 which the reader is referred for a fuller discussion of the question.' 
 § 46. Superior equity of a bona flde purchaser. — General doc- 
 trine. — In undertaking to unfold the principles of law underlying the 
 rights of a ionafide purchaser in respect to the question of priority, 
 the general principles heretofore set forth must be clearly held in 
 view, and more especially the meaning of the two equitable maxims 
 which have been declared to be the foundation of the whole doctrine 
 of priority. That is, in order to appreciate the principles which 
 determine when, and under what circumstances, the equity of a bona 
 Jlde purchaser is reco^gnized as superior, one must apply to each case 
 the two, maxims, "that where the equities are equal the earliest 
 in point of time shall prevail," and "where the equities are equal the 
 legal title shall prevail, " under limitations which will be explained in 
 detail. A bona fide purchaser is one who acquires his interest for 
 value and without nptice of a prior equity. While, as between equal 
 equities, a want of notice of a prior equity does not give to the latter 
 equity any superiority,* yet the subsequent taking of what would be 
 an intrinsically superior equity, with notice of the prior equity, would 
 destroy such superiority, and restore to the prior equity the priority 
 
 Crocker, 31 N. T. 500; Lee®. Kirlcpatrick, 1 Mo. rjs,622; Hendrickson's Appeal, 12 7(i. 363; Eider 
 
 Cart. Bq. 264; McKelves v. Truby, 4 Watts &, v. Johnson, 8 i3. 190, 193; CampbeU's Appeal, 
 
 Serg. 333; Folk o. Beidelman, 6 Watts, 339; 5 Casey, 401; Garland ». Harrison, 17 Mo. 282. 
 
 Sohmltheimer v. Eiseman, 7 Bush. 298; Chap- 2 Perry Herrick v. Attwood, 2 De G. & J. 21; 
 
 man «. Hamilton, 19 Ala. 121 ; Kelly v. Lenih'an, Waldron ». Sloper, 1 Drew. 193; Carter v. Car- 
 
 56 Ind. 448; Eggeman v. Eggeman, 37 Mich. ter, 3 K. & J. 617. 
 
 436; Brinkerhoff v. Lansing, 4 Johns. Ch. 65; 'Post, Chap VI. 
 
 Storrsi;. Barker, 6 Johns. Ch. 166, 168; Bright * Beckett ». Cordley, Bro. Ch. 353 (which Lord 
 
 «. Boyd, 1 Story, 478; see Eldridge v. Walker, Eldon notices in Martinez «. Cooper, 2 Euss. 
 
 80 III. 270; see, also, Piatt «. Squire, 12 Mete. 214); opinion of Lord Westbury in Phillips ». 
 
 494; Fay v. Valentine, 12 Pick. 40; Marston v. Phillips, 4 De G. F. & J. 208, 215; Pensonneau 
 
 Braokett, 9N. H. 336; Millers. Bingham, 29 Vt. «. Bleaklev, 14111. 15; Sumner*. Waugh,56Ill. 
 
 82; Stafford v. Ballon, 17 Id. 329; Bioome ». 531; see Boone «. Chiles, 10 Pet. 177; Shirras*. 
 
 Beers, 6 Conn. 198; Eices. Dewey, 54 Barb. 455; Caig, 7 Cranch,.34, 48; Kramer v. Arthurs, 7 
 
 L'Amoreux d. Vandenbergh, 7 Paige, 316; Barr, 165; Watson «. Le Eow, 6 Barb. 481, 485; 
 
 Paine «. French, 4 Ohio, 318; Chester ». Greer, Bellas v. McCarty, 10 Watts, 13; Newton i>. 
 
 B Humph. 26. Newton, L. E. 6 Eq. 135, 140, 141, per Lord Eom- 
 
 1 Worthington v. Morgan, 16 Sim. 547; Briggs illy, M. E. 
 D.Jones. L. E. 10 Bq. 92; Fishers. Knox, IHar- 
 
 60 
 
CH. rv.] DOCTRINE OF PEIOKITY. § 47 
 
 which it would enjoy in consequence of being first in order of time, 
 where the equities are equal; in other words, the taking of the subse- 
 quent equity, with notice of the prior equity, destroys whatever supe- 
 riority of equity might otherwise exist in favor of the interest subse- 
 quently acquired.^ 
 
 If one were to take literally the statements of some judges as to 
 the scope of the doctrine of hona fide purchase, one would suppose 
 that the superior equity of a hona fide purchase would be conceded to 
 anyone, who subsequently acquired an interest in property for value 
 and without notice of a prior interest in the same property held by 
 another, whatever may be . the character of these successive interests 
 or rights in the property.^ This, however, is not the case. The 
 doctrine is subject to very important limitations, in respect to the 
 interests which are controlled in matter of priority by this doctrine. 
 These limitations will be explained in succeeding paragraphs ; but to 
 an intelligent appreciation of this limitation a knowledge of the funda- 
 mental thought, at the base of the doctrine of iona fide purchase, is 
 necessary. In the first place it must be borne in mind, in recogniz- 
 ing in the subsequent purchaser a superior right or priority of claim 
 over the person who acquires the prior interest, that the court does 
 not undertake to determine, generally, any settlement of the intrinsic 
 merits of the claims of the two parties. The rule of a hona, fide pur- 
 chase is concerned only with a determination on the part of the court 
 of equity, whether to refrain from interfering in behalf of the holder 
 of the prior interest; in other words, the doctrine of a hona fide pur- 
 chase is merely the determination of inaction on the part of the court 
 of equity, which results indirectly as a defense of the holder of the 
 subsequent interest. This is unquestionably an invariable rule, where 
 ever the altercation between the parties is occasioned by the posses- 
 sion by them of conflicting interests or estates in the same property,* 
 The only cases in which the court will grant affirmative relief to the 
 hona fide purchaser are those in which the foundation for application 
 of the doctrine is itself a claim to equi<-able protection, and not due to 
 the possession by the parties of conflicting interest or estates in the 
 property.* 
 
 § 47. The doctrine of bona fide purchase as modified by the 
 recording acts. —The equitable doctrine of hona fide ^wxckix^Q must 
 not be confounded with the legal doctrine, which rests upon the record- 
 ing acts. It is unquestionably true, that the principle applied in the 
 recording acts was borrowed from the equitable doctrine of hona fide 
 purchase; but the recording acts adopted the principle, as a legal rule, 
 and applied them to cases to which the- equitable doctrine was never 
 
 1 Le Neve ». Le Neve, Ambl. 436; Maokreth a Jerrard ». Saunders, 2 Ves. -IM, 457; Boone 
 ■D. Symmons, 15 Ves. 329, 350; Pindall ». Trevor, v. Childs, 10 Pet. 177, 210. 
 
 30 Ark. 249. < See iJOSi!, § 60. 
 
 2 Stanhope ». Earl Verney, 2 Eden, 81, 85; Jer- 
 rard w. Saunders, 2 Ves. 454, 458. 
 
 61 
 
§ 48 EQUITY JTJKISPETJDENCE. [CH. rV. 
 
 applied. The declaration of the recording acts is, that in order that the 
 priority in point of time which prevails independently of those acts may 
 be claimed and enjoyed by the owner of the earlier estate or interest in 
 the land, his deed must be recorded in the books of public record 
 provided for the purpose; and that where such a purchaser of the prop- 
 erty fails to comply with the recording law, and leaves his instrument 
 of conveyance unrecorded, any subsequent purchaser for value and 
 without notice of the same property may claim the superior equity of 
 a honafide purchaser, and take such property free from the conflict- 
 ing claim of the prior purchaser. The provisions of the recording acts 
 vary to a very considerable extent; not only as to the instruments of 
 the conveyance which shall come under the provisions of the act, but 
 likewise as to the effects of the failure to record the instrument. But 
 so far as these recording acts have controlled or modified the equitable 
 doctrine of a honafide purchase, the doctrine has been taken out of 
 the realm of equity jurisprudence and is made a principle of law. 
 Hence in this connection it is not proper nor incumbent upon the 
 writer to enter into an explanation of its details. The doctrine of 
 hona fide purchase, so far as it continues to be a branch of equity 
 jurisprudence, applies only to those transactions which are not brought 
 within the operation of the recording law.^ 
 
 § 48. Cases to which the doctrine of bona fide purchase applies. 
 — Bearing in mind that where equities are equal, priority is given to 
 the one which is first in point of time; thfe first conclusion reached is 
 that, where the interests acquired by two parties in the same property 
 are both equitable interests, and they are acquired for value and with- 
 out notice; in other words, where both of the purchasers of equitable 
 interests are hona fide purchasers, the subsequent purchaser cannot 
 claim any superior equity. The want of notice by the later or sub- 
 sequent purchaser is under such circumstances no ground for claiming 
 a superior equity.* Where, however, the owner of the first equitable 
 interest takes it as a gift; that is, he is not a purchaser for value, 
 and the holder of the second equitable interest in the same property 
 is a purchaser for value; then his character as a hona fide purchaser 
 does make his equity superior to the prior grantee or donee, and 
 overcomes the superiority which the holder of the prior interest 
 would ordinarily claim for his equity, in consequence of being first in 
 point of time.' The most common case for the application of the 
 doctrine of honM fide purchase is, where the holder of a prior 
 equitable estate or interest attempts to enforce his claim to the prop- 
 erty against one who subsequently, for value and without notice of 
 the prior equity, claims not only the equitable estate but also the legal 
 
 1 See Tiedeman, Real Prop., |§ 816-818. son v. Le Row, 6 Barb. 481, 485; Bellas v. Mc- 
 
 2 Pensonneau v. Bleakley, 14 111. 15; Sumner Carty, 10 Watts, 13. 
 
 V. Waygti, 56 111. 631; see Boone V. Chiles, 10 « Green o. Givan, 33 N. Y. 343; Stevens v. 
 
 Pet. 177; Shirras v. Craig, 7 Cranoh, 34, 48; Wat- Watson, 4 Abb. App. Dec. 303; Hulett V. Whip- 
 
 62 
 
 pie, 58 Barb. 324. 
 
CH. IV.] DCOTEINE OF PKIORITY. § 48 
 
 title to the property. The application of the doctrine to this class of 
 cases I'ests upon the equitable maxim, that, where two successive 
 equities are equal the legal title shall prevail; that is, the union of the 
 legal title with the subsequent equity in the hands of the holder of 
 such later equity gives to him a superiority over the holder of the 
 prior equity.^ This is conceded to be the proper application of the 
 doctrine, not only when the legal title is acquii-ed by such subsequent 
 purchaser at the same time when he purchases the subsequent equity, 
 but in many cases where he acquires the legal title after his acquisition 
 of the equitable estate.^ 
 
 So far no particular difficulty is experienced in determining the clags 
 of interests to which the doctrine of hona fide purchase can be applied. 
 The difficulty arises when the claim is made, in favor of an equitable 
 estate or interest acquired subsequently by a Tyona fide purchaser, of 
 priority over the legal estate, which had been previously acquired by 
 a purchaser for value. Wherever the recording law does not control 
 the determination of this question, considerable difficulty is experi- 
 enced in reconciling the authorities. According to some of them, in 
 no case can the subsequent purchaser of the equitable interest claim 
 priority over the prior purchaser of a legal estate, where the prior 
 purchaser has not been estopped from enforcing his legal estate to the 
 land by his fraud or negligence toward the subsequent purchaser of 
 the equitable estate;' and it is certain that the authorities are agreed 
 in respect to the inapplication of the doctrine of hona fide purchase in 
 favor of the subsequent purchaser of the equitable estate, where the 
 action is for the enforcement of prior legal claims, such as the assign- 
 ment of dower or the enforcement of a prior mortgage.* On the other 
 hand, there are many cases both English and American, in which it 
 it is held that a court of equity will refuse to grant relief to the holder 
 of a prior legal estate in the land against the subsequent purchaser of 
 an equitable estate, even though the legal owner may be in possession 
 of the property.* So far as these cases may be reconciled at all, and 
 a reliable rule laid down for the government of the courts in the future, 
 the distinctions presented by Lord Westbury, in a leading case must 
 be accepted as controlling. ° According to Lord Westbury — whose 
 opinion is now generally conceded to be a correct presentation of the 
 limitation of the application of the doctrine of ionafide purchase — the 
 
 1 Wells V. Morrow, 38 Ala. 126; Sumner v. Larrowe v. Beam, 10 Ohio, 498; Snelgrove v. 
 Waugh, 56 111.531; Demarest ». Wynooop, 3 Snelgrove, 4 Desaus. Eq. 274. 
 
 Johns. Ch. 129, 147; Varick v. Briggs, 6 Paige, < Vinah.v. Shaw, 19BeaT. 500; Colyer v. Pinch, 
 
 323; Dickerson D. Tillinghast, 4 Paige, 215; 5 H. L. Gas. 905. 
 
 Woodruff V. Cook, 2 Edw. Ch. 259; Boyd V. « Finch ». Shaw, 19 Beav. 500, jj«?- Lord Eom- 
 
 Beck, 29 Ala. 703; Carters. Allan, 21 Gratt. 241; illy; Colyer «. Finch, 5 H. L. Cbs. 905, per 
 
 Mundine v. Pitts, 14Ala. 84; Zollman«. Moore, Lord Cranworth; Flagg v. Mann, 2 Sumn. 486, 
 
 31 Gratt. 313. per Story, J. ; Union Canal Co. ». Young, 1 
 
 2 See iK)«<, 65. Whart. 410, 431, p«r Rogers, J. 
 
 8 Blake v. Heyward, 1 Bail, Eq. 208; Brown v. « Phillips v. Phillips, 4 De G. P. & J., pp. 208, 
 
 Wood, 6 Rich. Eq. 155; Jenkins v. Bodley, 1 Sm. 215, 216. 
 ■&, Mar. Eq. 338; Wailes v. Cooper, 24 Miss. 208; 
 
 63 
 
§ 49 EQUITY JUKISPEUDENCE. [CH. IV. 
 
 cases in whicli the doctrine is applicable are limited to three cases: 
 First, the case already referred to in respect to which there is no 
 doubt; namely, where the holder of a prior equitable interest asks its 
 enforcement against the subsequent purchaser of the legal estate j 
 secondly, where the plaintiflFis seeking to enforce some equitable claim 
 to relief on the ground of mistake or fraud. "^ In respect to the point 
 of contention, it was held that where the holder of a prior legal estate 
 enters a court of equity, for the purpose of obtaining in that court the 
 same remedy which he can obtain in a court of law; in other words, 
 whepe the question of priority and of the application of the doctrine 
 of bona fide purchase arises in cases in which the court of equity has 
 concurrent jurisdiction with the court of law in the enforcement of 
 the legal title to the property, the court will refuse to apply to such, 
 case the doctrine of a hona fide purchase in favor of the defendant, 
 who is the subsequent purchaser of an equitable interest. But where 
 the holder of a prior legal title enters a court of equity for the pur- 
 pose of resorting to the auxiliary jurisdiction of the court, and the 
 employment of strictly equitable remedies in protection of his legal 
 title, then the court will recognize in favor of the defendant his supe- 
 rior claim to the consideration of the court of equity in consequence of 
 his character as a bona fide purchaser.^ Thi/rdly; 
 
 % 49. Suit by holder of an equity. — Not only does the doctrine 
 of hoTM fide purchase apply where the prior interest in the property 
 is an equitable estate, but also when the claim takes the form merely 
 of a right to equitable remedies whereby to regain one's title or inter- 
 
 1 See supra. asked to give the plaintiff any equitable as 
 
 2 " The defense of a purchaser for valuable distinguished from legal relief. Secondly, the 
 consideration is a creature of a court of equity, second class of cases is the ordinary one of 
 and it can never be used in any manner in several purchasers or incumbrancers each 
 variance with the elementary rules which have claiming in equity, and one who is later and 
 already been stated. There appears to be three las.t in time succeeded in obtaining an put- 
 cases in which the use of this defense is most standing legal estate not held upon existing 
 familiar : First, where an application is made trusts, or a j udgment, or any other legal advan- 
 to an auxiliary jurisdiction of the court by the tage, the possession of which may be a protec- 
 possessor of a legal title, as by an heir-of-law tion to himself or an embarrrassment to other 
 for discovery (which was the case in Bassett v. claimants. He will not be deprived of this 
 Nosworthy, Gas. t. Finch, 103), or by a tenant advantage by a court of equity. To a billflled. 
 for life for the delivery of title deeds (which against him for this purpose by a prior pur- 
 was the case of Wallwyu i>. Lee, 9 Ves. 84), and chaser or incumbrance, the defendant may 
 thedefendantpleads thatheisaSona^dspur- maintain the plea of purchase for valuable 
 chaser for valuable consideration without consideration without notice; for the princl- 
 notice. In such a case the defense is good, and pie is that a court of equity will not disarm a 
 the reason given is that as against a purchaser purchaser, that is, will not take from him the 
 for valuable consideration without notice the shield of any legal advantage. This is the 
 court gives no assistance — that is, no ttssistance common doctrine of the tabula in naufragio^ 
 to the legal title. But this rule does not apply TJiirdly, where there are circumstances which 
 where the court exercises a legal j urisdiction give rise to an equity as distinguished from an 
 concurrently with the courts of law. Thus it eqitable estate — as, -forexample, an equity to 
 was decided by Lord Thurlow in Williams v, set aside a deed for fraud, or to correct it for 
 Lambe, 3 Bro. Ch. 264, that the defense could mistake — and the purchaser under the instru- 
 not be pleaded to a bill for dower; and by Sir ment maintains the plea of a purchaser for 
 John Leach in Collins «). Archer, 1 Russ. & My. valuable consideration without notice, the 
 S84, that it was no answer to a bill of tithes. court will not interfere." Lord Westburyla 
 In those cases the court of equity was not Phillips tj. Phillips, 4 De G. F. & J. 208. 
 
 64 
 
CH. rV.] DOCTKINE OF PEIOEITY. § 60 
 
 est in property. The acquisition of the title to the property by a 
 subsequent purchaser, from one against whom the remedy could have 
 been maintained, will constitute the bar to the institution of the 
 action. In illustration of this application of the doctrine, reference 
 may be mjide to suits for relief against accident and mistake in the 
 transfer of property. Such relief will be given to the grantor as 
 against the grantee of a deed which had been executed by mistake or 
 ignorance of the facts. But as soon as this property has been trans- 
 ferred by this grantee to a iona fide purchaser for value and without 
 notice, the party suffering from such accident or mistake loses his 
 right of recovery of the property.' The same effect is produced by a 
 iona fide purchase of property from a vendee to whom the property 
 has been transferred through a fraud on the vendor, or on the creditor 
 of such vendor, and whether the property transferred is real or per- 
 sonal. In all such cases, the sale of such property by the fraudulent 
 vendee to the hona fide purchaser puts an end to the right to avoid 
 such sale at the instance of the party defrauded.^ 
 
 §50. AflSrmative relief to a bona Aide purchaser. — As has already 
 been stated, the ordinary effect of the doctrine of iona fide purchase is 
 that of inaction; that is, a court of equity will refuse to interfere in 
 behalf of the plaintiff who seeks to enforce some remedy against a iona^ 
 fide purchaser of property. The court will ordinarily not grant to the 
 defendant in such an action, or in any other subsequent action where 
 he assumes the role of plaintiff, any affirmative relief against the 
 outstanding prior interest in the property, on the strength of his 
 character as a ionxi fide purchaser. But there are cases, exceptional 
 in character, in which such affirmative relief will be granted to the 
 hona fide purchaser. The ordinary, cases are those in which the 
 
 1 St. John V. Spalding, 1 T. & C. 483; Phillips 6 Cranch, 87, 133, 134j Brskine v. Decker, 39 Me. 
 v. Phillips, 4 De G. F. & J, 208, 218, per Lord 467; Hart •». The Bank, 33 Vt. 252; Poor v. 
 Westbnry; Ligon v. Eogeis, 12 Ga. 381, 292; Woodburn, 25 Vt. 234, 836; Hubbell </. Currier, 
 Whitman v. Weston, 30 Me. 285. 10 Allen, 333; Sleeper v. Chapman, 121 Mass. 
 
 2 Manning v. Keenan, 73 N. T. 45; Stevens ». 404; Coleman v. Cocke, 6 Rand. 618; Collins v. 
 Brennan, 79 N. T. 254; Eobinson v. Dauchy, 3 Heath, 34 Ga. 443; Eeed v. Smith, 14 Ala. 380; 
 Barb. 20; Pearse v. Pettis, 47 Barb. 276; Deean Sydnor «. Roberts, 13 Tex. 598; Gavagan v. Bry- 
 V. Shipper, 11 Casey, 239; Jackson «. Summer- ant, 83 111. 376; Kowley V. Bigelow, 12 Pick. 307; 
 ville, 1 Harris, 359; Dean V. Yates, 22 Ohio St. Williamson v. Eussell, 39 Conn. 406; Root v. 
 388; Sargent v. Sturm, 23 Cal. 359; Eison v. French, 13 Wend. 570; Mearsj;. Waples, Houst. 
 Knapp, 1 Dillon, 186, 201 ; Spaulding v. Brews- 581 ; Eowley v. Bigelow, 12 Pick, 307 ; Prazer v. 
 ter, 50 Barb. 142 ; Barnard v. Campbell, 65 Barb. Western, 1 Barb. Ch. 220 ; Ledyard v. Butler, 9 
 286; Joslin v. Cowee, 60 Barb. 48; Eoberts «. Paige, 132; Anderson v. Roberts 18 Johns. 515; 
 Dillon, 3 Daly, 50; Field «. Steams, 42 Vt. 106; reversing the Johns. Ch. 371, 377; Phelps ». 
 Poor ®. Woodburn, 25 Vt. 234; Hodgeden v. Morrison, 24 N. J. Eq. (9 C. B. Green) 195; Hood 
 Hubbard, 18 Vt. 504; Root v. French, 13 Wend. v. Fahnestock, 8 Watts, 489; Price v. Punkin, 4 
 SrO; Caldwell v. Bartlett, 3 Duer, 341 ; Keyser v. Watts, 85 ; Boyce v Waller, 2 B. Mon. 91 ; Spicer 
 Harbeck, 3 Duer, 373; Brower v. Peabody, 13 N. v. Robinson, 73 111. 519; Henderson t). Hender- 
 T.121; Fassett D.Smith, 23 N. Y. 252; Hathome son, 55 Mo. 534; MoNab V. Young, 81111. 11; 
 1). Hodges, 28 N. Y. 486; Spraights v. Haw- Dlckerson «. Evans, 84 111.451; Chicago, &o. 
 ley, 39 N. Y. 441; Paddon v. Taylor, 44N. Y. Co. ■». Foster, 48 111. 507; Fulton «. Woodman, 
 371; Kinney «. Kieman, 49 N. Y. 164; Weaver 54 Miss. 158; Farmer's Nat. Banku. Fletcher, 
 V. Barden, 49N. Y. 286; Devoe ». Brant, 53 N. 44 Iowa, 252; Hurley v. Osier, 44 Iowa, 642; 
 Y. 462; Bean u. Smith, 2 Mason, 252, 272-282; Henderson v. Henderson, 55 Mo. 534. 
 Woods. Mann, 1 Sumn. 506; Fletcher v. Peck, 
 
 65 
 
§ 52 EQUITY JUKISPKUDENCE. [CH. IV. 
 
 holder of the prior interest in the property is estopped from setting 
 up his own title against the subsequent purchaser, on the ground 
 that such prior claimant has fraudulently or negligently permitted 
 the hona fide purchaser to acquire such interest in the property under 
 the impression that the title of the vendor was free from any equitable 
 claim by himself, under circumstances when the law require him to 
 give the information or to notify such would-be subsequent purchaser.^ 
 In all these cases the remedy consists of a cancellation or surrender of 
 the deeds of conveyance upon which the prior interest rests, or some 
 sort of release of such prior interest to the subsequent purchaser. 
 And it may be stated in addition as a general proposition, that the 
 court of equity will grant affirmative relief to a subsequent purchaser 
 in all cases where, from the character of the case and under the rules 
 of equity, the hona fide purchaser can resort to the equitable remedy 
 for removing a cloud from the title/ 
 
 § 51. What constitutes a bona fide purchase. — In order that one 
 may claim the protection in equity of a hona fide purchase, he must 
 show the existence of three elements in the character of the transac- 
 tion, that is, his purchase must have been made, first, for a valuable 
 consideration; secondVy, without notice of the prior equity; thirdly, 
 in good faith. The absence of any one of these three elements from 
 the transaction will destroy the superior equity of a hona fide purchase. ' 
 
 § 62. What is a valuable consideration. — A consideration is 
 defined by writers upon contracts in general to be the inducement to 
 the assumption of an obligation, and it may consist either of a detri- 
 ment to the promisee or a benefit to the promisor. But in this con- 
 nection the term " valuable consideration" is not so broad in its mean- 
 ing, as when it is discussed in the connection with contracts in general. 
 In order that one may claim to be a hona fide purchaser, he must 
 show that he haspartedwithsomethingof pecuniary value, in consider- 
 ation of his acquisition of the title to the property purchased; in other 
 words, he must show that he has suflFered a detriment or loss of a 
 pecuniary character. It is not necessary that the consideration shall 
 be pecuniary; it is only required to be something of pecuniary value.* 
 
 I strong V. Ellewortli, 26 Vt. 366; Clabough » Wallace v. Lord Donegal, 1 Dr. &, Wal. 461; 
 
 ■». Byerly, 7 Uill, 364; Kiohardson v. Chicker- Martin v. Hewitt, 44 Ala. 418; Sharp v. Hunte, 
 
 Ing, 41 N. H. 380; Wells «. Pierce, SJ? K. H. 503; 1 Coldw. 389; Pilley«. Duncan, 1 Neb. 134. See, 
 
 Parker v. Barker, 2 Meto. 423 ; Laurence v. for a fuller discussion of the bill for removing 
 
 Brown, 5 N. Y. 304; Buchanan v. Moore, 13 the cloud from title, yos< § 545. 
 
 Serg. & R. 304; McKelvey ». Truby, 4 W. & S. » Kinney v. Consolidated, Ac. Min. Co., 4 
 
 .323; Willie v. Swartz, 4 Casey, 413; Beaupland Sawy. 382; Hardin v. Harrington, 11 Bush. 367; 
 
 «. McKeen, 4Casey, 124; McKeIway«. Armour, Briscoe v. Ashby, 24 Gratt. 454; Hamman v. 
 
 2 Stockt. Oh. 115; Wendell v. Van Eensselaer, Keigwin, 29 Tex. 34;Willoughbyt). Willoughby, 
 
 1 Johns. Oh. 344; Nivens v. Belknap, 2 Johns. 1 T. E. 763. 767, per Lord Hardwicke. 
 
 573; Cheeney V. Arnold, 18 Barb. 434; Wells v. * Brown v. Welch, 18 111. 343; Keys ». Test, 33 
 
 Pierce, 7 Fost. 503; Carr «. Wallace, 7 Watts, 111. 316; McLeods.Nat. B'k, 42Miss.99; Haugh- 
 
 394; Yanhorn v. Frick, 3 Serg. & E. 278; Saun- wout v. Murphy, 31 N. J. Eq. (6 C. E. Green) 118; 
 
 dersont). Ballance, 2 JonesEq. 322; HigginsD. Aubuchon ». Bender, 44 Mo. 500; Spurlock ». 
 
 Ferguson, 14111.269; Godeflfroy ». Caldwell, 2 SuUiyan, 36 Tex. 511; Webster ». Van Steen- 
 
 •Cal. 489. For a fuller explanation of the bergh, 46 Barb. 211 ; Pickett d. Barron, 29 Barb, 
 
 doctrine of estoppel see j)0«<, Ch VI. 505; DickeiBOn r. Tillinghast, 4 Paige, 215; 
 
 66 
 
CH. IV.] DOCTRINE OF PEIORITT. § 53 
 
 A mere donee of property, that is, one who takes as a gift, 
 cannot claim to be a hona fide purchaser. Not only may the loan 
 of money, or exchange or transfer of property, or the rendition 
 of some service be a sufficient valuable consideration,' but so also 
 will there be a sufficient consideration where the purchaser sur- 
 renders or releases some existing legal right, and assumes some 
 new legal obligation from which he will not be relieved by a court of 
 equity.^ If the transaction is otherwise conducted in good faith, mere 
 inadequacy of the consideration will not affect the equity of the hona 
 ^Repurchaser;' but where the inadequacy is so gross as to make the 
 consideration nominal and unsubstantial, the consideration is not suf- 
 ficient to support the claim of a lonafide purchaser.* 
 
 § 53. Antecedent debts as consideration.— Inasmuch as the 
 rationale of the doctrine of a hona fide purchase is, that the purchaser 
 has parted with some value or suffered a loss in reliance upon the 
 validity of the title which has been acquired to the property trans- 
 ferred to him; and that the acquisition of this property was the 
 inducement to his surrender or transfer of the value or to his assump- 
 tion of the loss sustained; it has been a much-mooted question, how 
 far and to what extent the securing, the payment of an antecedent debt 
 makes the holder of such lien a hona fide purchaser. The familiar 
 example of the question here raised is, that of a mortgage of property 
 or a judgment lien acquired on such property in securing the payment 
 of an antecedent' debt. Where the debt is contracted at the time 
 when the mortgage is given and the money is loaned in direct reliance 
 upon procuring the mortgage, there is no question as to the mortga- 
 gee in question being a Joma^c?^ purchaser. But where the mortgage 
 is given to secure the payment of a debt already contracted, or of 
 money loaned on some prior occasion, the consideration is executed; 
 and for that reason it becomes doubtf nl whether a mortgagee, in a 
 mortgage subsequently given to secure such debt, is a subsequent 
 purchaser for value. It should be borne in mind in this connection, 
 that the question does not depend upon the same principles which 
 determine the validity of such a mortgage, as between the mortgagee 
 and the mortgagor; and hence the cases, in which the sufficiency of 
 
 Penfield v. Dunbar, 64 Barb. 239; Weaver v. sted«. Avery, 4 Paige, 9; Conrad ®. Atlantic 
 
 Barden, 49 N. Y. 286; Delanoey v. Steams, 66 N. Ins. Co., 1 Pet. 386. 
 
 Y. 157; Union Canal Co. v. Young, 1 Whart. « See Williams v. Shelly, 37 N. Y. 375; Reed ». 
 
 410, 432; Roxborougb v. Messlck, 6 Ohio St. Cannon, 3 Daly, 414; McLoed v. Nat. Bank, 42 
 
 448; Palmer ». Williams, 24 Mich. 328; West- Miss. 99; Westbrook v. Gleason, 79 N. Y. 23, 36; 
 
 brook ji. Gleason, 79 N. Y. 23, 28; Williams V. Youngs ». Lee, 12 N. Y. 551; Meads «. Mer- 
 
 Shelly, 37 N. Y. 375; Lawrence v. Clark, 36 N. chants'Bank, 25 N.Y. 143; Padgetts. Lawrence, 
 
 Y. 128; Reedr. Gannon, 3 Daly, 414; Munn v. 10 Paige, 170; Struthers v. Kendall, 5 Wright, 
 
 McDonald, 10 Watts, 270. 214, 218; Goodman v. Simonds, 20 How. (IT. S.) 
 
 1 Curtis «. Leavitt, 15 N. Y. 11, 179; Qlidden 343, 371. 
 
 V. Hunt, 24 Pick. 221 ; Baggarly t. Gaither, 2 » Westbrook v. Gleason, 79 N. Y. 23, 36, per 
 
 Jones Eq. 80 ; Gerson ». Pool, 31 Ark. 85 ; Bowen Rapallo, J. ; Seward ». Jackson, 8 Cow. 406, 430 ; 
 
 ti. Prout, 52 111. 354; Munn o. McDonald, 10 Pickett o. Barron, 29 Barb. 505; Gary «. White, 
 
 Watts, 270; Martins. .Tackson, 3 Casey, 504, 509; 52 N. Y. 138, 142; Wood v. Chapin, 13 N. Y. 509. 
 
 Roxborough t). Messick, 6 Ohio St. 448; Kelr- ■< Worthy jj. Caddell, 76 N. C. 82. 
 
 67 
 
§53 
 
 EQUITY JUEISPKUDENCE. 
 
 [CH. IT. 
 
 the consideration is sustained for the purpose of making the mort- 
 gage valid as between the parties to it, cannot be referred to as. 
 authority in the present connection. Relying upon the statement, 
 that in the case proposed the mortgagee has not parted with anything^ 
 of value, in reliance upon the title which he acquires by the execu- 
 tion of the mortgage, it has been held by the majority of the courts,, 
 that such a mortgagee cannot claim the superior title of a lona fide 
 purchaser.* .But in a few of the states it is held that the security for 
 a pre-existing debt does rest upon a valuable consideration sufficient 
 to give to the creditor, in respect to such security, the character of a 
 honafijde purchaser.* Under the general principles here set forth, it 
 is universally held that an assignment of property for the benefit of 
 creditors does not rest upon a valuable consideration; and it is not a 
 Txma fide purchase, either as to the assignee or as to the creditors, for 
 whose benefit the assignment is made.' But the giving of the security 
 may rest upon some fresh and independent consideration, and when- 
 ever such independent consideration is proven to be the inducement 
 to the giving of the security, the creditor as to such security is clearly 
 a hormfide purchaser. Thus, for example, where the creditor in con- 
 sideration of the security agrees to definitely extend the time of pay- 
 ment* or to surrender some other security held by him;* or where with 
 the giving of the security the antecedent debt has been satisfied and 
 discharged in whole or in part, and such satisfaction and discharge of 
 the original debt constitutes the inducement to the giving of the 
 security. ° In all such cases a fresh and independent consideration 
 exists for the giving of the security which is sufficient to make the 
 
 1 Bay «. Coddlngton, 20 Johns. 637; 5 Johns, 
 Oh. 54; Mlngus s. Condit, 83 N. J. Bq. (8 C. B, 
 Green) 313; Panooastt). Duval, 26 N. J. Eq. (H 
 C. E. Green) 445; Ingram v. Morgan, 4 Hump, 
 66; Wormley«. Lowry, 1 Humph. 468; Clark «, 
 Flint, 22 Pick. 231; Sargent v. Sturm,' 22 Cal, 
 359; Alexander v. Caldwell, 55 Ala. 517; Short 
 «, Battle, 52 Ala. 456; Clark i>. Flint, 22 Pick. 
 231; Bufflngton v. Gerrish, 15 Mass. 156; Min. 
 gus ». Condit, 24 N. J. Eq. (8 C. B. Green) 313 
 
 , Wheeler «. Kirtland, 24 N. J. Eq. 552; Ashton'i 
 Appeal, 73 Pa. St. (23 P. F. Sm.) 153, 162; Gar- 
 rard «. Pittsburg, &c. E. E.,5 Casey, 154, 159; 
 Prentice v. 7i2ea.e, 2 Gratt. 262; Halstead v. B'k 
 of K'y, 4 J. J. Marsh. 554; Manning v. McClure, 
 36 111. 490; Boon v. Barnes, 23 Miss. 136; Pratt 
 II. Coman, 37 N.T. 440; see also Wood v. Eobin- 
 Bon, 22 N. T. 564; Van Heusen v. Eadoliff, 17 N. 
 T. 580; Lawrence V. Clark, 35 N. Y. 128; Dick- 
 erson «. Tillinghast, 4 Paige, 215; Eyertson, 5 
 Paige, 644; Gaflford v. Stearns, 51 Ala. 434; 
 Johnson v. Graves, 27 Ark. 557; Gary v. White, 
 52 N. T. 138; Hart V. The Bank, 33 Vt. 252 ; Poor 
 ». Woodbum, 25 Vt. 835 j Hodgeden ». Hubbard, 
 18Vt. 504. 
 
 2 Babcock v. Jordan, 24 Ind. 14; Frey v. Clit- 
 ford,44Cal.335. 
 
 68 
 
 8 Mellon's Appeal, 8 Casey, 121 ; Spaokman v. 
 Ott, 65 Pa. St. (15 P. F. Sm.) 131; In re Fulton's, 
 Estate, 51 Pa. St. (1 P. F. Sm.) 204, 211; Twelves 
 v. Williams, 3 Whart. 485 ; Ludwig «. Highley,. 
 5 Barr. 132, 140; Willis 1). Henderson, 4 Scam.. 
 13; Clark «. Flint, 22 Pick. 231; Holland v.. 
 Cruft, 20 Pick. 321 ; Griffin v. Marquardt, 17 N. 
 Y. 28; Van Heusen v. Eadoliff, 17 N. Y. 580;, 
 Joslin ». Cowee, 60 Barb. 48; Haggerty v. Pal- 
 mer, 6 Johns. Ch. 437. 
 
 * Lonsdale v. Brown, 4 Wash. C. C. 148, 151; 
 Eallroad Co. v. Barker, 5 Casey, 160, 162; Gris- 
 wold -v. Davis, 31 Vt. 390, 394; Atkinson V. 
 Brooks, 26 Vt. 569. 
 
 6 Youngs V. Lee, 12 N. Y. 551; Meads v. Mer- 
 chants' B'k, 85 N. Y. 143; Padgett v. Lawrence, 
 10 Paige, 170; Struthers v. Kendall, B Wright, 
 214, 218; Goodman v. Simonds, 20 How. (U. S.) 
 343,371; see Thompson v. Blanchard, 4 N. Y. 
 303; Penfield v. Dunbar, 64 Barb. 239. 
 
 6 Ohio Life Ins., &c. Co. v. Ledyard, 8 Ala. 
 866; The Bank of Godfrey, 23 111. 579, 606j 
 Donaldson v. B'k of Cape Fear, 1 Dev. Eq. 103; 
 Soule«. ShotWell, 52 Miss. 236; Euth v. Ford, 9- 
 Kans. 17; Loves. Taylor, 26 Miss. 567; Saflfold 
 v. Wade's Bx'r, 51 Ala. 214. For a full discus- 
 sion of the doctrine of payment see po» % ES., 
 
CH. IV.] DOCTRINE OF PRIORITY. § 54 
 
 holder of the security a hona fide purchaser as against the owner of 
 some prior interest therein. 
 
 § 54. Priority of unrecorded mortgages over judgment credit- 
 ors. — It is also claimed by many of the authorities, that an unre- 
 corded mortgage or conveyance will have priority over the subse- 
 quently docketed judgment, although the judgment is obtained and 
 docketed without notice of the prior conveyance or mortgage; on the 
 ground that the lien of judgment on the property is acquired without 
 consideration by the judgment creditor, and that the assertion of the 
 prior unrecorded mortgage or conveyance against such subsequent 
 docketed judgment would not give to the judgment creditor any claim 
 of being injured, for he has parted with nothing in securing the judg- 
 ment lien in reliance upon the apparently valid title of the judgment 
 debtor. The equitable doctrine then is, that a judgment lien will 
 attach only to the actual interest of the judgment debtor, and subject to 
 all the prior equitable claims against such interest.^ This rule, how- 
 ever, has been repudiated by the courts of many of the states, which 
 hold, that the judgment creditor is entitled to priority over other 
 earlier equitable interests, on the ground that he does suffer a damage 
 of a legal character in consequence of the recognition of priority in 
 the earlier equity, whenever he goes to the trouble and expense of 
 procuring the judgment lien, and is induced by the apparently unin- 
 cumbered condition of the debtor's title to rely upon such judgment 
 lien. In accordance with this principle, it is held in these states 
 that the judgment lien, docketed subsequently to an unrecorded 
 mortgage or to the acquisition of some equitable interest or lien, 
 shall have precedence over such prior equity or interest:^ but, when- 
 
 iBartley, J., In White v. Denman, 1 Ohio St. Moyer v. Hinman, 13 N. Y. 180; 17 Barb. 137; 
 110, 112; Everett v. Stone, 3 Story, 446, 455; Wilooxson v. Miller, 49 Cal. 193; Plxley v. 
 Briggs V. French, 2 Sumn. 251 ; Ells ». Tousley, Huggins, 15 Id. 127 ; Plant ». Smythe, 45 Id,. 161 ; 
 1 Paige, 280; In r« Howe, 1 Id. 125; White v. Hunts. Watson, 12 Id. 363; Rose v. Maune, 4 
 Carpenter, 2 Id. 217, 266; Govemeur v. Titus, 6 Id. 173; First Nat. B'k ». Hayzlett, 40 Iowa, 659; 
 Id. 347; Kiersted v. Avery, 4 Id. 9; Arnold v. Hoy v. Allen, 27 Id. 208; Churchill v. Morse, 23 
 Patrick, 6 Id. 310; Morris v. Mowatt, 2 Id. 586, Id. 229; Evans ■». McGlesson, 18 Id. 150; Welton 
 590; Buchan v. Sumner, 2 Barb. Oh. 165, 207; ». Tizzard, 15 Id. 495; Patterson v. Linder, 14 
 Hoagland v. Latourette, 1 Green's Ch. 254; Id. 414; Bell v. Evans, 10 Id. 353; Norton B. 
 Dunlap. «. Burnett, 5 Sm. & Mar. 702; Money Williams, 9 Jii. 528; Sappington V. Oeschli, 49 
 ■V. Dorsey, 7/d. 15; Bank v. Campbell, 2 Rich. Mo. 244; Potter v. McDowell, 43 Id. 93; Still- 
 Eq. 179; Watkins B. Wassell, 15 Ark. 73, 94, 95; well «. McDonald, 39 Id. 282; Valentine ». 
 Cover V. Black, 1 Barr. 493; Shryook «. Wag- Havener, 20 Id. 133; Apperson V. Burgett, 33 
 goner, 4 Casey, 430; Hampson v. Edelen, 2 Har. Ark. 328; Kelly v. Mills, 41 Miss. 267; Righter v. 
 & Johns. 64; Hackett v. Callender, 32 Vt. 97, Forrester,! Bush. (Ky.)278; Morton «. Robards, 
 108, 109; Hart v. Farm. <& Meoh. Bank, 33 Id. i Dana, 258; Orth v. Jennings, 8 Blackf. 420; 
 252; Brown v. Pierce, 7 Wall. 205; Baker v. Hempton ». Levy, 1 MoCordOh. 107, 111; Gal- 
 Morton, 12 Id. 150; Bicheson v. Bicheson, 2 way v. Mulchow, 7 Neb. 285; Van Thomiley v. 
 
 . Gratt. 497; Bayley «. Greenleaf , 7 Wheat. 46, 51 ; Peters, 36 Ohio St. 471. 
 Stevens v. Watson, 4 Abb. App. Dec. 302; ^Corpman v. Baooastow, 84 Pa. St. 363; 
 
 . Wheeler «. Klrtland, 24 N. J. Eq. (9 C. E. King v. Portis, 77 N. C. 25; Van Thomiley ». 
 
 Green) 552; Knell V. Build'g Ass'n, 34 Md. 67; Peters, 26 Ohio St. 471; White V. Denman, 1 
 
 Galway ■». Malchow, 7 Neb. 285; Jackson o. Ohio St. 110, 112, 114; Mayham «. Coombs, 14 
 
 Dubois, 4 Johns. 216; Schmidt v. Hoyt, 1 Edw. Ohio, 428; Jackson v. Luce, Id. 514; Holliday v. 
 
 Ch. ffi2; Thomas v. Kelsey, 30 Barb. 268; Wilder Franklin B'k, 16 Id. 533; Guiteau v. Wisely, 47 
 
 ■B. Butterfleld, 50 How. Pr. 385; In re How. 1 111. 433; McFadden v. Worthington, 45 Id. 362; 
 
 Paige, 125; Schroeder 2). Gumey, 73 N. Y. 430; Massey V. Westoott, 40 Id. 160; Eeichert v. 
 
 69 
 
§ 54 EQUITY JUEISPEUDENCB. [CH. IV. 
 
 ever the judgment lien is given priority over tlie earlier equity, 
 the claim for priority depends upon the want of notice of the prior 
 equity when the lien was acquired; that is, if when the judg- 
 ment lien was acquired and the judgment docketed, the judg- 
 ment creditor knew of the existence of the earlier equitable claim 
 against the property, he cannot claim for his judgment lien any 
 precedence over the prior equity.^ Where, however, the recording 
 laws expressly declare that a judgment lien shall have precedence 
 over the unrecorded mortgage or prior conveyance, the statutory 
 provision must prevail; and is held to prevail, giving to the judgment 
 lien priority over the unrecorded mortgage, even though the judg- 
 ment creditor knew when the judgment was docketed that such 
 unrecorded mortgage existed.^ But whether in any particular state 
 the judgment lien is held to have priority over the prior equity or 
 interest or not; if the judgment lien should be-enforced by execution, 
 and the property sold under such execution to a bona fide purchaser, 
 the legal title in such a purchaser would be taken by him free from 
 the priority of the earlier equity; and such equities could not be 
 enforced against the land in the hands of such a purchaser.' Where, 
 however, the purchaser under execution of the judgment takes the 
 land with notice of the prior equity, and the judgment creditor also 
 loses his precedence because of his knowledge of the existence of the 
 prior equity; or the question arises in a state in which the judgment 
 creditor is denied all claim of priority over the earlier equity; the 
 purchaser cannot, under such circumstances, claim to take the legal 
 
 MoClure, 23 Id. 516j Barker v. Bell, 37 Ala. 354; Ohio, 428; Butler ». Maury, 10 Humph. 420; Lil- 
 Mainwaring v. Templeman, 51 Tex. 205; Fire- lard v. Euckers, 9 Yerg. 64. 
 baugh V. Ward, 51 Id. 409 ; Cayanaugh v. Peter- » Orth v. Jennings, 8 Blackf . 420 ; Rodgers v. 
 son, 47 Id. 197; Grace t). Wade, 45 Id. 522; An- Gibson, 4 Yeatea, 111; Heister v. Fortner, 2 
 drews». Mathews, 59 Ga. 466; Youngs. Devries, Binney, 40; Sieman v. Schurok, 29 N. Y. 598; 
 31 Gratt.304; Eidsoni).Huff,29J(?.338; MoClure Jackson «. Chamberlain, 8 Wend. 620, 625; 
 V. Thistle's Ex'rs, 2 Id. 182; Anderson v. Nagle, Jackson v. Post, 15 Id. 588; 9 Cow. 120; Jackson 
 12 W. Va. 98; Uhler v. Hutchinson, 23 Pa. St. v. Town, 4 Cow. 599; Governeur v. Titus, 6 
 110; Jaques v. Weeks, 7 Watts, 261; Hulings v. Paige, 347; Den v. Eiehman, 1 Green, 43; Mor- 
 Guthrie, 4 Burr. 123; Hibberd v. Bovier, 1 risons. Funk, 23 Pa. St. 421; Stewart «. Free- 
 Grant's Cas. (Pa.) 266; Mallory «. Stodder, 6 man, 10 Harris, 120, 123; Kellam «. Janson,5 J(i. 
 Ala. 801 ; Ohio Life Ins. & T. Co. ». Ledyard, 8 467; Mann's Appeal, 1 Barr. 24; Wilson v. 
 Id. 866; Pollard v. Cocke, 19 Id. 188. Shoneberger, 10 Casey, 121; Scribner v. Look- 
 
 1 Priest V. Rice, 1 Pick. 164; Hart v. Farm & wood, 9 Ohio,, 184; Paine «. Mooreland, 15 Id. 
 
 Mech B'k,33Vt.252;Hackett».Callender,38/(i. 435; Runyan ». MoClellan, 24 lud. 165; Ehle «. 
 
 97, 108, 109; Covers. Black, 1 Barr. 493;0'Rourke Brown, 31 Wis. 405, 414; Rogers i). Hussey, 3a 
 
 V. O'Connor, 39 Cal. 442; Britton's Appeal, 9 Iowa, 664; Drapers. Bryson, 26 Mo. 108; Harri- 
 
 Wright, 172; Mellon's Appeal, 8 Casey, 121; sons. Caoheliu, 23 Id. 117, 126; WaJdo v. Rus- 
 
 Lawrence v. Stratton, 6 Cush. 163, 167; Goddard r«U, 5 Id. 387; Ohio Life Ins. & T. Co. v. Led- 
 
 V. Prentice, 17 Conn. 546; Cox v. Milner, 23 III. yard, 8 Ala. 866; Ayres v. Duprey, 27 Tex. 593, 
 
 476; Ogden v. Haven, 24 Id. 57; Dixon «. Doe, 1 605; Cooper n. Blakey, 10 Ga. 263; Miles v. King^ 
 
 Sm & Mar. 70; Ayres «. Duprey, 27 Tex. 593; 5 S. C. 146; Gower v. Doheney, 33 Iowa, 36, 39; 
 
 Wyatt V. Stewait, 34 Ala. 716, 721 ; Burt v. Cas- Halloway v. Planter, 20 Id. 121 ; Wood v. Chap- 
 
 sety, 12 Ala. 734; Wallis v. Rhea, 10 Id. 451; 12 in, 13 N. Y. 509; Arnold v. Patrick, 6 Paige, 310, 
 
 Id. 646; Garwood «. Garwood, 4 Halst. 193. 316; Dickerson v. Tillinghast, 4 Id. 215; Wright 
 
 2Guerrant v. Anderson, 4 Rand. 208; David- v. Douglas, 10 Barb. 97; Sargent v. Sturm, 2a 
 
 son V. Cowan, 1 Dev. Eq. 474; Davey v. Little- Cal. 339; Orme v. Roberts, 33 Tex. 768; Ayres e. 
 
 John, 2 Ired. Eq. 495; Mayham v. Cooms, 14 Duprey, 27 Id. 393. 
 
 70 
 
CH. IV.] DOCTRINE OF PRIOKITT. § 55 
 
 title free from the earlier equitable claim. ^ But if the question arose 
 in a state in which the judgment creditor can claim for his lien 
 priority over the earlier equitable interest, because he does not know 
 of its existence when the judgment lien was secured, then this prior- 
 ity, which is recognized by the law in the judgment creditor in favor 
 of his lien, passes to the purchaser; so that the purchaser under the 
 execution of the judgment can claim priority in his character as as- 
 signee of the judgment creditor, although when he takes the deed to 
 the property he knows of the existence of the prior equitable interest 
 or claim.* 
 
 § 55 Payment of a consideration. — Not only must there be a val- 
 uable consiileration in fact, but it must be actually paid out before one 
 receives notice of the prior claim. Notice of a prior interest before 
 the consideration has been actually paid, but after the contract has 
 been made and the title of the property been conveyed, would take 
 away from the subsequent grantee the character and the superior 
 equity of a iona fide purchaser.' Where, however, a part of the con- 
 sideration has been paid before receiving such notice, and a part paid 
 subsequently, the courts have been induced in many of the states, as 
 well as in England, to hold that such a person is a ioTia fide pur- 
 chaser pro tanto, as to the part of the consideration which was paid 
 out before receiving notice of the prior equity.* As a corollary to 
 the rule that actual payment of the consideration is required before 
 receipt of the notice of the prior equity, if the consideration consti- 
 tutes an executory contract, the contract must be executed or per- 
 formed before the notice is received. Thus, for example, the vendee's 
 bond, or covenant, or bond and mortgage, or any other non-negotiable 
 instrument of indebtedness, given for the price of the property pur- 
 
 'EUs V. Tousley, 1 Paige, 280; Governeur v. lard v. Cooke, 19 Id. 188; Smith v. Jordan, 25 
 
 Titus, 6 Id. 347; Morris v. Mowatt, 2 Id. 586, Ga. 687. 
 
 590; Parlts v. Jackson, 11 Wend. 442; Sieman v. ' Wood v. Mann, 1 Sumn. 506, 578; Plagg v. 
 
 Scliiirck, 29 N. Y. 598; Moyer o. Hinman, 13 J(i Mann, 2 humn. 486: Penfleld v. Dunbar, 64 
 
 180,andoaseacitedp«rDenio, J.; Bank D.Camp Barb. 239; Palmer v Williams, 24 Micb. 328; 
 
 bell, 2 Rich. Eq. 179; Churchill v. Morse, 23 Ketteridge v. Chapman, 36 Iowa, 348; Baldwin 
 
 Iowa, 229; Hoy v. Allen, 27 Id. 208; Chapman ». Sager, 70 III. 503; Wood a. Mann, 1 Sumn, 
 
 V. Coats, 26 Id. 288; O'Rourke v. O'Connor, 39 506, 578; Plagg v. Mann, 3 Sumn. 486; Jewette. 
 
 Cal. 442; Davis v. Ownsby, 14 Mo. 170; Valen- Palmer, 7 Johns. Oh. 65; Losey v. Simpson, a 
 
 tine V. Havener, 20 Id. 133; Sappington «. Stockt. Ch. 246. 
 
 Oeschli, 49 Id. 244,246; Byers ». Engles, 16 Ark. < Boggs v. Vamer, 6 Watts & S. 469, 473 j 
 543; Prescott v. Heard, 10 Mass. 60; Ogden v. Dufpheyi). Prenaye, 5 Stew. &Port. 215; Bald- 
 Haven, 24 III. 57; AyresB. Duprey, 27 Tex. 593. win v. Sager, 70 111. 503; Ketteridge o. Chap- 
 
 2 Jacques B. Weeks, 7. Watts, 261, 270; Uhler man, 36 Iowa, 348; Haughwout v. Murphy, 21 
 
 V. Hutchinson, 23 Pa. St. (11 Harris) 110; Calder N. J. Eq. (6 C. B. Green) 118; Paul v. Pulton, 25 
 
 V. Chapman, 53 Pa. St. (2 P. P. Sm.) 359, 362; Mo. 158; Union, &c. Co. v. Young, 1 Whart. 410, 
 
 Massey v. Westcott, 40 III. 160; MoPadden v. 4S1; Juvenal «. Jackson, 2 Harris, 519, 524 ; Beck 
 
 Worthington, 45 Id. 362; Guiteau v. Wisely, 47 ». Uhrich, 1 Harris, 636, 639; 4 Harris, 499; Kun- 
 
 Id. 433; Potter v. McDowell, 43 Mo. 93; Still- kle». Wolfersberger,6 Watts, 126; Prainjj.Pred- 
 
 wellB. McDonald, 39 111. 282; Davis v. Ownsby, eriok, 33 Tex. 294; Frost v. Beekman, 1 Johns. 
 
 UMo. 170; Greenleaf v. Edes, 1 Minn. 264; Ch. 288; Farmers' Loan Co. ■!). Maltby, 8 Paige^ 
 
 Henderson v. Downing, 24 Miss. 106; Kelley v. 361; Doswell ». Buchanan's Ex'rs, 3 Leigh, 365; 
 
 Mills, 41 Id. 267, 373; Pash v. Ravesies, 32 Ala. Everts V. Agnes, 5 Wis. 343; Youst v. Martin, a 
 
 461; DeVendell v. Hamilton, 87 Id. 156; Pol- Serg. &R. 423; Bellas v MoCarty, 10 Watts, 13} 
 
 Boggs V. Varner, 6 Watts & S. 469, 472. 
 
 71 
 
§ 66 EQUITY JUKI8PEUDENCE. [CH. IV. 
 
 chased, will not make such Vendee a hona fide purchaser, as long as 
 such bond, covenant, or other instrument of indebtedness remains 
 impaid. For, while his obligation to execute such bond or covenant 
 is absolute in a court of law, the court of equity will relieve him from 
 liability on such an instrument of indebtedness, where there was a 
 failure of the consideration for it through the assertion of a superior 
 equity in the property purchased.^ But it is not necessary that the 
 consideration should be actually satisfied by a payment in cash. Not 
 only would there be a sufficient execution of the consideration where 
 the vendee transfers to the vendor the obligation of some third per- 
 son, payable to himself in payment of the price ;^ but, so also, where 
 the price is settled for by the execution of a negotiable note or bill 
 in favor of the vendor. In consequence of the liability on such nego- 
 tiable instruments of the obligors to the hona fide holder, irrespect- 
 ive of the existence or failure of the consideration, the courts have 
 held that the vendee has parted with something of value in the deliv- 
 eryof such a negotiable instrument. According to some of the au- 
 thorities, it was doubtful whether the claim of a hona fide purchaser 
 could in such a case be established, unless there had been an actual 
 transfer of such note or bill to a hona fide holder.' But it has been 
 held that the mere possibility of being liable on such a negotiable in- 
 strument to a hona fide holder is a sufficient execution of the consid- 
 eration to make the vendee a hona fide purchaser.* Another form of 
 assumption of a positive obligation is where the purchaser, in consid- 
 eration of such purchase, promises to pay a debt due by the vendor to 
 some third person in such a manner, that a complete novation of the 
 indebtedness has taken place. ° 
 
 § 56. Effect of notice. — The second requirement of a hona fide 
 purchase is, that the title was taken without notice of the prior claim 
 to the property. The general proposition does not admit of any 
 special difficulty. It is clear enough to the understanding that notice 
 of a prior equity, when received before the acquisition of the interest 
 in the property and before payment of the consideration, will pre- 
 vent the assertion of the prior equity of a hona fide purchaser; while 
 on the other hand, if the conveyance has been made and the consid- 
 eration paid, before any notice is received, its reception subsequently 
 
 1 Weaver v. Barden, 49 N. T. 286; Gary v. ^ Harris v. Morton, 16 Barb. 274; Patten ti. 
 White, 52 N. T. 138; Delanoy «. Steams, 66 N. Moore, 38 N. H. 382; High «. Batte, 10 Yerg. 
 Y. 157; Westbrook ». Gleaaon, 79 N. Y. 23, 28; 186; McBee ■». Loftis, 1 Strobh. Eq. 90; Will- 
 Beck V. Uhrioh, 1 Harris, 636, 639; 4 N. Y. 499; iams «. Beatrd, 1 S. C. 309; Murray v. Ballou, 1 
 Kunkle v. Wolfersberger, 6 Watts, 186; Rose- Johns. Ch. 566; Heatley v. Pinster, 3 Johns, 
 man ». Miller, 84 111.297; Ketteridge «. Chap- Ch. 159; Jewett v. Palmer, 7 Johns. Ch. 64; 
 man, 36 Iowa, 348; Hutohins v. Chapman, 37 Christie u. Bishop, 1 Barb. Ch. 105. 
 Tex. 612; Diokerson v. Tillinghast, 4 Paige, 8 Frost v. Beekman, 1 Johns. Ch. 288; Pree- 
 215; Ellis V. Tousley, 1 Paige, 280; Whittick «. man v. Deming, 3 Sandf. Ch. 327; Williams ». 
 Kane, 1 Paige, 800, 208; Jewett v. Palmer, 7 Beard, 1 S. 0. 309. 
 
 Johns. Ch. 65, 68; De Mott v. Starkey, 3 Barb. * Baldwin v. Sager, 70111. 503; Partridge v. 
 
 Ch. 403; Webster v. Van Steenbergh, 46 Barb. Chapman, 81 111. 137. 
 
 211; Spioer ®. Waters, 65 Barb. 287; Haugh- 6 jackson i>. Winslow, 9 Cow. 13; Frost ». 
 
 wouts. Murphy, 21 N. J. Bq. (C. B. Green) 118. Beekman, 1 Johns. Ch. 888. 
 
 T2 
 
CH. IV.] DOCTEINE OF PEIOKITY. § 57 
 
 can have no effect whatever upon the title of such a hona fide pur- 
 chaser.^ 
 
 It has been a point of dispute as to whether the character of the 
 conveyance may not make it impossible for one to claim the protec- 
 tion of a honafide purchaser, and such has been held in a variety of 
 cases to be truc.^ It has been particularly a matter of doubt, whether 
 the grantee who takes the title under a quif-claim deed can claim to 
 be a honafide purchaser, inasmuch as such quit-claim deed purports 
 on its face to transfer only whatever interest the grantor might own 
 in the property, without any express or implied covenant or assertion 
 that the grantor has any interest at all. A great many cases maintain 
 that such a grantee cannot claim to be a ionafide purchaser, because 
 ■from the character of the deed itself under which he holds, he is 
 charged with notice of the defects of his grantor's title.' But there 
 are other cases which refuse to recognize in this respect any difference 
 between the quit-claim deed and other modes of conveyance.* 
 
 § 57. Time of giving the notice. — It has already been explained 
 that in order that one might claim the benefit of the doctrine of hona 
 fide purchase, he must pay or execute the consideration before receiv- 
 ing the notice of the prior equity." And the same requirement is 
 made as a general rule in respect to acquiring the title to such prop- 
 erty; in other words, in order that one might claim to be a bona fi,de 
 purchaser, he must not only pay the consideration before receiving 
 notice, but he must likewise receive the transfer of the property to 
 him. The receipt of notice, before both these two joint acts 
 have been done, will destroy the vendee's claim to the protection of a 
 iona fide purchaser/ The meaning of this rule, as laid down by the 
 
 1 Kearney V. Vaughan, 50 Mo. 284; Hoyt v. chaser of a mere equitable title); MoNary ». 
 Jones, 31 Wis. 389; Wormley v. Wonnley, 8 Southworth, 58 ni. 573 (where a trustee pur- 
 Wheat. 431; Frost v. Beekman, 1 Johns. Ch. chased at his own trust sale, a, remote pur- 
 288; Murray v. Finster, 2 Johns. Ch. 155; Losey chaser deriving title under him may be a hona 
 v. Simpson, 3 Stoclct. Eq. 246; Beck v. Uhrlch, Jlde purchaser). 
 
 1 Harris, 636; Jewett ti. Palmer, 7 Johns. Ch. 64; 'Oliver v. Piatt, 3 How. (U. S.) 333; Mayi;. 
 
 Hamman 'V. Keigwin, 39 Tex. 34 ; Batts V. Scott, Le Claire, 11 Wall. 217 ; Bragg v. Paulk, 43 Me. 
 
 37 Tex. 59; Virgin V. Wingfleld, 54 Ga. 451; iJ02; Smiths. Button, 42 Iowa, 48; Watson v. 
 
 Hardin v. Harrington, 11 Bush, 367; Hull ». Phelps, 40 Iowa, 482; Munn v. Best, 63 Mo. 491 ; 
 
 Swarthout, 29 Mich. 249. Kearney v. Vaughan, 50 Mo. 284; Eidgeway v. 
 
 " Edmonds V. Torrence, 48 Ala. 38 (assignee HoUiday, 59 Mo. 444. 
 
 from a vendee under a land contract); Lewis •• Chapman v. Sims, 53 Miss. 154; Corbin v. 
 
 V. Boskins, 27 Ark. 61, and Peay v. Capps, 27 Sullivan, 47Ind. 356; and see Hutchinson v. 
 
 Ark. 160 (vendee in possession under a land con- Hartmann, 15 Kans. 133. 
 
 tract, buying a better title than his vendors, ' See ante, § 55. 
 
 cannot become thereby a bona fide purchaser, » Wells v. Morrow, 38 Ala. 125; Moore v. Clay, 
 as against his vendor). In Conover v. Van 7 Ala. 742; Duncan v. Johnson, 13 Ark. 190; 
 Mater, 18 N. J. Eq. (3 C. E. Green) 481, it is held Simms v. Richardson, 2 Litt. 274 ; Blair«. Owles, 
 that the assignee of a mortgage, even without 1 Munf. 38; Doswell V. Buchanan, 3 Leigh, 
 notice, takes it subject to all equities, it being 394; Blight's Heirs v. Banks, 6 Mon. 192; Hal- 
 only a chose in action and a mere equitable stead v. B'k of K'y, 4 J. J. Marsh, 554; Pillow v, 
 lien. The contrary is held In Massachusetts, Shannon, 3 Yerg. 508; Zollman v. Moore, 21 
 where the mortgage creates a true legal estate. Gratt. 313; and see Wilson v. Hunter, 30 Ind. 
 Welch V. Priest, 8 Allen, 165; Bertram V. Cook, 466, 471 ; Baldwin v. Sager, 70 111. 503; Palmer 
 33 Mich. 518 (assignee of the vendee in a land ». Williams, 24 Mich. 328; Penfleld -v. Dunbar, 
 contract); Stout v. Hyatt, 13 Kans. 232 (pur- 64 Barb. 239; Wormley v. Wormley, 8 Wheat. 
 
 73 
 
§ 58 EQUITY JUKISPKUDENCE. [CH. IV, 
 
 majority of the cases, is that although the consideration may be paid, 
 if before the conveyance is made of the title the purchaser receiver 
 notice of the existence of the prior equity in the property, he cannot 
 claim the benefit of the doctrine of ionajide purchase.* But there are 
 some American cases which refuse to apply the rule thus laid down; 
 and maintaJnthat the payment of the consideration prior to the receipt 
 x)f the notice is the main fact in determining the right to the protection 
 of a hona fide purchase, whether the conveyance of the property ta 
 such purchaser is fully completed before or after the receipt of the 
 notice.' 
 
 § 58. Effect of notice on purchaser of equitable interest. — A 
 very difficult matter to settle from the attitude of the authorities in. 
 this connection is, whether the hona fide purchaser of an equitable 
 estate, who does not at the time acquire the legal estate, but acquires it 
 by transfer subsequently and after he has received notice of the prior 
 equity in the property, can claim to be a hona fide purchaser to such 
 property: The difficulty arises out of the equitable propositions here- 
 tofore set forth, that where there are two successive hona fide pur- 
 chasers of the equitable interest, in the absence of the modification of the 
 recording laws, the prior equity can claim priority in consequence of 
 being equal with the subsequent equity and superior in point of time. 
 That being the case, the relative priority of these two succeeding 
 equities is determined whenever the second equity is acquired. If 
 therefore the holder of the second equity were permitted under the 
 authorities, after receiving notice of the prior equity, to secure 
 priority by acquiring the legal title to the property, such priority 
 would, therefore, be permitted to be determined by the acquisition of an 
 interest which has been received with notice of the existence of what 
 up to the time that the legal title was acquired, was a superior equity; 
 and hence the majority of the courts have held, in England and in this 
 country, that such a subsequent acquisition of the legal title could not 
 destroy the right of priority of the holder of the earlier equity. ' This is 
 
 421,449, 450; Frost v. Beekman, 1 Johns. Oh. Eq. 120; Baggarlys. Gaither, 2 Jones Eq. 80; 
 
 888; Murray v. Finster, 2 Johns. Ch. 155; Jewett Leach v. Ansbacher, 55 Pa. St. (5 P. F. Sm.) 85.- 
 
 S). Palmer, 7 Johns. Oh. 65 ; Losey ». Simpson, 3 'Phillips ®. Phillips, 4 De. G. F. &, G. 208; 
 
 Stockt. Eq. 846; Beck v. TJhrich, 1 Harris, 636, Peabody v. Fenton, 3 Barb. Ch. 451, 464, 465. In 
 
 639 ; Bennett v. Titherington, 6 Bush, 192. Grimstone v. Carter, 3 Paige, 421, 437 Chan. 
 
 1 Bennett v. Titherington, 6 Bush, 192; Walworth stated the doctrine most clearly and 
 
 Simms ». Richardson, 2 Litt. 274; Blair o. accurately: "This court will not permit the. 
 
 Owles, 1 Munf . 38 ; Doswell v. Buchanan 3 party having the subsequent equity to protect 
 
 Leigh, 394; Bligh v. Bank, 6 Mon. 192;, Halstead himself by obtaining a conveyance of the legal 
 
 ». B'k of K'y, 4 J. J. Marsh, 554 ; Pillow v. Shan- title, after he has either actual or constructive 
 
 non,3yerg. 508; Peabody®. Fenton, 3 Barb. Ch. notice of the prior equity. To protect a party 
 
 451,464,465; Grimstone®. Carter, 3 Paige, 421, therefore, and to enable him to defend him- 
 
 437 J Fash®. Eavesies, 32 Ala. 451; Moore ®. self as a SoreajSde purchaser for a valuable con- 
 
 Clay, 7 Ala. 742; Wells v. Morrow, 38 Ala. 125; sideration, he must aver in his plea or state in 
 
 Duncan ®. Johnson, 13 Ark. 190; Osbom ®. his answer not only that there was no equal 
 
 Carr, 12Conn. 195,198. equity in himself by reason of his having 
 
 SGlbler®. Trimble, 14 Ohio, 323; Mut. Ass. actually paid the purchase-money, but that he 
 
 Soc. t). stone, 3 Leigh, 218; Wheaton v. Dyer, 15 had also clothed his equity with the legal title 
 
 Conn. 307, 310; Phelps ®. Morrison, 21 N. J, Kq. before lie had notice of the prior equity, 
 (9 C. E. Green) 195; Carroll v. Johnston, 2 Jones 
 
 74 
 
CH. IV.J DOCTRINE OF PRIOKITY. § 58 
 
 undoubtedly the ruling of the courts in many of the cases ;^ but the 
 decisions in this country are in respect to this question in a state of 
 hopeless conflict. Almost as many of the cases hold, that with the 
 subsequent acquisition~~or^ffiiS' legal" title by the holder of the later 
 equitable estate, he will acquire priority over the later equitable estate, 
 notwithstanding he has notice of such prior equity at the time when he 
 acquired the legal estate.'' 
 
 The American authorities are at variance with each other on all 
 points, and it is impossible to presentany point of distinction for the 
 purpose of reconciling them. But the English cases may be distin- 
 guidied from each other as follows: where the equitable interest sub- 
 sequently acquired is in the nature of a mere equitable right, and 
 is iiot in the nature of an equitable estate, then the rule is applied 
 that the subsequent acquisition of the legal estate by the holder of 
 such an equity would not give any claim to priority. But where the 
 subsequent purchaser acquires an equitable estate instead of a mere 
 equity, the English courts, as a general rule, maintain that the supe- 
 rior equity is acquired by the acquisition of the legal estate, even though 
 such purchaser has notice of the prior equity when he obtained the legal 
 estate. The most common example in the English cases is that which 
 is known under the name of tacking of mortgages; that is, where 
 three mortgages are given successively over the same land to different 
 parties, A. B. and C. The interests of B. and C. in their respective 
 mortgages are under the rules of the common law, purely equi- 
 table. They have neither an equitable estate nor any legal estate 
 in the land. Now where B. and C. take their- mortgages with notice 
 of the mortgage secured before, and more especially where C. takes 
 his mortgage without notice of those mortgages and both are purchas- 
 ers for value; since the interests of both are equitable, the first in point 
 of time, namely, the mortgage of B. , should have the priority. But if 
 C, the third mortgagee, should acquire by purchase from A., the first 
 mortgage, inasmuch as A.'s mortgage under the common law rules is 
 the grant of the freehold, the mortgagee's interest is a legal estate* 
 and C. , by the purchase of A. 's mortgage would have acquired the legal 
 title which, having thus been brought into conjunction with his equi- 
 table third mortgage, would have established that union of the equitable 
 estate of the third mortgage with the legal estate acquired from A., 
 
 1 Wells®. Morrow, 38 Ala. 125; Duncan v. roll «. Johnston, 2 Jones Eq. 120; Baggarlyu. 
 
 Johnson, 13 Ark. 190; Osbom v. Carr, 12 Conn. Gaither, 2 Jones Eq. 80; Mut. Ass. See. v. Stone, 
 
 195, 198; Bennett v. Titherlngton, 6 Bush, 192; 3 Leigh, 218; Gibler v. Trimble, 14 Ohio, 623; 
 
 Simms II. Richardson, 2 Litt. 274; Blalr v. Leach b. Ansbaoher, 65 Pa. St. (5 P. F. Sm.) 85. 
 
 Owles, 1 Munf. 38; Peabody®. Fenton, 3 Barb. In Carroll «. Johnston, sujt., the case was the 
 
 Ch. 451, 464,465; Grimstone ». Carter, 3 Paige, conflicting claims of two vendees on successive 
 
 421,437; Fash ®. Ravesies, 32 Ala. 451 ; Moore ». executory contracts of the sale of land. The 
 
 Clay, 7 Ala, 742; Doswell V. Buchanan, 3 Leigh, later vendee obtained a legal conveyance after 
 
 394; Blight ». Bank, 6 Mon. 192; Halstead v. he had learned of the prior sale of the land to 
 
 B'k of K'y, 4 J. J. Marsh. 554; Pillow ». Shan- another, and the subsequent vendee was held 
 
 non, 3 Yerg. 508. to have acquired priority by the conveyance to 
 
 8 Weaton ■». Dyer, 15 Conn. 307, 310; Phelps v. him of the legal estate. 
 Morrison, 24 N. J. Eq. (9 C. E. Green) 195; Car- 
 
 75 
 
§ 58 EQUITY JUEISPKUDENCE. [CH. IV. 
 
 Tvhich under the English cases would give to C. the protection of a T)07iXt 
 ibde purchaser over the intermediate mortgage of B. ; even though when 
 lie acquired the first mortgage by purchase he had learned of the second 
 mortgage of B.^ The English rule just explained did not apply solely 
 to the case of successive mortgagees, but was applied by the courts to 
 a variety of cases where the ionafide purchaser of an equitable estate 
 subsequently acquired the legal title thereto and claimed priority over 
 ihe holder of a prior equity. The equitable estate when united to the 
 legal estate was declared to be superior to the mere prior equity.^ 
 Not only did the English courts recognize this superior equity when a 
 legal estate was already acquired, but also where the iona fide pur- 
 chaser had not yet procured the legal estate but had the best right to 
 such an estate, in consequence of the apparent superiority of the equi- 
 table estate held by a hona fide purchaser over a mere equity.' 
 
 The exception to the operation of this rule of ionafide purchase which 
 is found to be generally recognized by all of the authorities is in 
 respect to the purchase of an equitable estate and the subsequent 
 acquisition of a legal estate from the trustee; that is, where the two 
 successive equitable interests are estates in the property and not mere 
 equitable claims, and both • have acquired such interests as ionafide 
 purchasers. In these cases the equities of the two estates are equal 
 ' ■excepi in point of time, and the first in point of time can claim priority 
 over the other. "Where this relation exists between the parties, the last 
 ■equitable estate cannot be given priority over the earlier estate by the 
 acquisition of the legal estate from the trustee, after the holder of the 
 \ later equitable estate had received notice of the prior equitable estate.* 
 But it is manifest from the principles which have been set forth in pre- 
 <jeding paragraphs, that where one acquires the legal estate by purchase 
 from a trustee for value, and without notice at the time that the purchase 
 is made of the existence of an equitable estate in a third person, such a 
 purchaser could claim the protection of a ionafide purchaser.* 
 
 It has been a question among the American courts, whether one who 
 acquires an equitably title in the first instance from the cestui qits trust 
 ■and subsequently purchases the legal title from the trustee without 
 Dotice of a prior equitable estate, can claim the protection of a 5<?7ia^cfe 
 
 ^ Brace v. Duchess of Marlborough, 2 P. Charlton v. Low, 3 P. Wms. 328; Bowen -o. 
 
 "Wms. 491j Marsh v. Lee, 2 Ventrls, 337; 1 Gas. Evans, 1 Jo. & Lat. 178, 264; Shine ». Gough, 1 
 
 In Chan. 162, Young v. Young, L. E. 3 Eq. 801 ; Ball. & B. 436. 
 
 Pease v. Jackson, L. R. 3 Oh. 576; Prosser v. * Baillle v. MoKewan, 35 Beav. 177; Sharpies 
 
 Eioe, 28 Beav. 68; Bates «. Johnson, Johns. 304; ®. Adams, 32 Beav. 213; Colyer v. Finch, 19 
 
 see, also, S. 0. IBq. Lead. Cas. 837 {4th Am. ed.) Beav. 500; 5 H. L. Gas. 905; Saunders v. Dehew, 
 
 Eng. note g. 2 Vern. 270; Willoughby «. Willoughby, 1 T. E. 
 
 2 Young D. Young, L. E. 3 Eq. 801; Jones v. 763,771; Carter j). Carter, 3 K. & J. 617, 642; 
 
 Powles, 3 My. & K. 681; Piosser •». Eioe, 28 Allen u. Knight, 5 Hare, 272; see, ffl)i<«, 740, 756; 
 
 Beav. 68; Pease V. Jaclsson, L. E. 3 Oh. 576; Sumner v. Waugh, 56 111. 531, 539; ZollmauJ). 
 
 Pllcher V. Eawlins, L. E. 7 Oh. 269; 11 Eq( 63; Moore, 21 Gratt. 313; Flaggv. jfann, 2 Sumner, 
 
 Carter «. Carter, 3 K. & J. 617. 486, 518; Bellas v. MoCarty, 10 Watts, 13.. 
 
 8 ^a; parte Knott, 11 Ves. 609; Tildesley «. ' Thorndike «. Hunt, 3 De G. & J. 663; Daw- 
 
 IiOdge, 3 Sm. & GUf. 543; Willoughby v. Will- sou ». Prince, 2 De G. & J. 41. 
 oughby, 1 T. E. 763, per Lord Hardwicke; 
 
 76 
 
CH. IV.] DOCTRINE OF PRIORITY. § 59' 
 
 purchaser against the prior purchaser of the equitable estate. It has 
 been differently decided by the courts of the different states. Accord- 
 ing to some of these cases, inasmuch as the original purchase was of 
 an equitable estate, the purchaser is said to be charged with notice 
 of the later character of the title of his vendor, and of what- 
 ever defects in such title may exist, so that he would be put to his 
 inquiry into the extent and character of such defects; and would for 
 that reason be prevented from claiming any priority over the former 
 purchaser of the equitable estate in consequence of his subsequent 
 acquisition of the legal estate of the trustee. "^ But this conclusion is 
 not sustained by the other authorities; and it is held by them that if 
 the legal estate is acquired subsequently, without actual notice of the 
 prior equitable claim to the estate, that the protection of a l)ona fid& 
 purchaser will be secured by such subsequent purchase.'^ 
 
 § 59. Effect of purchase without notice from an earlier pur- 
 chaser. — Where the land has been transferred from one person to 
 another, as soon as anywhere in the line of transfer a 5ona fide pur- 
 chaser is f oimd, he not only procures thereby protection for his title while 
 thajt title is in him; but he may transfer to another the title, together 
 with the superior right acquired by his being a hona fide purchaser. * 
 The grantee of a l)orM fide purchaser is therefore just as much entitled 
 to the superior equity of a ionafide purchaser, as if he himself was a 
 purchaser without notice. And the fact, that he takes land with notice 
 of the defective title or without a valuable consideration, does not 
 interfere with his claim to enjoy the benefit of the superior equity 
 acquired by his grantor in the character of a iona fide purchaser, * 
 with one exception, viz. : where the original purchaser who took the 
 property with notice of the defective title, has the same property 
 reconveyed to him by one who has the claim of superiority of a hona- 
 fide purchaser; that is, if A. took a deed with notice of the prior equi- 
 table claim, and then sold to B. who is a hona fide purchaser for value 
 
 1 Kramer ». Arthurs, 7 Barr, 165, per Gibson, Pet. 252: Boone s. Chiles, 10 Pet. 177; Bumpus 
 C. J.; Sergeant v. IngersoU 7 Barr. 340; 3 Har- v. Platner, 1 Johns. Ch. 213; Webster v. Van 
 ris, 343. Steenbergh, 46 Barb. 211; Dana v. Newhall, IS 
 
 2 Flagg ». Mann, 2 Smnn. 486, 560; Vattier ». Mass. 498; Trull ». Bigelow, 16 Mass. 406; Boyn- 
 Hinde, 7 Pet. 252, 271. ton v. Eees, 8 Pick. 229; Rutgers v. Kingland, 
 
 'Wood V. Mann, 1 Sumn. 506; Galatin v. 3 Halst. Ch. 178, 658; Holmes «. Stout, 3 Green 
 
 Brwin, Hopk. Ch. 48; Somes v. Brewer, 2 Pick. Ch. 492; Bracken v. Miller, 4 Watts & S. 102; 
 
 184; Paris v. Lewis, &5 111. 697; Hardin v. Har- Mott v. Clark, 9 Barr. 399; Allison ». Hagan, IS 
 
 rington, 11 Bush, 367; Pringle v. Dunn, 37 Wis. Nev. 38; Pringle ». Dunn, 37 Wis. 449; McShir- 
 
 449; Price ». Martin, 46 Miss. 489; Demarest V. ley v. Birt, 44Ind. 382; Moore V. Curry, 38 Tex. 
 
 Wynkoop, 3 Jdhns. Ch. 129, 147; Varick v. 668; Demarest -o. Wynkoop, 3 Johns. Ch. 129, 
 
 Briggs, 6 Paige, 323; Tompkins II. Powell, 6 147; Galatian v. Erwin, Hopk. Ch. 48; Varick 
 
 Leigh, 576; Glidden v. Hunt, 24 Pick. 221. The V. Briggs, 6 Paige, 323, 329; Griffith ». Griffith, 
 
 same rule applies under the recording acts: 9 Paige, 315; Lindsey o. Eankin, 4 Bibb, 483j 
 
 Connecticut®. Bradish, 14 Mass. 396; FallassB. Halstead w. B'k of K'y, 4 J. J. Marsh. 554; 
 
 Pieroa, 30 Wis. 443; Mallory v. Stodder, 6 Ala. Blighfs H.irs w. Banks, 6 Mon. 192, 198; Church 
 
 801; Truluck«. Peoples, 3 Kelley, 446; Jackson ». Church, 1 Casey, 878; Filbys. Miller, 1 Casey, 
 
 J). Valkenburgh, SCow. 260; Knox » Silloway, 264; Curtis s. Lunn, 6 Munf. 42; Lacy ». Wil- 
 
 10 Me. 201, 221 ; see Vanok«. 'Briggs, e«pm. son, 4 Munf. 313; City Council ». Page, Speer'a 
 
 * Fletcher v. Pock, 6 Cranch, 87; Alexander Eq. 169. 
 I.Pendleton, 8 Cranch, 462; Vattier ». Hlnde, 7 
 
 Y7 
 
§ 61 EQUITY JURISPRUDENCE. [CH. IV. 
 
 and without notice; while B. could transfer this superior equity to any 
 other third person, notwithstanding such third person had notice of 
 the prior equitable claim, A. could not participate in the enjoyment 
 of this superior equity by any reconveyance of the property to him 
 
 But the original purchaser must not only be a purchaser for value, 
 in order to give to his volunteer grantee the superior equity of a bona 
 fide purchaser, but he must also be a purchaser without notice; in other 
 words, the original purchaser must have in the transfer to him all 
 the elements, which go to make up a ioTia fide purchaser. 
 
 § 60. Good faith necessary. — Not only must the purchase^ be one 
 for a valuable consideration, or without notice of a prior equitable 
 estate, but he must also have acted in good faith. Where, therefore, 
 in his connection with the transaction, he is guilty of any fraud or bad 
 faith, either to the holder of the prior equitable estate or to anyone 
 connected in any character with the transaction, he cannot claim the 
 benefit afforded ordinarily to a Jxma fide purchaser. Such a party is 
 confronted with the equitable maxim that, "he who comes into equity 
 must come with clean hands. "^ 
 
 § 61. The doctrine of bona fide purchase applied to assignments 
 «f things in action. — In order in the first place that it may be under- 
 stood why the equitable doctrine of hona fide purchase may apply to 
 assignments of things in action, it must be known that at common law 
 a thing in action could not be assigned, and in consequence an attempted 
 assignment was void according to law, with one single exception, namely, 
 in negotiable paper; that exception was made in favor of the needs of 
 commerce. Where, therefore, the attempt was made to assign an ordi- 
 nary thing in .action, the assigimient if valid at all, could only be 
 enforced in a court of equity.^ The commercial needs of the times 
 were met and satisfied by the recognition of such assignments as valid 
 in equity, so that while the assignee was not recognized in a court of 
 law at all, in equity he was deemed to be the real owner of the thing 
 in action. Hence the assignment of things in action involves the cre- 
 ation of equitable interests, wherever the common law provision has 
 not been repealed by statute. The character, therefore, of the rights 
 of the assignee in and to the thing in action is a subject for the juris- 
 diction of the court of equity, and for the application of the principles 
 of equity in respect to the doctrine of hona fide purchase. The appli- 
 cation of this doctrine to assignments of things in action, may assume 
 one of four forms: First, as to the equities which arise in respect to 
 such things in action in favor of the debtor. .Secont?,- where the equity 
 
 ' Blatohley?;. Osborn, 33 Conn. 826; Ashton's ^ gee Culpepper's Case, cited In Sanders j). 
 
 Appeal, 73 Pa. St. (23 P. F. Sm.) 153; Churcli v. Deligne, Preem. Ch. 183; Fagg's Case, cited in 
 
 Euland, 64 Pa. St. (14 P. F. Sm.) 153 ; Church v. 3 Vera. 701 ; Cram v. Mitchell, 1 Sandf . Ch. 251 ; 
 
 Church, 1 Casey, 278; Troy City B'k v. Wilcox, Zollman v. Moore, 21. Gratt. 313, 381. 
 
 S4 Wis. 671; Kennedy o. Daly, 1 Sch. & Les.355, s See post, Ch. XXI. for a full discussion of 
 
 379; Bumpus t). Platner, 1 Johns Ch. 213, 219; equitable assignment. 
 Schutt 11. Large, 6 Barb. 373. 
 
 78 
 
■CH. IV. J DOCTEINE OF PRIOKITT. § 62 
 
 arises between successive assignors and assignees; or in other words, 
 in favor of some prior assignor. Third, where the question of title 
 to such thing in action arises between successive assignees from the 
 same assignor. Fourth, where the equity arises in favor of some third 
 person not an assignee oT original obligee. 
 
 § 62. Equities in favor of the debtor. — It is a cardinal rule in 
 the law of assignment of things in action in general, that the assignee 
 of such things in action only acquires the right therein belonging to 
 the assignor, and subject to all the limitations and conditions which 
 attach to the assignor's title. Hence such an assignee, whenever the 
 thing in action is not negotiable, whatever form the obligation may 
 assume, takes it subject to all of the defenses which the debtor might 
 have set up against the assignee.' This rule applies to all kinds of 
 contracts of every sort where the element of negotiability is not pres- 
 ent, such as the shares of stock, bonds, warehouse receipts, contracts 
 for the sale of goods, and the like.^ There is, however, an exception, 
 recognized by some of the authorities, in favor of a mortgage which is 
 given to secure the payment of a negotiable instrument. According 
 to these authorities, the negotiable character of the instrument of 
 indebtedness is imparted to the security itself, so that the assignee of 
 a mortgage and of a note not only takes the note free from all the 
 defenses of an equitable character which could be set up against the 
 assignor, but likewise takes the mortgage itself free from such 
 defenses.* But, on the other hand, there are authorities which repu- 
 diate this rule and hold that the negotiable character of the note is not 
 
 ilngrahamt). DIsborough, 47N. Y.421;Wan- 3 Taylor v. Page, 6 Allen, 86; Kenioott v. 
 
 zer V. Gary, 76 N. Y. 526; Andrews v. Gillespie, Supervisors, 16 Wall. 452, 469 ; Carpenter v. Lon- 
 
 47 N.Y. 487; Bush v. Lathrop, 22 N. Y. 535, 538, gan, 16 Wall. 271, 273; Reeves ». Scully, Walk. 
 
 pwDenio, J.; Beeves ». Kimball, 40 N. Y. 299; Ch. 348; Pierce ». Faunoe, 47 Me. 5OT; Cicotte«). 
 
 Commer. B'k v. Colt, 15 Barb. 506; Western B'k Gagnier, 2 Mich. 381 ; Bloomer v. Henderson, 8 
 
 ■V. Sberwood, 29 N. Y. 383; Barney v. Grover, 28 Mich. 395; Potts v. Blackwell, 4 Jones Eq. 58; 
 
 Vt. 391; Boardman v. Hayne, 29 Iowa, 339; Nor- Martlneau v. McCollum, 4 Chand. 153; Fisher 
 
 ton «. Kose, 2 Wash. (Va.) 233; Brashear v. v. Otis, 3 Chand. 83; Cornell v. Hichens, 11 
 
 West 7 Pet. 608; Wood v. Perry, 1 Barb. 114, Wis. 353; Croft ». Bunster, 9 Wis. 503, 509; Scott 
 
 131 ; Alnslie v. Boynton, 2 Barb. 258, 263; Frants v- Magloughlin, (III. '90.) 24 N. E. 1030; Barnum 
 
 V. Brown, 17 S. & E. 287; Jordan v. Black, 2 v. Phenix, 60 Mich. 388; Carpenter t). Longan, 
 
 Murph. (S. C.) 30; McKinnie v. Kutherford, 1 16 Wall. 271; Sprague v. Graham, 29 Me. 160; 
 
 Dev. and Bat. Eq. 14; Moody ». Sitton, 2 Ired. Kenicott v. Supervisors, 10 Wall. 452; Jackson 
 
 Eq 382; Lackay ». Curtiss, 6 Ired. Eq. 199; ». Blodgett, 5 Cow. 203; Gould ». Marsh, 1 Hun, 
 
 Kamena v. Huelbig, 23 N. J. Eq. (8 C. E. Green) 566; Green v. Hart, 1 Johns. 580; Taylors. Page, 
 
 78; Bank v. Fordyce, 9 Barr. 275; Eagsdale v. 6 Allen, 86; Young ». Miller, 6 Gray, 152; Dut- 
 
 Hagy 9 Gratt. 409; Martin v. Richardson, 68 N. ton v. Ives, 2 Mich. 515; Breen v. Seward, 11 
 
 C. 255'; Andrews v. McCoy, 8 Ala. 920; Jeffries Gray, 118; Bloomer v. Henderson, 8 Mich. 395; 
 
 O.Evans, 6. B.Mon. 119; Kleeman».Frisbie, 63 Webb ». Haselton, 4 Neb. 308; 19 Am. Eep. 
 
 m ^00 ' 638. But if a mortgage conveys more than 
 
 2 Parmaleeti. Wheeler, 32 Wis. 429; Boardman one note, and one of the notes is overdue 
 
 V. Hayne, 29 Iowa, 339; Doiyney v. Tharp, 63 Pa. when all of them are assigned, the assignment 
 
 St (13 PF. Sm.) 322; Draper V. Saxton, 118 Is considered as to all of the notes, so far made 
 
 Mass. 427; MoMasters ». Wilhelm, 85 Pa. St. after maturity, as to destroy the negotiable 
 
 218- Allen v. Watt, 79 111. 284; Hall V. Hickman, character of the mortgage as a security for the 
 
 2 Del Ch 318; Kle'eman v. Frisbie, 63 111. 482; notes which are not yet due. Abele v. McGui- 
 
 Commer.B'k'S. Colt, 15 Barb. 506; Beeves v. gan, (Mich. '90) 44 N. W. 393; see, to same gen- 
 
 Kimball, 40 N. Y. 299; Marine B'k v. Jauncey, eral eflfeot, Whitney v. Graynor, 74 Wis. S89. 
 1 Barb. 486; Maas v. Goodman, 2 Hilt. 275; 
 Western B'k. v. Sherwood, 23 Uirb. 383. 
 
 79 
 
§ 64 EQUITY JURISPKUDENCE. [CH. TV. 
 
 imparted to the mortgage, and that the assignee of the mortgage takes 
 the mortgage subject toall the equitable defenses which could have 
 been enforced against the mortgagee, although the note is taken by 
 him free from such defenses.' The doctrine that the assignee of things 
 in action takes subject to all the defenses which the debtor may set up 
 against the original creditor, applies to all sorts of defenses and 
 defenses of every character. For example, the principle applies 
 where there has been a failure of the consideration, or the considera- 
 tion is void for illegality, or the original debt is itself conditional." So, 
 likewise, the assignee takes the thing in action subject to the right of 
 the debtor to set off any debt, which the original creditor might have 
 owed to him at the time of the assignment.' So also is the thing 
 in action taken by the assignee subject to the effect of any payment 
 of the debt which might have been made, before the debtor receives 
 notice of the assignment.* 
 
 § 63. Notice to debtor necessary. — In consequence of this doc- 
 trine that the debtor can set up against a subsequent assignee as a 
 defense, that he has paid the debt or has a claim against the original 
 creditor which he desires to set off to his own obligation; it is requisite 
 for the assignee of a thing in action to notify the debtor that he has 
 taken the debt by assignment; for until the debtor has been so notified; 
 he may pay the debt or receive from the creditor some other independ- 
 ent obligation and claim the right to set it off against his own obliga- 
 tion, and the assignee would take the thing in action subject to these 
 defenses.^ 
 
 § 64. Equities between successive assignors and assignees. — 
 Not only does the assignee take the debt subject to all the defenses 
 which the debtor might have set up, but likewise any defenses which 
 some prior assignor might have been able to set up against the 
 assignee's immediate assignor. Cases of this kind can arise whenever 
 the prior assignment has been procured by a fraud, a forgery, or breach 
 of some fiduciary duty; or when it is subject to some condition or res- 
 ervation, and the subsequent assignment is made without any condition 
 or limitation whatever, the assignment being absolute as to its terms. 
 The general rule is, that in all these cases, although the assignee claims 
 
 1 Baily v. Smith, 14 Ohio St. 396; Kleemau v. v. Johnson, 8 Harris, 190; Campbell v. Day, 16 
 Frlsble, 63 111. 483; Bryant v. Vix, 83 HI. 11; Vt. 558; Loomisj). liOomis, 26 Vt. 198. " 
 Bedin v. Branhan. 43 Minn. 283; Boone v. Clark, * Ord v. White, 3 Beav. 357; Kelly v. Roberts 
 1S9 111. 466; Olds v. Cummings, 31 111. 188; Sum- 40 N. Y. 432; Simson v. Brown, 68 N. Y. 355, 361.' 
 ner». Waugh, 56111. 531; Johnsons. Carpenter, 'Uptons. Moore, 44 Vt. 562; Cook!). Mut. Ins. 
 7 Minn. 176; Bouligny ». Fortier, 17 La. An. 121; Co., 53 Ala. S?; Brashear v. West, 7 Pet. 608; 
 White V. Sutherland, 64 111. 181. Muir v. Sohenok, 3 Hill, 228; Bishop v. Garcia^. 
 
 2 Western B'k v. Sherwood, 29 Barb. 383, Ellis 14 Abb. Pr. (n s.) 69; LoomisB. Loomis, 26 Vt.' 
 V. Messervie, 11 Paige, 467; Weaver v. Mo- 198; Campbell v. Day, 16 Vt. 558; N. Y. Life 
 Corkle, 14 Serg. & E. 304; McMullen v. Wenner, Ins., &o. Co. v. Smith, 2 Barb. Ch. 82; James v. 
 16 Serg. & E. 18; Bnstow v. Whitmore, 9 H. L. Morey, 2 Cow. 246; Atkinson v. Eunnells, 60' 
 Cas. 391; Myers v. United &o.. Ass. Co., 7 De G. Me, 440; Eider v. Johnson, 8 Harris, 190; Lou- 
 M. & G. 112; Tooth ». Hallett, L. E. 4 Ch. 242. den ». Tiffany, 5 Watts & S. 367; Eeed». Marble, 
 
 ' Louden v. Tiffany, 5 Watts <St S. 367; Eider 10 Pajge, 409; Kellogg v. Smith, 26 N. Y. 18; 
 
 80 
 
 Van Keuren v. Corklns, 66 N. Y. 77. 
 
CH. IV. J DOCTKINE OF PRIORITY. § 64; 
 
 to be a honafide purchaser, and has no notice of the defenses arising 
 between the successive assignors of the thing in action; nevertheless, 
 he takes such thing in action subject to such defenses, so that the prior 
 assignor can enforce his right in and to the thing in action against this 
 ultimate assignee; as much so, as if it was still the property of the prior 
 assignee who had procured it in this wrongful way, or subject to these 
 limitations of title. ^ This rule is applied, not only where the original 
 assignment is accomplished by some fraud, or forgery, or is made upon 
 an illegal consideration;" but as a general rule the same conclusion 
 is reached, and the same rule applied, where the original assignment is 
 conditional or subject to a certain reservation of claims in favor of 
 the assignor, and the instrument of assignment is absolute on its face, 
 and gives no notice to any subsequent assignee or purchaser of the 
 limited or conditional character of the title of the prior assignee to the 
 thing in action. In such cases, it is generally held that the subsequent 
 assignee takes the thing in action subject to all the equities, claims 
 and rights of the original holder or assignor.^ But an exception 
 to this rule has been recognized by some of the modern cases. In 
 obedience to the increasing demands of commerce for the appli- 
 cation of the doctrine of negotiability to instruments of indebted- 
 ness other than bills and notes, the courts to some extent recognize 
 them as negotiable. This is the case with bills of lading, ware- 
 house receipts, and the like. That is, in respect to those kinds 
 of things in action, the courts are inclined to hold that, whenever 
 the holder makes a transfer by an instrument in writing which 
 conveys to the purchaser the indicia of title and such assignment 
 is absolute on its face, such an assignee acquires an absolute title 
 thereto, if he be a iona fide purchaser,^ notwithstanding the limited 
 title of the immediate assignor. This new rule has been applied 
 by these cases to the transfers of non-negotiable notes,* jipd to certificates 
 of stock. ^ But inasmuch as the extent of this exception is to be deter- 
 
 iPoillon v. Martin, 1 Sandf. Oil. 569j Maybin B.Bechstein, 69 N. Y. 440, 442j Bush v. Lathrop, 
 V. Kirby, 4 Rich. Eq. 105; Judson v. Corcoran, 22 N. Y. 525; Moore v. Metrop. Nat. B'k, 65 N. 
 17 How. (U. S.) 612; Bush v. Lathrop, 82 N. Y. Y. 41; McNeil V. Tenth Nat. B'k, 46 N. Y. 325j 
 535; Anderson v. Nicholas, 28 N. Y. 600; ap- Greene v. Wamick, 64 N. Y. 220, 224, 225; Mar- 
 proved by Woodruff, J , in Reeves, ». Kimball, vin v. Inglis, 30 How. Pr. 329; Sherwood?;. 
 40N. Y. 299, 311; Bradley B. Hoot, 5 Paige, 632; Meadow Val. M. Co., 50 Cal. 412; Matthews «. 
 Marvin;;». Inglis, 39 How. Pr. 329; Mangles v. Sheehan, 69 N. Y.5SJ; Trustees, &c. «. Wheeler, 
 Dixon, 3 H. L. Cas. 702; Williams v. Thom, 11 61 N. Y. 88; Barry v. Equit. Life Ins. Co., 
 Paige, 459. 59 N. Y. 587, 591; Cutts v. Guild, 57 N. Y. 
 
 a Mason u. Lord, 40 N.Y. 476,487; Anderson «. 229, 232, 233, per Dwight, J., Ledwich V. Mc- 
 
 Nioholas, 28 N. Y. 600; Eeid v. Spragne, 72 N. Kim, 53 N. Y. 307; Sohafer V. Eeilly, 50 N. Y. 
 
 Y. 457, 462; Davis v. Bechsteln, 69 N. Y. 440; 61,67, 68,i)CT- Allen, J.; Ingrahamt). Disborough, 
 
 Ingrahamn. DisbOTOUgh, 47N. Y. 421; Barry ». 47 N. Y. 421; Reeves D. Kimball, 40 N. Y. 299, 
 
 Equit. Life Ins. Co., 59 N. Y. 587, 691 ; Cutts v. 304, per Lott, J. ; 311, per Woodruff, J. ; Winter 
 
 Guild, 57 N. Y. 229, 232, 233; Ledwich v. Mc- v. Belmont M. Co., 53 N. Y. 428, 432, W. 
 
 Kim, 53 N. Y. 307; Sohafers. Reilly, 50 N. Y. 61, iCombes v. Chandler, 33 Ohio St. 178, 181-185;, 
 
 87, 68; Trustees, &o. v. Wheeler, 61 N. Y. 88, Holmes v. Kldd, 3 H. & N. 891; Hayward v. 
 
 104-106, 113 114; CJreene v. Warniok, 64 N. Y. 220, Steams, 39 Cal. .58; Kyle v. Thompson, 11 Ohio. 
 
 224,225; Hall v. Erwin, 66 N. Y. 649; Crane li. St. 616. 
 
 Turner, 67 N. Y. 437, 440. 'Holbrook v. N. J. Zinc Co., 57 N. Y 616, 622,, 
 
 »See Ballard v. Burgett, 40 N. Y. 314; Davis 623; McNeil ». Tenth Nat. B'k, 46 N. Y,325i 
 
 6 
 
 81 
 
§ 65 EQUITY JUEISPEUDENCE. [CH. IV. 
 
 mined only by the adjudications of the courts, it is very difficult to say 
 how far the doctrine can be applied to things in action in general. 
 Some of the cases seem to apply the exception to all kinds of instru- 
 ments of indebtedness in respect to the defenses or rights or claims 
 which the prior assignor could set up, but which could not prevail 
 against the original debtor.^ The better opinion, however, seems to 
 be, that the exception to the general rule, that the defenses shall pre- 
 vail against the subsequent assignee, must be confined to cases in which 
 the instrument of indebtedness which is assigned is given by the cus- 
 toms of the commercial world a qioasi negotiable character.^ 
 
 § 65. Acqnisition by such subsequent assignee of the legal 
 title. — It must be borne in mind in all these cases of successive assign- 
 ments, that the assignee by such assignment ordinarily acquires only the 
 equitable title to the thing in action. Wherever such subsequent 
 assignee perfects his equitable title by acquiring the legal title to the 
 thing which is represented by the thing in action; as, for example, when 
 he procures from the debtor the complete performance of the thing in 
 action, by the transfer to him of the property which is called for by 
 such thing in action; in such a case he has both the legal and the 
 equitable titles and is able to assert such legal titte, if procured 
 by him without any notice of the prior equities in favor of another, 
 free from such equities; in consequence of the doctrine, that a purchaser 
 of the legal title has a superior right to the property over the prior 
 purchaser, who only acquires thereby an equitable claim. A good 
 illustration is where a certificate of stock is transferred by an independ- 
 ent instrument of assignment through fraud, and such assignee makes 
 a second transfer of it to a hona fide purchaser who then goes to the 
 corporation, surrenders his old certificate of stock, and procures in the 
 place of it a new certificate. The original holder of the certificate of 
 stock cannot, on the ground that the assignment of such old certificate 
 had been procured by fraud or conditionally, or subject to some other 
 reservation of right in such assignor, recover of the 'bona fide purchaser, 
 any certificate which he has acquired through the surrender of the old, 
 for by the acquisition of the new certificate he has in good faith changed 
 the equitable into a legal title.' His only remedy, where the assign- 
 reversing S. C. 55 Barb. 59; Johnston v. Laflin, 2 Sherwood v. Meadow, Val. M. Co., 50 Cal 
 103 U. S. 800; Cushmani). Thayer Mfg. Co., 76 412; Winter v. Belmont Min. Co., 53 Cal. 428, 
 N. Y. 371; Thompson V. Toland 48 Cal. 99; 432; Thompson «. Toland, 48 Cal. 99 ; Brewster 
 Wood's Appeal, 132 Pa. St. 379; Prall v. Tilt, 28 v. Sime, 42 Cal. 139, 147; Winter v. Belmont M. 
 N. J. Eq. 480; Mt. Holly Turnpike Co. v. Perree, Co., 53 N. Y. 428, 432, W. ; Reeves v. Kimball, 40 
 2 C. B. Green, 117; Burton's Appeal, 93 Pa. St. N. Y. 299, 304, per Lott, J.; 311, per Woodruff, 
 214; Bridgeport Bank t>. New York, <Sfcc., E. E. J. ; Ingraham «. Disborough 47 N. Y. 421 ; Soha- 
 Co., 30 Conn. 275; Duke ®. Cahawba Co., 10 feri). Eeilly, 50 N. Y. 61, 67; 68 per Allen, J.; 
 Ala. 82; Leitoh ». Wells, 48 N. Y. 585 ; Moore v. Ledwich «. McKlm, 53 N. Y. 307 ; Cutts v. Guild, 
 Metropolitan Nat. B'k,46, N. Y. 325; Burrall ». 57 N. Y. 229, 232, 233, per Dwight, J.; Barry »! 
 Brunswick E. E. Co., 75 N. Y. 220; Frasers. Equit. Life Ins. Co., 59 N. Y. 587, 591 ; Trustees, 
 Charleston, 11 S. C. 486; Commercial Bank*. &o. ». Wheeler, 61 N. Y. 88, 104-106, 113, 114- 
 Kortrlght, 22 Wend. 348; N. Y. & N. H. E. E. Greene v. Wamick, 64 N. Y.'220, 2S4,'zSa. ' 
 Co. V. Schuyler, 34 N. Y. 30. s see, also, Sewall v. Boston Water P. Co., 4 
 1 Farmers' Nat. B'k v. Fletcher, 44 Iowa, 352; Allen, 277; Loring v. Salisbury Mill., 125 Mass. 
 Moore v. Metropolitan B'k, 55 N. Y. 41, 46^9. 138; Pratt v. Boston & A. E. E 126 Mass 443' 
 
 82 
 
£CH. IV. DOCTRINE OF PRIORITY. § 66 
 
 ment was a forgery, would be against the corporation for the enforce- 
 ment of the original stock. ^ 
 
 § 66. Assignment of things in action to successire assignees by 
 same assignor. — ^W'here the holder of a thing in action undertakes, 
 by an independent instrument of assignment, to transfer such thing in 
 action successively to two independent persons, it would be another case 
 of successive purchasers of equitable interests in good faith and for 
 value; and inasmuch as in this case the equities are equal, neither party 
 could claim any priority on the score of being a hona fide purchaser, 
 and the priority can be determined only by the element of time. The 
 rights of the first assignee are considered, in respect to such question 
 of priority in point of tune, superior to the subsequent assignee. Such 
 vrould be the general rule where such a case arises in the transfer or 
 creation of equitable estates or interests in lands, and of personal 
 property in possession.^ But when it is proposed to apply this 
 rule of priority to successive assignments of a thing in action, a 
 new element is found to enter the case, materially modifying the 
 question of the equality of the equities of the parties. Where 
 lands are conveyed or personal property of a tangible character is 
 sold, the purchaser is enabled to acquire a perfect title, in the 
 case of the lands by having the deed of conveyance recorded in 
 this country, and in England by securing possession of the title deeds; 
 and, in the case of personal property of a tangible character, by secur- 
 ing the possession of such property. In these cases, anyone purchasing 
 the same property from the vendor would be charged with notice of 
 lis prior sale of the same. But where B. simply owes A. a sum of 
 money, and A. has at a prior time made an assignment of such debt to 
 C, and then proposes to assign the same debt for value to D., no pro- 
 vision is made whereby T>. might ascertain, except of course from A. , 
 the character and present validity of A. 's title to the debt. In no way 
 could D. ascertain the fact that A. had previously assigned the same 
 debt to C. In view of the helpless condition of D. under the circum- 
 stances of the case, the courts have recognized that this case calls for 
 the special application of a new rule of priority; and they have conse- 
 quently held that in order that the prior assignee, C. , may be able to 
 claim his priority over the subsequent assignee, D. , in consequence of 
 his being prior in point of time, he must notify the debtor of such 
 assignments; and if he fails to give such notice to the debtor, the sub- 
 sequent assignee, upon giving his notice to the debtor of his own assign- 
 ment prior to the receipt of the notice of the first assignee, can acquire 
 
 Machinists' Nat. Banlc r. Field, 126 Mass. 34B; 20 Cal. 529, 533; Cottam v. Basteto Co. Ey., 1 
 
 Brewster v. Slme, 43 Cal. 139, 147; Thompson v. Johns. & Hem. 243; Denny «. Lyon, 38 Pa. St. 
 
 Toland, 48 Cal. 99; Win ten;. Belmont Min. Co., 98; Bank«. Lanier, 11 Wall. 369; Pollock t). Nat. 
 
 53 Cal. 428, 432 ; but see Sherwood v. Meadow Bank, 7 N. Y. 274. 
 
 Valley M. Co., 50 Id. 412); Telegraph Co., v. i Pratt «. Taunton Copper M. Co., 123 Mass. 
 navenport, 7 Otto, (97 U. S.) 369; People v. Bl- 110, 112; Pollock v. Nat. Bank, 7 N. Y. 2?4; Mid- 
 more, 35 Cal. 653; Weston v. BearElv., &c. Co., land Ey. V. Taylor, 8 H. L. Cas. 751. 
 5 Cal ' 188; 6 Id. 425; Naglee r. Pac. Wharf Co., ^ See ante, § 43. 
 
 83 
 
§ 67 
 
 EQUITT JUEISPEUDENCE. 
 
 [CH. IT. 
 
 the priority of title. ^ This special rule thus formulated has been 
 adopted by the English courts/ and by the majority of the American 
 courts;' but it has been rejected by the courts of some of the states, 
 and the ordinary rule applied, which obtains in the general doctrine of 
 priority/ Under this rule, where the creditor makes an assignment of 
 the same debt to two persons successively, and the notes are given by 
 them to the debtor simultaneously, the assignee whose debt is prior in. 
 point of time will prevail over the prior assignment. ° 
 
 § 67. Same principles applying to successive assignments by 
 cestui que trust.— Not only does this principle of notice apply to 
 cases of ordinary indebtedness, but likewise to the case of the succes- 
 sive assignments of a fund, held by another in trust by the beneficiary 
 of such fund. It is the duty of such an assignee to notify the trustee 
 or holder of the fund of such assignment, not only in order to hold 
 the trustee liable as to the fund to such assignee, but also to enable 
 the assignee by such prior notice to acquire priority of title to such 
 fund over some prior assignee of the fund.' The notice in such case 
 should be given to the trustee.' If there are two or more trustees, 
 notice to one of them is generally sufficient. ' But if one of the trustees 
 is the assignee, notice should be given to the other trustee.' If there 
 
 1 " If you, having the right of possession, do 
 not exercise that right, but leave another in 
 actual possession, you enable that person to 
 gain a false and delusive credit, and put it in 
 his power to obtain money from innocent 
 parties on the hypothesis of his being the 
 owner of that which in fact belongs to you. 
 Possession must follow right; and if you, who 
 have the right, do not take possession, you do 
 not follow -up the title, and are responsible 
 for the consequences. It is true that a chose 
 in action does not admit of tangible actual 
 possession. But in Eyall o. Eowles (1 Ves. 
 Sen. 348; 1 Atk. 165), the judges held that in 
 the case of a chose in action^ you must do 
 everything towards having possession which 
 the subject admits; you must do that which is 
 tantamount to obtaining possession, by plac- 
 ing every person, who has an equitable or 
 legal interest in the matter, under an obliga- 
 tion to treat it as your property. For this 
 purpose you must give notice to the legal 
 holder of the fund; in the case of a debt for 
 instance, notice to the debtor is, for many 
 purposes, tantamount to possession. If you 
 omit to give that notice, you are guilty of the 
 same degree and species of neglect as he who 
 leaves a personal chattel, to which he has 
 acquired a title, in the actual possession and 
 under the absolute control of another per- 
 son." From the opinion of Sir Thomas 
 Plumer M. R., in Dearie?). Hall, 3 Russ. P. 1, 2, 
 and 3. 
 
 2 In re Preshfleld's Trusts, L. R. H Ch. D. 
 198, 200, 2ai,per Jessel, M, R. ; Ryall v. Rowles, 
 1 Ves. Sen. 348; 1 Atk. 16Bj 2 Eq. Lead Cas. 1533, 
 1579 (4th Am. ed.). 
 
 84 
 
 3 Foster ii. Mix, 20 Vt. 395; Van Busklrkw 
 Hartford, &e. Ins. Co., 14 Vt. 141, 144; Harrop v. 
 Landers, &c., Co., 45 Vt. 561; Hobsons. Steven- 
 son, 1 Tenn. Ch. 203; Gayoso Sav. Inst. D. 
 Fellows, 6 Coldw. 467; Clodfelter v. Cox, 1 
 Sneed, 330; McWilliams ». Webb, 32 Iowa, 577; 
 Murdoch v. Finney, 21 Mo. 138; Spain ■<). 
 Hamilton's Ex'r, 1 Wall. 604, 624; Campbell ». 
 Day, 16 Vt. 558; Barney v. Douglas, 19 Vt. 98; 
 Judah V. Judd, 5 Day, 534; Woodbrldge i?. 
 Perkins, 3 Vt. 364; Dews «. Olwill, 3 J. Bax. 
 432 (Tenn.); Flickey«. Loney, 4 Vt. 169; Ward. 
 4). Morrison, 25 Vt. 593; Loomis v. Loomis, 26 
 Vt. 198, 204j Dale v. Kimpton, 46 Vt. 76; Barron 
 V. Porter, 44 Vt. 587; Bishop v. Holcomb, 10 
 Conn. 444; Adams v. Leavens, 20 Vt. 72. 
 
 * Dlx ». Cobb, 4 Mass. 508, 511 ; Wood v. Part- 
 ridge, 11 Mass. 488, 491; Llttlefield v. Smith, VT 
 Me. 327; Beckwith v. Union B'k, 9 N. Y. 211; 
 Kennedy v. Parke, 17 N. J. Eq. (2 C. E. Green) 
 415; Thayer «. Daniels, 113 Mass. 129; Bohleu®. 
 Cleveland, 5 Mason, 174; Warren v. Copelin, 4 
 Mete. 594; Stevens v. Stevens, 1 Ashm. 190; U. 
 S. V. Vaughan, 3 Binn. 394; Muir v. Sohenck, 3 
 Hili, 228. 
 
 ^Galisher v. Forbes, L. R., 7 Ch. 109; Addi- 
 son V. Cox, L. E. 8 Ch. 76, 79; Ex parte Garrard, 
 L: E. 5Ch. D. 61; i Id. 101. 
 
 « Lloyd V. Banks, L. E. 3 Ch. 488 490, per Lord 
 Cairns, revereing S. C. Id., 4 Eq. 238. 
 
 ' Saffron, &e. Soc. «. Eayner, L. E. 14 Ch. D. 
 406; Inre Tichener, 35 Beav. 317. 
 
 * Wise V. Wise, 2 Jo. & Lat. 403; Timson ». 
 Eamsbottom, 2 Keen, 35. 
 
 1 Comm'rs v. Harby, 23 Beav. 608; Wllles «. 
 Greenhill, 89 Beav. 376, 387, 391. 
 
[CH. IV. DOCTRINE OF PRIOEITY. § 68 
 
 "be but one trustee, and he is the assignee, then of course no notice is 
 necessary.^ But in order that the notice to the trustee may be suffi- 
 ciently effective in protecting the interests of such subsequent assignee 
 against the prior claim of the earlier assignee, the notice should be 
 given to such trustee while he is acting towards the fund in the char- 
 acter of a trustee. If the notice be given to him after he resigns the 
 trust or before he accepts it, it will be of no value. ^ 
 
 § 68. Principles applied to assignments of certificates of stock. 
 — Where the thing in action which is assigned, instead of being an 
 oral indebtedness, is itself a written instrument of indebtedness, the 
 best and only safe method of transfer is the delivery and formal as- 
 signment of the instrimient of indebtedness; and if there is a prior as- 
 signment by a separate instrument of assignment, the fii'st assignee 
 will not, by virtue of such assignment, have as good a title as the 
 subsequent assignee. For the second assignee has by virtue of the 
 possession of the legal instrmnent itself, not only the equitable title, 
 but likewise the legal title to such fund; and hence the second assignee 
 will have priority over the first assignee if he be a iona fide pur- 
 chaser, in conformity with the general principles heretofore set forth 
 in the preceding paragraphs. This phase of the question is found to 
 be particularly true in the transfer of certificates of stock. While 
 the corporation laws require, in order that the rights of a stockholder 
 may be acquired by the assignment of the certificate of stock, that 
 such assignment must be formally made upon the books of the 
 company; yet in order that the assignee may acquire the legal 
 title to such certificate as against other persons than the corpor- 
 ation, it is not necessary for the transfer of the stock to be made 
 upon the company's books; it will be sufficient, and it is the bus- 
 iness custom, to transfer the certificate itself by a written assign- 
 ment on the certificate.^ Where, therefore, the certificate of stock is 
 transferred to one by delivery and formal assignment of the certifi' 
 cate of stock, it is impossible for a second transfer of the same sort to 
 be made. But where the first assignment is by a separate instrument 
 of assignment, or verbal, and the certificate of stock is retained by the 
 assignor, he then is enabled to make a second transfer of the same stock. 
 If tibis second assignee acquires the certificate of stock, either with or 
 without assignment, his equity is superior to the equity of the prior 
 assignee; and if he be a l)ona fide purchaser for value, he can enforce 
 his right to the stock against this prior assignee.* But where the sub- 
 
 ijficpart* Garrard, L.E. 5 Ch. D. 61j 4 Beav. Co. ». Perree, N.J. Eq. (2 C. E. Green) 117; 
 
 401 ; Elder v. Maclean, 3 Jur. s. s. 284. MoCready v. Eumsey, 6Duer, 674; People v. El- 
 
 ^Buller ». Plunkett, 1 J. &H. 441; Addison more, 35CaI. 653; Parrott a. Byers, 40 Cal. 614. 
 
 V. Cox, L. E. 8 Ch. 76. * Mt. Holly Co. v. Ferree, 17 N. J. Eq. (2 C. 
 
 3 Comm. B'k v. Kortright, 22 Wend. 348; N. B. Green) 117; McNiel v. Tenth Nat. B'k,48 N. 
 
 T. & N. H. E. R. V. Schuyler, 34 N. T. 30, 80, Y. 325; Bank of Commerce's Appeal, 73 Pa. St. 
 
 per Davis, J. ; Cushman v. Thayer Man. Co., 76 (23 P. F. Sm.) 59, 64 ; Sabin v. B'k of Woodstock, 
 
 N. Y. 365, 371 ; Dunn ». Commer. B'k, 11 Barb. 21 Vt. 353; Holbrook i>. N. J. Zinc Co., 57 N. Y. 
 
 580; People v. Crockett, 9 Cal. 112; Mt. Holly 616. But see ra7i(?'a Shropshire Union E. &. C. 
 
 85 
 
§ YO EQUITY JUEISPKUDENCE, [CH. IV. 
 
 sequent assignee of the stock is a judgment creditor, and the transfer 
 is made and the certificate of stock is delivered to such judgment- 
 creditor in satisfaction of his debt, until the transfer of the stock to 
 such judgment-creditor is made on the books of the company, such 
 assignee is not a lona fide purchaser for value and therefore cannot 
 claim priority over the prior equitable assignee.' This at least is the 
 rule as settled by very many of thd cases; but some cases, neverthe- 
 less, repudiate the doctrine, and hold that a judgment-creditor who 
 takes stock under these circumstances in satisfaction of such judgment- 
 debt, is a })ona fide purchaser and can therefore claim priority for his 
 assignment over the prior assignee.^ 
 
 § 69. Diligence of the assignee. — Irrespective of any rule, which 
 requires that the subsequent assignee of a debt must give notice to the 
 debtor or trustee of the fund of such assignment, in order to acquire 
 priority; the courts recognize the fact, that aU equitable remedies are 
 denied to anyone who permits any unreasonable delay to occur, before 
 he attempts to secure an enforcement of his rights. Where, there- 
 fore, the prior assignee is guilty of any unreasonable delay in assert- 
 ing his right to the debt or fund, and in consequence of such 
 delay the subsequent assignee is permitted to proceed to the enforce- 
 ment of the claim, and either acquires the absolute possession of the 
 debt or fund, or the debtor or creditor has entered into binding 
 obligations with such subsequent assignee to recognize him as the 
 ovmer of the debt or fund; in all such cases the transaction, coupled 
 with the negligence or delay of the prior assignee, gives to the subse- 
 quent assignee a priority which he could not otherwise claim.' 
 
 § YO. Equities in favor of third persons. — ^Not only is it possible, 
 for prior equitable interests in and to a fund or debt to be set up 
 against a subsequent assignee who is 2i'^ona fide purchaser; but so 
 also may the equitable claims against the fund or debt of third persons, 
 who have never had title to such fund or deed, be set up against the 
 subsequent assignee. . Such would be some Men of a third person on 
 such fund or debt; so also, the claims of creditors in cases where the 
 prior transfer of the property was made in fraud of creditor; and the 
 like. In aU such cases these third persons can assert their rights 
 against the fund or debt, it matters not whether such fund or debt has. 
 
 Co. V. The Queen, L. E. 7H. L. Cas. 496; Drls- Watmough, 6 Whart. 117; Broadway B'k v. 
 
 coUs. W. Bradley, <Sic., C. M. Co., 59 N. T. 86. MoElrath, 8 Beas. 24; Commer. B'k v. Kort- 
 
 See, also, Bank v. Lanier, 11 Wall: 369. right, 22 Wend. 348; McNiel ». Tenth Nat. B'k, 
 
 1 Fisher v. Essex B'k, 6 Gray, 373 ; Blanchard 46 N. T. 325 ; Mt. Holly Co. ». Ferree, 17 N. T.* 
 
 «. Dedham Gas Co., 12 Gray, 213; Pinkertont). Eq. (2 C. B. Green) 117; Rogers «. N. J. Ins'. 
 
 Manchester, &c., E. R., 42 N. H. 424; Shipman Co.,4 Halst. Ch. 167. See, also, TJ. S. ■». Vaughn^ 
 
 V. iEtna Insurance Co., 29 Conn. 245; but see 3 Binney, 394; Stevens v. Stevens, 1 Ashmead| 
 
 Bolt ». Ives, 31 Conn. 25; Weston «. Bear 190; Dix*. Cobb, 4 Mass. 608 
 
 Eiver, &c., Co., 5 Cal. 186; S. C, 6 Cal. 425, 429j a Maybln ». Kirby, 4 Eich.Eq. 105; Fisher V 
 
 Naglee v. Pacific Wharf Co., 20 Cal. 530, 533; Knox, 1 Harris, 622; Fraley's Appeal, 76 Pa St' 
 
 Peoples. Elmore, 35 Cal. 653, 655. (26P P. Sm.) 43; Richards v. Griggs 16 Mo 
 
 »U. S. 11. Vaughn, 3 Binney, 394; People v. 416; Judson v. Corcoran, 17 How. (U S ) 612- 
 
 Elmore, 35 Cal. 653 ; Dale v. Kimpton, 46 Vt. 76 ; Mercantile Ins. Co. V. Corcoran, 1 Gray 75. * 
 
 Grymes v. Hone, 49 N. Y. 17, 22; Comm. ■«. ' 
 
 86 
 
[CH. rv. DOCTKINB OF PKIOEITY. § 71 
 
 been transferred to a imia fide purchaser. This at least has been the 
 ruling of a great many of the courts.^ On the other hand, ttie con- 
 trary rule has been laid down, that assignees of things in action take 
 them subject to the defenses in favor of the debtor, and subject to the 
 equitable rights and claims of a prior assignor or assignee in and to the 
 deed or fund; yet free from equities existing against such thing in 
 action in favor of third persons.^ 
 
 § Yl. Effect of statutory proTision coueerning assignments of 
 things in action. — It will be remembered that in a preceding para- 
 graph it is stated, that the ground for the application of the equitable 
 doctrine of priority to cases of assignment was founded upon the fact, 
 that assignments of things in action in general are void at law and valid 
 only in equity. This common-law doctrine has been repealed in most, 
 if not in all tibe states, thus making an assignment of a thing in action 
 legal instead of equitable in character, and giving to the assignee the 
 legal title to the thing instead of a mere equitable title. If the 
 statutory modification stopped there in the conversion of the assignee's 
 title into a legal title, the equitable 'doctrine of priority would be 
 permitted no longer to apply, and the general rule would prevail that 
 the first assignee, having acquired the legal title to such thing in action, 
 would be able to enforce it against a subsequent assignee on account 
 of his priority in point of time." But in the majority, if not in all of 
 the states, in which there are statutes giving to assignment of things in 
 action the legal character, the express provision is inserted, that the 
 assignee in the case of the assignment of a thing in action shall take 
 subject to any set-off or any defense existing and recognized inde- 
 pendently of statute; and hence the assignee under this statutory 
 provision acquires the legal title to such thing in action, but takes it 
 
 1 Bush V. Lathrop, 28 S. Y. 635, per Denio, son, 3 Stockt. Ch. 246 ; Bloomer v. Henderson, 
 J. ; Trustees, <fec. ». Wheeler, 61 S. Y. 88, per 8 Mich. 395, 402; Groft v. Bunster, 9 Wis. 503, 
 Dwight, J. ; Van Eensselaer D. Stafford, Hopk. 508; Mott ti. Clark, 9 Pa. St. (9 Barr.) 399, 404; 
 Ch. 569, 575; 9 Cow. 316, 318; Taylor v. Bates, 5 Taylor v. Gitt, 10 Id. 428; Metzgar v. Metzgar, 1 
 Cow. 370; Muir v. Schenck, 3 Hill, 228; Allen ». Rawle, 227. 
 
 Watt, 79 m. 284; Trabue «. Bankhead, 3 Tenn. » Martin v. Kuntzmuller, 37 N. Y. 396; Beok- 
 
 Ch. 413; Bradley n. Boot, 5 Paige, 633; Maybin with v. Union B'k, 9 N. Y. 2U, 212, per John- 
 
 V. Kirby, 4 Eich. Eq. 105; Judson «. Corcoran, son, J.; Meyers v. Davis, 22, N. Y. 489, 490, ^er 
 
 17How. 612j Poillon -o. Martin, 1 Sandf. Ch. Denlo, J. ; Barlow ». Myers, 64 N. Y. 41 ; revers- 
 
 569; Parrish v. Brooks, 4 Brews. (Pa.) 154; Pin- ing 6 N. Y. Sup. Ct. 183; Roberts v. Carter, 38 
 
 dall V. Trevor, 30 Ark. 349; Brooks v. Record; N. Y. 107; Wells v. Stewart, 3 Barb. 40; Ogden 
 
 47 111. 30; Greene v. Wamlch, 64 N. Y. 230; v. Prentice, 33 Barb. 160; Maas «. Goodman, 2 
 
 Schaferr. Eeilly, SON. Y. 61; Shropshire, &o. Hilt, 275; Lathrop v. Godfrey, 6 T. & C. 96; 
 
 R. E. Co. v. The Queen, L. R. 7 H. L. 496; Da- Robinson ». Howes, 20 N. Y. 84; Merrill v. 
 
 vies V. Austin, 1 Ves. 347; Mangles v. Dixon, 7 Green, 55 N. Y. 270, 274; Frlok V. White, 57 N. 
 
 H. L. Cas. 703; Bebeev. Bank of N. Y., Johns. Y. 103; Adams u. Rodarmel, 19 Ind. 339; 
 
 629; James 1). Morey, 2 Cow. 246, Sutherland, J. Morrow's Assignees B. Bright, 20 Mo. 298; 
 
 2 Livingston v. Dean, 2 Johns. Ch, 479; Mur- Walker v. McKay, 2 Meto. (Ky.) 294; Blyden- 
 ray v. Lyibum, 2 Johns. Ch. 441, (overruled burg v. Thayer, 3 Keys, 293; Williams v. 
 by succeeding cases In Kew York, cited in Brown, 2 Keys, 486; Watt «. Mayor, &c., Sandf. 
 preceding note); McConnell v. Wenrioh, 4 23; Martin v. Richardson, 68 N. 0. 255, and 
 Harris, 365; Moore V. Holcombe, 3 Leigh. 597; cases cited; McCabe v. Grey, 20 Cal. 509; 
 Ohio Life Ins. Co. v. Ross, 2 Md. Ch. 25, Herrlck v. Woolverton, 41 N. Y. 581 ; Miller & 
 89; Sleeper v. Chapman, 121 Mass. 404; Sum- Co. v. Plorer, 15 Oilo St. 148, 151 ; Gildersleeva 
 ner « Waugh, 56 111. 531; Losey v. Simp- t;. Burrows, 24 Ohio St. 204; Norton «/. Foster, 
 
 87 
 
§ 71 EQUITY JURISPRUDENCE. [CH. IV. 
 
 subject to the equitable doctrine of priority, as it has been explained 
 in the preceding paragraphs. Such is found to be the case especially 
 in all the states in which the New York code of procedure has been 
 adopted. 
 
 12Kans. 44, 47, 48; LeaTenson V. Lafontaine, 3 Eichards v. Daily, 34 Iowa, 4W, 429; Smith v. 
 
 Kans. 633, 526j Loomis v. Eagle B'k, 10 Ohio Fox, 48 N. Y. 674; Smith v. Felton, 43 N. Y. 
 
 St. 327; Casadu. Hughes, 37 Ind. 141 ; Lawrence 419; Bradley*. Augell, 3 N. Y. 475,' 478; Chance 
 
 «. Nelson, 21 N. Y. 158; Osgood v. DeGroot, 36 v. Isaacs, 5 Paige, 592; Merritt v. Seaman, 6 N. 
 
 N. Y. 348; Harris v. Burwell, 65 N. 0. 584; Y. l^j Field®. Mayor, &c., 6 N. Y. 179. 
 
 88 
 
CHAPTER V. 
 
 NOTICE. 
 
 Sbotion 
 General statement and definition of notice 73 
 Notice distinguished from knowledge . 74 
 Kinds of notice, actual or constructive 75 
 
 Actual notice established by direct and 
 
 indirect evidence 
 
 "What amount of information necessary 
 
 to constitute actual notice 
 By whom may the Information be given 
 When presumption from constructive 
 
 notice is conclusive .... 
 When presumption from constructive 
 
 notice is rebuttable .... 
 What constitutes a due inquiry 
 How far one can rely upon information 
 
 received . . . . . 
 Registration of deeds and other instru- 
 ments . 
 
 Requisites of a proper record 
 To whom is record constructive notice . 
 Of what is record constructive notice 
 From what time does priority take effect 
 Effect of other kinds of notice in the 
 
 absence of registration 
 
 76 
 
 79 
 
 87 
 
 Sectiok 
 Construotlye notice arising from ex- 
 traneous facts 89 
 
 Recital in muniments of title ... 90 
 Constructive notice arising from posses- 
 sion 9) 
 
 Extent and effect of the notice . . 92 
 Nature and time of possession . . 93 
 Whether presumption of notice from 
 
 possesion Is conclusive .... 94 
 Lis pendens as constructive notice of 
 
 rights ... . . • . 95 
 
 To what kinds of statutes does the notice 
 
 lis pendens apply . . ... 96 
 What persons are affected by the notice 97 
 A statutory notice of lis pendens . . 98 
 
 Notice by judgment 99 
 
 Notice aa between principal and agent. 
 General statement of the scope and ap- 
 plication of the doctrine . . .100 
 Essential requisites of the constructive 
 
 notice to principal . . .101 
 
 Presumption of notice to principal not 
 conclusive .... .103 
 
 § 73. General statement and definition of notice. — In the pre- 
 ceding chapter on the equitable doctrine of priority, the right of a hona 
 fide purchaser to priority over the person, who claims and has a prior 
 equity in the property purchased, was set forth; and it was shown that 
 the purchaser's claim of priority was dependent upon the fact, that he 
 takes his interest in the property without notice of the existence of the 
 prior equity therein. His having notice of the prior equity destroys 
 the hona fide character of the purchase, and he thereby loses the supe- 
 rior claim of priority which he would otherwise have, in consequence 
 of his possession of both the legal and equitable title to the property. 
 So important, therefore, is the possession of notice of the prior equity 
 in determining this question of priority, that a special discussion of 
 what constitutes notice and what is essential to a thorough comprehen- 
 sion of the subject is both proper and necessary. Notice may, there- 
 fore, be defined in general terms as a communication of the information 
 of a fact, and one is said to have notice of a fact when information con- 
 cerning its existence has either been communicated to him or it is pre- 
 sumed by law from the existence of certain facts that such information 
 has been communicated to him.^ 
 
 1 See Pomeroy's Eq. Jur., sect. S 
 
 89 
 
§ 75 EQUITY JUKI8PKUDENCE. [CH. V. 
 
 § 74. Notice distinguished from knowledge. — It will be observed 
 in the definition of notice just given in the preceding paragraph, that 
 it constitutes the communication of information concerning fiacts. 
 Knowledge, on the other hand, is the possession of such information, 
 it matters not how it is acquired. One may, therefore, have knowl- 
 edge of the fact, without having received any technical notice of such 
 fact; that is, one may know of the existence of a prior right in and to 
 the property which he purchases, without having received from the 
 owner of such prior interest any technical notice of its existence; on 
 the other hand, the notice which would be sufficient in law to destroy 
 the priority of a subsequent purchaser, may not be sufficiently com- 
 plete to give to such subsequent purchaser a full knowledge of the 
 character and terms of the prior equity, and yet the notice would be 
 sufficient. Notice, therefore, may be considered rather as a substitute 
 for actual knowledge, and the knowledge itself be treated and consid- 
 ered as the primary fact of importance. For this reason, the posses- 
 sion of information concerning the prior right or equity by a subsequent 
 purchaser ought to have the same effect in destroying the claim to 
 priority of such subsequent purchaser, as would be the receipt by him 
 of a technical notice, and such is the conclusion of the cases in which 
 the question has been raised. But a difference must be observed 
 between the amount of such information required to be communicated 
 in the giving of the notice and the amount of information one must 
 have concerning the prior equity, in order that such subsequent pur- 
 chaser might, in the absence of technical notice, be charged with 
 knowledge of the existence of such prior equity. It is not sufficient, 
 in the latter case, that he should have information creating or raising 
 suspicions concerning the existence of such prior equity; but the infor- 
 mation must be so extensive and complete as to support the conclusion 
 of fact that he knew enough of the existence and nature of the prior 
 claim, or equity, to induce any reasonably prudent man to assume the 
 existence of such right or interest, and govern himself by such infor- 
 mation in the conduct of his business.* The failure to recognize the 
 distinction between notice and knowledge, and the disposition to ignore 
 the equal effect of knowledge with that of notice, has produced no 
 little confusion among the authorities in determining when the subse- 
 quent purchaser loses his priority in consequence of having notice. 
 
 § 75. Kinds of notice, actual or constructive. — In the technical 
 
 1 Brown ». Wells, 44 Ga. 573, 575; Price v. Mc- bell, 32 Mo. 644; Henry v. Ealman, 1 Casey, (25 
 
 Donald, 1 Md. 4D3j Winchester v. Baltimore, Pa. St.) 354; PhilUpps ». Bank of Lewlstown, 
 
 Ac, E. B. 4 Md. 231; Johns i>. Scott, 5 Md. 81; 6 Harris (18 Pa. St.), 394, 404; MoKinney v. 
 
 Lloyds. Banks, L. E. 3 Ch. 488; 490 per Lord Brights, 4 Harris (16 Pa. St.), 399; Curtis v. 
 
 Oalms; In matter of Conrad Leiman, 32 Md. Mundy, 3 Met. 405, 407, per Putnam, J. ; Stevens 
 
 223,244; Pringle v. Dunn, 37 Wis. 449,485-467; ». Goodenough, 26 Vt. 676; MulUken-o. Graham, 
 
 Jones V. Lapham, 15 Kans. 540, 545, 546; Virgin 72 Pa. St. (22 P. F. Sm.) 484, 490; Vanduyne v. 
 
 V. Wingfleld, 64 Ga. 451, 454; Blatchley v. Vreeland, 1 Beasley, 142, 155; Eupert v. Mark, 
 
 Osbom, 33 Conn. 226, 233; Butcher v. Yokum, 15 111. 510; Cox v. Mllner, 23 111. 476; Hankin- 
 
 61 Pa. St. (UP. r. Sm.) 168, 171; Lawton V. sop ». Barbour, 29 III. 80. 
 Gordon, 37 Cal. 202, 205; Dlckcrson V. Camp- 
 
 90 
 
[CH. V. NOTICE. § 76 
 
 sense, in which the term notice is employed in the law, it may be 
 divided into two kinds: actual and constructive. Actual notice consti- 
 tutes the communication of information concerning a fact; that is, 
 when applied to the particular question under inquiry, the subsequent 
 purchaser is charged with actual notice of the existence of a prior 
 equity, or equitable interest in the property which he purchases, when- 
 ever the fact of the existence of such prior equity or interest has been 
 communicated to him.' On the other hand, a notice is said to be con- 
 structive, whenever the fact of the existence of such prior interest or 
 equity has not been actually communicated to the purchaser, but he is 
 informed of certain facts or circumstances from the knowledge of 
 which the law presumes that he did have information concerning the 
 existence of such prior equitable right or claim; because the informa- 
 tion he did have was sufficient to put him upon an inquiry which, if 
 carefully and diligently pursued, would have brought him to an acquaint- 
 ance with the fact that such prior equity or equitable interest did 
 exist.' 
 
 § 76. Actual notice established by direct and indirect evi- 
 dence. — A great many of the authorities have created no little con- 
 fusion about actual and conslyruotive notice, by confounding cases of 
 constructive notice with those of actual notice which are established 
 by indirect evidence. In many of the cases, the actual notice is con- 
 strued to be a constructive notice; while on the other hand, clear 
 cases of constructive notice are held to be cases of actual notice. In 
 America, the importance of determining exactly and minutely the dif- 
 ference between actual and constructive notice, is in connection with 
 the provision of the recording law, that the failure to record an instru- 
 ment will cause the interest created by such instrument to lose priority 
 over the subsequent purchaser who does not take it with actnml notice 
 of prior conveyance; that is, the subsequent purchaser who records 
 his deed and takes it without actual notice, can claim the priority over 
 the prior unrecorded conveyance, notwithstanding the existence of a 
 constructive notice, the recording law of these states denying to con- 
 structive notice the same effect as is accorded to actual notice. This 
 provision, however, is not common to all the recording laws; it is only 
 a peculiar principle found in some of the recording acts. Wherever the 
 principle does prevail, the effort of the prior purchaser is to make actual 
 notice out of every kind of notice, while the subsequent purchaser 
 
 1 Speck V. Elggln, 40 Mo. 405j Maupln «. Em- r>. Wltherow, 7 Watts, 163, 167; Jaquesa. Weeks, 
 
 mons, 47 Mo. 304, 306, 307j Maul v. Elder, 59 Pa. 7 Watts, 861, 274; Blatohloy v. Osborn, 33 Conn. 
 
 St. (9 P. F. Smith) 167, 171, 178; Tillinghast V. 228, 833; Nelson v. Sims, 1 Gush. 383, 388; Curtis 
 
 Champlln, 4 E. I. 173, 815; Warren v. Swett, 31 ». Blair, 4 Cush. 309, 328; Bartlett ». Glascock, 4 
 
 N. H. 332, 341, 342; Hull v. Noble, 40 Me. 459, Mo. 62, 66. 
 
 480; Buck «. Pain, 50 Miss. 648, 655; Carter®. 2 Espin B. Pemberton, 3 De G. & J. 547, 554, 
 
 Cityof Portland, 4 Greg. 339, 350; p«7-McArthur 555; Atterbury i). Wallls, 8 De G. M. & G. 454; 
 
 J. ; Buttrlck v. Holden, 13 Met. 355, 357; Trefts Ware V. Lord Egmont, 4 Id. 460, 473, 474; Penny 
 
 «. King, 6 Harris, (18 Pa. St.) 157, 160; Eogers ». V. Watts, 1 Mao. & G. 150, 167; Eatcliffe ». 
 
 Jones, 8 N. H. 264; Griffith v. Griffith, 1 Hoff. Barnard, L. R. 6 Ch. 652, 654; Maxfieldt). Bur- 
 
 Cll. 153; Buck ». Paine, 50 Miss. 648, 655; EpJey ton, L. R. 17 Eq. 15, 18. 
 
 91 
 
§ 76 EQUITY JUEISPEUDENCE. [CH. V. 
 
 endeavors to have every kind of notice declared to be constructive 
 notice. The result of this contention has made considerable confusion 
 among the cases. The confusion does not arise in determining whether 
 a notice is actual or constructive, where there has been a direct com- 
 munication of the information concerning the existence of the prior 
 claim or conveyance, and when that direct communication of the fact 
 is proven by direct evidence. Under these circumstances, there can 
 be no doubt that the notice is actual. The difficulty of distinguishing 
 between actual and constructive notice arises only when there has been 
 no direct proof of a direct communication to the subsequent purchaser; 
 but the effort is made to prove that he did have actual notice or actual 
 knowledge of the existence of the prior interest or claim, by evidence 
 concerning the facts or circumstances from which the possession of such 
 equitable notice or knowledge can be inferred as a fact. Inasmuch as 
 constructive notice is, by the definition given in the preceding para- 
 graph, a presumption of law, that the subsequent purchaser has actual 
 notice when he has information sufficient to put a reasonably prudent 
 man upon inquiry which would lead to the actual acquisition of knowl- 
 edge, the line of distinction between such constructive notice and actual 
 notice established by indirect evidence, appears without doubt to be a 
 very fine one. But the distinction is a well established one. In the 
 case of actual notice established by indirect evidence, the court or jury 
 claims as a conclusion of fact, that the subsequent purchaser did have 
 actual notice of the prior equity or interest; and the conclusion is based 
 upon circumstances which are established by a competent testimony 
 and which are inconsistent with his ignorance of such prior equity. 
 
 In the case of constructive notice, the court concedes the fact that 
 there has been no actual communication of information concerning the 
 existence of the prior equitable interest, but that the communication 
 of information concerning other facts or circumstances was sufficient 
 to induce any reasonably prudent man to make an inquiry into the con- 
 dition of the grantor's title to the property which would have led to 
 the discovery of the existence of such prior interest or claim in some 
 third person. In illustration of the distinction of these two classes of 
 notice, the following examples may be given: where A. has bought 
 property from B. under conditions which leave in B. an equitable 
 claim against the property, and A. should subsequently sell the prop- 
 erty to C, and certain facts are shown to exist; as for example, that 
 C. was A. 's confidential clerk at the time when A. bought the property 
 irom B., and that C. did in fact represent A. in the negotiation with 
 B., proof of these facts would indirectly estabhsh the fact that C. 
 must have knovm of the existence of B.'s equitable claim upon the 
 property. This is a case of actual notice established by circumstantial 
 evidence. On the other hand, where A. is about to sell property to 
 C. , B. is in actual possession of the land under the claim of some inter- 
 est or right in and to the land, the fact that B. is in such possession, 
 92 
 
[CH. V. NOTICE. § 77 
 
 and thcat A. is not in actual possession of the land, is not a fact from 
 which it can bo inferred that C. must have known of the existence of 
 B.'s claim to the land; but it is a fact, or circumstance, from which the 
 law may assume that the purchaser, C, did know; for he could have 
 known of the existence of C.'s prior claim or interest and of its nature, 
 if he had made the inquiry that a reasonably prudent man would have 
 made under the circumstances. In other words, the information 
 acquired by C, or which he could have obtained by inquiring after 
 the possession of the property, was not such as to give him inform- 
 ation concerning the existence and nature of B.'s claim to the prop- 
 erty, but it was sufficient to put a reasonably prudent man upon his 
 inquiry to find out what was the nature of B.'s claim to the posses- 
 sion to the property; and the law imposes upon B. the duty of mak- 
 ing such an inquiry, and charges him with notice of the existence of 
 such interest in B. if he failed to make the proper inquiry. This is 
 a case of constructive notice. The cases are very numerous in which 
 the distinction here laid down is made, and while there are cases 
 which will not be found to be in accord with this distinction,' yet it is 
 sufficiently accurate and in accord with the trend of authority in this 
 country as to be taken as a reKable guide. ^ 
 
 § 77. What amount of information necessary to constitute 
 actual notice. — In a preceding paragraph it has been explained, that 
 notice and knowledge are not identical terms, and that there may be 
 notice without complete knowledge, and complete knowledge without 
 notice; in other words, there are cases, in which the subsequent 
 purchaser is not in possession of the full knowledge of the char- 
 acter and nature of the prior interest which is claimed to be held 
 by some third person against the property purchased; and yet he 
 has received so distinct a notice of the existence of such right or 
 interest, as to be charged with an actual knowledge of the nature 
 and character of such interest, so as to destroy his claim to priority 
 over the prior interest outstanding in the third person. Hence it 
 becomes an important question, what amount of information con- 
 cerning the existence of an outstanding interest or claim to the pro- 
 
 I Lamb ©.Pierce, 113 Mass. 72; Crasson v. ■». Ghamplin, 4 E. I. 173 215; Buck ti. Paine, 50 
 
 Swoveland, 23 Ind. 428, 434; Sibley ». Leffing- Miss. 648, 655; Sliepardson v. Steyens, 71 III. 
 
 ■well, 8 Allen, 584; White «. Poster, 103 Mass. 209, 313; Carters. City of Portland, 4 Oreg. 339, 
 
 375; Parker v. Osgood, 3 Allen, 487; Dooley v. 350; Prlngle v. Dunn, 37 Wis. 449, 460, 461, 465; 
 
 Wolcott, 4 Allen, 406. Parker v. Kane, 4 Wis. I ; Reynolds v. Buck- 
 
 "BartlettD. Glascock, 4Mo. 62, 66; Epley«. man, 35 Mich. 80; Loughridge V. Bowland, 52 
 
 Witherow, 7 Watts, 163, 167; Jacques ti. Weeks, Miss. 546, 553, 555; Shotwell v. Harrison, 30 
 
 Watts, 261, 274; Buttrick «. Holden, 13 Met. Mich. 179; Munroe ». Eastman, 31 .Mich. 283; 
 
 355, 357; see Brinkman v. Jones, 44 Wis. 498, Eck v. Hatcher, 58 Mo. 235; Tefts V. King, 6 
 
 617, 519, 521, 533; Brown v. Volkening, 64 N. Y. Harris, (18 Pa. St.) 157, 160; Rogers v. Jones, 8 
 
 76, 82, 83; Lambert v. Newman, 56 Ala. 623, 625; N, H. 264; Maupin v. Emmons, 47 Mo. 304, 306, 
 
 Curtis n. Blair, 4 Cushm. (Miss.) 309, 328; Hull 307; Parker v. B'oy, 43 Miss. 260, 266; Wailes ». 
 
 ». Noble, 40 Me. 459, 480; Warren i/. Swett, 31 Cooper, 34 Miss. 208,228; Griffith ». GrifSth, 1 
 
 N. H. 332,341; Helms ». Chadboume, 45 Wis. 60, Hoff. Ch. 153; Nelson t). Sims, 1 Cushm. (Miss.) 
 
 70;p«r Cole, J-s Chicago, Ac, R. R. v. Ken- 383, 388; Barnes «. MoClinton, 3 Penn. 67. 
 nedy, 70 111. 350, 361, per Walker J. ; Tillinghast 
 
 93 
 
§ 77 EQUITT JUEISPEUDKNCB. [OH. V. 
 
 perty will constitute an actual notice of its existence and of its 
 nature. As already stated, it is not necessary that the notice 
 should be so complete as to give full information as to the character of 
 the interest or claim; but on the other hand, it must be something more 
 than mere vague rumors of a defect in the title of the vendor. The 
 information communicated must be sufficiently definite in character to 
 raise the presumption that such a prior claim or interest in the 
 property did exist; and that presumption must be sufficiently definite 
 and strong, as a conclusion of fact, as to lead a reasonably prudent 
 man to make an inquiry into the existence of such interest or claim, 
 and into its nature and character, in order that the purchaser might 
 be charged with actual notice of its existence and thus lose his priority 
 over such prior claim or interest. If such was the nature of the 
 information, although he did not thereby acquire actual knowledge of 
 the nature and character of the prior interest, yet he will be charged 
 with this actual knowledge if he failed to make the inquiry which 
 could be expected of a reasonably prudent man and which the law 
 requires of every one.^ If the information which is actually commu- 
 nicated is of such a vague character that a reasonably prudent man 
 would not give it consideration, and would, therefore, not be induced 
 to make an inquiry into the condition of the vendor's title; then the 
 fact of actual notice has not been made out at all, and proof of the 
 communication of this information to the subsequent purchaser would 
 not cause him to lose his priority of title.* Among the facts which 
 
 1 Chicago ». Witt, 75 111. 211; Loughrldge v. 462, 478; Hoy v. Bramhall, 4 C. E. Green (19 N. 
 
 Bowland, 52 Miss. 546, 556; Reynolds v. Buck- J. Eq.) 5^; Helms v. Chadbourne, 45 Wis. 60, 
 
 man, 35 Mich. 80; Lambert v. Newman, 56 70; Brinkmau v. Jones, 44 Wis. 498, 519; 
 
 Ala. 623, 625, 626; see Butcher ». Yooum, 61 Pa, Chicago, &c., E. E. v. Kennedy, 70 111. 
 
 St. (11 P. F. Smith) 168, 171; Lawton t). Gordon, 850, 361; Williamson «. Brown, 15. N. Y. 
 
 37 Cal. 202,205, 206; Eussell ». Petree, 10 B. 854, 362; Swarthout v. Curtis, 5 N. Y. 301; 
 
 Mon. 184, 186; Reynolds v. Euckman, 35 Mich. Pendleton v. Fay, 2 Paige, 202; Shepard- 
 
 80; Chicago v. Witt, 75 III. 211; Ponder d. son «. Stevens, 71 HI. 646; Ericksont). Rafferty, 
 
 Scott, 44 Ala. 241, 244,245; Hudson v. Warner, 79 111. 209, 212; Reynolds v. Euckman, 35 Mich. 
 
 2 Har, & Giff. 415; Price v. McDonald, 1 Md. 80; Loughridge v. Bowland, 52 Miss. 546, 555; 
 
 403; Eeynolds v. Euckman, 35 Mich. 80; Blatch- Danforth v. Dart, 4 Duer, 101 ; Jackson v. Cald- 
 
 ley V. Osborn, 33 Conn. 226, 233; Nelson o. well, 1 Cow. 622; Hawley*. Cramer, 4 Cow. 717; 
 
 Sims., 1 Gush. 383, 388; Bartlett v. Glascock, 4 Parrish o. Brooks, 4 Brews. 154; Brown v. 
 
 Mo. 62, 66; Barnes i). McClinton, 3 Penn. 67; Volkening, 64 N. Y. 76, 82; Chicago •». Witt, 75 
 
 Jaques V. Weeks, 7 Watts, 261, 274; Epley ». 111. 211; Buck v. Paine, 50 Miss. 648, 655; 
 
 Withrow, 7 Watts, 163, 167; Center v. The McLeod «. First Nat. BTc, 42 Miss. 99, 112; 
 
 Bank, 22 Ala. 743; McGehee v. Gindrat, 20 Ala. Kernes v. Swope, 2 Watts, 75; Jaques v. Weeks, 
 
 85; Einggold v. Waggoner, 14 Ark. 69; Doyle v. 7 Watts, 261, 274; Epley v. Withrow, Watts, 163^ 
 
 Teas, 4 Scam. 202; Spoflford V. Weston, 29 Me. 167; Parker v. Foy, 43 Miss. 260; Carter v. City 
 
 140; Warren, v. Swett, 31 N. H. 332, 341 ; Nute v. of Portland, 4 Oreg. 339, 350, per McArthur, J. ; 
 
 Nute, 41 N. H. 60; Hoxie 1). Carr, 1 Sumn. 193; Ringgold v. Bryan, 3 Md. Ch. 488; Stocket't v. 
 
 Hinde V. Vattier, 1 McLean, 110; 7 Peters, 252; Taylor, 3 Md. Ch. 537; Bunting v. Eicks, 2 Dev. 
 
 Lambert v. Newman, 56 Ala. 623, 625; Blaisdell & Bat. Eq. 130; Gibbes v. Cobb, 7 Eich. Eq. 54; 
 
 ». Stevens, 16 Vt. 179, 186; Stafford V. Ballon, 17 Maybin ». Kirby, 4 Elch. Eq. 105; Pringle v. 
 
 Vt. 329;McDaniels«). Flower,Brook,Ac., M. Co. Dunn, 37 Wis. 449,465; Shotwell v. Harrison, 
 
 22 Vt. 274; Stevens ». Goodenough, 26 Vt. 676; 30 Mich. 179; Munroe v. Eastman, 31 Mich. 283; 
 
 Blatchley «. Osbom, 83 Conn. 226, 233; Hoxie v. Eck v. Hatcher, 68 Mo. 235; Lawton v. Gordon, 
 
 Carr, 1 Sumn. 193; Lambert v. Newman, 56 Ala. 37 Cal. 202, 205; Maul v. Elder, 59 Pa. St. (9 P. 
 
 623, 625; Slgourney v. Munn, 7 Conn. 334; F. Smith), 167, 171, 172. 
 
 Peters v. Goodrich, 3 Conn. 146; Raritan Water, 2 Huttrlck v. Ilolden, 13 Met. 355, 357; Curtis 
 
 Ac, Co. «. Veghte, 6 C. K. Green (81 N. J. Eq.) v. Blair, 4 Cnsh. (Miss.) 309, 328; Chicago e 
 
 94 
 
[CH. V. NOTICE. § 78 
 
 are held as tending to establish the fact of actual notice, are, close 
 relationship, personal intimacy, or business connections between the 
 subsequent purchaser and either of the parties to the prior transaction, 
 which results in the creation of the prior interest or claim.* The 
 great inadequacy of the price which the vendor had paid for the 
 property, which would lead a purchaser from such a person to 
 suspect that the property was purchased by his vendor subject to 
 some outstanding equitable claim. ^ And, so also, the sight or knowl- 
 edge of the presence of material objects on the premises, which would 
 indicate the existence of some outstanding easement or right over the 
 property.' But in all of these cases, it must be observed that these 
 facts or circumstances only tend to establish the fact of actual notice, 
 and do not necessarily of themselves prove such actual notice, unless 
 supported by corroborating circumstances; and in those cases where 
 the conclusion is reached, that the notice is not proven by the 
 existence of certain facts, it is based upon the absence of other cor- 
 roborating circumstances. 
 
 Actual notice is also held to be established when it is shown that the 
 deed which on account of the defectiveness of its execution, or for 
 other reasons, has been improperly admitted to record has been actually 
 read by the subsequent purchaser, during the investigation of the title 
 to the property; although he cannot thereby be charged with the con- 
 structive notice created by the recording act, yet he may be charged 
 wdth actual notice of the contents of such deed through having read 
 the record of it.* 
 
 § 78. By whom may the information be given. — It is held, as a 
 general rule, that where actual notice is relied upon for the purpose of 
 supporting the claim of priority against the subsequent purchaser, 
 such notice must have been communicated or made to such subsequent 
 purchaser, either by the party himself who claims or holds the prior 
 equity or interest, or by some one who stands to him in a representa- 
 tive character, or in personal relationship with him of such a nature as 
 that the party giving the information may be implied to have the 
 authority to represent him in giving such notice. The general rule is 
 that vague reports from strangers and from persons having no interest 
 either in the property or in the person who claims the prior interest or 
 
 Witt, 75 ni. 211; Ponder v. Scott, 44 Ala. 241, Ch. 451; Hoppln v. Doty, 25 Wis. 573 j Beadles 
 
 244, 245. 0. Miller, 9 Bush, 405. 
 
 > Trefts -0. King, 18 Pa. St. {6 Harris) 157, 160; » Eandall v. Silverthorn, 4 Barr. 173; Hervey 
 
 Phillips V. Bank of Lewistown, Pa. St. 394, «. Smith, 22 Beav. 299; and see Davies ». Sear, 
 
 404; Hoxle v. Carr, 1 Sumn. 173, 192; Tilling- L. R. 7 Eq. 427; Blatchley ». Osborn, 33 Conn, 
 
 hast V. Champlln, 4 R. 1. 173, 204, 215, Spurlook 226, 233; Paul v. Connersville, &o., R. R., 51 Ind. 
 
 V. Sullivan, 36 Tex. 511; Flagg V. Mann, 3 527,530; Rarltan Water Power Co. !). Veghte, 
 
 Sumu. 486; Dubois!): Barker, 4 Hun, 80, 86; 6T. 21 N. J. Eq. (6 C. E. Green) 463, 478; Hoy V. 
 
 &, C. 349; Reynolds v. Ruckman, 35 Mich. 80. Bramhall, 19 N. J. Eq. (4 C. E. Green) 563. 
 
 2 Eek V. Hatcher, 58 Mo. 235; Hoppln v. Doty, * See Pringle v. Dunn, 37 Wis. 449, 461, 464; 
 
 25 Wis. 573, 591; Peabody v. Fenton, 3 Barb. Partridge ». Smith, 2 Biss. 183, 185, 186; Kerns 
 
 V. Swope, Watts, 75; Hastings ». Cutler, 4 Post. 
 (N. H.) 481 
 
 95 
 
§ 79 EQUITY JUKISPEUDENCE. [CH. V. 
 
 right, will not constitute such a notice as would put the purchaser 
 upon his inquiry into the authenticity of the information. ' While, 
 however, this is the- case, yet it must not be supposed that no commu- 
 nication of any sort from strangers will have the effect of destroying 
 the priority of the subsequent purchaser. Where the information is so 
 definite and exact as that it amounts to actual knowledge of the exist- 
 ence of the prior interest or claim; then inasmuch as the actual knowl- 
 edge supersedes and does away altogether with the necessity of any 
 technical notice at all, it would be sufficient to overcome the pri- 
 . ority of the subsequent purchaser and to give a priority to the 
 owner of the prior equity or interest.^ Not only must the inform- 
 ation, as a general rule, be communicated by some one interested in 
 the property or in the person who claims the prior interest^ but 
 the notice must be given at the time when the subsequent purchase is 
 made, in order to put such person upon his inquiry. For if it were 
 made at some remote time in the past, it is likely that it would escape 
 his attention; inasmuch as at that time he would not be presumed to 
 have any interest in the property and would therefore not charge his 
 memory with the notice then received. For this reason, an actual 
 notice given in a prior transaction is not a sufficient notice in a subse- 
 quent and different transaction.' 
 
 § 79. When presumption from constructive notice is conclusive^ 
 — Where the party is charged with constructive notice of the prior 
 interest or claim, because of information received by him concerning 
 the facts which would put him upon inquiry, which if diligently 
 pursued would necessarily and beyond peradventure bring to his 
 knowledge the nature and the character of the prior interest or equity;. 
 then he is conclusively presumed to have notice of such prior interest 
 or equity, and it is impossible for him to establish, by any proof of 
 inquiry without success, that he failed to get the expected information, 
 and that, therefore, he did not have notice of such prior equity or inter- 
 est in the property. Inasmuch as a due inquiry would necessarily lead 
 him to the acquisition of the information, his failure to acquire such 
 information would be conclusive proof of the inefficiency of the inquiry. 
 
 lWoods».Fannere, 7 Watts,382,387,j)wGib- field, 54 Ga. 451, 454; Blatehley v. Osbom, 33 
 
 son, C. J.; Jolland ». Stainbridge, 3 Ves. 478, Conn. 226, 283; Henry v. Baiman, 1 Casey (2& 
 
 per Lord Loughborough; Butcher v. Yooum, Pa. St.) 354; Phillips «. Bank of Lewiston, ft 
 
 61 Pa. St. (IIP. F. Smith) 168, 171; MuUikenB. Harris, (18 Pa. St.) 394, 404; MeKinney v 
 
 Graham, 72 Pa. St. (22 P. F. Smith) 384; Ripple Brights, 4 Harris, (16 Pa. St.) 399; Curtis v. 
 
 V. Bipple, 1 Eawle, 386. Mundy, 3 Met. 405, 407, per Putnam, J. ; Stev- 
 
 2Butcher«. Yooum, 61 Pa. St. 168, 171; Law- ens ti. Goodenough, 26 Vt. 676; Mullikeu v 
 ton «. Gordon, 37 Gal. 202, 205, 206; Pringle ». Graham, 72 Pa. St. (22 P. F. Sm.) 484, 490; Van- 
 Dunn, 37 Wis. 441, 465-467; see in general Price duyne v. Vreeland, 1 Beasley, 14S 155- Eupert 
 ». McDonald, 1 Md. 403; Winchester ». Baltl- v. Mark, 15111. 540; Cox v. Milner, 23 III. 476; 
 more, Ac, E. E., 4 Md. 231; Johns v. Scott, 5 Hankinsons. Barbour, 29 III 80 
 Md. 81 ; Lloyd v. Banks, L. E. 3 Ch. 488, 490, >«r 3 see Lowther v. Carlton, 2 Atk. 242; Fuller 
 Lord Caims; in matter of Conrad. i). Leiman, ®. Benett, 2 Hare, 394, 404; Boggs » Varner 6. 
 32 Md. 225, 344; Brown v. Wells, 44 Ga. 573, 575; Watts & S. 469; Meehan e Williams, 12 Wright. 
 Pringle v. Dunn, 37 Wig. 449, 465-467; Jones ». 238; Bank of Louisville «. Curren, 36 Iowa. 
 Lapham, 15 Kans. 540, 545, 546; Virgin v. Wing- 555 
 
 96 
 
[CH. V. NOTICE. § 80 
 
 Among the cases in which the constructive notice is absolute and the 
 presumption of notice is conclusive are the following: ^rs^, that derived 
 from a statutory record or registration; secondly, the statutory lis 
 ^pendens; thirdly, definite recitals in deeds which constitute links in the 
 chain of title; f&wrthhy, notice to the agent by the subsequent pur- 
 chaser.^ 
 
 § 80. When presumption from constrnctire notice is rebuttable. 
 — The presumption of actual notice of the existence and nature of the 
 prior equity or interest, which arises from the possession of informa- 
 tion sufficient to put a reasonably prudent man upon his inquiry, is 
 rebuttable whenever the facts are sufficient to put him upon his 
 inquiry, but insufficient to raise any conclusive presumption that the 
 inquiry would necessarily lead to the acquisition of the information. 
 If the inquiry, when pursued intelligently and diligently, may result in 
 a failure to ascertain the existence of the prior interest or equity; and 
 the fact that such holder inquired without success has been established; 
 the presimiption of notice of the existing prior interest or equity 
 would have been rebutted. Such would be the case, first, where the con- 
 structive notice rests upon the proof of extraneous facts and circum- 
 stances which establish, or tend to establish, the existence of equitable 
 claims by third persons resulting from fraud, accident or mistake in 
 prior transactions; secondly, where the constructive notice arises 
 from the possession of the land by some one other than the vendor." 
 If, however, in these cases the purchaser fails to make the due inquiry, 
 the presumption becomes conclusive that he did receive notice of the 
 prior equity or interest. 
 
 In this connection, it may be observed, that a new departure has been 
 made by some of the later English cases in holding that one is not 
 charged with the duty of making an inquiry, resulting from the pos- 
 session by him of information concerning facts which would put a 
 reasonably prudent man on his inquiry; but only when as a matter of 
 fact, the information was sufficient to arouse in this particular pur- 
 chaser the suspicion of the existence of such prior equity or interest, 
 whether the information was sufficient or insufficient to put a reasona- 
 ble man upon inquiry.' Under these English cases, it seems necessary, 
 in order to charge one with the duty of making an inquiry and to 
 support a conclusive presumption, from the failure to make such 
 inquiry, that he had notice of the existence and nature of the prior 
 
 1 Maul V. Eider, 59 Pa. St. (9 P. P. Sm.) 167, per Alderson, J. ; Jones v. Smith, 1 Hare, 43 
 
 171; MuUison'sEstate, 68 Pa. St. (18 P. P. Sm.) per Vice-Chancellor Wigram; Hanbury v. 
 
 213; Kennedy ®. Green, 3 My. & K. 699 ; Helms d. LitoMeld, 2 My. &K. 629; Hunto. Blmes, 3 De 
 
 ehadboume, 45 Wis. 60, 70, 71 ; Chicago, &c. E. G. F, & J. 578; Williamson «. Brown, 15 N. Y. 
 
 E. v. Kennedy, 70 HI. 350, 361; Loughridge ». 354, 360; Flagg v. Mann, 3 Sumn. 486, 554, per 
 
 Bowland, 52 Miss. 646, 553. Story, J. ; Eogers v. Jones, 8 N. H. 264, per 
 
 »Bspin V. Pemberton, 3 De G. & J. 547; Parker. J. 
 
 Roberts v. Coft, 2 De G. & J. 1 ; Ware v. Lord » Ware o.Lord Egmont, 4 De G. M. & G. 4fiO, 
 
 Bgmont, 4 De G. M. <fe G. 460 ; Hewitt ®. Loose- 473, by Lord Chanworth ; Hewitt v. Loosemore, 
 
 more, 9 Hare, 449; Griffith v. Griffith, 1 Hoff, 9 Hare, 449, 456, 458; decided by V. C. Turner, 
 
 Ch. 153; Whitbread «. BouJnois, 6 Y. & C. 303, and see Woodworth ii. Paige, 5 Ohio St. 70, 76. 
 
 97 
 
§ 81 
 
 EQUITY JTJEISPEUDENCE. 
 
 [CH. V. 
 
 equity or interest, to show that the failure to pursue the inquiry was 
 a case of gross and culpable negligence on the part of this purchaser 
 under the facts and the circumstances of the case,. and particularly in 
 the light of the personal element in the case, viz: the character of the 
 purchaser. If he cannot be charged with gross and culpable negli- 
 gence in failing to make the inquiry, he is not charged with construc- 
 tive notice.' But this departure of the English courts has not been 
 completely endorsed by all of the English cases ;^ nor has it been 
 recognized by the American courts. It is uniformly held in this coun- 
 try that the subsequent purchaser is charged with constructive notice 
 and is put upon his inquiry, whenever he receives information of facts 
 which are sufficient to put a reasonably prudent man upon his inquiry, 
 notwithstanding his own personal peculiarities may have prevented 
 his suspicion of the existence of a prior claim or interest." 
 
 § 81. What constitntes a dne inquiry. — It would be an impossi- 
 bility to state in general terms, when and under what circumstances 
 one has made a sufficient inquiry to enable him to rely upon his failure 
 to ascertain the existence of a prior claim of equity, which the posses- 
 sion of certain information would lead him to suspect to exist. As a 
 general proposition, what amounts to a due inquiry will depend upon 
 the circumstances of each case, and cannot be ascertained by rules of a 
 
 1 " I must not part witli this case without 
 «XTe8sing my entire concurrence in what has 
 on many occasions, of late years, fallen from 
 judges of great eminence, on the subject of 
 constructive notice; namely, that it is highly 
 Inexpedient for the courts of equity to extend 
 the doctrine, and attempt to apply it to cases 
 in which it has not hitherto been held appli- 
 cable. When a person has not actual notice, 
 he ought not to be treated as if he had notice, 
 unless the circumstances are such as to enable 
 the court to say, not only that he might have 
 acquired, but also that he aught to have 
 acquired, the notice with which it is sought 
 to affect him, that he would have acquired it 
 but for his gross negligence in the conduct of 
 the business in question. The question, when 
 it is sought to aCfect a purchaser with con- 
 structive notice, is not whether he has the 
 means of obtaining, and might by prudent 
 caution have obtained, the knowledge in ques- 
 tion, but whether the not obtaining of it was 
 an act of gross and culpable negligence. It is 
 •obvious that no definite rule aa to what will 
 .amount to gross and culpable negligence, so 
 as to meet every case, can possibly be laid 
 •down." Lord Cranworth in Ware v. Lord 
 Egmont, 4 De G. M. & Q. 460, 473. 
 
 2 Broadbent v. Barlow, 3 De G. F. & J. 570, 
 581 j Hunt V . Dimes, S Id. 578, 587, 588 ; Perry v. 
 Holl, 2 Id. 385 Atterbury v. Wallis, 8 De G. M. 
 & G. 454j Ware v. Lord Egmont, 4 Id. 480, 473, 
 474; Penny v. Watts, 1 Mac. & G. 150, 167; Eat- 
 cliffe V. Barnard, L. R. 6 Ch. 653, 654; Maxfield 
 
 ■J!. Burton, L. E. 17 Bq. 15, 18; Eolland ». Hart, 
 
 98 
 
 L. E. 6 Ch. 678, 681, 682; Bspin v. Pemberton, 3 
 De G. & J. 547, 654, 555; Eoberts v. Croft, 2 Id. 
 1, 5, 6; Jackson «. Eowe, 2 S. <fc S. 472; Hewitt 
 V. Loosemore, 9 Hare, 449, 456, 458. In Broad- 
 bent V. Barlow,'3 De G. F. & J. 570, 581, per Lord 
 Chan., Campbell said: "By 'the means of 
 knowledge ' by which anyone is to be affected, 
 must be understood means of knowledge which 
 are practically within reach, and of which a 
 prudent man might have been exacted to avail 
 himself." 
 
 ' Deadson v. Taylor, 53 Miss. 697, 701 ; Brown 
 ■V. Volkening, 64 N. Y. 76, 82; Cambridge Val- 
 ley B'k 1). Delano, 48 N. Y. 326, 336, 339; Eogers 
 V. Jones, 8 N. H. 264; Griflth v. Griffith, 1 HoSP. 
 Ch. 153; Hulls. Noble, 40 Me. 459,480; Bennett 
 V. Buchan, 61 N. Y. 222, 225; Kellogg v. Smith, 
 26 N. Y. 18; Baker v. Bliss, 39 N. Y. 70, 74, 78; 
 Reed v. Gannon, 50 N. Y. 345; Warren v. Swett, 
 31 N. H. 332, 341, 342; Briggs V. Taylor, 28 Vt. 
 180; Littleton v. Glddings, 47 Tex. 109; Allen 
 V. Poole, 54 Miss. 323; Pendleton v. Fay, 2 
 Paige, 202, 205; Edwards v. Thompson, 71 N. 
 C. 177, 179; Major v. Bukley, 51 Mo. 227, 231; 
 Woods V. Krebbs, 30 Gratt. 708; Cordova v. 
 Hood, 17 Wall. 1, per Strong, J. ; Brush v. Ware, 
 15 Peters, 93, 112; Helms «. Chadboume, 45 
 Wis. 60, 70, 71, 73; Eussell v. Sweezey, 22 Mich. 
 235, 239; O'Eourke v. O'Connor, 39 Cal. 442, 446; 
 Chicago, &c., R. E. v. Kennedy, 70 111. 350, 361, 
 362; Blanohard v. Wave, 43 Iowa, 530; 37 Id. 
 305; Loughridge v. Bowland, 52 Miss. 446, 553, 
 555; Dutton v. Warschauer, 21 Cal. 609; Pell v. 
 McBlroy, 36 Cal. 268; Witter V. Dudley, 42 Ala. 
 616, 621 625. 
 
[CH. V. NOTICE. § 81 
 
 general character.^ But, notwithstanding this general caution against 
 the reliability of general rules, certain general principles may be laid 
 down, which may indicate in general terms the scope that the 
 inquiry should take. In the first place, in all of the American states 
 where recording acts prevail, the subsequent purchaser would be 
 charged with the duty of examining the records for the purpose of 
 ascertaining therefrom the existence or non-existence of the prior 
 interest or equity, whose existence he has been led to suspect. If the 
 information which he has received pointed to the existence of an out- 
 standing claim or interest, which if it existed at all must appear upon 
 the records and could not appear anywhere else, the due examination 
 of the records would constitute all the inquiry that he must make.^ It 
 is, however, as a general rule, impossible for the purchaser to end his 
 inquiry after the prior claim or interest with the examination of the 
 records; for ordinarily the information received by him would lead 
 Mm to suspect the existence of a claim or interest which could exist 
 or arise outside of the records and 'the existence of which he could 
 ascertain by information derived from other sources than the record. 
 Whenever this is the nature of the information he has received, 
 while he would be obliged to make an examination of the records, yet 
 he could not have his inquiry stop at that point. And if he failed to 
 pursue the inquiry further, it wotild not constitute such a due inquiry 
 as would overthrow the presumption of notice of the existence of the 
 prior claim or interest.' After the examination of the record, it is 
 necessary, ordinarily, for the purchaser to make personal inquiry of 
 his own grantor or vendor, and the failure to make such inquiry 
 would ordinarily make the inquiry insufficient to rebut the presump- 
 tion of constructive notice.* While there may be peculiar circum- 
 stances under which the inquiry of the gtantor or vendor would be 
 •considered a sufficient inquiry to rebut €he presumption of constructive 
 notice;^ yet the general rule is that the inquiry must be continued 
 further, and extended to third pefsons who claim the interest, and to all 
 other persons who are supposed to know of the facts or the circum- 
 stances which would lead to the discovery of the prior interest or equity; 
 and a failure to make this inquiry would prevent any rebuttal of the 
 presumption of constructive notice." Although most of the cases on 
 
 1 Whltbread «. Boulnols, 1 Y. <&; C. 303, per » Randall t). Sflverthom, 4 Barr, 173; Baker ». 
 Alderaon, J.; Jones ». Smith, 1 Hare, '&, per Bliss, 39 N. Y. 70; Littleton v, Giddings, 47 
 Tice-Chancellor Wigram; Williamson o. Tex. 109; Deason v. Taylor, 53 Mis,a. 697, 701 ; 
 Brown, 15 N. Y. 354, 380; Flagg v. Mann, 2 Munroe v. Eastman, 31 Mich. 283; Shotwell v. 
 Sumn. 486, 554, p«r Story, J. ; Rogers ». Jones, Harrison, Mich. 179; Russell, i;. Sweezey, 22 
 S N. H. 264, per Parker, J.; Griffith v. Griffith, Mich. 835, 239; Wilson v. Hunter, 30 Ind. 466, 
 1 Hoff. Oh. 153. 472. 
 
 2 Barnard «. Campau, 29 Mich. 162; Jackson ». < Sergeants. IngersoU, 7 Barr, 340; 3 Harris, 
 VanValkenhurg, 8 Cow.260; Bellas ^.McCarthy, 343, 348, 349. 
 
 10 Watts, 13,28; VanKeurenti.Cent. R.R.,38N. 'See Espin v. Pemberton, 3 De G. & J. 547, 
 
 J. Law (9 Vroom), 165, 167; but see contra, 556. 
 
 Illinois Cent. R. R. ■». McCuUough, 59 111. 16«; « Espin v. Pemberton, 3 De G. & J. 547, 556. 
 Reynolds v. Ruckman, 35 Mich. 80. 
 
 99 
 
§ 82 EQUITY JTJEISPKUDENCE. [CH. V. 
 
 the question, wnat constitutes a due inquiry, are cases of constructive 
 notice, yet the same principles apply in determiping when there has 
 been a sufficient inquiry to overcome the inference of facts of an actual 
 notice which is drawn from circumstantial evidence. In both cases, 
 the same principles determine when there has been a due inquiry after 
 the existence or state of the prior eqjiiity or interest.^ 
 
 § 82. How far one can rely upon information received. — The 
 further question arises, how far the inquirer may rely upon the infor- 
 mation of a positive character which he receives from some particular 
 source. That is, suppose he learned that the prior claim or equity did 
 once exist but that it had since been satisfied or released, can he rely 
 upon the statement that the prior claim or equity which he has dis- 
 covered to have once existed has been released or satisfied? The answer 
 to this question depends upon the source of his information concerning 
 the extinction of such prior interest or equity. If he has received the 
 information of the existence of such prior claim or equity from a third 
 party who is not interested in the property or in the prior equity or 
 interest, then he may accept as reliable not only the information that 
 such prior equity or equitable interest had existed, but also that it had 
 been released or extinguished; for the disinterested character of hia 
 informant justifies him in giving credence to the subsequent statement.^ 
 So also, if when he inquired into the existence of this prior equity or 
 equitable interest of the party who was supposed to have been the 
 claimant of such prior equity, he could get no information what- 
 ever from such a party; or if such a person in response to his inquiry 
 should deny the existence of the claim, or state that the claim which 
 had once existed had been indeed satisfied or released; then the infor- 
 mation concerning the release or satisfajction of the claim or interest 
 may be reKed upon, not only because it was an admission against the 
 interest of the party making it and therefore worthy of credence; but 
 for the further reason that such claimant for the prior equity or equit- 
 able interest would thereby be estopped from asserting such prior claim 
 against the subsequent purchaser, whom he has misled by his information 
 concerning the existence of his claim.' But where the information 
 concerning the existence of the prior equity or claim, as well as the 
 information concerning its satisfaction and release, has been received 
 from the grantor or vendor of the property, instead of from the party 
 in whose favor the claim could be asserted, or from some disinterested 
 party; then while the admission, by such grantor or vendor, of the 
 existence of the prior outstanding or equity is worthy of credence, — 
 
 1 Barnard «. Campau, 27 Mich. 162; Prlngle Wis. 449, 465, 467; In re Bright's Trusts, 21 
 
 V. Dunn, 37 Wis. 449, 465, 467; Brinkman a. Beav. 430; Bnttrick v. Holden, 13 Met. 355, 397; 
 
 Jones, 44 Wis. 498, 519; Littleton V. Giddings, Curtis v. Blair, 4 Gush. (Miss.) 309, 388. 
 47Tex.l09; Shotwells. Harrison, 30 Mloh. 179; »Ibl)Otson«. Rhodes, 2 Vem. 654j Bridget) 
 
 Munroe v. Eastman, 31 Mich. 288. Beadon, L. E., 3 Eq. 664; McGehee V. Gindratl 
 
 KEodgers v. Wiley, 14 111. 65; Williamson v. 20 Ala. 95; Burrowest). Locke, 10 Ves. 470; Slim 
 
 Brown, 15N.Y.354,'360; in Pringle «. Dunn,87 ». Crouoher, 1 De G P & J 518 
 
 100 ' ■ ■ 
 
[oh. v. notice. § ■^4, ,, 
 
 because it is an admission against the interest of such grantor or Vendor*^ . 
 — inasmuch as his statement concerning the satisfaction or reB^as\or 
 such outstanding claim or equity is strongly in his favor and in aeiMj^d 
 with its interest, the courts require, as a general rule, that the inquil^-- 
 should be pursued further, and the corroboration of the grantor's 
 statement should be obtained if possible from the claimant of such 
 supposed equitable interest.* But this statement must be made and 
 taken with the caution, that wherever the facts of the case are of such 
 a peculiar character that a reasonably prudent man would be induced 
 to rely upon the statement of the creditor or vendor concerning the 
 satisfaction of the outstanding claim, the failure to make further in- 
 quiry will not be considered as tending to prove the want of good faith 
 or diminish the effectiveness of the inquiry, to rebut the presumption 
 of the continued existence of the prior equity or equitable interest.' 
 
 § 83. Registration of deeds and other instrnments. — Except in 
 respect to the enrollment of deeds of bargain and sale, deeds were not 
 required by the English law to be registered or recorded. And, 
 although a system of registration has been in operation since the reign 
 of Queen Anne in some of the counties of England, no general regis- 
 tration law has ever been in force there. ^ But in the United States 
 from an early period, every state in the Union has had a general reg- 
 istration law and officers appointed, whose duty it was to record all 
 deeds or conveyances, and other written instruments mentioned in the 
 statute. The object of recording a deed is to furnish subsequent pur- 
 chasers with reliable means of investigating titles. And hence it must 
 be recorded in the county in which the land lies.* The record simply 
 furnishes evidence of the conveyance, and the law provides that if a 
 deed is recorded, the record is constructive notice of the conveyance, 
 and that an unrecorded deed shall not prevail against subsequent pur- 
 chasers without notice.* 
 
 § 84. Requisites of a proper record. — ^But in order that the record 
 may be constructive notice of the deed and its contents, the deed must 
 be a valid one, and possess all the requisites of a valid deed. The 
 record of a defective deed furnishes no notice, except to one who has 
 seen it. And the deed or other instrument must further be one 
 required or permitted by law to be recorded." A quit-claim deed is 
 
 1 Littleton v. Giddings, 47 Tex. 109; Bunting son, 32 III. 654: Sicard V. Davis, 6 Pet. 124j Irvin 
 
 ■». Ricks, 2 Dev. & Bat. Eq. 130; Russell v. Pe- ». Smith, 17 Ohio, 226 j Van Rensselaer v. Clark, 
 
 tree, 10 B. Mon. 184; Price v. McDonald, 1 Md. 17 Wend. 25; Jackson v. Leek, 19 Wend. 339; 
 
 •403; Hudson v. Warner, 2 Har. & Gill, 415. Corliss ». Corliss, 8 Vt. 373 ; Wells v. Morrow, 38 
 
 2 Ponders. Scott,44Ala. 341, 244,345; Chicago Ala. 135; Martin d. Quattlebaum,3McCord205; 
 
 s. Witt, 75 111. 311; Curtis v. Blair, 4Cush. Rogerst). Jones,8N.H.264; Burkhaltert). Ector, 
 
 (Miss.) 309, 328; Rogers v. Jones, 8 N. H. 264; 25 Ga. 55; Ricks v. Reed, 19 Cal. 571; Lillard v. 
 
 Jones s. Smith, 1 Hare, 43. Rucker, 9 Yerg. 64; Dixon «. Doe, 1 Smed. & 
 
 » Wash, on Real Prop. 313j Williams on Real M. 70; Giyan b. Doe, 7 Blackf. 210; Applegate 
 
 Prop. 466, 467. ■». Graoy, 9 Dana, 334; Hopping ». Burham, 2 
 
 ••Oberholtzen's Appeal, 134 Pa. St. 583. Greene (Iowa), 39; Fitzhugh V. Barnard, 13 
 
 6 Earle ». Fiske, 103 Mass. 493; Trull v. Bige- Mich. 10. 
 
 low, 16 Mass. 406; Stephens?;. Morse, 47 N.H. 433 ; ' De Wittc. Moulton, 17 Me. 418; Shawt). Poor, 
 
 Murphy v Nathans, 46 Pa. St. 512; King v. Gil- 6 Pick. 88; Blood v. Blood, 33 Pick. 80; Graves 
 
 101 
 
§ 85 
 
 EQUITY JTJRISPEUDENCE. 
 
 [CH. V. 
 
 sufficient to give the grantee priority over the prior unrecorded deed.* 
 And a subsequent grantee, who takes without notice of the prior unre- 
 corded deed, can claim priority over such prior conveyance, although 
 his own deed may be unrecorded.'' If a deed has been properly 
 recorded, in most of the states it may be used in evidence without any 
 other proof of its execution.* And in some of them a certified copy 
 of the record is made original evidence in establishing the claim of title 
 from one grantor to another.* But in other states the deed must be 
 proved as at common law, unless it comes under the head of ambient 
 deeds, i. e., deeds thirty years old.' 
 
 § 85. To whom is record constructive notice. — This record is 
 constructive notice to only subsequent purchasers claiming under the 
 grantor, *'. e., those who acquire an interest in the property subse- 
 quently, and as privy to the grantor, whether as grantee, mortgagee, 
 or attaching creditor." It is not notice to those who claim independ- 
 ently of the grantor' as, for example, where a mortgagee assigns the 
 
 V. Graves, 6 Gray, 391; Isham v. Bennington 
 Co., 19 Vt. 230 j Peck v. Mallams, ION. Y. 518; 
 Carter v. Champion, 8 Conn. 549; Meighen v. 
 "Strong, 6 Miss. 177; Kerns v. Swope, 2 Watts, 
 75; MoKean v. Mitchell, 35 Pa. St. 269; Bossard 
 V. White, 9Elch. Eq. 483; Harper v. Barsh, 10 
 Rich. Eq. 149; Harper v. Tapley, 35 Miss. 510; 
 Herndon v. Kimball, 7 Ga. 438; Burnham v. 
 Chandler, 15 Texas, 441 ; Stevens v. Hampton, 
 46 Mo. 408; Bishop v. Schneider, 46 Mo. 472; 8 
 Am. Rep. 533; Ely v. Wilcox, SO Wis. 529; Prin- 
 gle V. Dunn, 37 Wis. 449; 19 Am. Eep. 778; Stew- 
 art «. McSweeney, 14 Wis. 468; Lands «. Beards- 
 ley, 32 W. Va. 594; Johns ». Eeardon, 3 Md. Ch. 
 57; 5 Md. 81; Work v. Harper, 24 Miss. 517; 
 Thomas v. Grand Gulf Bank, 9 Sm. & Mar. 201; 
 Pringle v. Dunn, 37 Wis. 449, 460, 461 ; Brown v. 
 Lunt, 37Me. 423; Graham v. Samuel, 1 Dana, 
 166; Halstead v. Bank of Kentucky, 4 J. J. 
 Marsh. 554; White v. Denman, 1 Ohio St. 110; 
 Stevens v. Morse, 47 N. H. 532; Isham i). Ben- 
 nington Iron Co., 19 Vt. 230; Sumnerv. Rhodes, 
 14 Conn. 135; Reynolds v. Kingsbury, 15 Iowa, 
 238; Barney «. Little, 15 Iowa, 527; Brinton v. 
 Seevres, 12 Iowa, 389; Carter v. Champion. 8 
 Conn. 548; Parkist v. Alexander, 1 Johns. Ch. 
 394; Green v. Drinker, 7 W. & S. 440; Hodgson 
 o. Butts, 3 Cranch, 140; Shults v. Moore, 1 Mc- 
 Lean, 521; Harper v. Reno, 1 Freem. Ch. 383; 
 Heistneri). Fortner, 2Binn. 40;StrongD. Smith, 
 
 3 McLean, 368; Cockey v. Milne, 16 Md. 200. In 
 Musgrove ». Bouser, (5 Greg. 313; 20 Am. Rep. 
 737,) the Supreme Court of Oregon held that 
 the record of a deed, not properly admitted to 
 record, furnishes constructive notice of the 
 contents of the deed to all who have actually 
 seen the record. See, also, to same effect, 
 Eems J). Swope, 8 Watts, 75; Hastings*. Cutler, 
 
 4 Fost. 481. It is also a general rule that the 
 record must be properly made, in order to 
 raise constructive notice to subsequent pur- 
 chasers; and it has been held in Wisconsin, 
 though denied in Missouri and Pennsylvania, 
 
 102 
 
 that a record without an index furnishes no 
 notice. Pringle ». Dunn, 37 Wis. 449; 19 Am. 
 Rep. 772; Bishop v. Schneider, 46 Mo. 472; 2 Am. 
 Rep. 553; Sohell V. Stein, 76 Pa. St. 398; 18 Am. 
 Rep. 416. 
 
 1 Cutler V. James, 64 Wis. 173, (54 Am. Eep. 
 603.) 
 
 2 Edwards v. Thom., 25 Fla. 228. 
 'Youngs. Guilbeau, 3 Wall. 640; Houghton 
 
 V. Jones, 1 Wall. 702; Carpenter v. Dexter, 8 
 Wall. 532; Ball v. McCawley, 29 Ga. aW; Hutch- 
 inson V. Rust, 2 Gratt. 394; Doe v. Prettyman, 1 
 Houst. 339; Samuels v. Borrowscale, 104 Mass. 
 207; Simpson v. Mundy, 3 Kan. 181; Youngs. 
 Rlngo, 1 B. Mon. 30; Clark ». Troy, 20 Cal. 219; 
 Fell V. Young, 63 111. 106; Sanders v. Bolton, 86 
 Cal. 405; Hinchliffe ». Hinman, 18 Wis. 135j 
 Toulmin v. Austin, 5 Stew. & P. 410. 
 
 * Scanlan ®. Wright, Samuels v. Borrowscale, 
 104 Mass. 207; Harvey v. Mitchell, 31 N. H. 532; 
 Farrar v. Fassenden, 39 N. H. 268; Dixon v. Doe 
 5 Blackf. 106; Began v. Frisby, 36 Miss. 178; 
 Glague V. Washburn, 42 Minn. 371, (44 N. W. 
 130.) 
 
 ' See Woolfolki;. Graniteville Mfg. Co., 22S. 
 C. 332. 
 
 e Tilton v. Hunter, 24 Me. 35; Shaw v. Poor, 6 
 Pick. 35; Bates v. Norcross, 14 Pick. 224; Flynt 
 1). Arnold, 2 Mete. 619; Does. Beardsley, 2 Mo- 
 Lean, 412; Whlttington v. Wright, 9 Ga. 23; 
 Miller «. Bradford, 18 Iowa, 18; Crochett ®, 
 Maguire, 10 Mo. 34; Loseyt). Simpson, 3 Stockt. 
 Ch. 246; Elys. Wilcox, 20 Wis. 530; Traphagen 
 «. Irwin, 18 Neb. 195. 
 
 I Long V. DoUarhide, 84 Cal. 218, 453; Crockett 
 ®. Mag ire, 10 Mo. 34; St. John v. Conger, 49 
 Mo. 536; Iglehart v. Crane, 42 111. 261; Blake v. 
 Graham, 6 Ohio St. 580; Baker «. Griffin, 50 
 Miss. 158; Tilton v. Hunter, 84 Me. 89; Bates «. 
 Norcross, 14 Pick. 224; George s. Wood, 9 Al- 
 len, 80; Murray v. Ballon, 1 Johns. Ch. 586; Em- 
 bury V. ( onner, 2 Sandf. 98; Stuyvesant ». Hall, 
 2 Barb. Ch. 151, 158; Page v. Waring, 76 N. T 
 
[CH. V. 
 
 NOTICE. 
 
 § 85 
 
 mortgage. The record of the assignment is not constructive notice to 
 the mortgagor or his assignees.' So also, is the mortgagee or his 
 assignee not charged with constructive notice by the record of the 
 mortgagor's assignment' The same rule applies in general to those 
 who acquire their interest from the grantor by a prior deed. ' It has 
 also been held that the doctrine of constructive notice from the record, 
 does not apply where A.'s deed to B. is unrecorded and B. then con- 
 veys to C. who puts his deed upon record without notice of the fact 
 that B., the grantor, derived his title from A. It is held that a subse- 
 quent purchaser from A. is not charged with constructive notice of the 
 prior recorded deed from B. to C 
 
 It is a doubtful question whether the registration of the prior deed, 
 before the title has been acquired by the grantor and his deed 
 recorded, would properly be considered constructive notice of the 
 estoppel. It is certainly in violation of the spirit of the registration 
 law which only requires the investigator to search the records for any 
 incumbrance or conveyance which occurs between the time when the 
 grantor acquired the title, and the time when he offers the title for 
 conveyance.^ 
 
 It has also been held by some of the courts that a purchaser from 
 the heir cannot claim precedence for his recorded deed over the unre- 
 
 463; Cook v. Travis, 80 K. T. 402; Farmers L. & 
 T. Co. V. Maltby, 8 Paige, 361 ; Calder «. Chap- 
 man, 52 Pa. St. (2 P. F. Sm.) 359; Wood v. Far- 
 mere, 7 Watts, 282; Lightner v. Mooney, 10 
 Watts, 412; Hetherington v. Clark, 6 Casey, 393, 
 395; Keller v. Nutz, 5 Serg. & R. 246; Hoy v. 
 Brnmliall,4Green Ch. 563; Loseyt). Simpson, 
 3 Stockt. Ch. 246; Whittlngton v. Wright, 9 ■ a. 
 23; Brock v. Headen, 13 Ala. 3 0; Dolin v. Gard- 
 ner, 15 Ala. 758; Leiby v. Wolf, 10 Ohio, 80, 83. 
 
 » Jones V. Gibbons, 9 Ves. 410; Mitchell i). 
 Bnmham 44 Me. 302 ; James v. Johnson, 6 Johns. 
 Ch.417; Waloott V. Sullivan, 1 Edw. Ch. 399; 
 Ely ». Scofleld, 35 Barb. 330; Belden v. Meeker, 
 47 N. Y. 307; Banks. Anderson, 14 Iowa, 544; 
 Johnson «. Carpenter, 7 Minn. 176; Titus »_ 
 Haynes, 9 N. Y. S. 742; Castle «. Castle, (Mich. 
 '90) 44N. W. 378; Jones on Mort., sect. 473; 2 
 Washb. on Real Prop. 148; see Watson «. Dun- 
 dee Mortgage, &c. Co., 12 Or. 474. 
 
 24 Kent's Com. 174; Stuyvesant v. Hall, 8 
 Barb. Ch. 158; Bell v, Fleming, 12 N. J. Eq. 16; 
 Blair v. Ward, ION. J. Eq. 126; Groesbeek v. 
 Mattison, 43 Minn. .547; Clark ». McNeal, 114 N. 
 Y. 287; First Nat. Bank v. Honeyman, (Dak. 
 '89)42N. W. 771. 
 
 8 George v. Wood, 9 Allen, 80 ; Losey v, Simp- 
 son, 3 Stockt. Ch. 246; HoUey v. Hawley, 39 Vt. 
 532; Boone v. Clark, 129 111. 466; Bimiet). Main, 
 29 Ark. 591 ; Ward's Ex'r v. Hague, ^ N. J. Eq. 
 (10 E. E. Green) 397; Leach v. Seattle, 33 Vt. 
 195; Kyle ». Thompson, 11 Ohio St. 616; Stuy- 
 vesant ». Hall, 2 Barb. Ch. 151; Stuyvesant «. 
 Hone, 1 Sand. Ch. 419; Taylors. Maris' Ex'rs, 5 
 Bawle, 51 ; see Maul v. Rider, r,9 Pa. St. (9 P. F. 
 
 Sm.) 167, 171 ; Cheesebrough D. Millard, 1 Johns. 
 Ch. 414; Guion v. Knapp, 6 Paige, 42; Chancel- 
 lor V. Walworth, 2 Barb. Ch. 151, 157, 158; see, 
 also, Howard Ins. Co. v. Halsey, 8 N. Y. 271 ; 
 Hill V. MeCarter, 27 N. J. Eq. 41 ; Hoy v. Brum- 
 hall, 19 N. J. Eq. 563; Van Orden ». Johnson, 1 
 MeCarter, 376; Blair «. Ward, 2 Stockt. Ch. 128; 
 Taylor v. Harris, 5 Rawle, 51 ; Leiby v. Wolf, 
 10 Ohio, 83; James v. Brown, 11 Mich. 25; 
 Cooper 1). Bigly, 13 Mich. 63; Doolittle «. 
 Cook, 75 111. 354; Iglehart v. Crane, 42 111. 
 261, Deusterii. McCamus, 14 Wis. 307; Straight 
 V. Harris, 14 Wis. 509; Halstead v. Bank of K'y, 
 4 J. J. Marsh. 558. 
 
 * Veazie v. Parker, 23 Me. 170; Pierce v. Tay- 
 lor, 23 Me. 246; Pelton ». Pitman, 14 Ga. 530; 
 Roberts v. Bourne, 23 Me. 165; Harris t). Arnold, 
 1 R. L 125; Cook v. Travis, 22 Barb. 338; 20 N.Y. 
 402; Losey ». Simpson, 3 Stockt. Ch. 246; Light- 
 ner «. Mooney, 10 Watts, 407; Calder v. Chap- 
 man, 52 Pa. St. a59; Fenne v. Sayre, 3 Ala. 4785 
 Chicago ». Witt, 75 III. 211. 
 
 6 Calder v. Chapman, 2 P. F. Smith, 359; Mo- 
 Cuskers. McEvy, 10 R. I. 606; dissenting opin- 
 ion of Judge Potter; Great Falls Co. «. Wor- 
 cestor, 15N. H. 452; Bivins ». Binzant, 15 Ga.. 
 521; Gouchenour ». Moury, 33111. 331; Bright 
 V. Buckman, 39 Fed. Rep. 243; Farmers' L. & T.. 
 Co. «. Maltby, 8 Paige, 361; Boyle ». Peerless; 
 Pet. Co., 44 Barb. 239; Somes «. Skinner, 3 Pick. 
 52; Tefft v. Munson, 57 N. Y. 97; White V. Pat- 
 ten, 24 Pick. 384; Jarvls V. Aikens, 25 Vt. 635; 
 Kimball «. Blaisdell, 5 N. H. 533; Wark v. Wil- 
 lard, 13 N. H. 389; Pike v. Galvin, 89 Me. 185j 
 but see Wilson v. Smith, 52 Hun, 171. 
 
 103 
 
§ 86 EQUITY JUKISPEUDENCE. [OH. V. 
 
 corded deed of the ancestor, on the ground that since the unrecorded 
 deed was a good conveyance against the heir, nothing descended to the 
 heir which he could convey.' But the better opinion seems to be that 
 the deed from the heir in such a case would be entitled to priority, 
 and would vest the superior, title in his grantee, for the reason that the 
 registry laws declare a deed void against all subsequent purchasers 
 without notice, if it has not been recorded.^ If one has a recorded 
 deed which has a priority over an antecedent unrecorded deed, the 
 holder of the recorded deed* acquires an absolute paramount title, 
 which he can convey even to those who have notice of the prior unre- 
 corded deed, with the exception of his own grantor, who originally 
 acquired title with notice of the prior unrecorded deed. Such a per- 
 son cannot improve his title by conveying the land to an innocent pur- 
 chaser, and repurchasing it, relying upon the superior title of the 
 intermediate grantee.* And if the recorded deed is to one who has 
 notice of the prior deed, although in his hands the recorded deed does 
 not have precedence,* if he conveys to one having no notice, his 
 grantee acquires a good title. But if the prior deed is recorded before 
 the conveyance by the first grantee who has had notice, the grantee of 
 the second conveyance is bound by the constructive notice. ° But no 
 one can take advantage of the record for the purpose of giving his 
 deed priority over another unrecorded deed, .who has not paid a sub- 
 stantial valuable consideration therefor, and he must show by extra- 
 neous evidence that it has been paid.' 
 
 § 86. Of what is record constructive notice. — Not only is the 
 record constructive notice of the recorded deed and its contents, but it 
 will also be notice of all other deeds and their contents, to which refer- 
 ence is made in the recorded deed.' But it has been held that the 
 record of a deed which describes the subject of the grant in very gen- 
 eral terms as, for example, " all the lands the grantor owns in Louis- 
 
 iHUlD. Meeker, 84 Conn. 211; Hancock*. «. Harrison, 82 Mich. 410; Cox». Wayt, 26 W- 
 
 Beverly, 6 B. Men. 538; Harlan v. Seaton, 18 B. Va. 807. 
 Mon. 312. 'White v. Foster, 102 Mass. 375; Gilbert V. 
 
 s Earle v. Flske, 103 Mass. 491 ; Powers v. Mc- Peteler, 38 N. Y. 165; Acer •». Westcott, 46 N. Y. 
 
 Perron, SSeig. &E. 47; McCulIocht). Endaly, 384; Cambridge Valley Bank v. Delano, 48 N. 
 
 SYerg. 346; YoungbloodB. Vastine, 46Mo. 239; Y. 326; Hamilton ». Nutt, 34 Conn. BOl ; Baker 
 
 Kennedy v. Northrup, 15 III. 148. v. Matcher, 25 Mich. 53; Qrandin v. Anderson, 
 
 8 Clark ». McNeal, 114 N. Y. 287; Lowther «. 15 Ohio St. 286; Kyle v. Thompson, 11 Ohio St. 
 
 Carlton, 2 Atk. 139; Trull v. Bigelow, 16 Mass. 616; Leiby ». Wolf, 10 Ohio, 83; Doyle v. Stev- 
 
 406; Bumpus v. Platner, 1 Johns. Ch. 219; Bell ens, 4 Mich. 87; Bancroft v. Consen, 13 Allen, 
 
 ». Twilight, 18 N. H. 159. 60; Orvls V. Newell, 17 Conn. 97; Bush v. 
 
 * Cox V. Wayt, 26 W. Va. 807. Golden, 17 Conn. S94; Harrison ». Cachelin, 23 
 
 » Plynt ». Arnold, 8 Meto. 619; Trnll ». Bige- Mo. 117, 127; Mesick ». Sunderland, 6 Cal. 297; 
 
 low, 16 Mass. 406; Adams ». Cuddy, 13 Pick. Buchanan ». International B'k, 78 111. 500; 
 
 460; Bracket v. Eidlon, 54 Me. 434; Hagthorp v. Ogden v. Walters, 12 Kans. 882; McCabe V. 
 
 Hook, lGill&J.870; Baylis ». Young, 51111. Grey, SO Cal. 509; George ». Kent, 7 Allen, 16; 
 
 187; Morse V. Curtis, 140 Mass. 112 (54 Am. Rep. Hetherington v. Clark, 30 Pa. St. 303; Morris «. 
 
 456) ; Slattery ». Schwannecke, 118 N. Y. 643. Wadsworth, 17 Wend. 103; Dennis «. Burritt, 
 
 « Boone ». Chiles, 10 Pet. 811; Watkins v. Ed- 6 Cal. 670; Monteflore v. Browne, 7 H. L. Cas. 
 
 wards, 83 Texas, 447; Parkem. Foy, 43 Miss. 241; Vlelet). Judson, 83N. Y. 38; Thomson «. 
 
 260; Maupin«. Emmons, *? Mo. 304; Bishop V. Wilcox, 7 Lans. 37fi; Youngs v. Wilson, 27 N. 
 
 Schneider, 46 Mo. 472; 2 Am. Rep. 533; Shotwell Y. 351; Dlmon ». Dunn, 15 N. Y. 498; Parklst 
 
 104 
 
CH. v.] 
 
 NOTICE. 
 
 86 
 
 iana" does not furnish constructive notice of any particular tract.' 
 The record is constructive notice of the contents of the deed only as 
 they appear upon the record. A mistake of the register in the descrip- 
 tion of the property, or the amount of the mortgage, will fall upon 
 the holder of the deed.^ Such would also be the case where a deed 
 absolute on its face was recorded without the defeasance deed which 
 was intended to operate as a mortgage. A purchaser from such a 
 mortgagee would not be charged with notice of any other title than 
 that of an absolute owner. ^ The same rule applies where an absolute 
 conveyance is made to one who was intended to take title as trustee 
 for another.* But the absence in the record of some material part of 
 the deed is not conclusive proof of the fact thiat the defect appears in 
 the original.' It is also a requisite of the registration, in order to 
 raise constructive notice to a purchaser, that the deed be recorded in 
 the county and state in which the land conveyed lies." And in some 
 states a failure to index the deed wUl deprive the record of the con- 
 structive notice.' So, also, vrill the record be defective where a mis- 
 take is made as to the books in which the instrument is recorded, 
 
 ■B. Alexander, 1 Johns. Oh. 394; Peters v. Good- 
 Ticli, 3 Conn. 148; Barbour v. Nichols, 3 E. I. 
 187; Soudert). Morrow, 33Pa. St.83; Clabaugh 
 -5. Byeriy, 7 Gill, 354; Humphreys v. Newman, 
 51 Me. 40; Hall v. McDufF, 24 Me. 311; Tripe v. 
 Macy, 39 N. H. 439; Leach v. Beattie, 83 Vt. 
 19oj BoUas V. Chauncy, 8 Conn. 389. 
 
 1 Green v, Witherspoon, 37 La. An. 751. 
 
 2 Frost V. Beeicman, 1 Johns. Oh. 299; Beek- 
 man v. Frost, 18 Johns. 544; Helstner v. Fort- 
 ner, 2Binn. 40; Strong tJ. Smith, 3 McLean, 362; 
 Ckickey v. Milne, 16 Md. 200; Pringle v. Dunn, 
 37 Wis. 449, 460, 4»1; Brown v. Lunt, 37 Me. 
 423; De Witt v. Moulton, 17 Me, 418; Johns v. 
 Eeardon, 3 Md. Ch. 57; 5 Md. 81; Herndoni). 
 Kimball, 7 Ga. 432; Work v. Harper, 24 Miss. 
 517; Thomas*. Grand Gulf B'k,9Sm.& Mar. 201; 
 Stevens v. Morse, 47 N. H. 532; Isham v. Ben- 
 nington Iron Co., 19 Vt. 230; Blood V. Blood, 
 23 Pick. 80; Sumner v. Rhodes, 14 Conn. 135; 
 Carter ». Champion, 8 Conn. 548; Parklst i). 
 Alexander, 1 Johns. Ch. 394; Greens. Drinker, 
 7 W. A S. 440; Graham v. Samuel, 1 Dana, 166; 
 Halstead «. B'k of K'y, 4 J. J. Marsh. 554; 
 White V. Denman, 1 Ohio St. 110; Watson v. 
 Mercer, 8 Pet. 88; Gillespie v. Eeed, 3 McLean, 
 377; Bamet V. Bamet, 15 Serg. <Ss E. 72; Tate v. 
 Stooltzfoos, 16 Serg. & E. 35; Eeynolds v. 
 Kingsbury, 15 Iowa, 238; Barney v. Little, 15 
 Iowa, 527; Brinton «. Seevres, 18 Iowa, 389; 
 Hughes V. Cannon, 2 Humph. 589; Eeed v. 
 Kemp, 16 111. 445; Allen i>. Moss, 27 Mo. 354; 
 Brown v. Simpson, 4 Kans. 76; Wallace v. 
 Moody, 26 Cal. 387; Hodson v. Butts, 3 Cranch, 
 140; Shults ». Moore, 1 MoClean, 521; Harper 
 -B. Eeno, 1 Freem. Ch. 323. 
 
 8 Bailey «. Myrick,60Me. 171; Hart v. Farm. 
 A Mech. B'k, 33 Vt. 252; Mesick v. Sutherland, 
 e Cal. 297; Harrison «. Cachelin, 23 Mo. 117, 126; 
 Bush V. Golden, 17 Conn. 594; Orvis v. Newell, 
 
 17 Conn. 97; Jacques v. Weeks, 7 Watts, 261, 271 ; 
 Hendrickson's Appeal, 12 Harris, 363; Edwards 
 ». Trumbull, 14 Wright, 509; Jacques v. Weeks, 
 7 Watts, 261, 887; Friedley v. Hamilton, 17 
 Serg. & E. 70; Dey v. Dunham, 2 Johns. Ch. 
 182; James v. Morey, 8 Cow. 846; Brown T. 
 Dean, 3 Wend. 208. 
 
 < Digman v. McCoUum, 47 Mo. 372, 37B, 376; 
 Crane v. Turner, 7 Hun, 357; 67 N. Y. 437; 
 Losey». Simpson, 3 Stockt. Ch. 246; Ely v. Wil- 
 cox, 20 Wis. 523, 530; Gllddon v. Hunt, 24 Pick. 
 221; Trull V. Bigelow, 16 Mass. 406; Connecti- 
 cut II. Bradish, 14 Mass. 296, 303; Calder V. 
 Chapman, 52 Pa. St. (2 P. F. Sm.)359; Bucking- 
 ham V. Hanna, 2 Ohio St. 551; Doswell v. 
 Buchanan, 3 Leigh, 365, 381 ; Hetzel v. Barber, 
 69 N. Y. 1; Page v. Waring, 76 N. Y. 463, 467- 
 469; Farmers' Loan Co. v. Maltby, 8 Paige, 381; 
 Sohutt V. Large, 6 Barb. 373; Ring «. Eichard- 
 son, 3 Keyes, 450; Goelet v. McMannus, 1 Hun, 
 306; Van Eensselaer v. Clark, 17 Wend. 25; 
 Sims V. Hammond, 33 Iowa, 368; Fallas v. 
 Pierce, 30 Wis. 433; Mahoney v. Middleton, 
 41 Cal. 41, 50; Flynt v. Arnold, 2 Mete. 619; 
 
 « Todd V. Union Dime Sav. B'k, 118 N. Y. 337 
 (23 N.E. 299). 
 
 « Kerns v. Swope, 2 Watts, 75; Kingv. Portis, 
 77N. C. 25; AstorB. Wells, 4 Wheat. 468; Lewis 
 ». Balrd, 3 McLean, 56; Stevens v. Brown, 3 Vt. 
 420; Perrin -v. Eeed, 35 Vt. 8; Hundley V. 
 Mount, 8 Sm. & Mar. 387 ; Crosby v. Huston, 
 1 Tex. 203; St. John v. Conger, 40 111. 535; 
 Stewart v. McSweeney, 14 Wis. 468. 
 
 'Pringle v. Dunn, 37 Wis. 449; 19 Am, Rep. 
 772; Barney «. McCarty, 15 Iowa, 522; Whatley 
 V. Small, 25 Iowa, 188; contra, Bishops. Schnei- 
 der, 46 Mo. 472; 2 Am. Rep. 533; Schell V. 
 Stein, 78 Pa. St. 398; 18 Am. Eep. 418; Lane V. 
 Duchao, 73 Wis. 646. 
 
 105 
 
§ 87 
 
 EQUITY JUKISPBUDENCE. 
 
 [CH. V. 
 
 as where a mortgage is recorded in the book for absolute conveyance,, 
 and vice versa. ^ 
 
 % 87. From what time does priority take effect. — ^As a general 
 proposition, in the absence of special rules, the priority acquired by 
 the registration takes effect from the date of the record." And a date 
 of the record is taken at the time when the deed was deposited for 
 registration.' But in some of the states the recording law provider 
 
 1 Vlele V. Judson, 82 N. Y. 32; Mut. Lite Ins. 
 Co. «. Drake, 1 Abb. N. C. 381 j Grimstone a. 
 Carter, 3 Paige, 421 ; Verges v. Prejean, 24 La. 
 An. 78j PisberB. Tunnard, 25 La. An. 179j Suc- 
 cession of Cordeviolle v. Dawson, 26 La. An. 
 534; Colomer v. Morgan, 13 La. An. 202; 
 McLanahan v. Reeside, 9 Watts, 508; Calder v. 
 Chapman, 52 Pa. St. (2 P. F. Sm.) 359; Leeob's 
 Appeal, 8 Wrigbt, 140; Pringle v. Dunn, 37 
 Wis. 449, 460, 461; Van Thomiley v. Peters, 26 
 OhioSt.471; \>\itsee, per contra, Speert). Evans, 
 47 Pa. St. 141, per Woodward, J.; Green v. 
 Garrington, 16 Ohio St. 548; B'd of Comm'rs v. 
 Babcock, 5 Or. 478; Throckmorton v. Price, 28 
 Tex. 605; Bishop v. Schneider, 46 Mo. 472; 
 Curtis V. Lyman, 24 Vt. 338. 
 
 2 4 Kent's Com. 457; Cushing ». Hurd, i Pick. 
 252; Goodsell V. Sullivan, 40 Conn. 83; Hubbart 
 «. Walker, 19 Neb. 94; Lane v. Duchac, 75 Wis. 
 646; Doyle v. Stevens, i Mich. 87; Warner «. 
 Whittaker, 6 Mich. 133; Barrows v, Baughman, 
 9 Mich. 213; Willcox «. Hill, 11 Mich. 256,263; 
 Rood V. Chapin, Walk. Ch. 79; Smith v. Gib- 
 son, 15 Minn. 89, 99; Coy v. Coy, 15 Minn. 119, 
 126; Grellett ». Heilshom, 4 Nev, 526; Robin- 
 son V. Willoughby, 70 N. C. 358; Fleming v. 
 Burgiu, 2 Ired. Eq. 584; Leggett v. Bullock, 
 Busb. L. 283; Westbrook v. Gleason, 79 N. Y. 
 23; Judson ». Dade, 79 N. Y. 373; Page v. War- 
 ing, 76 N. Y. 463; Lacustrine, &c. Co. v. Lake 
 Guano, &c. Co., 82 N. Y. 476; Hoyt v. Thomp- 
 son, 5 N. Y. 347; Newton v. McLean, 41 Barb. 
 285; Schutt v. Large, 6 N. Y. 373; Truscott v. 
 King, 6 N. Y. 346; Fort ». Burch, 6 N. Y. 60; 
 Odd Fellows' S. B'k, ». Banton, 46 Cal. 603; 
 MoMinn «. O'Connor, 27 Cal. 238j Fogarty t). 
 Sawyer, 23 Cal. 570; Woodworth v. Gausman, 1 
 Cal. 203; Call o. Hastings, 3 Cal. 179; Bird v. 
 Dennison, 7 Cal. 297; Chamberlain v. Bell, 7 
 Cal. 292; Denniss v. Burritt, 6 Cal. 670; Hunter 
 V. Watson, 12 Cal. 263; MoCabe v. Grey, 20 Cal. 
 509; Snodgrass v. Eicketts, 13 Cal. 359; Landers 
 V. Bolton 26 Cal. 393; Frey ». Clofford, 44 Id. 
 335; Packard®. Johnson, 51/(2. 545; Wilcoxson 
 ■e. Miller, 49 Id. 193; Patterson v. Donner, 48 
 /d. 369; Long ». Dollarhide, 24 7ii. 818; Fair®. 
 Stevenot, 29 Id. 486; Mahoney v. Middleton, 41 
 Id.iX; Jones®. Marks, 47 Id. 242; O'Kourke®. 
 O'Connor, 39 Id. 442; Smith ®. Yule, 31 Id. 180; 
 Thompson v. Pioche,44/d. 508; Lawton v. Gor- 
 don, S7 Id. 202; Vassault v. Austin, 36 Id. 691; 
 Griswold v. Smith, 10 Vt. 452; Patten v. Moore, 
 32 N. H. 382, 384; Dickenson v. Glenney, 27 
 Conn. 104; Hartmyer v. Gates, 1 Boot, 61; 
 Eay V. Bush, 1 Id. 81; Franklin v. Cannon, 1 Id. 
 
 106 
 
 500; Welch ». Gould, 2 Id. 287; Judd v. Wood- 
 ruff, 2 Id. 298; St. Andrews v. Lickwood, 2 Boot,. 
 239; Hall's Heirs v. Hall, 2 Id. 383; Beers v. 
 Hawley, 2 Conn. 467; Hinman «. Hinman, 4 Id. 
 575; Hine v. Bobbins, 8 Id. 342; Wheaton v. 
 Dyer, 15 Id. 307; Watson v. Wells, 5 Conn. 468 ^ 
 Carter v. Champion, 8 Id. 549 ; Sumner v. Rhoda,. 
 14 Id. 135; Byers v. Engles, 16 Ark. 543; Hamil- 
 ton V. Fowlkes, 16 Id. 340; Dacoway v. Gait,. 
 20 Ark. 190; School Dist. v. Taylor, 19 Eans. 
 287; Simpson v. Munder, 3 Kans. 172; Brown ». 
 Simpson, i Id. 76; Claggett®. Crall, 12 Id. 393, 
 397i Wickeisham v. Chicago, &c. Co., ISId. 487; 
 Johnson®. Clark, 18 Id. 157, 164; Jones®. Lap- 
 ham, 15Id. 540; Senter ®. Turner, 10 Iowa, 517; 
 Brinton ®. Seevers, 12 /d. 389; Dargin®. Beeker,. 
 10 Id. 571; Koons ®. Grooves, 20 Id. 373; Bring- 
 holff ®. Munzenmaier, 20 Iowa, 513; Gardner 
 ®. Cole, 21 Iowa, 205; Willard ®. Kramer, 36 Id. 
 22; Calvin ®. Bowman, 10 Iowa, 529; Scoles®. 
 Wilsey, 11 Id. 261 ; Miller v. Bradford 12 Id. 14;. 
 Bostwick V. Powers, 12 Id. 456; English ®. 
 Waples, 13 Id. 570; Haynes ®. Seachrest, 13 Id. 
 455; Breed ®. Conley, Uld. 269; Stewart®. Huff, 
 
 19 Id. 557 ; Gower «. Doheney, 33 Id. 36 ; Thomas. 
 ®. Blakemore, 5 Yerg. 113, 124; Hayes ®. Mc- 
 Guire, 8 Id. 92, 100; Vance ®. McNairy, 3 Id., 
 176; Shields®. Mitchell, 10 Id. 8; May ®. Mc- 
 Keenon, 6 Humph. 209 ; Berkley ®. Lamb, 8 Neb. 
 399; Merrlmau ®. Hyde, 9 Neb. 120; Harral ®. 
 Gray, 10 Id. 189 ; Lincoln B. &, S. Association ®^ 
 Hass, 10 Id. 583; Hooker ®. Hammill, 7 Id. 234j 
 Jones ®. Johnson Harvester Co., 8 Id. 451 ^ 
 Mansfield ®. Gregory, Sid. 435; Edminster ». 
 Higgins, 6 Neb. 269; Galway ®. Malchow, 7 Id. 
 339; overruling Bennet ®. Fooks, lid. 4X5; Meta 
 ®. State B'k of Brownvllle, 7 Id. 171; Colt®. 
 Du Bois, 7 Id. 394; Dorsey V. Hall, 7 Id. 485;, 
 Reed ®. Ownby, 44 Mo. 204 ; Valentine ». Harner, 
 
 20 Id. 133; Davis v. Owusby, 14 Id. 170; Rev. 
 Code (1871), p. 503; Porter®. Sevey, 43 Me. 519; 
 Goodwin ®. Cloudman, 43 Id. 577; Merrill ®. 
 Ireland, iO Id. 569; Hanly ®. Morse, 33 Id. 287; 
 Spofford ®. Weston, 29 Id. 140i Butler®. Stevens^ 
 26 Id. 484; Roberts o. Bourne, 23 Id. 165^ 
 Veazie ®. Parker, 23, Id: 170; Pierce ®, 
 Taylor, 23 Id. 246; Backleff ®. Norton, 19 Id.. 
 274; Lawrence ®. Tucker, 7 Id. 195; Kent v^ 
 Plummer, 7/d. 461; see Graves ». Ward, 2 Dev. 
 301; Porepaugh ». Appold, 17 B. Mon. 625, 
 631. 
 
 8 Den ®. Eichman, 1 Green, (N. J.) 52; Nichols 
 V. Reynolds, 1 R. 1. 30; Horseley ®. Garth, a 
 Gratt. 471; Bigelow v. Topliff, 25 Vt. 274; War- 
 nook®. Wightman, 1 Brev. 331; Hine v Rob. 
 
CH. v.] 
 
 NOTICE. 
 
 § sr 
 
 that if a deed is recorded within the time allowed by law, it relates 
 back to the time of delivery of the deed, and has priority over a sub- 
 sequently executed deed which has been previously recorded. Statu- 
 tory provisions of this character are to be found in Ohio, Kentucky, 
 Mississippi, Georgia, South Carolina, Pennsylvania, Alabama, Indi- 
 ana, Delaware, Tennessee, and Maryland.^ The time allowed for 
 recording varies with the different states. If in these states a deed 
 has been recorded after the expiration of the time allowed by law, the 
 record gives constructive notice from the time of the record, but does 
 not relate back to the time of delivery.* 
 
 bins, 8 Conn. 347; Gill «. Fauntleroy, 3 B. Mon. 
 177; Lane v. Duchac, 73 Wis. 646; Eessler v. 
 State, 23 Ind. 315; Quirks. Thomas, 6 Mich. 76; 
 Harrold v. Simonds, 9 Mo. 326 ; Davis v. Ownsby, 
 14 Mo. 175; McEaven v. McGuire, 9 Smed. &M. 
 34; Dubose«. Young, 10 Ala. 365; McCabe «. 
 Gray, 20 Cal. 569. 
 
 1 3 Washb. on Real Prop. 380, 321 ; Stansell v. 
 Boberts, 13 Ohio, 148; Price ». Methodist Epis- 
 copal Church, 40hio,'515;Leiby'sEx'rst>. Wolf, 
 10 Ohio, 83; Spader v. Lawler, 17 Ohio, 371; 
 Lessee of Irviu v. Smith, 17 Ohio, 226; North- 
 nip's Lessee v. Brehmer, 8 Ohio, 392; Lessee 
 of Allen V. Parish, 3 Ohio, 107; Lessee of Cun- 
 ningham V. Buckingham, 1 Ohio, 264; Smith 
 V. Smith, 13 Ohio St. 532; see Doe v. B'k of 
 Cleveland, 3 McLean, 140; Hardaway ». Sem- 
 mes, 24 Ga. 305; Hemdon v. Kimball, 7 Ga. 432; 
 Bushim v. Shields, 11 Ga. 636; Felton v. Pit- 
 man, 14 Ga. 536; Wyatt v. Elam, 19Ga. 335; 
 Buckhalter v. Ector, 25 Ga. 55; Lee v. Cato, 27 
 Ga. 637; Allen ». Holding, 29 Ga. 485; S. C. 32 
 Ga. 418; Williams ». Logan, 32 Ga. 165; Will- 
 iams «. Adams, 43 Ga. 407; Mims v. Mims, 35 
 Ala. 23; Wyatt v. Stewart, 34 Ala. 716; Ohio 
 Life, Ac. Co., V. Ledyard, 8 Ala. 866; Daniel v. 
 Sorrells, 9 Ala. 436; Andrews v. Bums, 11 Ala. 
 691; Smith ». Branch B'k, 21 Ala. 125; Center 
 V. P. & M. B'k, 22 Ala. 743; Coster ». B'k of Ga., 
 24 Ala. 37; De Vendal v. Malone, 25 Ala. 272; 
 Gray's Adm'rs ». Cruise, 36 Ala. 559; Wallis ». 
 Bhea, 10 Ala. 451 ; 12 Ala. 646; Jordon v. Mead, 
 12A]a.247;Dearing». Watkins, 10 Ala. 20; Boyd 
 V. Beck, 29 Ala. 703; Eearsoner«. Edmundson, 
 5Ind. 393; Glazebrook's Adm'r v. Eagland's 
 Adm'r, 8 Gratt. 344; i lure V. Thistle's Ex'rs, 2 
 Gratt. 182; see Beverly v. Ellis, 1 Band. 102; 
 Bird V. Wilkinson, 4 Leigh, 266; Beck's 
 Adm'rs v. De Baptists, 4 Leigh, 349; Lane v. 
 Mason, 5 Leigh, 520; Hayham v. Combs, 14 
 Ohio, 428; Bloom v. Noggle, 4 Ohio St. 45; Ber- 
 caw V. Cockerill, 20 Ohio St. 163; Williams v. 
 Beard, 1 S. 0. 309; Boyce v. Shiver, 3 S. C. 515; 
 Steele v. Mansell, 6 Bich. 437 ; Stokes v. Hodges, 
 11 Eich. Eq. 135; B'k of State v. S. C. Man. Co., 
 3 Strobh. 190; Tract v. Crawford, 1 McCord, 
 285; Massey ». Thompson, 2 Nott & McC. 105; 
 Dawson v. Dawson, Bice Eq. 243; McFall v. 
 Sherrard, Harper, 295; Byles ». Tome, 39 Md. 
 461; Abrams v. Sheehan, 40 Md. 446; Kane ». 
 Roberts, 40 Md. 590; Homer v. Grosholz, 38 Md. 
 521 ; Busey V. Eeese, 38 Md. 264 ; Glenn v. Davis, 
 
 35 Md. 215; Walsh -o. Boyle, 30 Md. 267; Nelson 
 «. Hagerstown Bank, 27 Md. 51; Willard's. 
 Ex'rs V. Bamsburg, 22 Md. 206; Cookey v. 
 Milne's Lessee, 16 Md. 207; Estate of Leiman, 
 32 Md. 225; Lester v. Hardesty, 29 Md. 50; 
 Adm'is of Carson, v. Phelps, 40 Md. 97; Knell 
 V. Building Ass'n, 34 Md. 67; Leppoo v. Nat. 
 Union B'k, 32 Md. 136; Owens v. Miller, 29 Md. 
 144; Building Ass'n ». Willson, 41 Md. 514 ^ 
 Hoopes V. Knell, 31 Md. S50; Cooke's Lessee «. 
 Knell, 13 Md. 469; Nice's Appeal, 54 Pa. St. 
 200; Speer ®. Evans, 47 Pa. St. 141; Britton's. 
 Appeal, 45 Pa. St. 172; Mellor's Appeal, 32 Pa. 
 St. 121; Adam's Appeal, 1 Pa. St. 447; Brooke's 
 Appeal, 64Pa. St. 127; Dungan i). Am., &o. Ins. 
 Co., 52 Pa. St. 253; Bratton's Appeal, 8 Pa. St. 
 164; Foster's Appeal, 3 Pa. St. 79; Ebner ». 
 Goundie, 5 W. & S. 49; Poth d. Anstadt, 4 W. 
 & S. 307; Lightner v. Mooney, 10 Watts, 407; 
 Cover ». Black, 1 Barr. 493; Stewart v. Free- 
 man, 10 Harris, 123; Hoffman v. Strohecker, T 
 Watts, 86; Mott v. Clark, 9 Barr. 399; Philips «. 
 B'k of Lewiston, 6 Harris, 394: Bellas v. Mc- 
 carty, 10 Watts, 13; Hetherington v. Clark, 6 
 Casey, 393; Randall v. Silverthorn, 4 Barr. 173j 
 Lewis V. Bradford, 10 Watts, 67; Kerns «. 
 Swope, 2 Watts, 75; Bankin v. Porter, 7 Watts, 
 387; Epley -v. Witherow, 7 Watts, 167; Krider 
 V. Lafiferty, 1 Whart. 303; Green i>. Drinker, 7 
 W. & S. 440; Miller v. Cresson, 5 W. & S. 284; 
 Parke v. Chadwick, 8 W. & S. 96; Boggs «. 
 Varner, 6 W. & S. 469; Harris D. Bell, 10 E. & S. 
 39; Chens. Bamet, 11 S. & B. 389; Snider u. 
 Snider, 3 Phila. 100; Sailor v. Hertzog, 4 Whart. 
 264; Union Canal Co. v. Young, 1 Whart. 432; 
 Jacques v. Weeks, 7 Watts, 261; Hoffman ». 
 Strohecker, 7 Watts, 90; Braken v. Miller, 4 W, 
 & S. 102; Plumer v. Eobertson, 6S. & B. 179 j 
 40 N. J. Eq. 364. 
 
 2 Walk. Am. Law, 358; McEaven v. McGuire. 
 9Smed. &M. 39; Leger v. Doyle, 11 Bich. L. 
 109; Andersons. Dugas, 29 Ga. 440; Lighten). 
 Mooney, 10 Watts, 407; Souder v. Morrow, 33- 
 Pa. St. 83; Dens. Richman, 1 Green, (N. J.) 43; 
 Mallory v. Stodder, 6 Ala. 801 ; Helms v. O'Ban- 
 non, 26Ga. 132; Belk v. Massey, 11 Eich. L. 
 614; Northrups. Brehmer, 8 Ohio, 392; Poth s. 
 Anstatt, 4 Watts & S. 307; Brem v. Lockhart, 
 95 N. C. 191; King v. Erases, 23 S. C. 543; 
 Fleschner v. Sumpter, 12 Oreg. 161 ; Harding s. 
 Allen, 70 Md. 395. 
 
 107 
 
§ 88 EQUITY JURISPEUDENOE. [CH. V. 
 
 § 88. Effect of other kinds of notice in the absence of registra- 
 tion. — The recording of a deed is not essential to its validity as between 
 the parties/ and all others having any other actual or constructive 
 notice of it. If a subsequent purchaser has notice of a prior unre- 
 corded deed, or if he is a voluntary purchaser, the prior deed will 
 be a good conveyance against him.^ If notice of the conveyance is 
 obtained in any other way, the deed will be as valid as if it was recorded. 
 And notice after the delivery of the deed, but before the payment of 
 the consideration, will be sufficient notice to give precedence to the 
 prior unrecorded deed.' While this is true as a general proposition; 
 yet, in a few of the states it is expressly provided that no other notice 
 will serve as a substitute for the constructive notice of registration. 
 Such is found to be the law in Connecticut, North Carolina, and 
 liouisiana.* 
 
 It is also worthy of observation that the recording acts do not 
 always expressly provide, that the unrecorded deed shall be valid 
 against subsequent purchasers who take their title with notice of the 
 prior unrecorded conveyance. Some of these statutes simply provide 
 that prior conveyances, not duly recorded, shall be void as against 
 subsequent purchasers and mortgagees in good faith, and having a 
 valuable consideration when this conveyance is first duly recorded. 
 No reference is made in such statutes to the effect of notice, either 
 actual or constructive, as a substitute for the constructive notice of 
 the registration; but in all these states the courts have, as a necessary 
 implication from the statement of the statute that an unrecorded con- 
 veyance shall be void against subsequent purchasers and mortgagees 
 in good faith, deduced the rule that a subsequent purchaser cannot 
 claim to be one in good faith, unless he takes the deed without notice 
 of the prior unrecorded deed. Such is found to be the condition of 
 the law in New York, California, Colorado, Dakota, Idaho, Michigan, 
 Minnesota, Montana, Nevada, Washington, Wisconsin, New Hamp- 
 shire, Rhode Island, Vermont, Indiana, Maryland, New Jersey, Ore- 
 gon, Pennsylvania, Wyoming.'' 
 
 1 Forrester v. Parker, 14 Daly, 808; James v. v. Champion, 8 Corih. 549j Sumner v. Bhoda< 
 Penny, 76 Ga. 796; Bacon v. Northwestern &e. 14 Conn. 135j Watson ». Wells, 5 Conn. 468i 
 Ins. Co., 131 D. S. 258. Wheaton v. Dyer, 15 Conn. 3Wj Hine v. Eob- 
 
 2 Hill V. Epley, 31 Pa. St. 335; Barney v. Me- bins, 8 Conn. 348; Hinman v. Hinman, 4 Conn. 
 Carty, 15 Iowa, 514; Galland v. Jaclunan, 26 675; Beers ». Hawley, 2 Conn. 467; Hall's Heirs 
 Cal. 87j Shotwell v. Harrison, 28 Mich. 410; e. Hall, 2 Conn. 383; St Andrews ». Lockwood, 
 Dixon T. Lacoste, 1 Smed. & M. 107; Wilkinst). 2 Root, 239; Judd v. Woodniflf, 3 Conn. 298; 
 May, 3 Head, 176; Mauplns v. Emmons, 47 Mo. Welch v. Gould, 2 Conn. 887; Franklin v. Can- 
 306; Patterson ». Dela Ronde, 8 Wall. 300; Mor- non, 1 Conn. 500; Ray ». Bush, 1 Conn. 81; 
 risen s. Kelly, 28 111. 610; Jamaica Pond r>. Hartmyer*. Gates,"l Root 61; Robinsons. Will- 
 Chandler, 9 Allen, 169; Speer v. Evans, 47 Pa. oughby, 70 N. C. 358; Fleming v. Burgin, 2 
 St. 144; BilkB. Massey, llRieh. 614; Ellisons. Ired. Eq. 584; Leggette v. Bullock, Busb. L. 
 Wilson, 36 Vt. 67 ; Home Building & Loan Ass'n 283. 
 
 «. Clark, 43 0hioSt.487;DraTO». Fabel,85Fed. = Westbrook v. Gleason, 79 N. Y. 23, and 
 
 Rep. 116; Maun v. State, 116 Ind. 383; but see cases cited; Judson v. Dada, 79 N. Y. 373; Page 
 
 contra, Hinton v. Leigh, 102 N. C. 28. v. Waring, 76 N. Y. 463; Lacustrine, Ac. Co. v. 
 
 8 Blanohard ». Tyler, 13 Mich. 339. Lake Guano, Ac. Co., 88 N. Y. 476; Hoyt V. 
 
 « Dickenson v. Glenney, 27 Conn. 104; Carter Thompson, 5 N. Y. 347; Newton v. McLean, 41 
 
 108 
 
 > 
 
OH. V.J 
 
 NOTICE. 
 
 § 88 
 
 In the other states, however, the recording act expressly provided 
 that the unrecorded deed shall be void as against subsequent pur- 
 chasers for value and without notice. But they are divided into two 
 classes; one of which provides generally and without quahfication that 
 the unrecorded deed shall be void as against subsequent purchasers 
 without notice, no specifications being given as to the character of the 
 notice which will postpone the priority of the deed of the subsequent 
 purchaser. In these states, the doctrine obtains that the subsequent 
 purchaser will lose the priority given to him by the statute, whenever 
 he takes his deed with actual or constructive notice of the prior 
 unrecorded deed; and the meanings of the terms, actual and construct- 
 ive notice, as laid down and settled by the adjudications of the court 
 of equity independently of the recording law, are still recognized as 
 valid and correct, so that the subsequent purchaser in these states 
 vdll be charged with notice, whenever facts and circumstances exist in 
 connection with the case which would charge him under the rules of 
 equity with actual or consti'uctive notice of the prior deed. Such 
 will be found to be the law and the ruling of the courts in the states 
 of Delaware, Florida, Illinois, Iowa, Kentucky, Mississippi, Nebraska, 
 
 Barb. 385; Sehutt «. Large, 6 N. T. 373; Trus- 
 cott V. King, 6 N. Y. 346; Port ». Bureh, 6 N. 
 Y. 60; Wilcoxson ». Miller, 49 Cal. 193; Patter- 
 son B. Donner, 48 Cal 369; Longs. DoUarhide, 
 24 Cal. 218; Fair v. Stevenot, 29 Cal. 286; Ma- 
 honey v. Middleton, 41 Cal. 41 ; Jones ». Marks, 
 47 Cal. 242; O'Eourke v. O'Connor, 39 Cal. 442; 
 Smith u. Yule, 31 Cal. 180; Thompson «. 
 Pioche, ,44 Cal. 508; Lawton «. Gordon, 37 
 Cal. 202; Vassault v. Austin, 36 Cal. 691; 
 Chamberlain v. Bell, 7 Cal. 292; Dennis «. 
 Burrltt, 6 Cal. 670; Hunter v. Watson, 12 Cal. 
 363; McCabeu. Grey, 20 Cal. 509; Snodgrassi). 
 Eioketts, 13 Cal. 359; Landers v. Bolton, 26 
 Cal. 393; Frey v. Clifford, 44 Cal. 335; Packard 
 V. Johnson, 51 Cal. 545; Odd Fellows' S. B'k v. 
 Banton, 46 Cal. 603; McMinn ». O'Connor, 27 
 Cal. 238; Fogarty d. Sawyer, 23 Cal. 570; Wood- 
 worth ». Guzman, 1 Cal. 203; Call v. Hastings, 
 3 Cal. 179; Bird o. Dennison, 7 Cal. 297; Bar- 
 rows V. Baughman, 6 Mich. 213; Wilcox ». Hill, 
 11 Mich. 256, 263; Rood v. Chapin, Walk. Ch. 79; 
 Godfroy v. Blsbrow, Walk. Ch. (Mich.) 260; 
 Boyle ». Stevens, 4 Mich. 87 ; Warner v. Whitta- 
 ker, 6 Mich. 133; Coy v. Coy, 6 Minn. 119, 126; 
 Smith®. Gibson, 15 Minn. 89, 99; Grelleti). Heil- 
 shom, 4Nev. 526; Ely V. Wilcox, 20 Wis. 651; 
 Stewart v. McSweeney, 14 Wis. 468; Fery «. 
 Pfeifer, 18 Wis. 610; Gee v. Bolton, 17 Wis. 
 604; Patten v. Moore, 32 N. H. 382, 384; 
 Griswold v. Smith, 10 Vt. 452; Keasoner v. 
 Bdmundson, 5 Ind. 393; Byles v. Tome, 39 
 Md. 461; Abrams ». Sheehan, 40 Md. 44«; 
 Kane ». Roberts, 40 Md. 590; Homer ». Gros- 
 holz, 38 Md./ 521; Busey V. Reese, 38 Md. 
 264; Glenn v. Davis, 35 Md. 215; Walsh v. 
 
 Boyle, 30 Md. 267; Nelsons. Hagerstown Bank, 
 27 Md. 51; Millard's Ex'rs v. Ramsburg, 22 Md. 
 206; Cockey«. Milne's Lessee, 16 Md. 207; Es- 
 state of Leiman, 33 Md. 325; Lester v. Hard- 
 esty, 29 Md. 50; Knell o. Building Ass'n, 34 
 Md. 67; Adm'rs of Carson v. Phelps, 40 Md. 97; 
 Leppoc «. Nat. TJniou B'k, 32 Md. 136; Owens. 
 V. Miller, 29 Md. 144; Cooke's Lessee v. Knell, 
 13 Md. 469; Hoopes v. Knell, 31 Md. 550; Build- 
 ing Ass'n ». Willson, 41 Md. 514; Stewart ». 
 Freeman, 10 Harris, 123; Cover v. Black, 1 Barr. 
 493; Lightner v. Mooney, 10 Watts, 407; Poth v. 
 Anstadt, 4 W. & S. 307; Ebner v. Goundie, 5 W. 
 & S. 49; Foster's Appeal, 3 Pa. St. 79; Brat- 
 ton's Appeal, 8 Pa. St. 164; Dungan v. Am., &c. 
 Ins. Co., 59 Pa. St. 253; Brooke's Appeal, 33 Pa. 
 St. 121; Britton's Appeal, 45 Pa. St. 172; Speer 
 11. Evans, 47 Pa. St. 141 ; Nice's Appeal, 45 Pa. 
 St. 200; Snider «. Snider, 3PhiIa. 160; Chen®.,. 
 Bamet, 11 S. &. E. 389; Harris v. Bell, 10 S. &. 
 R. 39; Boggs v. Varner, 6 W. & S. 469; Parke v. 
 Chadwick, 8 W.& S. 96; Miller?;. Cresson, 5 W.& 
 S. 284; Green ®. Drinker, 7 W. & S. 440; Krider 
 V. Lafferty, 1 Whart. 303; Epley i>. Witherow, 7 
 Watts, 167; Rankin V. Porter, 7 Watts, 387; 
 Kerns®. Swope, 2 Watts, 75; Lewis ». Bradford, 
 10 Watts, 67; Randall v. Silverthom, 4 Barr. 173 j 
 Hetherington ®. Clark, 6 Casey, 393; Plumer®. 
 Robertson, 6 S. & B. 179; Bracken v. Miller, 4 W. 
 &S. 102; Hoffman®. Strohecker, 7 Watts, 90; 
 Jacques ®. Week, 7 Watts, 261 ; Union Canal 
 Co. ®. Young, 1 Whart. 432; Sailor ®. Hertzog, 
 4 Whart. 264; Bellas ®. MeCarty, 10 Watts, 13; 
 Philips®. B'k of Lewietown, 6 Harris, 394; Mott 
 e. Clark, 9 Barr. 399; Hoffman®. Strohecker, 7 
 Watts, 86. 
 
 109 
 
§ 88 
 
 EQUITY JUEISPRUDENCK. 
 
 [CH. V. 
 
 Tennessee, Texas, West Virginia, Alabama, District of Columbia, 
 ■Georgia, Ohio, South Carolina and Virginia.' 
 
 On the other hand, in a few of the states the statute provides 
 expressly that the unrecorded deed shall be void as against subsequent 
 purchasers without actual notice; thus excluding by implication the 
 equitable rule, that a subsequent purchaser loses his priority of right 
 over the prior deed or claim where he is simply charged with con- 
 structive notice. The purchaser, in order that he might lose his 
 priority under the recording acts of these states, must be shown to 
 have had in legal contemplation actual notice of the prior unrecorded 
 deed. Such is the law in Arkansas, Kansas, Maine, Massachusetts, 
 Missouri, and New Mexico.^ In consequence, however, of the fact 
 that in these states, constructive notice is excluded from affecting the 
 
 I Calvin v. Bowman, 10 Iowa, 529; Sooles v. 
 Wilsey, 11 Iowa, 261; Miller v. Bradford, 12 
 Iowa, 456j English ». Waples, 12 Iowa, 570j 
 Baynes v. Seaohrest, 13 Iowa, 455; Breed i>. 
 ■Conley, 14 Iowa, 269; Stewart v. Huff, 19 Iowa, 
 557; Gowert). Doheney, 33 Iowa, 36; Senter v. 
 Turner, 10 Iowa, 517; Brinton v. Seevers, 12 
 Iowa, 389; Dargin v. Beeker, 10 Iowa, 571; 
 Koons V. Grooves, 20 Iowa, 373; Brlnghoff v. 
 Munzenmaier, 20 Iowa, 513; Gardner v. Cole, 
 ■21 Iowa, 205; Willard «. Kramer, 36 Iowa, 22; 
 ■Graves v. Ward, 2 Dev. 201; Forepaugh ». 
 Appold, 17 B. Mon. 625, 631; Edminster t). 
 Higgins, 6 Neb. 269; Galway v. Malchow, 7 
 Neb. 289; Benneti). Fooks, 1 Neb. 465; Metzu. 
 State B'k of Brownville, 7 Neb. 171; Colt v. 
 Du Bois, 7 Neb. 394; Dorsey ». Hall, 7 Neb. 465; 
 Mansfield v. Gregory, 8 Neb. 735; Berkley v. 
 Lamb, 8 Neb. 399; Merriman v. Hyde, 9 Neb. 
 120; Harral v. Gray, 10 Neb. 289; Lincoln B & 
 'S. Association tj. Hass, 10 Neb. 583; Hooker v. 
 Hammill, 7 Neb. 234; Jones v. Johnson 
 Harvester Co., 8 Neb. 451; Thomas v. Black- 
 more, 5 Yerg. 113, 124; Hays v. McGuire, 8 
 Yerg. 92, 100; Vance «. McNairy, 3 Yerg. 176; 
 Shields v. Mitchell, 10 Yerg. 8; May v. Mc- 
 Keenon, 6 Humph. 209; Coster v. B'k of Ga., 24 
 12 Ala. 37; De Veudal v. Malone, 25 Ala. 272; 
 Gray's Adm'rs v. Cruise, 36 Ala. 559; Wallis v. 
 Khea, 10 Ala. 451 ; 12 Ala. 646; Jordon v. Mead, 
 Ala. 247 Bearing v. Watkins, 10 Ala. 20; Boyd 
 V. Beck, 29 Ala. 703; Wyatt v. Stewart, 34 Ala. 
 716; Center v. P. & M. B'k, 22 Ala. 743; Smith 
 V. Branch B'k, 21 Ala. 125; Andrews v. Bums, 
 11 Ala. 691; Daniel ». Sorrells, 9 Ala. 436; Ohio 
 Life, &c. Co., V. Ledyard, 8 Ala. 866; Williams 
 «. Adams, 43 Ga. 407; Williams v. Logan, 32 
 ■Ga. 165; Allen v. Holding, 29 Ga. 485; S. C, 32 
 Ga. 418; Lee V. Cato,-27 Ga. 637; Burkhalter v. 
 Ector, 25 Ga. 55; Wyatt V. Elam, 19 Ga. 335; 
 Felton V. Pitman, 14 Ga. 536; Eushim v. 
 Shields, 11 Ga. 636; Herndon v. Kimball, 7 Ga. 
 432; Hardaway ». Semmes, 24 Ga. 305; see Doe 
 V. B'k of Cleveland, 3 McLean, 140; Smith v. 
 Smith, 13 Ohio St. 532; Lessee of Cunningham 
 «. Buckingham, 1 Ohio, 264; Lessee of Allen v. 
 
 110 
 
 Parish, 3 Ohio, 107; Northrup's Lessee v. 
 Brehmer, 8 Ohio, 392; Lessee of Irving ». 
 Smith, 17 Ohio, 226; Spader v. Lawler, 17 Ohio, 
 371; Leiby's Ex'rs v. Wolf, 10 Ohio, 83; Price v. 
 Methodist Episcopal Church, 4 Ohio, 515; 
 Stansell ». Roberts, 13 Ohio, 148; Mayham v. 
 Coombs, 14 Ohio, 428; Bloom v. Noggle, 4 Ohio 
 St. 45; Bercaw v. Coekerill, 20 Ohio St. 163; 
 Williams v. Beard, 1 S. C. 309; Boyce v. 
 Shiver, 3 S. C, 515; Steele t). Mansell, 6 Rich, 
 437; Stokes v. Hodges, 11 Rich. Eq. 135; B'k of 
 State ». S. C. Man Co. 3 Strobh. 190; Tacts. 
 Crawford, 1 McCord, 265; Massey ZJ. Thompson, 
 2 Nott & McC. 105; Dawson v. Dawson, Rice 
 Eq. 243; McFall V. Sherrard, Harper, 295; 
 Beverley v. Ellis, 1 Rand. 102; Bird V. Wilkin- 
 son, 4 Leigh, 266; Beck's Adm'rs v. De Babtlsts, 
 
 4 Leigh, 349; Lane v. Mason, 5 Leigh, 520; 
 McClure v. Thistle's Ex'rs, 2 Gratt. 182; Glaze- 
 brook's Adm'r v. Bagland's Adm'r, 8 Gratt. 
 344. 
 
 ' See Byers v. Engles, 16 Ark. 543; Hamilton 
 V. Fowlkes, 16 Ark. 340; see Dacoway v. Gait, 
 20 Ark. 190; School Dist. v. Taylor, 19 Kans. 
 287; Simpson v. Munder, 3 Kans. 172; Brown V. 
 Simpson, 4 Kans. 76; Claggett v. Crall, 12 
 Kans. 393, 397; Wockersham V. Chicago, Ac. 
 Co., 18 Kans. 487; Johnson v. Clark, 18 Kans. 
 157, 164; Jones v. Lapham, 15 Kans. 540; 
 Porters. Sevey, 43 Me. 519; Goodwin v. Cloud- 
 man, 43 Me. 577; Merrill ». Ireland, 40 Me. 569; 
 Hanly v. Morse, 32 Me. 287; Spofford v. Weston, 
 29 Me. 140; Butler v. Stevens, 26 Me. 484; 
 Roberts v. Bourne, 23 Me. 165; Veazle V. 
 Parker, 23 Me. 170; Pierce V. Taylor, 23 Me. 
 246; Rackleff«. Norton, 19 Me. 274; Lawrence 
 V. Tucker, 7 Me. 195; Kent v. Plummer, Me. 
 464; Stetson v. Gulliver, 2 Cush. 494, 497; Dole 
 V. Thurlow, 12 Mete. 157, 163; Bayley v. Bailey, 
 
 5 Gray, 505, 610; Marshall v. Flsk, 6 Mass. 24, 
 30; Coffin v. Ray, 1 Meto. 212; Plynt v. Arnold, 
 2 Mete. 619; Curtis ». Mundy, 3 Meto. 4(6; 
 Houghton V. Bartholomew, 10 Mete. 138; Pom- 
 lojv. Stevens, 11 Mete. 244; Stewart «. Clark, 13 
 Meto. 79; Reed v. Ownby, 33 Mo. 204 j Valen- 
 tine V. Hamer, 20 Mo. 133; Davis v. Ownsby, 14 
 Mo. 170. 
 
CH. v.] 
 
 NOTICE. 
 
 § 89 
 
 priority of a subsequent purchaser, the disposition of the courts in 
 these states is to stretch the meaning of the term actual notice as far 
 as possible, in order to include under the heading of actual notice all 
 the possible modes of giving notice to a purchaser.* 
 
 § 89. ConstructiTe notice arising from extraneous facts. — The 
 cases of constructive notice which would arise under this heading are 
 so numerous and varied in character that it would be impossible to 
 enumerate them all; and the most that can be done is to give a few 
 illustrative examples, indicating the general character of the circum- 
 stances which would be sufficient to support the presumption of actual 
 notice of the adverse title or claim. The general rule is, that only those 
 facts and circumstances are sufficient to support and raise the presump- 
 tion of notice, which are sufficient in character to put a careful and 
 prudent man upon an inquiry into the existence of some adverse title 
 or claim to the property. Any fact or circumstance which would 
 exert that influence upon a prudent man would be sufficient to create 
 the constructive notice.^ Most of these cases indicate or convey con- 
 
 1 See ante, § 76; Bartlett v. Glascock, 4 Mo. 
 88, 66; Epley V. VVltherow, 7 Watts, 163, 167; 
 Jacques v. Weeks, Watts, 261, 8r4; Buttricks. 
 Holden, 13 Met. 355, 357; see Brlnkman k. 
 Jones, 44 Wis. 498, 517, 519, 521, 523; Brown v. 
 Volkening, 64 N. Y. 76, 82, 83; Lambert v. 
 Newman, 56 Ala. 623, 625; Curtis v. Blair, 4 
 Cnshm. (Miss.) 309, 328; Hull v. Noble, 40 Me. 
 459, 480; Warren v. Swett, 31 N. H. 332, 341; 
 Helms V. Chadboume, 45 Wis. 60, 70, per Cole, 
 J.; Cbicago, <fec. E. R. v. Kennedy, 70 111. 350; 
 561, per Walker, J. ; Tillinghast v. Ohamplln, 4 
 R. I. 173, 215; Buck v. Paine, 50 Miss. 648, 655j 
 Sbepardson v. Stevens, 71 111. 646; Erickson v. 
 Rafferty, 79 111. 209, 212; Carter v. City of Port- 
 land, 4 Oreg. 339, 350; Pringle v. Dunn, 37 Wis. 
 449, 460, 461, 465; Parker v. Kane, 4 Wis. 1; 
 Reynolds v. Ruckman, 35 Mich. 80; Lough- 
 ridge V. Bowland, 53 Miss. 516, 553, 555; Sbot- 
 -well V. Harrison, 30 Mich. 179; Munroe v. 
 Eastman, 31 Mich. 283; Eck v. Hatcher, 58 Mo. 
 235; Tefts v. King, 6 Harris, (18 Pa. St.) 157, 160; 
 Rogers v. Jones, 8 N. H. 264; Maupin v. 
 Emmons, 47 Mo. 304, 306, 307; Parker v. Foy, 43 
 Miss. 260, 266; Wailes v. Cooper, 24 Miss. 208, 
 228; Griffith v. Griffith, 1 Hoff. Ch. 153; Nelson 
 •». Sims, 1 Cushm. 383, 388; Barnes v. McClon- 
 ton, 3 Penn. 67. 
 
 2 Buntings. Ricks, 2 Dev. & B. Eq. (N. Car.) 
 130; 8. c, 33 Am. Dec. 699; Warren v. Swett, 31 
 N. H. 332; Dow V. Sayward, 14 N. H. 9; Parker 
 V. Connor, 93 N. Y. 118; s. c, 45 Am. Rep. 178; 
 Heaton v. Parther, 84 III. 330; Hewitt v. Clark, 
 91 111. 605; .lEtna L. Ins. Co. v. Ford, 89 111. 252; 
 Lumbard v. Ebbey, 73 111. 178; Ellis «. Hore- 
 man, 90 N. Y. 466; Williamson v. Brown, 15 N. 
 Y. 354; Howard Ins. Co. v. Halsey, 4 Sandf. (N. 
 Y.) 578; Kellogg J). Smith, 26 N. Y. 18; Chicago 
 V. Witt, 75 111. 214; Chicago, &o. R. Co. v. Ken- 
 nedy, 70 111. 350; Erickson v. EafFerty, 79 111. 
 S09; Tuttle V. Jackson, 6 Wend. <N. Y.) 213; s. 
 
 c, 21 Am. Dec. 306; Grimstone v. Carter, 3 
 Paige, (N. Y.) 421; s. c. 24 Am. Dec. 230; Jack- 
 son t). Post, 15 Wend. (N.Y.) 588; Stokes ». 
 Riley, 121 111. 166; Doyle v. Teas, 5 111. 202- 
 Sbepardson v. Stevens, 71 111. 646; Hankinson 
 V. Barbour, 29 111. 80; Redden v. Miller, 95 111. 
 336; Reeds. Gannon, 50 N. Y. 345; Fassett ». 
 Smith, 23 N. Y. 252; Brown v. Taber, 5 Wend. 
 (N. Y.) 566; Hunt ». Stoneburner, 92 111. 75; 
 Russell V. Rauson, 76 111. 167; Watt v. Scofield, 
 76 111. 261; Morrison v. Kelley, 23 111. 610; s. c, 
 74 Am. Dec. 169; Cox. v. Milner, 23 111. 476; An- 
 derson V. Nicholas, 28 N. Y. 600; Schutt v. 
 Large, 6 Barb. (N. Y.) 382; Reynolds v. Darling, 
 43 Barb. (N. Y.) 483; Butler*. Viele, 44 Barb. 
 (N. Y.) 68; Indiana, &c. R. Co. v. McBroom, 
 114 Ind. 598; s, c, 33 Am. & Bug. R. -Cas. 90; 
 Wilson V. Hunter, 30 Ind. 466; Case v. Bum- 
 stead, 24 Ind. 429; Merithew v. Andrews, 44 
 Barb. (N. Y.) 207; Lamont v. Cheshire, 65 N. Y. 
 30; Pendleton v. Fay, 2 Paige, (N. Y.) 202;Haw- 
 ley V. Gramer, 4 Cow. (N. Y.) 717; Moreland v, 
 Lemasters, 4 Blaokf. (Ind.) 383j Wallace v. 
 Furber, 62 Ind. 103; Wilson v. Hunter, 30 Ind. 
 466; Swarthout v. Curtis, 5 N. Y. 301; Jackson 
 V. Cadwell, 1 Cow. (N. Y^.) 622j Baker v. Bliss, 
 
 39 N. Y. 70; Pitney ». Leonard, 1 Paige, (N. Y.) 
 461; Clark v. Holland, 72 Iowa, 34; Coleman v. 
 Reel, 75 Iowa, 304; Leas v. Garverich, 77 Iowa, 
 275; Bradlee v. Whitney, 108 Pa. St. 363; Mulll- 
 ken V. Graham, 72 Pa. St. 484; Barnes v. Mc- 
 Clinton, 3 P. <fc W. (Pa.) 67; s. c, 23 Am. Dec. 
 62; Wilson v. Miller, 16 Iowa, HI ; Hull v. Noble, 
 
 40 Me. 459 ; Jacob Dold Packing Co. V. Ober, 
 Md.) 18 Atl. Rep. 34; Ringgold V. Bryan,3 Md., 
 Ch. 488 ; Hill V. Epley, 31 Pa. St. 331 ; Sergeant v. 
 IngersoU, 15 Pa. St. 343; Butcher a. Yocum, 61 
 Pa. St. 168; s. c, 100 Am. Deo. 625; Stookettli. 
 Taylor, 3 Md. Ch. 537; Price v. McDonald, 1 
 Md. 403; s. c.,54 Am. Dec. 661 ; Hardy ». Sum- 
 mers, 10 Gill & J. (Md.) 324; o. o.,32Am. Deo. 
 
 Ill 
 
EQUITY JTJKISPRUDENCE. 
 
 [CH. V. 
 
 struct! ve notice of some fraud, accident or mistake in the transfer of 
 the property, which supports an adverse claim to such property on 
 the part of those whose rights have been injuriously affected by such 
 fraud, accident or mistake. Among the circumstances which tend to 
 support the constructive notice of fraud or the like, are: the great 
 inadequacy of price which was paid for the property;^ the withdrawal 
 of deeds from record;' a refusal to make any full or complete 
 assurance of title or covenant of warranty.' On the other hand, 
 inaccurate or vague statements, which only furnish the ground for 
 suspicions of an indistinct character, cannot support the claim of a 
 presumption of constructive notice. The purchaser is not charged 
 with constructive notice of a prior claim, where the character of the 
 information is so indefinite as to furnish him no clue for obtaining 
 actual knowledge of the claim.* Among the cases which arc held to 
 
 167; Wilson v. McCulIough,g3Pa. St. 440; e. c, 
 62Am. Deo. 347; Knouflf v. Thompson, 16 Pa. 
 St. 357; Jacques J). Weeks, 7 Watts, (Pa.) 267; 
 Epley «. Witherow,7Watts, (Pa.) 167; Baynard 
 ■v. Morris, 5 Gill, (Md.) 483; e. c, 46 Am. Dec. ^ 
 647; Baxter v. Sewell, 3 Md. 334 ; Michigan Mut. ' 
 L. Ins. Co. V. Conant, 40 Mich. 530; Maul 
 V. Eider, 59 Pa. St. 167; Reeves v. Sims, 10 S. 
 Car. 308;Gibbes». Cobb, 7Kioh. Eq. (S. Car). 
 54j Allen v. Cadwell, 55 Mich. 8; Atty.-Gen. 
 V. Smith, 31 Mich. 359 j James «. Brown, 
 11 Mich. 25; Wilcox. D. Hill, 11 Mich. 256; 
 Payne v. Abercromble, 10 Heisk. (Tenn.) 161; 
 Wethered v. Boon, 17 Tex. 143; Powell v. 
 Haley, 28 Tex. 52; Mayfleld ». Averitt, 11 Tex. 
 140; Hart ffl. McDade, 61 Tex. 209; Hanover F. 
 Ins. Co. 1). Ames, 39 Minn. 150; Morrison v. 
 March, 4 Minn. 422; Plant v. Shryock, 62 Miss. 
 821; Parker v. Foy, 43 Miss. 860; s. o.,65Am. 
 Eep. 484; Bacon v. O'Connor, 25 Tex. 213; Eorer 
 Iron Co. V. Trout, 83 Va. 397; Morgan v. Fisher, 
 82 Va. 417; Eobinson v. Chenshaw, 84 Va. 348; 
 McLeod V. First Nat. Bank, 42 Miss. 99; Lough- 
 ridge i>. Bowland, 52 Miss. 646; EolHns v. Cal- 
 lender, Freem. Ch. (Miss.) 895; Meier «. Blume, 
 80 Mo. 179; GraflE v. Castleman, 5 Eand. (Va.) 
 207; s. u., 16 Am. Dec. 741 ; Town of Woodbury 
 B. Bruce, 59 Vt. 624 ; Blarsdell v. Stevens, 16 Vt. 
 179; Lodge v. Simonton, 2 P. & W. (Pa.) 439; s. 
 c, 83 Am. Deo: 36 ; Webb V. Eobbins, 77 Ala. 176 ; 
 Centers. Planters', &c. B'k, 28 Ala. 743; Hoyt, 
 &a. Mfg. Co. V. Turner, 84 Ala. 623; Staflford v. 
 Ballou, 17 Vt. 329; M'Daniels v. Fowler Brook 
 Mfg. Co., 22 Vt. 274; Stevens v. Goodenough, 86 
 Vt. 676; Fidelity Ins., &c. Co. v. Shenandoah 
 Valley E. Co., 32 W. Va. 244; Lamont v. Stim- 
 Bon, 5 Wis. 447; Boggs ». Price, 64 Ala. B14; 
 Tompkins v. Henderson, 83 Ala. 391; Kyle v. 
 Ward, 81 Ala. 180; Le Grand v. Eufaula Nat. 
 Bank, 81 Ala. 123; Parker v. Kane, 4 Wis. 16; 
 s. 0., 65 Am. Dec. 283; De Witt v. Perkins, 28 
 Wis. 473; Brewer v. Browne, 68 Ala^ 210; McGe- 
 hee V. Gindrat, SO Ala. 95; Mobile, &o. R. Co. 
 V. Felrath, 67 Ala. 189; Helms «. Chadbourne, 
 45 Wis. 60; Hamlin v. Wright, 26 Wis. 50; Brown 
 ». Peck, 8 Wis. 861; Oliver v. Piatt, 3 How. (D. 
 
 112 
 
 S.) 333; Hodges v. Coleman, 76 Ala. 103; Wiley 
 V. Knight, 27 Ala. 336; Einggold v. Waggoner, 
 14 Ark. 69; Holies v. Channcey, 8 Conn. 389; 
 Hinde v. Vattier, 1 McLean, (U. S.) 110; Tardy 
 ». Morgan, 3McLean, (U. S.) 358; Sigourney«. 
 Munn, 7 Conn. 335; Booth v. Barnum, 9 Conn. 
 286 ; s. c. , 23 Am. Deo. 339 ; Peters «. Goodrich, a 
 Conn. 146; Boswell v. Goodwin, 31 Conn. 84; s. 
 o., 81 Am. Dee. 169 ; Godfrey «. Beardsley, 8 Mo- 
 Lean, (U. S.) 418; Carr v. Hilton, 1 Curt. (U. S.) 
 390; United States v. Sturgess, 1 Paine, (U. S.) 
 525; Filmore v. Reitchman, 6 Colo. 120; Brad- 
 ford V. Carpenter, 13 Colo. 30; Galland v. Jack- 
 man, 26 Cal. 79; s. c, 85 Am. Deo. 172; Lowry«. 
 Commercial & Farmers' Bank, 3 Am. L. J. Ill; 
 Almy V. Wilbur, 3 Woodb. & M. (U. S.) 371; 
 Wright «. Ross, 36 Cal. 414; Gress «. Evans, 1 
 Dak. Ter. 387; Leavenworth Co. v. Chicago, &o. 
 R. Co., 18 Fed. Eep. 209; s. u., 12 Am. & Eng. R. 
 Cas. 354; Foster v. Ambler, 24 Fla. 519; Mat- 
 thews V. Poythress. 4 Ga. 237; Planters' Eloe 
 Mill Co. «. Olstead, 78 Ga. 686; Duncan V. Mo- 
 bile, &c. R. Co., 3 Woods, (U. S.) 567; Peiroe V. 
 United States, Ct. of CI. 270; Flaggs. Mann, 8 
 Sumn. (tf. S.) 486; Hoxie v. Carr, 1 Sumn. (U. S.) 
 175; Dueber Watch Case Mfg. Co. v. Dalzell, 38 
 Fed. Eep. 597; Trask«. Jacksonville, &o. R. Co., 
 124 tr. S. 515. 
 
 T Beadiest). Miller, 9 Bush, (Ky.) 405; Eck v. 
 Hatch, 58 Mo. 235; Hoppin v. Doty, 25 Wis. 673; 
 Singer v. Jacobs, 3 McCrary, (U. S.) 638; Runkle 
 V. Gaylord, 1 Nev. 183; Hoyt v. Hoyt, 8 Bosw. 
 (N. Y.) 511; Tillinghast v. Champlln, 4 R. I. 
 173; s. c, 67 Am. Dec. 610; Le Glerse v. White- 
 hurst, 66 Tex. 844. 
 
 2 Lawton v. Gordon, 37 Cal. 202. 
 
 8 Woodfol'k V. Blount, 3 Hayw. (Tenn.) 147; 
 B. 0., 9 Am. Deo. 736; Lowry«. Brown, 1 Coldw. 
 (Tenn.) 456. 
 
 * Filmore v. Reithman, 6 Colo. 180; Parker*. 
 Kane, 4 Wis. 1; s. c, 65 Am. Deo. 283; Lamont 
 •». Stimson, B Wis. 443; Maul v. Rider, 59 Pa. St. 
 178; see, also, Jacquess. Weeks, 7 Watts, (Pa.) 
 861; Kerns «. Swope, 3 Watts, (Pa.) 75; Pittman 
 V. Sofley, 64 111. 155; Jenkins v. Rosenberg, 105 
 111. 157; Emmons v. Murray, 16 N. H. 385; Rat- 
 
CH. v.] NOTICE. § 89 
 
 support the constructive notice of an adverse claim, are those in which 
 a purchaser is charged, with constructive notice of an existing easement, 
 where there are visible structures upon the land of such a character as 
 to indicate the existence of an easement over that land in favor 
 of another. For example, the presence of an archway under a house 
 would indicate the existence of a right-of-way over that land in the 
 archway in favor of the adjoining property. So also, the presence of 
 mill-dam would indicate the existence of an easement in favor of the 
 extraordinary use of the stream ; and other examples of a Kke character 
 are found in the cases cited in the note. ' 
 
 In England, a very common ground for constructive notice of an 
 outstanding claim or title, is the absence from the possession of the 
 vendor of the title-deeds of the property; such absence of the title- 
 deeds serving to charge the purchaser with constructive notice of 
 the existence of a mortgage upon the property by deposit of the title- 
 deeds. In England, in the absence of a general recording law, the 
 purchaser is charged with the duty of inquiring after the title-deeds 
 which together constitute the chain of title; and if the vendor has not 
 the possession of them, this is a fact or circumstance which at once 
 would charge the purchaser with the duty of inquiring into the cause of 
 their absence from the vendor's possession. He is, therefore, charged 
 by the fact with constructive notice of the existence of whatever claim 
 in the shape of a mortgage by the deposit of title-deeds the possessor 
 of the title-deeds might have against the property.* The purchaser, 
 however, is not charged with an absolute constructive notice of the 
 mortgage by a deposit of title-deeds; he is only charged with the duty 
 of making a due inquiry into the cause of the absence of the title- 
 deeds from the vendor's possession. This constructive notice certainly 
 becomes absolute when he fails to make the inquiry, or makes an 
 insufficient inquiry into the cause of their absence. ' If, on the other 
 hand, a rigid inquiry is made into the cause of the absence of the title- 
 deeds without leading to the discovery of the existence of a mortgage 
 
 teree«. Conley, 74Ga. 153; Black «. Thornton, liamson v. Brown, 15 N. Y. 354; Jackson ri. 
 
 31 Ga. 641; Churohee «. Guernsey, 39 Pa. St. 86; Given, 8 Johns. (N. Y.) 137; s. c. Am. Dec. 388. 
 
 Peebles v. Beading, 8 S. & R. (Pa.) 484; Lewis i Pyer «. Carter, 1 H. & N. 916; Clements v. 
 
 V. Bradford, 10 Watts, (Pa.). 67; Miller v. Ores- Welles, L. E. 1 Eq. 20O; Wilson' v. Hart, L. E. 
 
 son, 5 W. & S. (Pa.) 284; Cleveland Woolen i Ch. 463; Hoy v. Bramhall 19 N. J. Eq. (4 C. 
 
 Millst). Sibert, 81 Ala. 140; Gill «. MoAttee, 2 Md. B. Green) 563; Eandall v. Silverthorn, 4 Barr. 
 
 Ch. 255; Foust v. Moorman, 2. Ind. 17; Otis v. 175; Paul v. Connersville, &0. E. E., 51 Ind. 527, 
 
 Spencer, 102 III. 622; s. c, 40 Am. Rep. 617; 530; Hervey «. Smith, 23 Beav. 299; Davies «. 
 
 Boggsj;. Vamer, 6 W. & S. (Pa.) 469; Mulliken Sear, L. E. 7 Eq. 4S7, 432, 433s Morlandt). Cook, 
 
 ■D. Graham, 72 Pa. St. 484; Bugbee's Appeal, 110 L. E. 6 Eq. 252, 263, 265; Earitan Water P. Co. 
 
 Pa. St. 331; Wilson v. McCuUough, 25 Pa. St. «. Veghte, 21 N. J. Eq. (6 C. E. Green) 463, 478. 
 
 440; s. c, 62 Am. Dec. 347; Noroross v. Widg- ^ Kellogg v. Smith, 26 N. Y. 18, 23; Dryden D. 
 
 ery, 2 Mass. 509; Buttrick v. Holden, 13 Met. Froat,3 My. ACr. 670, 673, perLordCotterhamj. 
 
 (Mass.) 355; Hewes v. Wlswell, 8 Me. 98; But- Bradley*. Eiches, L. E. 9 Ch. D. 189, 195, 196;, 
 
 leri). Stevens, 26 Me. 484; Loughridge v. Bow- Maxfield v. Burton, L. R. 17 Eq. 15, 18. 
 
 land, 52 Miss. 546; Wailes v. Cooper, 24 Miss. s Jones ». Williams, 24 Beav. 47; Hopgood®.. 
 
 228; Buck -o. Paine, 50 Miss. 648; Dey v. Dun- Ernest, 3 De G. J. & S. 116, 121; Jones v. Smithy 
 
 ham, 2 Johns. Ch. (N. Y.) 190; M'Mechan «. 1 Hare, 43; 1 Ph. 244; Maxfield ». Burton, L. E. 
 
 Grlfflng, 3 Pick. (Mass.) 149; s. c. Am. Dec. 17 Eq. 15, 18; Bradley i;. Riches, L. E. 9 Ch. D. 
 
 198; Condit v. Wilson, 36 X. Y. J. Eq. 370; Wil- 189, 195, 196. 
 
 8 
 
 113 
 
§ 90 EQUITY JUEISPRUDENOE. [CH. V. 
 
 by deposit of the title-deeds, then the purchaser purges himself of all 
 charge of negligence and can claim the benefits of a bona fide purchaser. 
 This is particularly the case, where the equitable mortgage is secured 
 by the deposit, not of all the title-deeds, but of only one or two of 
 them. In such a case, the vendor may make a satisfactory explanation 
 of the cause of their absence; as for example, their destruction or loss. 
 And if under the circumstances of the particular case it is impossible to 
 discover any clue for a further investigation into the cause of the 
 absence of the title-deed or deeds, the purchaser is then not charged 
 with constructive notice.^ Inasmuch as the general recording laws of 
 this country relieve the purchaser of the duty of inquiring after 
 the existence of the original title-deeds, the deposit of the title-deeds 
 does not charge the purchaser with constructive notice of the equi- 
 table mortgage, certainly not where the purchaser does not know that 
 the title-deeds have been deposited with the third person.^ 
 
 § 90. Recitals in mnnimeiits of title. — A purchaser of property is 
 also charged with constructive notice of every piece of information 
 which can be ascertained from, and which is communicated by recitals 
 in the deed of conveyance which constitutes a link in the chain of title. 
 He is charged with the duty of inquiring into, and becoming acquainted 
 with, all of the essential parts of these title-deeds which together con- 
 stitute the chain of title.' The purchaser is presumed to know of all 
 the contents of these deeds, not only in the granting clause of the deed, 
 but likewise in the covenants,* and every other provision in such deed, 
 whereby his own interest can be affected.* This rule is applied and a 
 constructive notice raised even as to the contents of deeds constituting 
 
 1 Colyer ». Finch, 5 H. L. Gas. 905; Dixon ». ber, 21 Gratt. 446; Long «. Weller's Ex'ra, 
 Muokleston, L. E. 8 Ch. 155, 158, 161; RatclMe 29 Gratt. 347; Brush v. Ware, 15 Pet. 93, 114; 
 V. Barnard, L. E. 6 Ch. 652, 654. Kerr v. Kitchen, 5 Harris (17 Pa. St.) 433; 
 
 2 See post §§ 300, 304. Mueller «. Engein, 12 Bush. 441, 444; Stidham 
 'Merrick*. Wallace, 19 ni. 486; Morrisons. «. Matthews, 29 Ark. 650, 659, 660; Pringle ». 
 
 Kelley, 22 111. 610; Morris v. Hoyle, 37 Ind. 150; Dunn, 37 Wis. 449, 464; Fitzhugh «. Barnard, 
 
 Doyle V. Teas, 4 Seam. 202; Wiseman «. Hutch 12 Mich. 105; Case ». Erwin, 18 Mich. 434; Baker 
 
 inson, 20 Ind. 40; Croskey «. Chapman, 26 Ind.- «. Mather, 25 Mich. 51, 63; Frost v, Beekman, 1 
 
 333; Johnston v. Gwathmey, 4 Litt. (Ky.) 317 ; Johns. Ch. 288, 298; Howard Ins. Co. v. Halsey, 
 
 Corbitt V. Clenny, 52 Ala. 480, 483; Prye « 8N. Y. 271; Gibert v. Peteler, 38 N. Y. 165; 
 
 Partridge, 82 111. 267, 270; Chicago, &c. R. E; Acer*. Westcott, 46 K. Y. 384; Murrell ». Wat- 
 
 «. Kennedy, 70 III. 350, 361, 362; Eupert v. Markj son, 1 Tenn. Ch. 342. 
 
 15 111. 540; McConnell v. Eeed, 4111. 117; Allen « Martin v. Cotter, 3 Jo. & Lat. 496, 506; Wil- 
 li. Poole, 54 Miss. 323; Deason v. Taylor, 53 111. braham v. Livesey, 18 Beav. 206; Drysdale v. 
 697, 701; Raffertys. Mallory,3Biss.362, 368, 369; Mace, 2 Sm. & Gif. 225; Smith v. Capron, 7 
 Green v. Early, 39 Md. 223, 229; White v. Pos- Hare, 185; Clements v. Welles, L. R. 1 Eq. 200. 
 ter, 102 Mass. 375, 380; Dudley «. Witter,. 46 Ala 6 Acer d. Westcott, 1 Lftns. 193; Jumel ». 
 664, 694, 695; Buroh" v. Carter, 44 Ala. 115, 117: Jumel, 7 Paige, 591; Brlggs v. Palmer, 20 Barb. 
 Campbell ». Eoach, 45 Ala. 667; Witters. Dud- 392; 20 N. Y. 15; 21 N. Y. 574; Babcock ». Lisk, 
 ley, 42 Ala. 616, 621, 625; Acer ®. Westcott, 1 Will. 327; Howard Ins. Co. «,. Halsey, 8 N. Y. 
 Lans. 193, 197; Sigoumey*. Munn, 7Conn. 324; 271; 4 Sandf. 565; Guion v. Knapp, 6 Paige, 35; 
 Chrlstman t). Mitchell, 3 Ired. Eq. 535; Hag- Harris ». Ply, 7 Paige, 421; Dargin r. Beeker, 10 
 throp D. Hook's Adm'rs, 1 Gill & J. 270; New- Iowa, .571 ; Hamilton v. Nutt, 34 Conn. 601; Mo- 
 som V. Collins, 43 Ala. 656, 663; Major v. Buck- Ateer r. McMullon, 2 Barr. 32; Martin v. Nash, 
 ley, 51 Mo. 227, 231, Ridgeway». Holliday, 59 31 Miss. 324; Sanborn ». Robinson, 54 N. H. 239; 
 Mo. 444; Willis?;. Gray, 48 Tex. 463; Greenfield Brown v. Simons, 44 N. H. 475; Pike ». Good- 
 1). Edwards, 2 De G. J. & S. 682; Wood «. now, 12 Allen, 472; George ». Kent, 7 Allen, 16. 
 Krebbs, 30 Gratt. 708; Burwell's Ex'rs «. Fau- 
 
 114 
 
CH. V.J NOTICE. § 90 
 
 t"he chain of title, even though they may be unrecorded."^ Thus for 
 example, a deed, which contains an acknowledgment of the fact that 
 the purchase-money remains unpaid, is constructive notice of the exist- 
 ence of a vendor's lien, unless the deed contains an express waiver of 
 such lien.^ So also would terms in a deed which indicate the consid- 
 eration of the conveyance tend to charge the purchaser with construct- 
 ive notice of the existence of an adverse claim.' So, likewise, state- 
 ments or recitals in the deeds or other instruments of conveyance, like 
 a certificate of stock, that the stock or other property is held by the 
 vendor in trust for another, will charge the purchaser with construct- 
 ive notice of the rights of the cestui que trust.'' But the recitals in the 
 deed will not charge a purchaser with constructive notice, where such 
 recitals are collateral in character, and do not relate to, or affect in any 
 manner, the purchaser's interest in the property purchased; recitals in 
 the deed are only constructive notice of claims against the property 
 purchased in that particular transaction.^ 
 
 Not only is the purchaser bound with constructive notice by recitals 
 of deeds constituting the chain of title which directly indicate the char- 
 acter as well as the existence of an adverse claim; but the purchaser is 
 also charged with constructive notice of all of the recitals to be found 
 in deeds and other instruments of conveyance, which are referred to in 
 the muniments of title as affecting or controlling the interests of prop- 
 erty conveyed by such muniments of title. The reference to these 
 other deeds makes these deeds a part of the muniments of title; and 
 hence the recitals contained in these latter deeds support the presump- 
 tion of notice to the purchaser as effectively as if they were directly 
 contained in the muniments of title.' This rule will apply, and the 
 constructive notice arise from the recital of a collateral deed, where it 
 is referred to in one of the title-deeds, even though such collateral deed 
 has not been recorded. The constructive notice is not affected by the 
 want of record, although it might serve to make an unsuccessful inquiry 
 sufficient to purge the purchaser from the want of constructive notice, 
 
 1 Nelson v. Allen, 1 Yeig. 360; Honore'sEx'rs 42 Ala. 616, 621, 625; Coy v. Coy, 15 Minn. 119; 
 r. Blakewell, 6 B. Mon. 67; Wailes v. Cooper, Sergeant v. Ingersoll, 7 Barr. 340; 3 Harris, (15 
 24 Miss. 208; Johnson v. Thweatt, 18 Ala. 741; Pa. St.) 343, 348; Dudley v. Witter, 46 Ala. 664, 
 Howard Ins. Co. v. Halsey, 8 N. Y. 271 j 4 Sandf . 694. 
 
 S65; Stidham v. Matthews, 29 Ark. 650, 659, 660; ' Mueller v. Engeln, 12 Bush, 441, 444 ; Burch 
 
 Corbitt V. Clenny, 52 Ala, 480, 483. v. Carter, 44 Ala. 115, 117; Boggs v. Vamer, 6 
 
 2 Willis r. Gay, 48 Tex. 463; B. c, 26 Am. Rep. Watts & Serg. 489; Sleeper «. Chapman, 121 
 328j Lytlec. Turner, 12 Lea. (Tenn.)641; Wise- Mass. 404; Kansas City Land Co. v. Hill, 87 
 man v. Hutchinson, 20 Ind. 40; Orrlck «. Dun- Tenn. 589. 
 
 ham, 79 Mo. 179; Major v. Buckley, 51 Mo. 227; « See Howard Ins. Co. v. Halsey, 8 N. Y. 871; 
 
 Tydings v. Pitcher, 82 Mo. 379. 4 Sandf. 565; Guiou v. Knapp, 6 Paige, 35; Hon- 
 
 ' Briggs «. Eice, 130 Mass. 50; contra, Hume ore v. Bakewell, 6 B. Mon. 67; Thornton v. 
 
 V. Franzen, 73 Iowa 25. Knox, 6 B. Mon. 74 ; Avent v. MoCorkle, 45 Miss. 
 
 * Bayard r. Farmers', &c. Bank, 52 Pa. St. 233; 221; Wiseman v. Hutchinson, 20 Ind. 40; Cros- 
 
 Shawi". Spencer, lOO Mass. 382; B.C., 1 Am. Eep. key v. Chapman, 26 Ind. 333; Johnston V. 
 
 115; Jaudon v. Nat. City Bank, 8 Blatchf . (U. Gwathmey, 4 Litt. (Ky.) 317; Green v. Slayter, 
 
 S.) 439; s. c, 82 V. S. 165; Rafferty v. Mallory, 3 4 Johns. Ch. 38; Cambridge Bank v. Delano, 48 
 
 Biss. 362, 368, 369; Campbell v. Roach, 45 Ala. N. Y. 326; Deason v. Taylor, 53 Miss. 697, 701; 
 
 «67- Newsome v. Collins, 43 Ala. 656, 663; John- George v. Kent, 7 Allen, 16; Judson v. Dada, 79 
 
 son V Thweatt, 18 Ala. 741 ; Witter v. Dudley, N. Y. 373, 379. 
 
 115 
 
§ 91 EQUITY JURISPRUDENCE. [CH. V. 
 
 whereas the record of such a deed would make it impossible for an 
 inquiry to result in failure to obtain the information. ^ Thus, an instru- 
 ment which purports to be the execution of some decree or judicial 
 order, is constructive notice of the contents and of the character of such 
 decree or order. ^ But constructive notice will hot arise from the recitals 
 to be found in those papers or instruments not executed when the con- 
 veyance was made; the doctrine only applies to the recitals in deeds 
 found already executed when the conveyance is made.' Here, as in 
 the case of constructive notice, arising from extraneous facts, it is 
 necessary that the recitals in the deed should be sufficiently clear and 
 distinct to indicate the existence of some outstanding adverse claim. 
 If they are not sufficient to arouse the suspicion and attention of a rea- 
 sonably prudent man, they cannot charge the purchaser with the con- 
 structive notice of an adverse claim or title.* Although it has been 
 held that this constructive notice which arises from the recitals of title- 
 deeds is conclusive, and that the presumption cannot be re butted ;° yet 
 it has been held, and there can be very little doubt that the ruling of 
 the court is correct, that whenever, as a matter of fact, the purchaser 
 has made a diligent inquiry to satisfy himself of the existence and of 
 the character of the adverse claim, of which he is charged with con- 
 structive notice by the recitals of deeds, and the inquiry has resulted 
 in a failure to discover the character or existence of such claim, the 
 purchaser, by proof of such diligent inquiry, purges himself of the 
 otherwise existing constructive notice." Finally, it must be borne in 
 mind, that the recitals of deeds which do not themselves constitute, 
 either actually or by references to such recitals in deeds which are, a 
 link of the chain of title, are not sufficient to charge the purchaser with 
 constructive notice of an adverse claim.' 
 
 § 91. Constructive notice arising from possession. — Where 
 one purchases property in the possession of some one other than the 
 vendor, the general ruling of the courts charges him with constructive 
 notice of whatever claim the party having the possession might have 
 
 1 Howard©. Chase, 104 Mass. S49; George ». v. Carpenter, 2 Paige, (N. Y.) 217; Cambridge 
 Kent,'? Allen, 16; Garrett v. Puokett, 15 Ind. Valley Bank u. Delano, 48 N. Y. 326; Van Slyok 
 485; Stldham v. Matthews, 29 Ark. 650, 659, 660; v. Skinner, 41 Mich. 186; Morris v. Murray, 83 
 Baker v. Mather, 25 Mich. 51, 63; White v. Fos- Ky. 36; French v. Loyal Land Co., 5 Leigh, (Va.) 
 ter, 102 Mass. 375, 380; Ross v. Worthington, 11 627; White v. Carpenter, S Paige, 317, per Wal- 
 Minn. 438; Price v. McDonald, 1 Md. 403; Hud- worth, Chan. 
 
 son V. Warner, 2 Har. & G. 415; ^tna L. Ins. ■ « Nelson v: Allen, 1 Yerg. (Tenn.) 360; Wailes 
 
 Co. V. Bishop, 69 Iowa, 645; Dunham v. Dey, 15 v. Cooper, 24 Miss. 208. 
 
 Johns. (N. Y.) 556; Childs v. Clark, 3 Barb. Ch. » Ware v. Lord Egmont, 4 De G. M. & G. 460^ 
 
 (N. Y.) 52; s. c, 49 Am. Deo. 164; Central Trust 473; Harryman v. Collins, 18 Beav. 11 ; Bird v. 
 
 Co. V. Wabash, &o. E. Co., 29 Fed. Rep. 546. Pox, 11 Hare, 40; Allen v. Knight, 5 Hare, 273. 
 
 2 Lewis i>. Bourbon Co., 12 Kans. 186; Martin ' Ware v. Egmont, 31 Eng. L. & Eq. 89; Ding- 
 V. Neblett, 86 Tenn. 383. man «;. McCollum, 47 Mo. S73;Tyding». Pitcher,. 
 
 sCothay v. Sydenham, 2 Bro. Ch. 391; see, 83 Mo. 379; Corbln v. Sullivan, 47 Ind. 356; 
 
 also, CookB. Travis, 22 Barb. N. Y. 338: Cla- Burke v. Beveridge, 15 Minn. 205; Crockett ». 
 
 baugh i>. Byerly, 7 Gill, (Md.) 354; s. o., 48 Am. Maguire, 10 Mo. 34; Burch v. Carter, 44 Ala. 115; 
 
 Dec. 575. Hazlettc. Sinclair, 76 Ind. 400; s. a, 40 Am. 
 
 * Bell V. Twilight, 23 N. H. 500; s. l., 45 Am. Rep. 254; Coleman v. Barklew, 27 N. J. L. 367} 
 
 Dec. 367; Kaine v. Denniston, 22 Pa. St. 202; Boggs ». Varner 6 W. A ; . (Pa.) 469; Polk ». 
 
 Lodge V. Simonton, 2 P. & W. (Pa.) 317; White Cosgrove, 4 Biss. (U. S.) 487. 
 
 116 
 
<3H. V.J 
 
 NOTICE. 
 
 § 9] 
 
 against the vendor's interest in the land. The purchaser is, therefore, 
 bound to make an inquiry into the character of such adverse title; and 
 failing to do so, he is charged with notice of all the facts concerning 
 such adverse title which he could have ascertained by making the due 
 inquiry.^ While this is the general rule, that such possession charges 
 
 •Bealti. Gordon, 55 Me. 482; Hull ». Noble, 
 40 Me. 459; MoKecknie v. Hoskins, 23 Me. 830; 
 Howe». Willis, 51 Me. 226; Butler d. Stevens, 
 
 ■86 Me. 484; Garrett v. Lyle, 27 Ala. 586; Phillips, 
 V. Costley, 40 Ala. 486; Burt v. Cassety, 12 Ala. 
 
 734; McCaskle v. Amarine, 52 Ala. 17; Clark v. 
 Bosworth, 51 Me. 528; Baynard v. Norris, 5 Gill, 
 <Md.) 468; s. c. Am. Dec. 617; Hardy v. Sum- 
 mers, 10 Gill & J. (Md.) 316; s. o., 32 Am. Dec. 
 167; Price v. McDonald, 1 Md. 403; s. c, 54 Am. 
 Dec. 657; Hamilton v. Fowlkes, 16 Ark. 340; 
 Daubenspeck v. Piatt, 22 Gal. 330 ; Lestrade v. 
 Barth, 19 Cal. 660; Bryan v. Harvey, 18 Md. 113; 
 Ringgold V. Bryan, 3 Md. Ch. 488; Border State 
 Say. Inst. v. Wilcox, 63 Md. 525; Jenkins v. 
 Eedding, 8 Gal. 598; Morrison v. Wilson, 13 Cal. 
 494; s. c, 73 Am. Deo. 593; Bloomer r. Hender- 
 son, 8 Mich. 395; s. c, 77 Am. Dec. 453; McGee 
 V. Wilcox, 11 Mloh. 358; Converse!;. Blumrich, 
 14 Mich. 109; s. c, 90 Am. Dec. 230; Partridge 
 McKinney, 10 CaL 181; Smith v. Tula, 31 Cal. 
 180; B.C., 89 Am. Dec. 167; Parsell v. Thayer, 
 
 ^9 Mich. 467 ; Hommel v. Devinney, 39 Mich. 
 528; Weisberger v. Wisner, 55 Mich. 246; Mor- 
 rison V. March, 4 Minn. 422; Seager n. Bums, 4 
 Minn. 141; Peasley v. McFadden, 68 Cal. 611; 
 Thompson v. Pioche, 44 Cal. 516; Pell v. McEl- 
 
 roy, 36 CaL 268; Landers v. Bolton, 26 Cal. 393; 
 
 Tair v. Sterenot, 29 Cal. 486; Bryan v. Ramirez, 
 
 8 Cal. 461 ; s. c, 68 Am. Dec. 340; Minor v. Will- 
 
 oughby, 3 Minn. 226; New v. Wheaton, 84 
 Minn, 406; Siebert v. Rosser, 24 Minn. 155; 
 
 Taylor v. Lowenstine, 50 Miss. 278; Taylor v. 
 
 Jlckford, 11 Smed. & M. (Miss.) 21; Dreyfuss v. 
 
 HIrt, (Cal.) 123 Pac. Rep. 193; Harral v. Leverty, 
 
 50 Conn. 46; s. c, 47 Am. Rep. 608; MoRae v. 
 
 McMinn, 17 Fla. 876; Jones ». Loggins, 37 Miss. 
 
 -546; Vaughn v. Tracy, 25 Mo. 318; s. c, 69 Am. 
 
 Dec. 471; Witmanti. Taylor, 60 Mo. 136; Pike v. 
 
 Robertson, 97 Mo. 615 ; Wyatt v. Elam,23 Ga. 301 ; 
 
 «. (..,68 Am. Dec. 518; Vessey ». Graham, 17 Ga. 
 
 99; 8. p., 63 Am. Dec. 288; Cox v. Jones, 76 Ga. 
 
 296; Helms v. O'Bannon, 26 Ga. 132; Clark v. 
 
 Morris, 22 111. 434; Frothingham v. Stacker, 11 
 
 Mo. 77; Wise v. Wimer, 23 Mo. 237; Lipp v. 
 
 Hunt, 26 Neb. 91; Conlee v. McDowell, 15 Neb. 
 
 184; Patten v. ijoore, 32 N. H. 382; Morrisons. 
 
 Kelly, 22 111. 610; s. c, 74 Am. Deo. 169; Metro- 
 politan Bank v. Godfrey, 23 111. 579; Flint v. 
 
 Lewis, 61 111.306; Rupert v. Mark, 15111. 540; 
 
 Pritchardi;. Brown, 4 N. H. ^97j s. c, 17 Am. 
 
 Dec. 431; Janvrin v. Janvrin, 60 N. H. 169; 
 
 Bank v. Eastman, 44 X. H. 431; Hodges v. 
 
 Ammerman, 40 N. J. Eq. 99; Phillips v. Pitts, 
 78 111. 72; Brainard v. Hudson, 103 111. 218; 
 
 Druley ». Adam, 102 111. 177; McCall v. Yard, 3 
 Stockt. (N. J.) 58; Losey v. Simpson, 3 
 Stoekt. (N. J.) 246; Williams v. Birbeck, HoflF. 
 <3h. (N. Y.) 372; Grimstone v. Carter, 3 Paige, 
 
 (N. Y.) 437; s. c, 24 Am. Deo. 230; Maghee « 
 Robinson, 98 111. 458; Walsh v. Wright, 101 Ul'. 
 178; Farmers' Nat. Bank v. Sperling, 113 111. 
 273 ;Higgins v. White, 18 111. App. 480; JacqneJ 
 V. Lester, 118111. 246; DeRuylersj. Trustees ol 
 St. Peter's Church, 2 Barb. Ch. (N. Y.) 558; 
 Cook V. Travis, 22 Barb. (N. Y.) 359; Harris v. 
 Molntyre, 518 111. 275; Bartling v. Brasuhu, 102 
 lU. 441; Porter D. Clark, 22 111. App. 667; Grif- 
 fin V. Haskins, 28 111. App. 264; Moyer». Hin- 
 man, 13 N. Y. 188; Troup v. Hurlburt, 10 Barb. 
 (N. Y.).354; Pheland v. Brady, 19 Abb. N. C. (N. 
 Y.) 889; Tunson v. Chamberlain, 88 111. 378; 
 Stagg V. Small, 4 111. App. 192; Partridge V. 
 Chapman, 81 111. 137; Williams v. Brown, 14111. 
 200; Reeves v. Ayers, 38 111. 418; Lawrences. 
 Conklin, 17 Hun, (N. Y.) 288; Hensler v. Sefrin, 
 19 Hun, (N. Y.) 564; Chesterman u. Gardner, 5 
 Johns. Ch. (N. Y.) 33; Laverty v. Moore, 32 
 Barb. (N. Y.) ,347; Keyes v. Test, 35 111. 316; 
 Cabeen v. Breckenridge, 48 111. 91 ; Aldrich n; 
 Aldrich, 37 111. 32; White v. White, 105 111. 313; 
 Staton ». Davenport, 95 N. Car. 11; Webbers. 
 Taylor, 2 Jones Eq. (N. Car.) 9; MoKenzies. 
 Perrill, 15 Ohio St. 162; Day v. Atlantic. &o. Co. 
 41 Ohio St. 392; Meni v. Kathbone, 21 Ind. 454j 
 Glidewell v. Spraugh, 26 Ind. 319; Tuttle v. 
 Churchman, 74 Ind. 311; Ramsey s. Hardy, 43 
 Ohio St. 157; McCuUoch v. Cowher, 5 W. 
 & S. (Pa. ) 427; Jacques v. Weeks, 7 Watts, 
 (Pa.) 261; Barnes v. Union School Town- 
 ship, 91 Ind. 301 ; Lash v. Butch, 4 Iowa 215; 
 Moore ». Pierson, 6 Iowa, 579; a. c, 71 Am. 
 Dec. 209; Woods v. Farmer, 7 Watts, (Pa.) 
 382; s. c, 32 Am. Dec. 772; Randall v. Sil- 
 verthom, 4 Pa. St. 173; Jamison v. Dimook, 95 
 Pa. St 52; Humphrey v. Moore, 17 Iowa, 193j 
 Sears s, Munson, 83 Iowa, 380; Leebrick v. 
 Stable, 68 Iowa, 515; Hubbard v. Long, 80 Iowa, 
 149 ; Eowe V. Ream, 105 Pa. St. 543 ; Berg v. Ship- 
 ley, 1 Grant Cas. (Pa.) 489; Sheorn v. Robinson, 
 22 S. Car. 32; Brimann v. White, 23 S. Car. 490; 
 School Dist. No. 82 v. Taylor, 19 Kan. 287; Knox 
 V. Thompson, 1 Litt. (Ky.) 350; s. c, 13 Am. 
 Deo. 246; Graham v. Nesmith, 24 S. Car. 285; 
 Watkins v. Edwards, 23 Tex. 443; Pouton v. 
 Ballard, 24 Tex. 619; Coins v. Allen, 4 Bush. 
 (Ky.) 608; McLaughlin v. Shepherd, 32 Me. 143; 
 s. c, 62 Am. Dec. 646; Hawley v. Bullock, 89 
 Tex. 816; Mullins v. Wimberly, 50 Tex. 457; 
 Mainwarrlng v. Templeman, 51 Tex. 205 ; Wood- 
 son V. Collins, 56 Tex. 168; Johnstons. Glancy, 
 4 Blatchf. (U. S.) 91; s. c, 88 Am. Deo. 45; 
 Noyess. Hall, 97 U. S. 3i; Weld s. Madden, 3 
 ClifP, (U. S.) 584; Thompson v. Westbrook, 56 
 Tex. 265; Laroe s. aunt, 62 Tex. 481; Eublee 
 s. Mead, 2 Vt. 544; St. Johnsbury s. Morrill, 55 
 Vt. 165; Ehle s. Brown, 31 Wis. 405; Lamoreux 
 1-. Iluntloy, OS Wis. 21; Lea s. Polk County C. 
 
 117 
 
§ 91 EQUITY JtTBlSPEUDENCE. [CH. V. 
 
 a subsequent purchaser with constructive notice of the claim to the 
 property of the party in possession, even though such purchaser doe^ 
 not actually know that the property is in the possession of some one 
 other than the vendor; yet, in a number of the states, where the record- 
 ing laws provide that an unrecorded deed shall only prevail against 
 the subsequently recorded deed, where the subsequent purchaser has 
 taken the title with actual notice of the prior conveyance, it is plain that 
 the mere constructive notice which arises from the possession of the land 
 by such prior grantee or other claimant of a prior equity in the property, 
 will not be sufficient to overcome the priority in the title acquired by the 
 subsequent purchaser' s earlier record of his title. Such subsequent pur- 
 chaser must have actual knowledge of the possession by such prior 
 grantee, in order that such prior grantee might claim priority over the 
 subsequent purchaser. ' There has been a disposition on the part of some 
 of the courts to lay down the doctrine of constructive notice arising from 
 the possession in a slightly different form, sufficient in character to 
 create the impression that the rule is not the same in different states; 
 but it is believed, if such distinction does exist at all, that it is not 
 sufficient to create any material variation in the rule of consti'uetive 
 notice. In some of the cases it is laid down without qualification, 
 that the possession of the property by a third person is suffi- 
 cient to charge the purchaser with constructive notice of the 
 adverse title of the property, even though such purchaser does not 
 know of the possession of the property by this third person.^ Accord- 
 ing to the other authorities, he is charged with constructive notice when- 
 ever he is informed or knows, or is not in a condition to deny that he 
 knows, that the property is in the possession of a third person claiming 
 to have a right to the property.' Except where the recording act 
 requires a subsequent purchaser to have actual notice of an equitable 
 claim or an unrecorded title, one could properly be said to be in such 
 
 Co., 21 How. (U. S.) 493; Oraws o. Buroham, 1 Dunlap v. Wilson, 38111. 517j Bradley©. Snyder 
 
 Blaokf. (Ind.) 352; Parker v. Kane, 4 Wis. 1; a. 14 III. 863; Holmes v. Powell, 8 De G. M. & g' 
 
 c, 65 Am. Deo. 883; School Dlst. o. Maoloon, 4 578, 580; Doyle v. Stevens, 4 Mich. 87; Fanners' 
 
 Wis. 98; Stewart v. McSweeney, 14 Wis. 468; L. & T. Co. v. Maltby, 8 Paige, 361; Emmons ». 
 
 Gee V. Bolton, 17 Wis. 604; Warner*. Fountain, Murray, 16 N. H. 385; School Dist. v. Taylor 19- 
 
 28 Wis. 405; Fery II. Pfeitfer, ISWis. 510; First Kans. 287. ' ' ' 
 
 Nat. Bank v. Damm, 63 Wis. 849. 3 Watkins ». Edwards, 23 Tex. 443- Mullins« 
 
 1 Vaughn v. Tracy, 82 Mo. 415; 85 Mo. 318; s. Wimberly, 50 Tex. 457, 464; Johnson v. Clarki' 
 0., 69 Am. Dec. 471 ; Dooley v. Wolcott, 4 Allen, 18 Kans. 157, 164; Hull v. Noble, 40 Me. 459 480*^ 
 (Mass.) 406; Casey v. Steinmeyer, 7 Mo. App. Eogersi). Jones, 8 N.H. 264; Strickland t). Kirk| 
 556; Rogers v. Jones, 8 N. H. 264; Harris v. 51 Miss. 785, 797; Tunison v. Chamblin,'88 111! 
 Arnold, 1 R. I. 121 ; Pomroy v. Stevens, 11 Mete. 378, 390; Warren v. Richmond, 63 HI. 52; Rogers 
 (Mass.) 244; Mara v. Pierce. 9 Gray, (Mass.) 306; v. Hus«ey, 36 Iowa, 664; 111. Cent. R. R, v. Mo- 
 Moore ». Jourdan, 14 La. An. 417; Hubbard i). CuUottgh, 59 111. 166; Russell v. Sweezey 23 
 Smith, 2 Mich. 207; Sibley v. Lefflngwell, 8 Al- MicH. 235, 839; Perkins ». Swank] 43 Miss. 349, 
 len, (Mass.) 584: Hopping v. Burnam, 2 Green, 361 ) Loughrldge v. Bowland, 52 Miss. 546, 563] 
 (Iowa) 39; Poydras v. Laurans, 6 La. An. 772. 554; O'Rourke v. O'Connor, 39 Cal. 442, 446-' Pell 
 
 « Tankard v. Tankard, 79 N. C. 54, 56; Ed- v. kcElroy, 36 Cal. 268; Dutton v. Warachauer 
 
 wards V. Thompson, 71 N. C. 177, 179; Webber ai Cal. 609; Brown v. Volkening, 64N. Y 76 82* 
 
 V. Taylor, 2 Jones Eq. 9; Taylor v. Kelly, 3 83; Van Kueren v. Cent. R. R.' 38 N. j L (» 
 
 Jones Bq. 240; Noyes v. Hall, 7 Otto, 34, 38; Vroom) 165, 167; Mossji. Atkinson, 44 Cal 3 17- 
 
 Cabeen v. Breckenridge, 48 111. 91; Truesdale v. Killey v. Wilson, 33 Cal. 690; Smith v. Gibson' 
 
 Ford, 37 HI. 210; Brown v. Gaffney, 28 HI. 157; 15 Minn. 89, 99; Bogue v. Williams 48 HI Sri ' 
 
 118 ■ ■ 
 
CH. V.J NOTICE. § 92 
 
 a condition, that he would be prevented from denying that he knows 
 that the property is in the possession of a third person claiming title, 
 thereto, when he has failed to make any inquiry at aU into the posses- 
 sion of the premises. 
 
 It has also been held to be doubtful under the authorities, whether 
 the retention of the possession by the grantor is constructive notice of 
 the existence in him of some claim against the property. In Eng- 
 land, if the deed of conveyance acknowledges the receipt of the con- 
 sideration, then his retention of the possession will not be sufficient to 
 charge the subsequent purchaser with constructive notice of any other 
 claim that he might have against the property,^ and this position of 
 the English courts is supported by the adjudications of some of the 
 American courts.* According to the decisions of other American 
 courts, the grantor's possession, like any other possession, would 
 charge the purchaser with constructive notice of the claim under 
 which he held possession.' But if the grantor's retention of posses- 
 sion is confined only to a part of the original property, and the con- 
 veyance conveys only the other part, so that he does not in fact retain 
 possession of, the part which he has conveyed, unquestionably the pur- 
 chaser is not charged with constructive notice; for in fact the grantor 
 does not in that case have possession of the part of the property which 
 he has conveyed, and which the grantee is about to sell.* 
 
 § 92. Extent and effect of the notice. — It is important to know 
 how far and to what extent will the possession of the premises by 
 some one other than the vendor charge the purchaser with construct- 
 ive notice of his claim against the property. For example, if the 
 party in possession had entered into possession in the character of a 
 tenant, either of the vendor or of some third party, two questions can 
 arise as to the extent and the effect of the notice arising from his pos- 
 session: First, whether in the case where he holds possesssion as ten- 
 ant of some one 7 other than the vendor, his possession is constructive 
 notice to the purchaser, not only of his own title or claim to the prop- 
 
 1 White V. Wakefield, 7 Sim. 401; Rice v. call, 107111. 136; Van Kenren ». Central E. Co. 
 Rice, 8 Drew. 1 ; Mulr v. Jolly, 26 Beav. 143. 38 N. J. L. 167j Groton Sav. Bank v. Batty, 30 
 
 2 M. Y. Life Ins. Co. v. Cutler, 3 Sandf. Cli. N. J. Eq. 133; Tuttle v. Churchman, 74 Ind. 
 176, 179 ; Woods v. Fanner, 7 Watts, 382 j Jacques 311 ; Crassen v. Swoveland, 22 Ind. 427 ; Sprague 
 o. Weeks, 7 Watts, 261, 272, 287; Bloomer i;. Hen- v. White, 73 Iowa, 670; Burt v. Baldwin, 8 Neb. 
 derson, 8 Mich. 395, 404, 405; Scott v. Gallagher, 487; Cook v. Travis, 20 N. Y. 400; Soott v. Gal- 
 14 Serg. & E. 333, 334; Newhall v. Pierce, 5 lagher, 14 S. & R. (Pa.) 333; s. c, 16 Am. Dee. 
 Pick.480; VanKeuren?;. Cent. E. R., 38N. J.L. 508; Newhall v. Pierce, 5 Pick. (Mass.) 449; 
 (9Vroom) 165,167; Dawson o. Danbury B'k, 15 Hennessey v. Andrews, 6 Gush. (Mass.) 170; 
 Mich. 489; Cook v. Travis, 20 N. Y. 400; Reed Humphrey v. Hurd, 29 Mich. 44; Woods o. 
 V. Gannon, 50 N. Y. 345, 350. Farmer, 7 Watts, (Pa.) 382; s. c, 32 Am. Dec. 
 
 8 Wright V. Bates, 13 Vt. 341, 350; Grlmstone 772; Hoffman v. Blume, 64 Tex. 334; Abbott v. 
 
 V. Carter, 3 Paige, 421, 439; HI. Cent. E. E. v. Gregory, 39 Mich. 68; Bloomer v. Henderson, 8 
 
 McCullough, 59 111. 166; Metropolitan B'k v. Mich. 395; s. c, 77 Am. Dec. 453; Eylar v. 
 
 Godfrey, 23111. 579,607; Pells. McElroy, 36 Cal. Eylar, 60 Tex. 315; Matesky v. Feldman, 75 
 
 268, 278; Hopkins v. Garrard, 7 B. Mon. 312; Wis. 103. 
 
 Webster v. Maddox, 6 Me. 256; McKecknie v. * Boggs v. Anderson, BO Me. 161; McLaughlin 
 
 Hoskins, 23 Me. 230; Jacques v. Weeks, 7 Watts, v. Shepherd, 32 Me. 143; s. c, 52 Am. Deo. 646 } 
 
 261; White v. White, 89 111. 460; Ford v. Mar- Bower v. Earl, 18 Mich. 367. 
 
 119 
 
§ 92 EQUIXr JUKISPKUDENCE. [CH. V. 
 
 erty, but likewise of the claims to the property of his lessor; and 
 in respect to that proposition the authorities are at variance. 
 According to the English and some of the American cases the 
 possession by the tenant will not charge a purchaser with con- 
 structive notice of the landlord's title. ^ But the greater number 
 of American cases hold that the tenant's possession charges the pur- 
 chaser with constructive notice of the lessor's title to the property 
 under which he himself holds possession, as well as of his own claim to 
 such property.^ The second question which might arise under this 
 heading is, whether the lessee's possession is constructive notice of his 
 right to possession as a lessee, and also of his right to possession under 
 some other title ? The case would arise, when one has entered into 
 possession as lessor, and has subsequently acquired by purchase some 
 other title to the land which he desires to assert against the subse- 
 quent purchaser. According to the English cases it is held without 
 qualification, that the party in possession can assert against a subse- 
 quent purchaser constructive notice, not only of his right to the prop- 
 erty as lessee, but also of his claim under any other title which he 
 might have acquired and holds against the property.' The American 
 cases are divided on this question; some of them hold that the posses- 
 sion which one acquires under one's claim of title will be constructive 
 notice not only of that claim of title, but likewise of every other 
 claim which he might have subsequently acquired, unless there be 
 something in the circumstances of the case which would actually mis- 
 lead the purchaser in his inquiry after the full extent of the claim of 
 the party in possession.* On the other hand, other cases reach the 
 conclusion, that, where the possession is acquired under one claim of 
 
 iHanbury v. Litchfield, 2 My. & K. 689, 63,S; Pittman v. Gaty, 10 111. 186; Hawortli v. Tay- 
 
 Jones V. Smith, 1 Hare, 43, 63, per Wigram, V. lor, 108 111. 2755 United States v. Sllney, 21 Fed. 
 
 C. ; Mann, 2 Sumn. 486, 557 j Jacques 9. Weeks, Eep. 894j Edwards v. Wray, 12 Fed. Eep. ; 
 
 7 Watts, 261, 272; Beatie V. Butler, 21 Mo. 313; Franz v. Orton, 75 111. 100; Whlttaker «. Mil- 
 
 Veazie t). Parker, 23 Mo. 170. ler, 83 111. 381; Smith v. Jackson, 76 111. 254; 
 
 2Kerr ii. Day, 14 Pa. St. 112; Cunninghams. Dickey ». Lynn, 19 Iowa, 544; Nelson v. Wade, 
 
 Pattee, 99 Mass. 248, 252; O'Eourke v. O'Con- 21 Iowa, 49. 
 
 nor, 39 CaL 442,446; Edwards v. Thompson, 71 'Barnhart v. Greenshlelds, 9 Moore, P. C. 
 
 N. C. 177, 179; Pittman v. Gaty, B Gilm. 186; 33,34; Crofton v. Ormsby, 2 Sch. & Lef. 583; 
 
 The Bank v. Flagg, 3 Barb. Oh. 316; Thompson Powell v. Dillon, 2 Ball & B. 416; Hanbury v. 
 
 V. Pioche, 44 Cal. 508, 516; Sergeant v. In- Litchfield, 2 My. & K. 629, 633, per Lord Co(- 
 
 gersoU, 3 Harris, (15 Pa. St.) 343,348; Dickey tenham. 
 
 V. Lyon. 19 Iowa, 544; Nelson v. Wade, iMcKeoknIe v. Hoskins, 23 Me. 230; Eog- 
 
 21 Iowa, 49; Morrison v. March, 4 Minn. ers v. Jones, 8 N. H. 264; Daubenspeok v 
 
 422; The Bank ^. Godfrey, 23 111. 579, 6(W; piatt, 22 Cal. ; see Woods v. Parmer, 7 
 
 Wright V. Wood, 11 Harris, (23 Pa. St.), 120, Watts, 382; Matthews v. Demerritt, 22 Me. 
 
 130; Hood ti. Fahnestook, 1 Barr. 470; Sailor v. 312; Smith v. Miller, 63 Tex. 72; Bailey 
 
 Hertzog, 4 Whart. 259; see, also, Munn v. Bur- v. Richardson, 15 Eng. L. & Eq. 218; Cunning- 
 
 ^es, 70 111. 604; Suiter v. Turner, 10 Iowa, 517; ham v. Pattee, 99 Mass. 248; Kerr v. Day, 14 Pa. 
 
 Fassett v. Smith, 23 N. Y. 252; Hanly v. Morse, St. 118; s. c, 53 Am. Dec. 526; Daniels'r. Da- 
 
 £2 Me. 287; Conlee v. McDowell, 15 Neb. 184; yison, 16 Ves. (Eng.) 853; 17 Ves. (Eng.) 433; 
 
 Purcell V. Bnright, 31 N. J. Eq. 74; Jacques v. Coari v. Olsen, 91 111. 273; Russell v. Moore, 3 
 
 Weeks, 7 Watts (Pa.) 261; Lewis®. Bradford, 10 Meto. (Ky.) 436; Marsh v. Nelson, 101 Pa. St. 
 
 Watts, (Pa.) 67; Dutton ». Warsehauer, 21 Cal. 51; Fery v. Pfelffer, 18 Wis. 610; Wickes v. 
 
 369; s. c, Am. Dec. 765; Landers v. Bolton, 26 Lake, 25 Wis. 71. 
 Cal. 419; Boggs v. Varner, 6 W. & S. (Pa.) 469; 
 
 120 
 
<3H. v.] NOTICE. § 93 
 
 title, it does not constitute constructive notice of any other right or 
 title subsequently acquired, unless the circumstances of the case are 
 such as to draw the purchaser's attention to the existence of this 
 other title or claim to the property, and thus impose upon him the 
 duty of inquiring into its existence.' But however much the Ameri- 
 can cases may differ in this respect to the question of the constructive 
 notice in other cases; they generally agree that, when the possession 
 is acquired by the third person under a recorded deed> the possession 
 was acquired as constructive notice only of the title under which the 
 possession was originally obtained, and not of any other title subse- 
 quently acquired which has not been recorded.^ 
 
 § 93. Nature and time of possession. — It is further required, in 
 order that possession of the property might charge a purchaser with 
 constructive notice of the title to the property or the party in 
 possession, that this possession must be actual, open and notorious in 
 character; that is, the possession must be of such a nature that the 
 party inquiring into the possession may at once become apprised of 
 the fact that someone is occupying the land. While it is held by some 
 of the English cases that a lessee's constructive possession is sufficient 
 to charge a purchaser with inquiry,' it is unquestionably the American 
 doctrine that the possession must be an actual occupation of the land.* 
 Whether the possession is sufficient in character to raise the charge 
 of constructive notice, is a question for the jury.^ 
 
 It is not always possible to establish an actual and open occupation 
 of the land by the same kind of evidence, for each case must be 
 
 'Leach v. Ansbacker, 55 Pa. St. 85; Flagg v. * Morrison v. Kelly, 32 111. 6I0j s. c, 14 Am. 
 
 Mann, 3 Sumn. (U. S.) 486; Bamhart v. Green- Dec. 169; Kendall v. Lawrence, 32 Pick. (Mass.) 
 
 shields, 28 Eng. L. & Eq. 77; Dickey v. Lyon, 542; McKee v. Wilcox, 11 Mich. 358; Bell v. 
 
 19 Iowa, 547; Veazie v. Parker, 23 Me. 170; Twilight, 18 N. H. 159; s. c, 45 Am. Dec. 367; 
 
 Beatie v. Butler, 21 Mo. 313; s. c, 64 Am. Deo. Brown v. Volkening, 64 N. Y. 88; Pope v. 
 
 234; Williams v. Sprigg, 6 Ohio St. 585; Mat- Allen, 90 N. Y. 298; Webster v. Van Steen- 
 
 thews V. Demenitt, 33 Me. 313, 313; Dawson v. bergh, 46 Barb. (N. Y.) 214; Patten v. Moore, 32 
 
 Danbury Bank, 15 Mich. 489; McMechan v. N. H. 382; McCall v. Yard, U N. J. Eq. 58; 
 
 Grifflng, 3 Pick. 154; Kendall v. Lawrence, 22 Holmes v. Stout, 4 N. J. Eq. 419; 10 N. J. Eq. 
 
 Pick. 542; Bush v. Golden, 17 Conn. 594, 602. 492; Harwlok v. Thompson, 9 Ala; 409; Havens 
 
 'iCorpman v. Baocastow, 84 Pa. St. 363; Cras- v. Dale, 18 Cal. 359; Smith v. Yule, 31 Cal. 180; 
 
 sen «. Swoveland, 22 Ind. 437 ; Daubenspeck ». s. c, 89 Am. Deo. 180; Lestrade ». Barth, 19 
 
 Piatt, 22 Cal. 330; Great Falls Co. v. Worster, Cal. 675; Coleman v. Barklew, 27 N. J. L. 359; 
 
 15N.H.412;Smitht>.Yule,31Cal.l80;P]umerr. Meehan r. Williams, 48 Pa. St. 338; Wright ». 
 
 Eobertson, 6 Serg. & E. 184, per Tilghman, C. Wood, 23 Pa. St. 120; Dutton u. Warsohauer, 
 
 J.; Taylor ». Kelly, 3 Jones Eq. (N. Car.) 240; 21 Cal. 637; s. c, 82 Am. Dec. 776; Fair v. 
 
 Staples V. Fenton, 5 Hun, (N. Y.) 172; Bell v. Stevenot, 29 Cal. 486; Bogue v. Williams, 48 111. 
 
 Twilight, 22 N. H. 500; s. c, 45 Am. Dec. 367; 371; Truesdale v. Ford, 37111. 210; Beaubien v. 
 
 Smith e. Yule, 31 Cal. 180; s. c, 89 Am. Dec. Hlndman, 38 Kan. 471; BUUngton v. Welsh, 5 
 
 167; McNeil v. Polk, 57 Cal. 323; Williams v. Binn. (Pa.) 129; s. c, 6 Am. Deo. 406; Butler v. 
 
 Sprigg, 6 Ohio St. 585; Plumer v. Robertson, 6 Stevens, 26 Me. 484; Hewes v. Wlswell, 8 Me. 
 
 S. E. (Pa.) 179; Woods «. Farmer, 7 Watts, 98; M'Mechan v. Griffing, 3 Pick. (Mass.) 149; s. 
 
 (Pa.) 382; B. c, 82 Am. Dec. 772; M'Mechan n. c, 15 Am. Dee. 198; Martin v. Jackson, 27 Pa. 
 
 Griffing, 3 Pick. (Mass.) 149; s. c, 15 Am. Dec. St. 504; s. o.. Am. Dec. 489; Blackenship v. 
 
 198; Townsend v. Little, 109 U. S. 504; com- Douglas, 26 Tex. 235; s. c, 82 Am. Dec. 608; 
 
 pare Randall ». Silverthom, 4 Pa. St. 173. Townsend i;. Little, 109 U. S. 404; Wiokes?;. 
 
 8 Wilson V. Hart, L. E. 1 Ch. 463, 467; 3 H. & Lake, 25 Wis. 71 ; Ely v. Wilcox, SO Wis. 533; s. 
 
 M. 651; Clements 71. Welles, L. E. 1 Eq. 200; 36 c, 91 Am. Deo. 436; Satterwhite v. Eosser, 81 
 
 Beav. 513; Holmes «. Powell, 8 De G. M. & G. Tex. 166. 
 
 9?2, 681, per Tyme, L. J. = Ponton v. Ballard, 34 Tex. 619. 
 
 121 
 
§ 94 EQUITY JUKISPEUDENCE. [CH. V. 
 
 determined by its particular facts and circumstances. Every tract of 
 land is not capable of the same use and occupation, and only the 
 general rule that there must be actual and continuous occupation can 
 be laid down. Among the facts and circumstances which are held 
 to constitute suflBcient evidence of an actual, open and permanent 
 occupation of the land sufficient to charge a purchaser with notice, are 
 fencing, cultivating the land, making improvements thereon, cutting 
 trees, closing up the doors and leaving furniture in the house, and 
 flowing lands with water from an adjoining stream.^ On the other 
 hand, a mere temporary occupation or use of the land, such as 
 occasional cutting of wood or erection of a dam or quarry of rock, will 
 not be sufficient evidence of a permanent occupation of the land. ^ Not 
 only must the possession have been actual, open and notorious, but it 
 must continue up to the time when the purchase was made. An actual 
 occupation which had been abandoned when the sale was made, would 
 not charge the purchaser with constructive notice of any adverse claim 
 to the land.' Finally, the possession must be exclusive; that is, the 
 party who claims title thereto must have exclusive possession of the 
 property, in order that such possession might charge a purchaser with 
 constructive notice. If the possession is one held jointly with the 
 vendor and, therefore, of such a nature as not to excite the suspicion 
 of the purchaser of some outstanding claim against the property, 
 there will be no constructive notice.* 
 
 § 94. Whether presumption of notice from possession is con. 
 elusive. — It has been doubted under the authorities, whether the con- 
 structive notice arising from the possession of the property by the 
 claimant to such property is conclusive upon the subsequent purchaser, 
 or whether he can show due diligence in making inquiry into the cause 
 and character of the claim under which the possession is claimed, and 
 thus purge himself from the charge of constructive notice. Unquestion- 
 
 iWrede -u. Cloud, 52 Iowa, 371j Nolan v. Ala. 333j s. c, 47 Am. Rep. 418; Butler v. 
 
 Grant, ollowa, 519 ! Krider «. Lafferty, 1 Whart. Stevens, 86 Me. 484; Bower®. Earl, 18 Mich. 
 
 (Pa.) 303; Lyman r. Russell, 45 111. 281 ; Bright 367; compare McLaughlin ». Shepherd, 38 Me. 
 
 V. Buokman, 39 Fed. Rep. 843. 143; s. c, 68 Am. Dec. 646; Boggs v. Anderson, 
 
 sSandfordiJ. Weeks, 38Kan. 319; Boyntonr. 50 Me. 161; Coleman v. Barklew, 3 Dutcher, 
 
 Eees, 8 Pick. (Mass.) 389; b. u., 19 Am. Dec. 386; 357, 359; Brown i). Volkenlng, 64 N. Y. 76, 82; 
 
 BilUngton v. Welsh, 5 Blnn. (Pa.) 189; s. c, 6 83; Hatch v. Blgelow, 39 111. 136; Krider V. 
 
 Am. Dee. 406; Dickey v. Lyon, 19 Iowa, 544; Laflferty, 1 Whart. 303; Truesdale v. Pord, 37 
 
 Meehan v. Williams, 48 Pa. St. 238; Coleman v. 111. 210; Dunlap v. Wilson, 32 111. 517; Bradley 
 
 Barklew, 27 N. J. L. 357; Williams v. Sprigg, 6 v. Snyder, 14 111. 263; Tankard v. Tankard, 79 
 
 Ohio St. 585; Masterson v. West End, &o. E. N. 0. 54, 56; Noyes v. Hall, 97 U. S. 34j 38; 
 
 Co., 78 Mo. 342; 4 Am. & Eng. E. Gas. 439. Cabeen v. Breckenridge, 48 111. 91 ; Edwards v. 
 
 SHewes v. Wiswell, 8 Me. 94; Boggs v. Thompson, 71 N. C. 177, 179; Webber ». Taylor, 
 
 Varner, 6 W. & S. (Pa.) 469; Meehan v. Will- 2 Jones Eq. 9; Taylor v. Kelly, 3 Jones Eq. 240j 
 
 lams, 48 Pa. St. 838; Campbell v. Bracken- Butler ». Stevens, 26 Me. 484; Troy City B'k». 
 
 ridge, 8 Blackf. (Ind.) 471; Jones v. Smith, 1 Wilcox, 24 Wis. 671; Bogue v. Williams, 48 111. 
 
 Hare, 43, 62; Miles v. Langley, 1 Russ. & My. 39; 371 ; Patten v. Moore, 38 N. H. 383; Martin v. 
 
 2 Id. 626; Meehan v. Williams, 18 Wright, 830; Jackson, 3 Casey, 504, 606; Mehau v. Williams, 
 
 Boggs V. Varner, 6. Watts & S. 474; Wright v. 12 Wright, 258; McMechan v. Grifflng, 3 Pick. 
 
 Wood, 11 Harris, (23 Pa. St.) 120, 130, 131. 149; Holmes v. Stout, 3 Green's Ch. 498; 2 
 
 4 Bell u. Twilight, 18 N. H. 159; a. c, 45 Am. Stockt. Ch. 419; Williams v. Sprlggs, 6 Ohl(J 
 
 Dec. 367; BillingtonB. Welsh, 5 Binn. (Pa.) 189; St. 585, 594; Ely v. Wlloox, 20 Wis. 523i 531; 
 
 s. 0., 6 Am. Dec. 406; McCarthy v. Nlcrosl, 73 Wiokes v. Lake, 25 Id. 71. 
 
 122 
 
CH. v.] NOTICE. § 94 
 
 ably, in all the cases where the question is raised and settled by an 
 adjudication of the court, it has been held that the presumption of 
 notice arising from the possession is only prima facie, and may be 
 rebutted by facts indicating an unsuccessful but diligent inquiry into 
 the nature of the claim under which the possession is retained.* But in 
 the great majority of cases in which the question is not directly settled, 
 the courts employ language which makes it more or less doubtful 
 whether the presumption of notice is conclusive or may be rebutted. 
 Mr. Pomeroy divides these doubtful cases into three classes. The first 
 class, or group, contains all the cases in which the statement is gener- 
 ally made vrithout qualification — or without any statement or circum- 
 stance connected with the case which would in any way explain the 
 purpose and object of the statement — that the presumption of notice 
 is absolute; that is, that the purchaser is charged with an absolute 
 notice of the title of the party in possession.'' In the second group are 
 found the cases, in which imder the peculiar facts and circumstances, 
 the court decides "that a purchaser or incumbrancer, knowing the 
 fact of possession by a stranger, and being put upon inquiry thereby, 
 has either wholly neglected to make any inquiry, or has failed to prose- 
 cute it with due diligence, and is therefore conclusively presumed to 
 have obtained fuU information, and is absolutely charged with notice. " ' 
 In the third group, the courts have merely held "that where a prior 
 grantee is in rightful possession under an unrecorded conveyance, and 
 his possession is open, notorious, visible, and exclusive, a subsequent 
 purchaser or incumbrancer, even though his deed or mortgage is put 
 upon record, becomes charged with an absolute notice." It is, how- 
 ever, plain from those cases, that whatever presumption might arise 
 from the language of the courts, that the court intended to declare 
 that the presumption of notice was conclusive: it constitutes only a 
 dictum of the court or only binding and intended to be binding under 
 
 1 Thompson tJ.PIoclie, 44 Cal. 508, 516 J Rogers Cabeen ». Breokenridge 48 III. 91; Trnesdale 
 
 o. Jones, 8 N. H. 284; Penny v. Watts, 1 Macn. v. Ford, 37 111. 810; Dunlap v. Wilson, 33 111. 
 
 & G. 150; Ware v. Lord Egmont, 4 De G. M. <fc 517; Strickland v. Kirk, 51 Miss. 795, 797; Bald- 
 
 G. 460; Roberts B. Croft, 2 De G. & J. 1; Flagg win v. Johnson, Saxton, 441; Woods v. Far- 
 
 ». Mann, 2 Suiftn. 486, 554 ; Kerr v. Day, 2 Harris, mer, 7 Watts, 382 ; Sailor v. Hertzog, 4 Whart. 
 
 (14 Pa. St.) 112; Williamson v. Brown, 15 N. Y. 259; Loughridge v. Bowland, 52 Miss. 546, 553; 
 
 354, 360, 363; Leach e. Ansbacher, 55 Pa. St. (5 Moss v. Atkinson, 44 Gal. 17 j KiUey v. Wilson, 
 
 P. F. Sm.) 85j Riley o. Quigley, 50 111. 304; s. c, 33 Cal. 690; Ringold v. Bryan, 3 Md. Ch. 488; 
 
 99 Am. Dec. 516. Baynard ». Norrls,.5 Gill, 468; Webber v, Tay- 
 
 SRnsBell v. Sweeezy, 29 Mich. 2.35, 239; Sears lor, 2 Jones Eq. 9. See 2 Pom. Eq. Jur. § 623. 
 V. Munson, 23 Iowa, 380; Phillips v. Costley, 40 ' Kent v. Plummer, 7 Greenl. 464; Jacques v. 
 
 Ala. 486; McKenzle v. Perrill, 15 Ohio St. 162; Weeks, 7 Watts, 272; Kerr v. Day, 2 Harris, 112; 
 
 Rogers ». Jones, 8 N. H. 264; Gull v. Noble, 40 Hardy ». Summers, 10GilI& J. 316; Gouvemeur 
 
 Me.459, 480; Johnsons. Clarke, ISKans. 157,164; v. Lynch, 2 Paige, SOOj Grimstone v. Carter, 3 
 
 School Dlst. V. Taylor, 19 Kans. 287; Perkins©. Paige, 421; Brice i>. Brioe, 5 Barb. 533; Tuttle 
 
 Swank, 43 Miss. 349; Glidewell v. Spaugh, 26 v. Jackson, 6 Wend. 213; Macom d. Sheppard, 
 
 Ind.319; Warrens. Richmond, 53 111. 52; Tank- 2 Humph. 335; Morton v. Robards, 4 Dana, 
 
 ard».Tankard,79N.C.54,56;Edwardj). Thomp- 258; Brush v. Halloway, 2 J. J. Marsh. 180; 
 
 eon, 71 N. C. 177; Noyes v. Hall, 97 U. S. 38, 39; Hanley v. Morse, 32 Me. 287; McLaughlin v. 
 
 Reeves o. Ayers, 38111.418; Keys ». Test, 33 HI. Shepherd, Me. 143; Webster v. Maddox, 6 
 
 316- Bank of Orleans r. Flagg, 3 Barb. Ch. 316; Greenl. 256; Burt t;. Cassety, 12 Ala. 739; Sorog- 
 
 Die'bl V Page, 3 N. J. Eq. (2 Green Ch.) 143; gins v. Dougal. 8 Ala. 382. 
 
 123 
 
§ 96 EQXJITY JURISPRUDENCE. [CH. V. 
 
 the peculiar facts and circumstances of the case; and that they did not 
 intend to hold that a subsequent purchaser cannot prove by a diligent 
 but unsuccessful inquiry into the claims of title under which the 
 possession is held, that the constructive notice was not sufficient to 
 give him the desired information concerning the outstanding claim of 
 title. 
 
 § 95. Lis pendens as constrnctiTe notice of rights. — It has been 
 a doubtful question, under the authorities, whether the pendency of a 
 suit over a claim to property constitutes constructive notice to pur- 
 chasers during the pendency of the suit of the claim of the parties 
 which are to be adjudicated by the court, or whether the effect of. 
 notice is given to the case merely out of consideration of expedience. 
 It is probable that the constructive notice, arising out of the lis pen- 
 dens, is the legal consequence of motives of expedience; in other words, 
 the consideration that if the party to a suit in which questions of title 
 to property are raised, could during the pendency of the suit trans- 
 fer his rights in and to the property in question to a purchaser for 
 value, who could take such property free from the effect of the judg- 
 ment which the court might render in the pending suit, there would be 
 no end to litigation, and the very same questions would have to be raised 
 and discussed, in contention over the property with the purchaser ^e/i- 
 dente lite. This consideration of expediency unquestionably prompted 
 the adoption of the rule, that a purchaser of property during the pend- 
 ency of a suit, in which questions as to the title of such property are 
 raised and settled, will take the property subject to whatever decree 
 or judgment the court might render in the pending suit. The doc- 
 trine of Us pendens applies to legal as well as to equitable actions. 
 But inasmuch as one's legal rights to property are settled in respect to 
 the order of priority by the sole consideration of priority in point of 
 time, in the absence of the application of the recording laws, the special 
 value of the doctrine of lis pendens is in its application not to legal but 
 to equitable actions.' 
 
 1 Center v. The Bank, 23 Ala. 743, 757; Green Har. & J. 21; Bmndage v. Briggs, 25 Ohio St. 
 
 •!). Slayter, 4 Johns. Ch. 38; Choudron B. Magee, 662; Seabrookc. Brady, 47 Ga. 660; Douglas «. 
 
 8 Ala. 570; Newland on Cont. 506; Allen v. McCrackin, 53 Ga. 596; Thaifle v. Dunlap, 4 
 
 Mandaville, 26 Miss. 397, 399; Murray a. Ballou, Heisk. 674, 686; Edwards v. Blacksmith, 35 Ga. 
 
 IJohns. Ch. 566, 576; 8 Sugden on Vendors, 213; Brandon «. Cablness, 10 Ala. 155; Salls- 
 
 (7th Am. ed.) 544; Allen v. Poole, 54 Miss. 383, bury v. Morss, 7 Lans. 359, 365, 366; Cook «. 
 
 333, by Simrall, C. J. ; Miller v. Sherry, 8 Wall. Mancius, 5 Johns. Ch. 89, 93; Hoole v. Atty.- 
 
 237 ; Murray v. Lylburn, 3 Johns. Ch. 441 ; Mur- Gen. 82 Ala. 190 ; Ashley u. Cunningham, 16 Ark. 
 
 ray o. Finster, 2 Johns. Ch. 155; Real Estate 168; Whltingjj.Beehe, 7Eng. 421, 564; Sedgwick 
 
 Sav. Inst. V. CoUonious, 63 Mo. 290, 294 ; Turner «. Cleveland, 7 Paige, 287 ; Van Hook v. Throck- 
 
 D. Babb, 60Mo. 342; Borrowscale v. Tuttle, 5 morton, 8 Paige, 33; White v. Carpenter, 2 
 
 Allen, 377; Haven *. Adams, 8 Allen, 363, 367, Paige, 217, 252; Gossomi). Donaldson, 18 B. Mon. 
 
 per Chapman, J. ; Beeckman v. Montgomery, 1 230; Owings v. Myers , 2 Bibb, 878; Eoberts v. 
 
 McCarter, 106; McPherson v. Housel, 8 Beasley, Fleming, 53 111. 196, 198; Hayden v. Buoklin,9 
 
 299; O'Reilly t. Nicholson, 45 Mo. 160; Blan Paige, 512, 514; Jackson ». Losee, 4 Sandf. Ch. 
 
 chaid D.Ware, 43 Iowa, 530, 531; 37 Mo. 305, 381; Jackson ». Andrews, 7 Wend. 152, 156; Jack- 
 
 307;HoIman D.Patterson's Heirs, 29 Ark. 357; soni). Warner,32I11.331;Gilman«.Hamilton,16 
 
 Hersey v. Turbett, 3 Casey, (87 Pa. St.) 418; 111. 235; Kern u. Hazlerigg, 11 Ind. 443; Parks ». 
 
 Boulden v. Lanahau, 29 Md. 200; Inloes' Lessee Jao':son, 11 Wend. 442; 451, 457; Hop'.rins v. Mc- 
 
 V. Harvey, 11 Md. 519; Tongue v. Morton, 6 Lame, 4 Cow. 667; Griffith v. Griffith, 1 HoS. 
 
 124 
 
CH. v.] NOTICE. § 95 
 
 The Us pendens begins on the service of the subpcBna or other pro- 
 cess of the court, the idea being that the suit is not really pending 
 until the court has acquired jurisdiction of the case.^ Having once 
 attached, the lis pendens continues as a notice throughout the entire 
 time of the pendency of the suit and until final judgment has been 
 rendered.^ But even when the judgment has been rendered, it does 
 not always necessarily terminate the Us pendens. An appeal of the 
 imsuccessful party from the judgment of the trial court would keep 
 aJive the lis pendens; and it also continues after the rendition of the 
 judgment for a reasonable time during which an appeal might be 
 taken.' Of course, the suit must have been instituted in good faith. 
 There is no notice of lis pendens in the case of a fictitious suit, or 
 where the suit is not presepted with all reasonable diligence and with- 
 out unnecessary delay.* But if a suit should be abated by the death 
 of some party to the action, there will be no loss of the lis pendens, 
 provided the action so abated is revived without unnecessary delay, 
 by making parties to the suit those persons who have, by the death of 
 the original party, become entitled to his rights in the cduse of action. ^ 
 A lis pendens is constructive notice in respect to all the contents of the 
 pleadings; and the notice is charged upon the purchaser pendente lite 
 of any part of the property, which is described by the pleadings as 
 covered by the cause of action. ° But in order that a purchaser may 
 be charged with constructive notice of lis pendens, the pleadings in the 
 cause must describe the property to be affected by the judgment 
 with such definiteness, that the purchaser on reading the pleadings 
 may learn the fact that the property he is about to purchase is included 
 in the cause of action. If there should be so indefinite and incorrect 
 a description of the property as that one could not readily ascertain 
 what property constituted the subject of litigation, the notice of Us 
 pendens would not arise so as to affect the subsequent purchaser.'' 
 
 Ci. 153; Leiteh v. Wells, 48 Barb. G37; 48 N. Y. Gorrell, 3 Ired. Eq. 117; Jackson v. Warren, 38 
 
 58B; Truitt u. Truitt, 38 Ind. 16; Green ». White, 111. 331; and see Lee Co. v. Rogers, 7 Wall. 181; 
 
 7 Blackf. 243; McGregor v. McGregor, gl Iowa, Ibid; Turner v. Crebill, 1 Ohio, 373. 
 
 441 ; Knowles c. Eablin, SO Iowa, 101 j Chapman a Debell „. Poxworthy, 9 B. Mon. S28; Gil- 
 
 V. West, 17 Barb. 135; Patterson v. Brown, 32 man v. Hamilton, 16 111. 225. 
 
 Barb. 81; Mitchell e. Smith,53Barb.413: Loomis * Petree v. Bell, 2 Bush, 58; Clarkson v. Mor- 
 
 ji.Eiley, 24111. 307; Cooley».Brayton, 16111. 10; gan, 6 B. Mon. 441, 448; Watson v. Wilson, 2 
 
 Culpepper v. Aston, 3 Ch. Cas. 115, 221 ; Ayrault Dana, 408; Murray v. Ballou, 1 Johns. Ch. 566, 
 
 «. Murphy, 64 N. Y. 203; Harrington ». Slade, p«r Ch. Kent; Herrington u. McCollum, 73111. 
 
 32 Barb. 161; Pratt v. Hoag, SDuer, 631; Norton 476; Prico». McDonald, 1 Md. 403, 412; Gibler v. 
 
 V. Birge, 35 Conn. 250; Tredway v. McDonald, Trimble, 14 Ohio, 323; Trimble «. Boothby, 14 
 
 51 Iowa, 663. Ohio, 109. 
 
 1 See King «. Bell, 28 Conn. 593; Norton r. 6 Herrington ». McColIum, 73 111. 476; Wat- 
 Burge, 35 Conn. 250, 280; Dresser v. Wood, 15 son v. Wilson, 2 Dana, 406; Debell v. Fox- 
 Kans. 344; Allen e. Poole, 64 Miss. 323, 333; worthy, 9 B. Mon. 228; Ashley ». Cunningham, 
 Allen ». Mandaville, 36 Miss. 397, 399; Center 16 Ark. 168. 
 
 ». Bank, 22 Ala. 743; Farmers' Nat. Bank*. 6 Drake u. Crowell, 40 N. J. L. 58; Ibid; see 
 
 Fletcher, 44 Iowa, 252; Haughwout v. Murphy, Chapman v. West, 17 N. Y. 125; Allen v. Poole, 
 
 21 N. J. Eq. (6 C. E. Green) 118; Weeks v. 54 Miss. 323, 333; Center u. The Bank, 28 Ala. 
 
 Tomes, 16 Hun, 349; Murray v. Ballou, 1 Johns. 743, 757. 
 
 Ch. 566, 576; Hayden «. Bucklin, 9 Paige, 512; ' Griffith r. Griffith, 9 Paige, 315, 317; 1 Hoff. 
 
 Leiteh ». Wells, 48 N. Y'. 585. Ch. 153; Low v. Pratt, 53 111. 438; Lewis v. 
 
 2 Page V. Waring, 76 X. Y. 463; W inborn r. Madisons, 1 Munf. 303; Allen f. Poole, 54 Miss. 
 
 125 
 
§ 96 EQUITY JURISPRUDENCE. [CH. V. 
 
 § 96. To what kind of suits does notice lis pendens apply. — It 
 
 may be stated as a general proposition, that the doctrine of notice by lis 
 pendens applies to all equitable actions in which questions of title to, or 
 claim? against, real property are raised. As long as the action would 
 fall within this general description, the notice of lis pendens would 
 apply, however varied or unusual the character of the suit might be. 
 The more familiar examples, to which the rule of Us pendens applies, 
 are, actions for the foreclosure of mortgages in the form of vendor's 
 liens; for the administration of trusts, and of course for all actions in 
 which the title of the property is disputed.^ As a general rule, the 
 doctrine of Us pendens does not apply to suits on claims against, or titles 
 to, personal property. The purchase of personal property, pending a 
 suit, does not charge the purchaser ordinarily with notice of the ques- 
 tion raised in the suit itself. There is, however, a special exception 
 to this general rule, in the causes of action brought to enforce the per- 
 formance of a trust over personal property, where the property is not 
 negotiable in character.^ It has been held that suits concerning the 
 settlement of the affairs of a partnership would afford an opportunity 
 for the application of the doctrine of lis pendens.^ It is definitely 
 settled that the notice of Us pendens does not apply to suits concern- 
 ing claims against, or titles to, negotiable instruments, whatever may 
 be the character of the suit.* Under the general rule, that the doctrine 
 of Us pendens does not apply to a negotiable instrument, it has been 
 held that suits over certificates of stock will not raise the notice of Us 
 pendens.^ 
 
 323, 333 J Miller v. Sherry, 8 Wall. 837 j Green o. a limitation of the rule; but bonds and mort- 
 
 Slayter, 4 Johns. Ch. 38; see Brown ji. Goodwin, gages are not the subject of ordinary com- 
 
 76 N. Y. 409; Jones u. McNarrin, 68 Me. 334; merce, and they formed one of the speclSc 
 
 Jaflfray v. Brown, 17 Hun, 575. subjects of the suits against W. If the trustee, 
 
 1 Blanchard v. Ware, 43 Iowa, .530, 531 ; 37 pending the suit, changed the land Into per- 
 
 lowa, 305, .307; Eeal Estate Sav. Inst. v. CoUo- sonal security, I see no good reason why the 
 
 nious, 63 Mo. 290, 294; Choudron v. Magee, 8 cestoj ?«« <r«e< should not be at liberty to aflarra 
 
 Ala. 570; Allen v. Poole, 54 Miss. 323, 333. the sale, and take the security; and whoever 
 
 s Boiling V. Carter, 9 Ala. 921 ; Shelton v. afterwards purchased it, was chargeable with 
 
 Johnson, 4 Sneed, 672; Murray ». Lylburn, 8 notice of the suit." 
 
 Johns. Oh. 441; Leltoh v. Wells, 48 Barb. 637; a Hoxie v. Carr, 1 Sumner, 173; Dresser v. 
 
 48N. Y. 685; Scudderu. Van Amburgh, 4 Edw. Wood, 15 Kans. 344. 
 
 Ch. 29; Diamond v. The Lawrence Co. B'k, 1 < Corning ». White, 8 Paige, 557; Famhamu. 
 
 Wright, 353. Says Chancellor Kent in Murray Campbell, 10 Paige, 698; Miller v. Sherry, 8 
 
 V. Lylbum, supra: "The object of that suit Wnll. 237; U. S. Bank v. Burke, 4 Blackf. 141; 
 
 was to take the whole subject of the trust out Norton v. Birge, 35 Conn. 250; Murray v. Lyl- 
 
 of W.'s hands, together with all the papers burn, 2 Johns. Ch. 441, per Ch. Kent; Leltoh v. 
 
 and securities relating thereto. If W. had Wells, 48 N. Y. 685; Stone v. Elliott, 11 Ohio 
 
 held a number of mortgages and other securi- St. 252, 260; see McDermott v. Strong, 4 Johns. 
 
 ties in trust, when the suit was commenced, it Ch. 687; Hadden v. Spader, 20 Johns. 654; 
 
 would not be pretended that he might safely Weed v. Pierce, 9 Cow. 722; Edmeston v. Lyde, 
 
 defeat the object of the suit and the justice of 1 Paige, 637; Winston v. Westfeldt, 28 Ala. 
 
 the court, by selling these securities. If he 760; Kieffer v. Ehler, 6 Harris, (18 Pa. St.) 388, 
 
 possessed cash, as proceeds of the trust estate, 391; Hibernian B'k v. Everman, 52 Miss. 500; 
 
 or negotiable papers not due, or perhaps mova- Mayberry v. Morris, 52 Ala. 1 13 ; Watson v. Wil- 
 
 ble personal property, siwh as horses, cattle, son, 8 Dana, 406; Blake v. Bigelow, 5 Ga. 437; 
 
 grain, etc., I am not prepared to say the rule is McCutchen v. Miller, 31 Miss. 65. 
 
 to be carried so far as to affect such sales. The 6 Lietoh v. Wells, 48 Barb. 637 j a. o. 48 N. Y. 
 
 safety of commercial dealings would require 585. 
 
 126 
 
CH. v.] NOTICE. § 9S 
 
 § 97. What persons are affected by the notice. — Whenever all 
 the requisites in respect to the notice of lis pendens, which have already 
 heen explained, are present in a case; the constructive notice of lis 
 pendens will extend to all persons who derive title to the property 
 from a party to the suit or his privy, during the pendency of the suit. 
 "V\Tien one purchases the same land from someone who is not a party 
 to the suit, or a privy to a party, he is not charged with constructive 
 notice, even though the purchase is made during the pendency of the 
 suit.' On the other hand, where one has acquired, prior to the insti- 
 tution of the suit, a right to the property by a contract which has not 
 been completely executed when the action is brought, he may proceed 
 to a completion of the transaction after the institution of the suit, 
 without being charged with the constructive notice of lis pendens.^ 
 It has also been doubtful whether one must be a purchaser pendente 
 lite from the defendant in the suit, in order to be charged with con- 
 structive notice of lis pendens, or whether he would be equally charged 
 with this notice, if he should purchase the interests of the plaintiff 
 instead of those of the defendant. It has, however, been held that the 
 doctrine of constructive notice will be applied to the purchaser pen- 
 dente lite whether he purchases the plaintiff's or the defendant's inter- 
 est.' If he should purchase the interest of one idef endant, he would 
 not be charged with constructive notice pendente lite of the interest of 
 any other defendant in and to the same property. He is only charged 
 with notice of the interest of the other defendants where he has actual 
 knowledge of the pendency of the suit.* 
 
 § 98. A statutory notice of lis pendens. — The equitable notice 
 of lis pendens has always operated as a very severe hardship upon 
 subsequent purchasers, and for that reason it has never received any 
 very hearty approval from the courts. The disposition of the courts 
 is to confine the equitable doctrine to the most limited application 
 possible, and not to permit its application to be extended beyond this 
 narrow limit. In order that the beneficial part of the doctrine may 
 be retained, and yet be relieved of the elements of hardship towards 
 subsequent purchasers, statutes have been passed in England, and' in 
 many or most of the states in this country, providing that in 
 order that the notice of lis pendens may be charged upon the 
 purchaser pendente lite, a notice of the pendency of the suit must 
 be filed in the recorder's office, or in some other public office, 
 where all deeds and instruments of conveyance are required 
 
 1 Fuller V. Scribner, 76 N. Y. 190 j Brundage v. Boothby, 14 Ohio, 109 j Gibler v. Trimble, 
 
 v. Biggs, 25 Ohio St. 658, 656; Miller*. Sherry, 2 Ohio, 383; Stuyvesant v. Hall, 2 Barb. Oh. 151; 
 
 Wall. 237; Stuyvesant v. Hone, 1 Sandf. Ch. Parks u. Jackson, 11 Wend. 442; Farmers' Nat. 
 
 419; stuyvesant v. Uall, 2 Barb. Ch. 151; Scar- B'k v. Fletcher, 44 Iowa, 252; Stuyvesant v. 
 
 letu. Gorham, 28 111. 319; Parsons v. Hoyt, 24 Hone, 1 Sandf. Ch. 419. 
 
 Iowa, 1.54; Herrington v. Herringtou, 27 Mo. s Garth v. Ward, 2 Atk. 174; Bellamy ». 
 
 S60; Parks v. Jackson, 11 Wend. 442: French Sabine, 1 De G. A J. 566, 580, per Lord Oran- 
 
 V. The Loyal Co., 5 Leigh, 627; Clarkson v. worth. 
 
 Morgan, 6 B. Mon. 441. * Bellamy v. Sabine, 1 De G. A J. 566. 
 
 s Clarkson v, Morgan, 6 B. Mon. 441 ; Trimble 
 
 127 
 
§ 99 BQUITT JUKISPEUDBNCE. [OH. V. 
 
 to be recorded, in order to charge subsequent purchasers with 
 notice of them. The investigator of title to property would, in 
 that case, have no difficulty in ascertaining the pendency of a suit 
 affecting the title to the property which his client is about to pur- 
 chase. The statutes in America may be divided into two classes: one 
 in which the statutory notice of Us pendens is made to apply only to 
 suits concerning real property; and such is found to be the provision 
 in the statutes of New York, California, Connecticut, Illinois, Iowa, 
 Michigan, Minnesota, Missouri, Nevada, New Jersey, North Carolina, 
 Oregon, Pennsylvania, Rhode Island, South Carolina, Virginia, West 
 Virginia and Wisconsin. In the other class of statutes, the provision 
 of the statutory notice is made to apply to all suits in which the 
 original notice of lis pendens could be charged upon the purchaser; 
 applying, therefore, not only to actions concerning real property, but 
 likewise to all the actions concerning personal property to which the 
 doctrine of Us pendens was held by the courts of equity in England, 
 and in this country, to apply. In some of these statutes the statutory 
 notice is confined to the actions concerning personal property, which 
 are expressly enumerated in these statutes. In this second class of 
 statutes are to be found the statutes of Kansas, Maine, Massachusetts, 
 New Hampshire and Vermont. Subject to the modification expressly 
 provided by the statutes, the general principles of the equitable doc- 
 trine of Us pendens would apply equally to the statutory notice.^ 
 
 § 99. Notice by judgment. — It will be borne in mind that the 
 rendition of the judgment in the cause of action puts an end to the con- 
 structive notice of Us pendens; and independently of all statutory 
 changes, the judgment or decree in the cause of action did not of itself 
 charge the purchaser with any notice of the existence of the title set- 
 tled by such judgment, except, of course, to the purchaser pendente, 
 Ute. There would be no notice arising from the judgment to one who 
 purchases the property after the rendition of the judgment, assuming 
 also that such purchaser has not been charged with constructive notice 
 of the effect of the judgment, by virtue of the consequent change in 
 the possession of the premises, or for other like reasons.^ In England, 
 provision is now made for the due registration of judgments, and the 
 judgment creditor acquires a lien upon the property which he can 
 enforce against the subsequent purchaser.' Similar statutes have been 
 passed in many of the American states, whereby the docketing of the 
 
 1 Fanners' Nat. Bank u. Fletcher, 44 Iowa, 675; Drake v. CroWell, 40 N. J. L. 58; Ayrault 
 
 ■252; Stuyvesant v. Hone, 1 Sandf. Ch. 419; »• Murphy, 54 N. Y. 203; Fuller v. Soribner, 76 
 
 Todd II. Outlaw, 79 N. C. 235; Majors v. Cowell, N. Y. 190; Page v. Waring, 76 N. Y. 463. 
 
 51 Cal. 478; Dresser «. Wood, 15 Kans. 344; ^'Le&v. Green, 6 De G.M. &.G. 155; Lane v. 
 
 White V. Perry, 14 W. Va. 66; Mayberry v. Jackson, 20 Beav. 535; Woraley ii. Earl of 
 
 Morris, 62 Ala. 113; Tredway v. McDonald, 51 Scarborough, 3 Atk. 392; Gray Coat Hospital v. 
 
 Iowa, 663; Mills v. Bliss, 55 N. Y. 139; Sherl- Westminster, &c. Coirm'rs, 1 De G. & J. 531j 
 
 dan «. Andrews, 49 N. Y. 478; Brown v. Good- Freer v. Hesse, 4 De. G. M. & G. 495. 
 
 win, 75 N. Y. 409; Mitchell v. Smith, 53 N. Y. 'Hiokeon v. Collis, 1 Jo. & Lat. 94, 113, per 
 
 413; Jones v. McNarrin, 68 Me. 334; Weeks v. Lord St. Leonards; Shawu. Naele, 6H. L.CaB. 
 
 Tomes, 16 Hun, 349; Jaffray t?. Brown, 17 Hun, 581, reversing S. C, 20 Beav. 157. 
 
 128 
 
CH. v.] NOTICE. § 100 
 
 judgment serves to charge the subsequent purchaser with notice of 
 such judgment.^ 
 
 § 100. Notice as between principal and agent. — General state- 
 ment and the scope and application of the doctrine. — The general 
 rule is definitely established by the cases, that where notice is given to 
 an agent of the existence of some prior or paramount claim or right, 
 while such agent, in the name of and for the principal, is carrying on 
 or transacting the business in respect to which the notice applies, such 
 notice to the agent will be imputed to the principal; and he will be 
 charged vdth constructive notice of the facts and circumstances which 
 have thus been brought to the notice of the agent. There are two dif- 
 ferent theories prevalent in respect to the reason of the rule: one is 
 simply a determination, that this application of the doctrine of con- 
 structive notice, to bind the principal with the knowledge of the agent, 
 is required by the exigencies of business, and by the impossibility of 
 conducting business affairs on any other principle. But there is prob- 
 ably a more satisfactory reason for the rule in the presumption that 
 the information acquired by the agent has been actually communicated 
 to the principal. It is manifestly the duty of the agent to so com- 
 municate all sach information to the principal; and it is but reasonable 
 to presume, in the absence of proof to the contrary, that the agent has 
 performed his duty. But whichever reason be accepted as the satis- 
 factory one, the particular results of the rule remain the same.^ The 
 doctrine of constructive notice applies to all kinds of agencies, what- 
 ever may be the peculiar nature of such agency or the scope or char- 
 acter of the powers of the agent. Thus it applies to all trustees, act- 
 
 iRioheson v. Elcheson, 2 Gratt. 497; Bay- _ Ark. 328; Kelleyu Mills, 41 Miss. 867; Rrighter 
 
 ley V. Greenleaf, 7 Wheat. 46, 51; Hartley, ■v. Forrester, 1 Bush, (Ky.) 878; Knell v. 
 
 J., in White v. Denmau, 1 Ohio St. 110, 112; Build'g Ass'n, 34 Md. 67; Jackson v. Dubois, 
 
 Ells u. Tousley, 1 Paige, 280; In r« Howe, 1 4. Johns.216; Sappingtonc. Oesohli, 49Mo. 844; 
 
 Paige, 125; White v. Carpenter, 2 Paige, 217, Potters. McDowell, 43 Mo. 93; Stillwell ». Mc- 
 
 266; Everett v. Stone, 3 Story, 448, 455; Brlggs Donald, 39 Mo. 288; Schmidt v. Hoyt 1 Edw. 
 
 V. French, 2 Sumn. 251; Bank v. Campbell, 2 Ch. 652; Thomas v. Kelsey, 30 Barb. 268; 
 
 Rich. Eq. 179; Watkins v. Wassell, 15 Ark. 73, Wilder v. Butterfield, 50 How. Pr. 386; Welton 
 
 94, 95; Cover ». Black,, 1 Barr. 493; Shryock v. v. Tizzard, 15 Iowa, 495; Patterson v. Linder, 
 
 Waggoner, 4 Casey, 430; Gouverneur v. Titus, 14 Iowa, 414; Bell v. Evans, 10 Iowa, 353; Nor-, 
 
 6 Paige, 347; Kiersted v. Avery, 4 Paige, 9; ton u. Williams, 9 Iowa, 528; In, re Howe, 1 
 
 Arnold v. Patrick, 6 Paige, 310; Morris v. Paige, 125; Schroeder ». Gumey, 73 N. Y. 430; 
 
 Mowatt, 2 Paige, 586, 590; Hampson v. Edelen, Hoy v. Allen, 27 Iowa, 208; Churchill v. Morse, 
 
 2 Har. & Johns. 64; Hackett v. Callender, 32 85 Iowa, 289; Evansj). McGlasson, 18 Iowa, 150; 
 
 Vt. 97, 108, 109; Hart v. Farm. & Meoh. B'k, 33 Moyer v. Hinman, 13 N. Y. 180; 17 Barb. 137; 
 
 Vt. 252; Brown ». Pierce, 7 Wall. 805; Baker Wllcoxson ». Miller, 49 Gal. 193; Pixleys. Hug- 
 
 V. Morton, 12 Vt. 150; Buohan v. Sumner, 2 gins, 15 Cal. 127; First Nat. B'k v. Hayzlett, 40 
 
 Barb. Ch. 165, 207; Hoagland v. Latourette, 1 Iowa, 659; Rose v. Munie, 4 Cal. 173; Hunterr. 
 
 Green's Ch. 254; Dunlap v. Burnett, 5 Sm. & Watson, 12 Cal. 363; Plant v. Smythe, 45 CaL 
 
 Mar. 702; Money v. Dorsey, 7 Id. 15; Van 161. 
 
 Thomiley v. Peters, 26 Ohio St. 471; Morton v. ^ Westervelt v. HafF, 2 Sandf. Ch. 98; Jackson 
 
 Robards, 4 Dana, 258; Greenleaf v. Edes, 2 «. Leek, 19 Wend. 339; Hovey u. Blanchard, IS 
 
 Minn. 264; Orth v. Jennings, 8 Blackf. 420; N. H. 145; Le Neve, Ambl. 4"6; 2 Eq. Lead. Cas. 
 
 Hampton ». Levy, IMoCord Ch. 107, 111; Gal- 109, 133 (4th Am. ed.); Jones v. Bamford, 21 
 
 way V. Malohow, 7 Neb. 885; Stevens v. Wat- Iowa, 217; Myers V. Ross, 3 Head, 59; Holden v. 
 
 son, 4 Abb. App. Dec.,302; Wheeleri). Kirtland, N. T. A Erie Bank. 72 N. Y. 886; Ames v. N. T. 
 
 24 N. J. Eq. (9 C. E. Green) 552; Valentine v. Union Ins. Co., U N. Y. 853; Bierce v. Red Bluff 
 
 Havener 20 Mo. 133; Apperson v. Buigett, 33 Hotel Co., 31 Cal. 160; Russell </. Sweezey, 22 
 
 129 
 
100 
 
 EQUITY JURISPRUDENCE. 
 
 [CH. V. 
 
 ing on behalf of their beneficiaries; ' to directors, merchants, cashiers, 
 presidents, and other officers of corporations; ' to the agent of a mar- 
 ried woman; ' to all actual agencies whether the agency be express 
 or implied;* to one of two or more joint agencies/ It also applies 
 where the same agent is acting for both parties in the same transaction.' 
 But the information which the agent acquires confidentially from one 
 party, will not be imputed to the other party; except when the agent 
 is not under an obligation to keep to himself the information thus 
 acquired.' It has been held that in order that the doctrine of con- 
 structive notice to the principal may arise upon information given to 
 the agent, he must be an actual agent or attorney in fact in respect to 
 the particular business in which the notice applies, and that the attor- 
 ney-at-law or solicitor is brought within the provision of the rule only 
 when he is the actual agent of the party in the particular transaction.' 
 Finally, the agent must have the authority to represent and to bind 
 the principal by his acts in the transaction of the business to which the 
 notice applies. The agent who is employed to do a mere ministerial 
 act, is not such an agent as to whom the doctrine of constructive notice 
 to the principal would apply. " 
 
 Iilich. 235; National Security Bank K.Cushman, 
 121 Mass. 490; Smith v. Denton, 42 Iowa, 48; 
 First National Bank of Milford v. Town of 
 Milford, 36 Conn. 93; Tagg v. Tenn. Nat. Bank, 
 SHeisk. 479 j Parrlngton v. Woodward, 82 Pa 
 St. 259; Ward V. Warren, 82 N. Y. 265; Allen v 
 Poole, 54 Miss. 323; Suit v. Woodhall, 113 Mass 
 391; Owens v. Roberts, 36 Wis. 258; Distilled 
 Spirits, 11 Wall. 356; Astor V. Wells, 4 Wheat. 
 466; Grifath v. Griffith, 9 Paige, 315; 1 Hoff. Ch. 
 153. 
 
 > Willes V. Greenhill, 4 De G. F. & J. 147, 150 
 Myers «. Kosb, 3 Head, 59. 
 
 2 Fulton Bank v. Canal Co., 4 Paige, 127; 
 Bank of V. S. V. Davis, 2 Hill, 451 ; New Hope 
 Bridge Co. v. Phcenlx Banks, 3N. Y. 158; Wash 
 Ington Bank v. Lewis, 22 Pick. 24; National Se- 
 curity Bank 11. Cushman, 121 Mass. 490; First 
 Nat. Bank, &o. v. Town of Milford, 36 Conn 
 93; Exparte Larking, L. E. 4 Ch. D. 566; Smith 
 V. Water Comm'rs, 38 Conn. 208; Tagg v. Tenn, 
 Nat. Bank, 9 Heisk. 479; Branch Banks. Steele. 
 10 Ala. 915; Holden j). N. Y. <fc Erie Bank, 72 N, 
 T. 286; North Elver Bank v. Aymar, 3 Hill, 262. 
 
 ' Duke V. Balme, 16 Minn. 306; see Prlngle v. 
 Dunn, 37 Wis. 449; Clark v. Fuller, 39 Conn. 238 
 Willes V. Greenhill, 4 De G. F. & J. 147, 150, 
 
 * Snyder v. Sponable, 1 Hill, 567; 7 Id. 'm 
 Watson D.Wells, 5 Conn. 468; Farrington ». 
 Woodward, 82 Pa. St. 259; Flagg v. Mann, 2 
 .Sumn. 486, 534. 
 
 6 Bank of U. S. d. Davis, 2 Hill, 451, 464 
 Willes V. Greenhill, 4 De G. F. & J. 147, 150. 
 
 « Holden ». N. Y. & Erie Bank, 72 N. Y. 286 
 First Nat. Bank, &c. v. Town of Milford, 3( 
 ■Conn. 93; Losey v. Simpson, 3 Stockt. Ch. 246 
 LeNeve v. LeNeve, Ambl. 436; 2 Eq. Lead. 
 Cas. 109 (4th Am. ed.) 
 
 ' Perry ti. Holl, 2 De Q. F. & J. 38, 53, per Lord 
 
 130 
 
 Chan. Campbell; Pulton Bank v. N. Y.. <Sco. 
 Canal Co., 4 Paige, 127; I?i re European Bank, 
 L. R. 5 Ch. 358; Banco de Lima v. Anglo-Peru- 
 vian Bank, L. E. 8 Ch. D. 160, 175. 
 
 8 See Saflfrou, &o. Soo. v. Eayner, L. R. 14 Ch. 
 D. 406, 409, 415. In this case, L. J. James says : 
 " I have had occasion several times to express 
 my opinion about the fallacy of supposing 
 that there is such a thing as the office of solic- 
 itor, that is to say, that a man has got a solio- • 
 Itor not as a person whom he is employing to 
 do some particular business for him, either 
 conveying, or conducting an action, but as an 
 official solicitor; and that because the solicitor 
 has been in the habit of acting for him, or has 
 been employed to do something for him, such 
 solicitor is his agent to bind him by anything 
 he says, or to bind him by receiving notices or 
 information. There is no such officer known to 
 the law. A man has no more a solicitor in that 
 sense than he has an accountant, or baker, 
 or butcher. A person is a man's accountant, or 
 baker,or butcher, when the man chooses to em- 
 ploy him or deal with him. and in the matter in 
 which he Is so employed. Beyond that the 
 sollcitorship does not extend. I am prepared, 
 therefore, to say, that before a notice of this 
 kind can have the slightest validity, it must 
 be given, if given to a solicitor, to a solicitor 
 who is actually, either expressly or impliedly, 
 authorized as agent to receive such notice." 
 
 'Anketel „. Converse, 17 Ohio St. 11; Hop- 
 pock V. Johnson, 14 Wis. 303; Wyllie v. Pollen, 
 3 De G. J. & S. 596, 601; Grant v. Cole, 8 Ala. 
 619; Wilson v. Conway Fire Ins. Co., 4 R. I. 
 141, 152; Brown -o. Bankers, &o. Tel. Co., 30 
 Md. 39; EoachB. Karr, 18 Kans. ,529; Weisser 
 V. Denison, 10 N. Y. 68; Spadone v. Manvel 
 2 Daly, 263; Tucker v. Tilton, 55 N. H. 283, 
 
CH. v.] NOTICE. § 101 
 
 It has been held that this doctrine of constructive notice to the prin- 
 cipal arises not only in the case of actual notice to the agent, but also 
 where the agent himself is only charged with constructive notice, as in 
 the case of the constructive notice of registration, of possession, by 
 recitals in deeds, by lis pendens, or by any other circumstances which are 
 sufficient to put a reasonably prudent man upon his inquiry; in other 
 words, that the principal is charged with constructive notice of the con- 
 structive notice with which the agent is charged.' It seems, however, 
 that there is no occasion for imputing to the principal the constructive 
 notice of the agent, for the same facts and circumstances would 
 likewise charge the principal with constructive notice, independently 
 of any notice to the agent whether actual or constructive; it is the prin- 
 cipal and not the agent who is charged with the constructive notice of 
 registration, lis pendens, and the like. 
 
 § 101. Essential reqnisites of the constructive notice to princi- 
 pal. — The general rule is, subject to limitations to be mentioned here- 
 after, that in order that the principal may be charged with construct- 
 ive notice of the information received by the agent, that the agent must 
 receive such information while he was in the actual employment of the 
 principal, and actually engaged in discharging his duties as such agent. ^ 
 A very common application of this limitation is to bo found in the 
 statement of the law, that information received by directors and officers 
 of corporations will be imputed to the corporation, only when such 
 information is received by them while discharging the duties of such 
 office.' It is also a provision of the general rule in this connection, 
 that the principal will not be charged with constructive notice of 
 information received by the agent, where such agent does not receive 
 the information in the same transaction in which the doctrine of con- 
 structive notice is made to apply. No constructive notice will, as a 
 general rule, be raised by information acquired by the agent in some 
 prior or independent transaction.* 
 
 1 Bank of U. S. v. Davis, 8 Hill, 451, 461; see » Fanners' Bank v. Payne, 25 Conn. 444j U. 
 Kennedy v. Green, 3 My. & K. 699, 719, per Lord S. Ins. Co. v. Shriver, 3 Md. Oh. 381 : Gen. Ins. 
 Brougham. Co. v. U. S. Ins. Co., 10 Md. 517j Winchester v. 
 
 2 Pringle V. Dunne, 37 Wis. 449; Distilled B. & S. R. B., 4 Md. 231; Pulton Bank v. N. Y. 
 Spirits, 11 Wall. 356; Blerce v. Red Bluff Hotel & Sharon C. Co., 4 Paige, 127; Seneca Co. Bank 
 Co., 31 Cal. 160; May v. Borel, 12 Cal. 91; Saf- v. Neass, 5 Denio, 329, 337; Miller v. 111. Cent, 
 f ran, Ac. Soc. v. Rayner, L. R. 14Ch.D.406; E. B., 24 Barb. 312; North River Bank «. Aymar, 
 In re Peruvian Ey. Co., L. R. 2 Ch. 617, 626; 3 Hill, 262; Brown v. Bankers', Ac. Tel. Co., 30 
 Spadone v. Manyel, 2Daly, 263; N. Y. Cent. Ins. Md. 39; G. W. Ry. Co. v. Wheeler, 80 Mich. 419; 
 Co. V. Nat. Protec. Ins. Co., 20 Barb. 468; 14 N. President, &c.,v. Cornen, 37 N. Y. 320; La Farge 
 Y. 85; Fry v. Shehee, 55 Ga. 208; Wilde v. Gib- Fire Ins. Co. v. Bell, 22 Barb. 54, 61 ; Atlantic, 
 son, 1 H. L. Cas. 605, 624; Pepper v. George, 51 Ac. Bank v. Savery, 82 N. Y. 291, 307; National 
 Ala. 190; Eoach v. Karr, 18 Kans. 529; Weisser Bank v. Norton, 1 Hill, 578; Bank of U. S. «. 
 V. Denlson, 10 N. Y. 68; Howard Ins. Co. v. Davis, 8 Hill, 451. 
 
 Halsey, 8 N. Y. 271 ; Smith v. Denton, 42 Iowa, * Houseman v. Girard, cScc. Ass'n, 81 Pa. St. 
 
 48; Jones v. Bamford, 21 Iowa, 217; Clark v. 256,861; Finch v. Shaw, 19 Beav. BOO; 5 H. L. 
 
 Fuller, 39 Conn. 238; Houseman ». Girard, &c. Cas. 905; Holden v. N. Y. & Erie Bank, 73 
 
 Ass'n, 81 Pa. St. 256; Q. W. Ey. Co. ». Wheeler, N. Y. 28S; Howard Ins. Co. v. Halsey, 8 N. Y. 
 
 20 Mich. 419; Russell v. Sweezey, 22 Mich. 235; 271; Weiser v. Denlson, 10 N. Y. 68; Pringle v. 
 
 HodgklnsD. Montgomery Co. Ins. Co., 34 Barb. Dunn, 37 Wis. 449; McConniok v. Wheeler, 36 
 
 213. 111. 114; Bracken v. Miller, 4 Watts & S. 102; 
 
 131 
 
§ 101 EQUITY JUEISPKUDENCE. [CH. V. 
 
 This general statement, however, must be taken subject to the quali- 
 fication, that the principal would be charged with constructive notice, 
 where the information received by the agent from some prior trans- 
 action was so precise and definite, or was received so short a time 
 before the entrance upon the second transaction, as that it would be 
 reasonable to presume that the agent while performing the business of 
 his principal in the latter transaction had before his mind, or was con- 
 scious of, the information he had received in the former transaction. 
 In other words, where the fact is established by convincing circum- 
 stantial evidence that the agent while transacting the business of his 
 principal, actually knows of the existence of the outstanding claim, the 
 principal will be charged with constructive notice, whether the agent 
 received the information in the present transaction or in some prior 
 one, and whether the principal was a part of the prior transaction or 
 not; for in this case, it is not a question of notice, but a question of 
 knowledge; but the evidence offered to establish the agent's hnowledge 
 of the outstanding claim, at the time he was performing his duty to 
 his principal, must be clear and undoubted/ Some light may be 
 thrown on this question by the position of the New York Court of 
 Appeals, in holding that the continuity of the agency is a circumstance 
 from which the fact of present knowledge of the outstanding claim 
 may be inferred, where the information is received in a prior trans- 
 action. "Notice must have come to the agent, it is said, in the course 
 of the very transaction, or so near before it that the agent must be 
 presumed to recollect it. This limitation, however, applies more par- 
 ticularly to the case of an agent whose emplojrment is short-lived, so 
 that the principal shall not be affected by knowledge that came to the 
 agent before his employment began, nor after it was terminated. But 
 where the agency is continuous and concerned with a business made up 
 of a long series of transactions of a like nature, of the same general 
 character, it will be held that knowledge acquired as agent in that 
 business in any one or more of the transactions making up from time 
 to time the whole business of the principal, is notice to the agent and 
 to the principal, which will affect the latter in any other of those trans- 
 
 Biercec. Red Bluflf Hotel Co., 31 Cal. 160; North acquires the knowledge, when he effects tha 
 Eiyer Bank v. Aymar, 3 Hill, 262; Russell u. purchase, no question can arise as to his hav- 
 Sweezey, 22 Mich. 235; Hood v. Fahnestock, 8 ing it at the time; if he acquired previous to 
 Watts, 489; Lawrenee v. Tucker, 7 Greenl. 195; the purchase, the presumption that he still re- 
 Smith i;. Denton, 42 Iowa, 48; Blumenthal v. tains it, and has it present to his mind, will 
 Brainerd,38Vt.402,410;Boach».Kerr, ISKans. depend on the lapse of time, and other oir- 
 529; Allen II. Poole, 54 Miss. 323. But see coraij-a, cumstances. Knowledge communicated to 
 Hart V. Farm. & Mech. Bank, 33 Vt. 252; Abell the principal himself, he is bound to recollect; 
 V. Howe. 43 Vt. 403. but he is not bound by knowledge oommunl- 
 1 "In England, the doctrine seems now to cated to his agent, unless it is 'present to the. 
 be established, that if the agent at the time of agent's mind at the time of effecting the pur- 
 affecting a purchase, has knowledge of any chase. Clear and satisfactory proof that It 
 prior lien, trust, or fraud, affecting the prop- was so present, seems to be the only restrictioa 
 erty, no matter when he acquired such knowl- required by the English rule as now under- 
 edge, his principal is affected thereby. If he stood." Bradley, Judge in the case of Dis- 
 tilled Spirits, 11 Wall. 356. 
 
 132 
 
CH. v.] NOTICE. § 102 
 
 actions in which that agent is engaged, in which that knowledge is 
 material." ' But in this connection, it must be borne in ['mind, that 
 where the agent is not at liberty to disclose the information that he 
 received in the prior transaction, the doctrine of constructive notice 
 could not apply.* Finally, in order that the principal may be bound 
 with constructive notice of the information acquired by the agent, it 
 must be material to the transaction; and for that reason it is obligatory 
 upon the agent to communicate it to the principal. If the information is 
 immaterial, it cannot affect the rights of the principal, and the princi- 
 pal, therefore, would not be charged with any constructive notice.' 
 
 § 102. Presumption of notice to principal not conclusive. — ^As 
 has been stated already, the doctrine of constructive notice apphes 
 where the agent is under an obligation to communicate fhe information 
 received to his principal. The principal is bound with notice of all 
 the facts within the knowledge of the agent, even though the agent 
 should fail to communicate such facts to the principal. That is the 
 nature of the constructive notice which is imputed to the principal, 
 and the general rule is, that the principal is conclusively presumed to 
 have knowledge of all the information received by the agent, under 
 the circumstances set forth in the previous paragraphs. Hence aU 
 further proof of his having notice is dispensed with, and, except in two 
 extraordinary cases, which will be mentioned hereafter, he is not per- 
 mitted to relieve himself of liability by the proof of any facts tending 
 to show his own good faith and want of knowledge.* But where the 
 agent is acting for both parties to the transaction, and he withholds 
 from one of these parties, at the instigation of the other party, material 
 information concerning the transaction, the act of the agent would be 
 a manifest fraud upon the party from whom the information was 
 withheld; and the other party is likewise charged with fraud by his 
 collusion with the agent. In such a case the party defrauded is not 
 charged with constructive notice of the information received by the 
 agent but undisclosed to him.^ The other case is where an agent 
 
 ' Folger, J., in Holden v. N. Y. & Erie Bank, for a former client, in a prior transaction — the 
 
 72 N. Y. 286, 292; see, also, Tegg v. Tenn. Nat. reason of the rule ceases; and in such a case 
 
 Bank, 9 Heisk. 479; Porter v. Bank of Rutland, an agent would not be expected to do that 
 
 19 Vt. 410; Bank of U. S. ». Dayis, 2 Hill, 451; which would involve the betrayal of profes- 
 
 Fulton Bank V. N. Y. & Sharon C. Co., 4 Paige, sional confidence, and his principal ought not 
 
 127. to be bound to the agent's secret and confiden- 
 
 2 Bank of U.S. «. Davis, 2 Hill, 451;Taggti. tial information." Bradley, J., in the Distilled 
 
 Tenn. Nat. Bank, 9 Hesik. 479; Fulton Bank v. Spirits, 11 Wall. 356. 
 
 N. Y. &. Sharon C. Co., 4 Paige, 127; Porter ». s Fry r. Shehee, 55 Ga. 208; May o. Borel, 12 
 
 Bank of Eutland, 19 Vt. 410. "The general Cal. 91 ; Jones v. Bamf ord, 21 Iowa, 217 ; Pringle 
 
 rule that the principal is bound by the agent's i>. Dunn, 37 Wis. 449 ; The Distilled Spirits, 11 
 
 knowledge.is based on the principle of law.that Wall. 35e, per Bradley, J.; Roach v. Kerr, 18 
 
 It is the agent's duty to communicate to his Kans. 529; Rolland v. Hart, L. R. 6 Oh. 678, 
 
 principal the knowledge which he has respect- 681, 682. 
 
 ing the subject-matter of negotiation, and the * Bspin v, Pemberton, 3 De G. & J. 547; Owens 
 
 presumption that he will perform that duty. •y. Roberts, 36 Wis. 258; Suit v. Woodhall, 113 
 
 When it is not the agent's duty to communi- Mass. 391; Williamson v. Brown, 15 N. Y.-354; 
 
 cate such knowledge, but it would be unlaw- Boursot v. Savage, L. R. 2 Eq. 134, 142. 
 
 ful for him to do so— as for example, when it ' Hewitt v. Loosemore, 9 Hare, 449, 455, per 
 
 has been acquired confidentially as attorney Turner, V. C. ; Sharpe v. Foy, L. R. 4 Ch.35, 40,41. 
 
 133 
 
§ 102 EQUITY JUKISPEUDENCE. [CH. V. 
 
 commits an independent fraud upon his principal while in the employ- 
 ment of such principal, and in the perpetration of the fraud he has 
 received the information. In that case the ordinary presumption of 
 the communication of the information to the principal would fail, and 
 if no other presumption was indulged in at all, it would be presumed 
 that no communication was made at all; in this case the principal is 
 not affected with constructive notice.' But it is not every fraud of 
 the agent which would prevent the application of the doctrine of con- 
 structive notice; it is only when the fraud could only be made success- 
 ful, or when its success was facilitated, by the concealment from the 
 principal of the information in question." 
 
 ' Holden v. N. T. & Erie Bank, 72 N. Y. 286, Ch. 358, 361, 362; BoUand v. Hart, L. E. 6 Cu' 
 
 ana First Nat. Bank, &o. v. Town of New Mil- 678, 682; Waldy v. Gray, L. E. 20 Eq. 238, 251. 
 
 ford, 36 Conn. 93; but see Barnes v. Trenton ' Holden v. N. Y. & Erie Bank, 72 N. Y. 286; 
 
 Gas Co. , 27 N. J. Eq. (12 G. E. Oreen) 33 ; Jf homp- see Hope Fire Ins. Co. v. Cambrellng, 1 Hun, 
 
 son V. Cartwright, 33 Beay. 178; McOormick v. 493; Winchester v. Susquehanna E. E.,4Md. 
 
 Wheeler, 36 III. 114; Winchester v. Susque- 231; MoCormicko. Wheeler, 36111. 114; Bank of 
 
 hanna E. E., 4 Md. 231 ; Hope Fire Ins. Co. v. New Milford v. Town of New Milford, 36 Conn. 
 
 Cambrellng, 1 Hun, 493; Cave v. Cave, L. E. 15 93; Davis v. Bank of 0. S., 2 Hill, 451; Tagg V. 
 
 Ch. n. 639, 643; In re European Bank, L. B. 5 Tenn. Nat. Bank, 9 Heisk. 479. 
 
 134 
 
CHAPTER VI. 
 
 THE DOCTEINE OF EQUITABLE ESTOPPEL. 
 
 Sbotion 
 Equitable estoppel defined . . .106 
 Essentials of an equitable estoppel in pais 107 
 Wbat conduct necessary to constitute an 
 
 estoppel 108 
 
 How far fraud is necessary to estoppel in 
 
 pais 109 
 
 Knowledge of the trutb by the party 
 
 estopped 110 
 
 Sbotion 
 Ignorance of the truth by the other party 111 
 The party estopped must have intended 
 
 to influence the conduct of others 
 The representation or concealment must 
 have influenced the conduct of anothei 
 Operation and extent of estoppel as to 
 
 persons 
 
 Quasi estoppel in the case of acquies- 
 cence 
 
 112 
 
 113 
 
 114 
 
 115 
 
 § 106. Equitable estoppel defined. — The doctrine of estoppel is 
 not peculiar to the law of equity; but in fact, in some particu- 
 lars, it originated in courts of law as a legal principle, and as a 
 legal principle it is of very ancient origin. As a doctrine of the 
 conamon law, estoppel is defined by Lord Coke as follows: "An 
 estoppel is where a man is concluded by his own act or acceptance 
 to say the truth;" and he represents the estoppel in law to be of 
 three kinds: estoppels of record, by deed, and in pais. The estop- 
 pels of record and by deed are strictly illustrations of estoppels in 
 law, and can in no sense be construed as a part of the equitable doc- 
 trine of estoppel. All cases to which the equitable doctrine of estoppel 
 is applied are estoppels in pais. There are, however, legal estoppels 
 in pais, and Coke describes them as consisting of estoppels arising "by 
 livery, by entry, by acceptance of rent, by partition, and by accept- 
 ance of estate. ' ' The equitable estoppel, as we now know it, is a com- 
 paratively modern doctrine, and is essentially distinguished even from 
 the legal estoppels in pam. The legal estoppel consists of the iron- 
 cast rule, excluding the proof of the truth in the case without discrimina- 
 tion, in order to attain a certain object, whether the exclusion of the 
 truth would work an injustice or not in the particular case. The equi- 
 table estoppel is only permitted to exclude the proof of the truth, where 
 it would be as a matter of fact, in the particular case, an act of injus- 
 tice to one who has relied upon the misrepresentation of the other. 
 The equitable estoppel rests upon the question of good conscience, an 
 honest and a due consideration of the right of the particular individual 
 to be protected from harm, which he has suffered in the reliance upon 
 the misrepresentation of another.' We are, therefore, permitted t» 
 
 1 Horn V. Cole, 51 N. H. 287, 289, opinion of 
 Perley, C. J. : " The equitable estoppel and 
 legal estoppel in pais agree indeed in this, that 
 they both preclude one from showing the 
 truth in the Individual case. The grounds. 
 
 however, on which they do It, are not only dif- 
 ferent, but directly opposite. The legal estop- 
 pel shuts out the truth, and also the equity andl 
 justice of the Individual case, on account of 
 the supposed paramount importance of rigor- 
 
 135 
 
§ 107 EQUITY JURISPRUDENCE. [CH. VI. 
 
 define equitable estoppel as being a rule of law, which precludes one 
 from asserting rights to property or contract, or otherwise, where he 
 has by his conduct led another person in good faith to believe that 
 those rights were either non-existent or different in character from 
 what they really were; and that this person to whom the misrepresenta- 
 tion was made has been induced, by such misrepresentation, to part 
 with something of value, and would be damaged if the party making 
 the misrepresentation were permitted to prove and assert his real rights. ' 
 The equitable doctrine of estoppel had its origin in equity, but it is now 
 apphed by both courts of law and of equity; and many of the cases 
 which are cited in support of the equitable doctrine are taken from the 
 courts of law, as well as from the courts of equity, or courts having 
 equitable jurisdiction. While, as a general rule, the doctrine of estop- 
 pel in pais is enforced in courts of law, as well as in courts of equity, 
 and the owner of property may thereby be estopped from asserting 
 his legal title to the land,^ yet it has been generally held that the equi- 
 table estoppel in pais, will not be available as a defense in the common 
 law action of ejectment.' But where the estoppel arises in any other 
 legal action but that of ejectment, the estoppel in pais will be enforced 
 so as to affect the legal title to the land.* But whether the equitable 
 estoppel is available in an action at law or not, it can always be employed 
 in an equitable action for the enforcement of equitable rights to such 
 property against the legal title of the party estopped. ° 
 
 § 107. Essentials of an equitable estoppel in pais. — ^The follow- 
 ing are the essential requisities to the establishment of the equitable 
 estoppel m paAs: First, there must .be some conduct of the party 
 having the right or claim to be estopped which amounts to a repre- 
 sentation or concealment of material facts. Second, the representation 
 must be made by one who knows it to be false, or has no reason- 
 able ground for believing it to be true. Thvrd, the falsity of the 
 
 OUBly enforcing a certain and unvarying laplalne«. Hitchcock, 6 Hill, (N. Y.) 14; Ham 
 
 maxim of the law. Legal estoppels exclude lin ». Hamlin, 19 Me. 141; Hayes v. Livingston, 
 
 evidence of the truth, and the equity of the 84 Mich, 384; a c, S2 Am. Rep. 533; De Mill v. 
 
 particular case, to support a strict rule of law Moflfatt, 49 Mich. 185; Wimmer v. Ficklin, 14 
 
 on grounds of public policy. Equitable estop- Bush, (Ky.) 193; Stockyards v. Wiggins Ferry 
 
 pels are admitted on the exactly opposite Co., 102 111. 514; Nix v. Collins, 65 Ga. 219; 
 
 ground of promoting the equity and justice of Townsend Bank v. Todd, 47 Conn. 190; Thomp- 
 
 the individual case by preventing a party from son v. Campbell, 57 Ala. 183 j Doe d. McPherson 
 
 asserting his rights under a general technical v, Walters, 16 Ala. 714. 
 
 rule of law, when he has so conducted himself * Finnegan ii. Carraher, 47 N. Y. 493; McAf- 
 
 that it would be contrary to equity and good ferty». Conover, 7 Ohio St. 99; Beaiipland v. 
 
 conscience for him to allege and prove the McKean, 28 Pa. St. 124; Davis v. Davis, 26 Gal. 
 
 truth." See, also, Stevens ». Dennett, 51 N. H. 23; Brown v. Wheeler, 17 Conn. 345; Pool v. 
 
 324. Lewis, 41 Ga. 162; Hale v. Skinner, 117 Mass. 
 
 1 Swan V. North Br., &c. Co., 2 H. cfc C. 175, 181, 474; Bigelow v. Foss, 59 Me. 162; Stevens v. Den- 
 ver Blackburn, J. nett, 61 N. H. 324; Spears v. Walker, 1 Head, 
 
 2 Wllber V. Goodrich, 34 Mich. 84; SherriU v. (Tenn.) 166; Halloran v. Whitcomb, 43 Vt. 306; 
 Sherrill, 73 N. C. 8; Mayer v. Ramsey, 46 Tex. Marimer v. Milwaukee, &c. Rd., 26 Wis. 84; 
 371; Vioksburg, Ac. R. R. v. Ragsdale, 54 Miss. Kirk d. Hamilton, 102 TI. S. 68. 
 
 200; Sulphine v. Dunbar, 55 Miss. 255; Will- ' Favill ». Roberts, 3 Lans. 14; s. c, BO N. Y. 
 
 mott V. Barber, L. R. 15 Ch. D.;96,106; Hayes®. 228; Goodman v. Winter, 64 Ala. 410; Society, 
 
 Livingston, 34 Mich. 384. &c. v. Lehigh Valley Rd. , 32 N. J. Bq. 329 ; WIU- 
 
 8 West V. Tilghman, 9 Ired. (N. Car.) 163; De- lams v. Jersey, Craig & P. 91. 
 
 136 
 
CH. VI. J 
 
 EQUITABLE ESTOPPEL. 
 
 § 108 
 
 representation must be unknown to the party claiming the benefit of 
 the estoppel at the time when the representation was made and when 
 it was acted upon. Fourth, the representation must have been made 
 with the intention of influencing the conduct of the person or persons 
 to whom the representation was made, or it must be made with the 
 expectation that somebody would be influenced thereby. Fifth, the 
 representation must be relied upon and acted upon by the party who 
 claims the benefit of the estoppel. Sixth, such party in acting upon 
 the representation must have parted with value, so that damage would 
 result to him if the party making the misrepresentation were now 
 allowed to prove and estabhsh the truth. ^ 
 
 §108. What conduct necessary to constitute an estoppel. — 
 In order that an estoppel may arise in pais, the party who is to be 
 estopped must have made a material misrepresentation of facts; ^ or 
 lie must have concealed, or maintained silence as to, material facts or 
 circumstances, where it was his duty to make them known. ^ Where 
 one is under no positive duty to speak, and has no reasonable oppor- 
 tunity to do so, his silence will then not constitute such conduct as to 
 raise an estoppel.* So, for example, the promisor is not estopped to 
 deny his liability where an offer of reward is made without his 
 authority, although he knew of the offer by publication and did not 
 
 1 Freeman v. Cooke, 2 Exch. 654, Parke, B. ; 
 Continental B'k v. B'k of the Comm'th, 60 N. Y. 
 Sib, 581, 588, Folger, J. ; Gaylord v. Van Loan, 15 
 Wend. 308; Blalr v. Wait. 69 N. Y. 113, 116; 
 Waring V. Sombom, 82 N. Y. 604; Hurdr. Kelly, 
 78 N. Y. 588, 597; Malloney v. Horan, 49 N. Y. 
 Ill, 115; Man. & Trad. B'k v. Hazard, 30 N. Y. 
 226, 230, per Jolinaon, J. j Barnard v. Campbell, 
 55 N. Y. 456, 4®, 463; Jewett v. Miller, 10 N. Y. 
 402, 406; Sbarpley v. Abbott, 42 N. Y. 443, 448; 
 St. John jj. Roberts, 31 N. Y. 441; Brown v. 
 Bowen, 30 N. Y. 519, 541; Lawrence v. Brown, 
 5 N. Y. 394, 401; Frost v. Saratoga Mut. Ins. 
 Co., 5 Denio, 154, 158; Welland Canal Co. v. 
 Hathaway, 8 Wend. 480, 483; Storrs v. Barker, 
 •6 Johns. Ch. 166: Slim v. Croucher, 1 De G. F. 
 A J. 518; Dezell v. Odell, 3 Hill, 215; MeCabe v. 
 Baney, 33Ind. 309; Simpson v. Pearson, 1 Ind. 
 «5; Hartshorn v. Potroff, 89 III. 509; Taloott v. 
 Brackett, 5 111. App. 60; Michigan, &c. Co. v. 
 Parsell, 38 Mich. 475, 480; see, also, Horn v. 
 Cole, 51 N. H. 287, 289, per Perley, C. J. ; Morgan 
 V. Railroad Co., 96 U. S. 716; Holmes v. Crowell, 
 73 N. C. 613, 627; Anderson v. Armstead, 69 111. 
 452, 454; Voorhees v. Olmstead, 3 Hun, 744; 
 Clark II. Coolidge, 8 Kans. 189, 195; Kuhl v. 
 Mayor, &e. 23 N. J. Bq.( 3 C. E. Green) 84, 85; 
 Eiceu. Bunco, 49 Mo. 331 334; Heanen. Rogers, 
 ■9 B. & C. 577; Wallis v. Truesdell, 6 Pick. 455; 
 Bidwell V. Pittsburg, 85 Pa. St. 412, 417, per 
 Mercur, J. ; Stevens v. Dennett, 51 N. H. 334, 
 330, Foster, J. 
 
 2 Tilton V. Nelson. STBarb. 595; Horn v. Cole, 
 51 N. H. 287, 290; Stevens v. Dennett, 51 N. H. 
 324; Zeohtmanu v. Roberts, 109 Mass. 53; Con- 
 tinental B'k V. B'k of Comm'th, 50 N. Y. 575; 
 
 Barnard v. Campbell, 55 N. Y. 456; Board of 
 Trustees, i&c. v. Serrett, 31 Lai An. 719; Jeflfries 
 V. Clark, 53 Kans. 448; Hartshorn v. Potroff, 89 
 111. 509; Taloott v. Brackett, 5 111. App. 60; 
 Southard v. Sutton, 68 Me. 575; Reed v. Crapo, 
 127 Mass. 39; Taylors. Brown, 31 N. J. Bq. 163 
 (not estopped); Connihan v. Thompson, 111 
 Mass. 270 (not estopped) ; McKenzie v. Steele, 
 18 Ohio St. 38, 41 (not estopped) ; Eaton v. New 
 Eng. Tel. Co., 68 Me. 533; Peters v. Jones, 35 
 Iowa, 512; Thomas v. PuUis, 56 Mo. 211; 
 Rice V. Graffman, 56 Mo. 434, 435; People v. 
 Brown, 67111. 435; Dezell v. Odell, 3 Hill, 215; 
 Oakland P. Co. ,). Rier,53 Cal. 370; Dresbach v. 
 Minnis, 45 Cal. 223; Comstock v. Smith, 36 
 Mich. 306. 
 
 3 Young V. Vough, 23 N. J. Eq. (8 C. E. 
 Green) 335; Weber v. Weatherby, 34 Md. 656; 
 Silloway v. Neptune Ins. Co., 13 Gray, 73; 
 Gregg V. Von Phul, 1 Wall. 374; Railroad Co. v. 
 Dubois, 12 Wall. 47; Society, &a. v. Lehigh 
 Valley R. R., 33 N. J. Eq. 329; Viele v. Judson, 
 83 N. Y. 33, 39; Hamlin v. Sears, 83 N. Y. 337; 
 Rubber Co. v. Goodyear, 9 Wall. 788; Niven v. 
 Belknap, 2 Johns. 573; Hall v. Fisher, 9 Barb. 
 17, 31; Hope v. Lawrence, 50 Barb. 258; Ives v. 
 North Canaan, 33 Conn. 403; Taylor v. Ely, 25 
 Pa. St. 250; Guthrie v. Quinn, 43 Ala. 561; 
 Abrams v. Seale, 44 Ala. 297; Chapman v. 
 Chapman, 59 Pa. St. 214; Lawrence v. Luhr, 65 
 Pa. St. 236; Hill v. Kpley, 32 Pa. St. 331, 334. 
 
 * Viele V. Judson, 82 N. Y. 33; Diffenbaoh i>. 
 Vogeler, 61 Md. 370; Bull v. Rowe, 13 S. Car. 
 355; see, also. Mills v. N. J. Cent. Ed., 41 N. J. 
 Eq. 1; Bramble v. Kingsbury, 39 Ark. 131; 
 Terre Haute Rd. u. Eodel, 89 Ind. 128. 
 
 137 
 
§ 109 EQUITT JURISPEUDENCB. [CH. VI. 
 
 object to it.^ So, also, is the owner of real estate not estopped to deny 
 the subdivision of his property into blocks by his knowledge that a 
 map describing such subdivision has been circulated through the 
 country." But there is an estoppel where one sees another enter upon 
 land and make improvements thereon without warning him of his own 
 title to such land.' Examples of misrepresentation are too numerous 
 and various in character to permit of an exhaustive statement. A 
 person may be estopped to claim title to land by any conduct of his in 
 reference thereto, which induces anyone to rely upon this apparently 
 valid title.* The doctrine of estoppel by actual misrepresentation 
 also is applied wherever the owner of property represents another to 
 be the owner, or clothes such person with the evidence of ownership, 
 so as to induce others to beheve that this other person is the owner of 
 the property. ° 
 
 But in all cases of representation the statement of a fact must be 
 plain and certain," and must, as a general rule, relate to past or 
 present facts. If the reference is to future facts, it either would be 
 merely an expression of opinion, or would constitute a contract, and 
 would then be governed by rules applicable to contracts.' The 
 estoppel cannot arise from mere statement of law or opinion;' so, also, 
 representations as to the value of an article will not work an estoppel, 
 unless the party who relies upon such representation has peculiar 
 grounds for reposing confidence in the party making the representa- 
 tion.' 
 
 § 109. How far frand is necessary to estoppel in pais. — Accord- 
 ing to some of the authorities, a fraudulent intent is deemed to be 
 
 iHugill o. Kinney, 9 Oreg. 250; s. 0., 42 Am. Alexander v. Ellison, 79 Ky. 148; Burton's 
 
 Eep. 801. Appeal, 93 Pa. St. 814; Dunlap v. Gooding, 22 
 
 » Sullivan v. Davis, S9 Kans. 88. S. Car. 548; Kirk v. Hamilton, 102 V. S. 68. 
 
 'State V, Wertzel, 62 Wis. 184; Strosser v, « Davenport Ed. v. Davenport Gas Co., 43 la. 
 
 Fort Wayne, 100 Ind. 443. 301; Townsend v. Todd, 47 Conn. 190; Bennett 
 
 * Railroad v. Ragadale, 54 Miss. 200; Wells v. v. Dean, 41 Mich. 472; Moors v. Albro, 129 Mass. 
 
 Pierce, 27 N. H. 303; De Herques v. Marti, 85 N. 9; Roach v. Brannon, 57 Miss. 490; Grinnan v. 
 
 Y. 609; Wundell v. Van Rensselaer, 1 Johns. Dean, 62 Tex. 218; Lawrence Univ. v. Smith, 32 
 
 Ch. (N. Y.) 344; Y^tes i>. Hurd, 8 Col. 343; Wis. 587; Tillotsou v. Mitchell, 111 111. 518; 
 
 Pitcher u. Dove, 99 Ind. 176; Copeland v. Cope- Lash v. Rendell, 72 Ind. 475. 
 
 land, 28 Me. 524; Money v. Rioketts, 68 Miss. 'White v. Ashton, 51 N. Y. 280; White o. 
 
 209: Feldingc. DuBose, 63Tex. 631;Dickerson Walker, 31 111. 422, 437; Langdon v. Doud, 10 
 
 ». Colgrove, 100 V. S. 578; Greene v. Smith, 57 Allen, 433; 6 Allen, 423; see Allen v. Bundle, 
 
 Vt. 268. 60 Conn. 9; Jackson v. Allen, 120 Mass. 64; 
 
 sSeahrightii. Moore, 33 Mich. 92; Chapman Turnipseed v. Hudson, 60 Miss. 429; Allen «. 
 
 V. Pingree, 67 Me. 198; Rice v. Buuce, 49 Mo. Hodge, 51 Vt. 436; compare Simonton ii. Llver- 
 
 231; 8. c, 8 Am, Rep. 129; Hawkins ti. Methodist pool Co., 51 Ga. 76. 
 
 Church, 23 Minn. 256; Powers v. Harris, 98 Ala. s insurance Co. v. Mowry, 96 V. S. 544; see 
 
 410; Jowers v. Phelps, 33 Ark. 465; Winton v. Shields v. Smith, 37 Ark. 47; Kimball v. .ffltna, 
 
 Hart, 39 Conn. 16; Pool v. Lewis, 41 Ga. 168; s. Ins. Co. 9 Allen, (Mass.) 540; Brightman V. 
 
 c, 5 Am. Rep. 526; Roberts v. Davis, 72 Ga. 819; Hicks, 108 Mass. 246; Langen v. Sankey, 55 la. 
 
 Montague v. Weil, 30 La. Ann. 50; Horn v. 52; but see Whitwellii. Winslow, 134 Mass. 343} 
 
 Cole, 51 N. H. 287; s. c, 12 Am. Rep. Ill; Chatfield ». Simonson, 92 N. Y. 209; Birdsey ®. 
 
 Howlandv. Woodruff, 60 N. Y. 73; Redman ». Butterfleld, 34 Wis. 58; Hammerslough v. 
 
 Graham, 80 N. Car. 231; Osbom c.Elder, 65 Ga. Kansas City Assoc, 79 Mo. 81; McGirrr. Sell, 
 
 360; Miles v. Lefl, 60 la. 168; Stewart v. Mum- 60 Ind. 249; Phelps v. III. Cent. Rd., 94 111. 548. 
 
 fold, 91 III SS; Bobbitt o. Shryer, 70 Ind. 513; « Big. on Estop. <4th ed.) 555; Graves v. Lak» 
 
 Shore Rd., 137 Mass. 3a 
 
 138 
 
CH. VI.J EQUITABLE ESTOPPEL. § 110 
 
 necessary or essential to the estoppel in pais. At least, the language 
 of these cases supports the doctrine that there must be actual fraud in 
 the inception of the transaction, or the circumstances must be such as 
 that it would be a fraud for the party making these statements to 
 undertake to assert his rights in contradiction of such misstatement. ^ 
 It has also been claimed in cases, in which the proposition is laid down 
 that actual or constructive fraud is necessary to the operation of an 
 estoppel, that they relate to cases of estoppel arising in denial of the 
 legal title to land, and was not intended to apply to all cases of 
 estoppel indiscriminately." But whether that limitation placed upon 
 the position taken by these courts is just or not, the majority of the 
 courts maintain, as a general proposition, that fraud or a fraudulent 
 intent is not necessary; that is, an actual intent to deceive is not neces- 
 sary, and that an honest mistake as to facts stated may nevertheless 
 support the claim of estoppel, provided the party so making the mis- 
 representation has no reasonable ground for believing them to be true. * 
 § 110. Knowledge of the truth by the party estopped. — Some- 
 what similar to the last question, and it constitutes in fact a part of 
 the same question, is, how far the party estopped must have knowl- 
 edge of the truth in respect to which a misrepresentation has been 
 made; or, how far he must know what he says to be false in order to 
 be estopped. Inasmuch as the majority of the courts have not required 
 proof of an actual intent to deceive, it is not surprising when it is 
 learned that they likewise do not require that the party estopped 
 should have knowledge of the truth of his misrepresentation. The 
 general statement which can be taken as a reliable expression of 
 the law is, that he must either know that what he says is false, or 
 he must have a reasonable ground for believing the statement to be 
 true.* If he has reasonable grounds for believing the statement to be 
 
 1 Brant ». Virginia Coal Co., 93 U. S., 326, 390; Boggeu. Merced M. Co., 14 Cal. 279,367, 
 335, per Judge Field, J.: "It is difficult to see 368j Brant ». Va. Coal Co., 93 U. S. 326, 33Sj 
 where the doctrine of equitable estoppel Stewart o. Mix, 30 La. An. (Part. 3) 1036; 
 comes in here. For the application of that doc- Lippmins v. McCranie, Id. 1251 ; Lamar Co. «_ 
 trine there must generally be .some intended Clements, 49 Tex. 347; Bloomsteinr. Glees, 3 
 deception in the conduct or declarations of Tenn. Ch. 433; Hart v. Giles, 67 Mo. 175; God- 
 the party to be estopped, or such gross neg- frey v. Thornton, 46 Wis. 677; Wendell v. Van. 
 ligence on his part as amounts to constructive Rensselaer, 1 Johns. Ch. 344; Storrs v. Barker, 
 fraud, by which another has been misled to 6 Id. 166; Gregg v. Von Phul, 1 Wall. 274, per 
 his injury. Thus it is said by the Supreme Davis, J.; Breeding v. Stamper, 18 B. Mon. 175^ 
 Court of Pennsylvania, that the primary Hill v. Epley, 31 Pa. St. 331, 334; Hayes v. 
 ground for this doctrine is that it would be Livingston, 34 Mich. 384; Kelly v. Hendricks, 
 fraud in a party to assert what his previous 67 Ala. 193; Wimmeru. Ficklln, 14 Bush, 193. 
 conduct had djenied, when on the faith of that * Reed u. MoCourt, 41 N. Y. 435; Eaynor i>. 
 denial others had acted. The element of Timerson, 51 Barb. 617; Strong j>. Ellsworth, 
 fraudisessentlaleitherin the intention of the 26 Vt. 366; Thrall v. Lathrop, 30 Vt. 307j 
 party estopped, or in the efEeot of the evidence Holmes i;. Crowell, 73 N. 0. 613; Stevens ». 
 which he sets up." Dennett, 61 N. H. 324, 333; Smith v. Hutohin- 
 
 2 See 2 Pomeroy Bq. Jnr., sect. 807. son, 61 Mo. 83; Clark v. Coolldge, 8 Kans. 189} 
 8 Slim v. Crouoher, 1 De G. F. & J. 518, 525, Whltaker v. Williams, 20 Conn. 98; Liverpool 
 
 528; Spencer». Carr, 45 N. Y. 406: Sulphine ». Wharf v. Prescott, 7 Allen, 494; 4 Allen, 22} 
 
 Dunbar, 55 Miss. 255; Southard v. Sutton, 68 Second Nat. B'k v. Walbridge, 19 Ohio St. 419} 
 
 Me. 575; Kirkpatrick «. Brown, 59 Ga. 450; Adams i). Brown, 16 Ohio St. 75; Lafferty ». 
 
 Trenton Banking Co. ». Sherman, 24 Alb. L. J. Moore, 33 N. Y. 658; Kincald v. Dormey, 51 Mo. 
 
 139 
 
I 110 EQUITY JURISPKDDENCE. [CH. VI. 
 
 true, as a general proposition, there will be no estoppel.' There 
 can be no question that the rule, as just stated, admits of no quaK- 
 fication, where it applies to cases of affirmative misrepresentation.' 
 But where the estoppel arises out of concealment of material facts, or 
 from acquiescence in the assumption of control over the property by 
 the third person, in such cases an actual knowledge of the truth as to 
 the title and claim to the property must be shown.' But even in the 
 ca,se of mere acquiescence or concealment of the facts, the require- 
 ment of actual knowledge will not always be insisted upon as a neces- 
 sary condition of the claim of estoppel; in other words, an estoppel 
 will arise where there is a concealment of facts or acquiescence in the 
 assertion of title by another, when the ignorance of the party claimed 
 to be estopped was occasioned by his culpable negligence.* A pecu- 
 liar rule is obtained by a special application of the principles herein 
 set forth to the case of representation in respect to a boundary line to 
 land. Where the representation refers to the boundary line between 
 two estates, the courts seem to have generally agreed upon the follow- 
 ing rule: Where the true line was a matter of uncertainty and dis- 
 pute, and it could not, after a diligent search, be ascertained, if the 
 parties agree upon a line, which shall constitute the boundary line, 
 both will thereafter be estopped from denying that the line agreed upon 
 was the true line, although the dispute arose from an honest mistake 
 of one or both of the parties.' But if the representation was made 
 under an honest mistake of the facts in a case, where there was no 
 actual uncertainty as to the true line, the party making the representa- 
 tion would not thereafter be precluded from setting up the true line.' 
 But if the party making the representation as to boundary knew it to 
 be false and the other relied upon such representation, an estoppel 
 would arise.' 
 
 55S; Eutherford v. Tracy, 48 Mo. 325; Doriar- Collins, 40 Iowa, 540; Elce v. Bunce, 49 Mo. 
 
 que V. Cress, 71 111. 380, 383j Graves v. Blondell, 231, 234. 
 
 70 Me. 190, 6 Adams v. Rockwell, 16 Wend. 285; Dibble v. 
 
 iLeeu. ^empleton, 73 Ind. 315; Watters v. Sogers, 13 Wend. 536; Jackson v. Ogden, 7 
 
 Connelly, 69 Iowa, 217; Proctor v. Putnam Johns. 238; Orr u. Hadley, 36 N. H. 575; Terry 
 
 Machine Co., 137 Mass. 159; Turner ii.Furguson, v. Chandler, 16 N. Y. 355; Lindsay u. Springer, 
 
 68 Tex. 9; Wright's Appeal, 99 Pa. St. 485; Fay 4 Har. 547; Chew v. Morton, 10 Watts, 321; 
 
 V. Tower, 58 Wis. 286; Clinton v. Haddam, 50 Knowles v. Toothaker, 58 Me. 174; Russell v. 
 
 Conn. 84; Davis v. Bagley, 40 Ga. 181 ; e. c, 3 Maloney, 39 Vt. 58J; Houston v. Sneed, 15 Tex. 
 
 Am. Rep. 570; Gray v. Agnew, 95 111. 315; Fred- 307; Joyce v. Williams, 26 Mich. 338; Blair v. 
 
 «rick V. Missouri Riv., &c. Rd., 82 Mo. 408; Smith, 16 Mo. 379; Sneed ». Osbom, 25 CaL 624; 
 
 Van Ness v. HadseU, 54 Mich. 560; Bull v. Rowe, Reed v. Farr, 35 N. Y. 117. 
 13 S. Car. 355. « Proprietors, Ac. v. Prescott, 7 Allen, 494; 
 
 spulsford V. Richards, 17 Beav. 87; Irving Thayer v. Bacon, 3 Allen, 163; Baldwin v. 
 
 "Sat. B'k». Alley, 79 N. Y. 636, 540; Lefever v. Brown, 16 N. Y. 359; Coon v. Smith, 29 N. Y. 
 
 Lefever, 30 N. Y. 87; Mut. Life Ins. Co. v. Nor- 392; Vosburgh v. Teator, 38 N. Y. 56l'; Russell 
 
 ris, 31 N. J. Eq. 583, 585, 586; Horn v. Cole, 51 v. Maloney, 39 Vt. 580; see Brudick ii. Heinley, 
 
 N. H. 887, per Perley, C. J. 23 Iowa, 515. 
 
 "Hays V. Reger, 108 Ind. 524; Bringard -u. 'Davenport©. Tarpin, 43 Cal. 598; Lemmon 
 
 Stellwagen, 41 Mich. 54. o. Hartrook, 80 Mo. 13; Kirchner v. Miller, 39 
 
 4 stone V. Gr. West. Oil Co., 41 III. S5; Adams N. J. Eq. 355; Reed v. McCourt, 35 N. Y. 113; 
 
 V. Brown, 18 Ohio St. 75; Calhoun v. Richard- Ramsden v. Dyson, L. R. 1 H. L. 129; Hass v. 
 
 son, 30 Conn. 210; Preston v. Maun. 25 Conn. Plantz, 56 Wis. 105; Eaynor v. Timerson, 51 
 
 118; Smith o. Newton, 38 111. 230; Sweezey v. Barb. 517; Evans v. Miller, 58 Miss. 120;Pitoher 
 
 ■u. Dove, 99 Md. 17,5. 
 
 140 
 
CH. VI.J EQUITABLE ESTOPPEL. § 112 
 
 § 111. Ignorance of the truth by the other party. — In order 
 that an estoppel may arise, the party who claims the benefit of the 
 estoppel must show that he was ignorant of the truth in respect to the 
 subject-matter of the representation, not only when the representation 
 was made, but also when he reUed and acted upon the misrepresen- 
 tation. If at the time when he acted, such party had knowledge of the 
 truth, or had information by which he might, with reasonable diligence, 
 have acquired such knowledge, so that it would have been negligence 
 on his part to have entered into the transaction in ignorance of the 
 facts which he could have ascertained, there could be no claim of 
 estoppel in the case, because he cannot, under these circumstances, claim 
 to be misled by the misrepresentation or the concealment of the party 
 to be estopped.^ On this general principle, it has been held that no 
 one is ever estoppel from showing the invalidity of a statute upon 
 which a party claims to rely.^ It has, on the same general principle, 
 been held that where the means of disproving the misrepresentation or 
 concealment of the party making such statement can be obtained by 
 an investigation of the records, there will be no estoppel.' But if this 
 doctrine is to be accepted as at all reliable, it must be apphed to cases 
 of concealment, and has no apphcationat all, or if at all, subject to the 
 strictest limitations, to cases of affirmative misstatement. In other 
 words, as a general proposition, if the party who is to be estopped has 
 made a positive misrepresentation as to his title and interest in and to 
 the property, the fact that the falsity of such misstatement could be 
 ascertained by an examination of the records, will not interfere with 
 the raising of the estoppel. "While a purchaser cannot claim the pro- 
 tection of estoppel against a concealment of facts which he could have 
 ascertained by an investigation of the record, yet he has a right to rely 
 with confidence upon affirmative statements as to the title that might 
 be made to him under circumstances which would invite confidence.* 
 
 § 112. The party estopped must have intended to influence the 
 conduct of others. — The general proposition is laid down, that in 
 order to constitute an estoppel, the representation or concealment of 
 
 1 Wallis V. Truesdell, 8 Pick. 455; Carter v. Anthony, 3 Keys, (N. Y.) 609; Wilson i). West- 
 Champion, 8 Conn. 548, 554; Eapalee v. Stew- em Land Co., 77 N. Car., 445; see, also, Mo- 
 art, 27 N. Y. 310; Hill v. Epley, 7 Casey, 331; Knight v. Pittsburg, 91 Pa. St. 273; Brightmau 
 Davenport v. Turpin, 52 Cal. 270; Brant v. Vlr- v. Hicks, 108 Mass. 846; Langen v. Sankey, 55 
 glnia Coal Co., 3 Otto, 326; Holmes v. Crowell, la. 53; Insurance Co. v. Mowry, 96 U. S. 544j 
 73 N. 0.613; Fishers). Mossman, 11 Ohio St. 42; see Shields v. Smith, 37 Ark. 47; Kimball v. 
 Bales V. Perry, 51 Mo. 449; Wythe v. City of 2Etna Ins. Co., 9 Allen, (Mass.) 540. 
 Salem, 4 Sawyer, 88; Plummerc. Mold, 32 Minn. s Fisher u. Mossman, 11 Ohio St. 42; Goundie 
 15; Clark v. Coolldge, 8 Kans. 189; Bige ow v. v. Northampton W. Co., 7 Barr. 233; Knouff v. 
 Topliff, 35 Vt. 273; Odlln v. Gove 41 N. H. 465; Thompson, 4 Harris, 357; Hill v. Epley, 7 Casey, 
 Stevens v. Dennett, 61 N. H. 324, 333; Eioe v. 331. 
 
 Bnnoe, 49 Mo. 231, 334; Mut. Life Ins. Co. v. *StorrsD. Barker, 6 Johns. Ch. 166; Davis «. 
 
 NorrisI 31 N. J. Eq, 583. Handy, 37 N. H. 65; Hill v. Epley, 7 Casey, 331; 
 
 asha'pley v. Abbott, 42 N. Y. 443; s. c, 1 Am. Proctor v. Keith, 12 B. Mon. 853; Colbert v. 
 
 Eep. 548; Turnipseed v. Hudson, 50 Miss. 429; Daniel, 33 Ala. 314, 316; Evans v. Forstall, 58 
 
 8. c.', 1 Am. Bep. 15; Tibbie v. Anderson, 63 Ga. Miss. 30; Peery v. Hall, 75 Mo. 503; David v. 
 
 41 • Rosebrough v. Ansley, 35 Ohio St. 107; com- Park, 103 Mass. 501 ; Kiefer v. Rogers, 19 Minn, 
 
 pare Payne v. Burnham, 62 N. Y. 69; Mason v. 32. 
 
 141 
 
§ 113 BQtJITT JUKISPKUDENCE. [CH. VI. 
 
 facts must have been done with the intention of influencing either some 
 particular person or some persons in general; in other words, that 
 there must be an intention to affect or influence the actions of those 
 who relied upon the statement.* This statement of the law, however, 
 requires some qualifications. It is not always necessary that there be 
 an actual intention to exert an influence upon another. It is sufficient 
 if there be a reasonable expectation that somebody will be influenced by 
 such misrepresentation. The actual intention to influence is not neces- 
 sary; but the reasonable expectation that somebody will be influenced 
 is necessary." An illustration of the proposition that the. actual intent 
 to influence the acts of others is not necessary, is to be found in 
 connection with the law, that the owner of property is estopped from 
 denying the title of the purchaser from one, to whom he has given 
 complete evidence of ownership in the formal transfer to him of the 
 imMda of title. Such is the case in respect to the assignments of cer- 
 tificates of stock and other securities.' 
 
 § 113. The representation or concealment must have inflnenced 
 the conduct of another. — ^The final requirement in respect to estoppel 
 is, that the party who was intended or expected to be influenced by 
 the misrepresentation, must have been actually influenced thereby to 
 his own detriment; or rather, that the party, intended or expected to 
 be influenced, must have relied upon the misrepresentation and have 
 acted upon it, so that he would sustain a loss if the party making the 
 misrepresentation were now permitted to disprove the truth of the state- 
 ment.* It is not always necessary that the action of the party relying 
 upon the misrepresentation should be affirmative in character; although 
 
 1 Clark ». Coolidge, 8 Kans. 189, 195j Stevens Armstead, 69 111. 453j Carroll i». Manchester, 
 
 V. Dennett, 51 N. H. 324, 333; McCabe v. Eaney, &0. R. E., Ill Mass. 1; Voorhees v. Olmstead, 
 
 32 Ind. 309j Turner v. Coffin, 12 Allen, 401; 3 Hun, 744; Howard v. Hudson, S K. & B. 1; 
 
 Pierce v. Andrews, 6 Gush. 4; Kuhl v. Mayor, Curnen v. The Mayor, ■?9 N. Y. 511, 514; Waring 
 
 Ac, 23 N. J. Bq. (8 0. E. Green), 84, 85; Wilcox v. Sonibom, 82 N. Y. 604; Grlssler v. Powers, 
 
 V. Howell, 44 N. Y. 398: Simpson v. Pearson, 31 81 N. Y. 57; Horn v. Cole, 51 N. H. 287; Stevens 
 
 Ind. 1, 5; Eaton v. New Eng. Tel. Co. 68 Me. v. Dennett, 51 N. H. 324, 333; Clark v. Coolidge, 
 
 63; Southard v. Sutton. 68 Me. 575; Brown v. 8 Kans. 189, 195; Kuhl v. The Mayor, S3N. J. Eq. 
 
 Bowen, 30 N. Y. 519; Holdane v. Cold Spring, 84; Kent v. Qucksilver M. Co., 78 N. Y. 159, 187; 
 
 21 N. Y. 474; Carroll v. Manchester, &c. E. E., Hurd». Kelly, 78 N.Y.588. 697;Barnard«. Camp- 
 
 111 Mass. 1. bell, 65 N. Y.456, 462 ; Malloney v. Horan, 49 N. Y. 
 
 a Horn v. Cole, 51 N. H. 287, per Perley, C. J. ; 111, 115; Rice v. Bunce, 49 Mo. 231, 234; State 
 
 Cornish v. Abington, 4 H. <fc N. 549, by Pollock, of Laies, 52 Mo. 396; McCabe v. Eaney, 32 Ind. 
 
 C. B. ; Anderson i". Armstead, 69 111. 452, 454; 309; Simpson «. Pearson, 31 Ind. 1, 6; Jewett 
 
 Eice V. Bruce, 49 Mo. 331, 234, per Wagner, J. ; v. Miller, 10 N. Y. 402, 406; Man. & Trad. B'k v. 
 
 Mut. Life Ins. Co. v. Norrls, 31 N. J. Eq. 683, Hazard, 30 N. Y. 226, 230; Van Deusen v. Sweet, 
 
 585; Man. & Trad. B'k v. Hazard, 30 N. Y.226, 51 N. Y. 378; McKenzie v. Steele, 18 Ohio St. 
 
 230. 38, 41; Eaton i>. N. E. Tel. Co., 68 Me. 63; 
 
 8 Barnard ». Campbell, 55 N. Y. 456, 462; Man. Southard o. Sutton, 68 Me. 575; Eiteli;. Bracken, 
 
 ATrad. B'k ». Hazard, 30 N.Y. 326, 230; Ander- 38 N. Y. Super. Ct. 7; Mut. Life Ins. Co. ». 
 
 son V. Armstead, 69 111. 452, 454; Hamlin v. Norris, 31 N. J. Eq. 583; Graves v. Blondell, 70 
 
 Sears, 82 N. Y. 327; McNeil v. Tfenth Nat. B'k, Me. 190; Sitting's Appeal, 5 Harris, 211 ; Cole v. 
 
 46 N. Y. 325; Moore v. Metropolitan B'k, 45 N. Bolard, 10 Harris, 431S Newman v. Edwards, 
 
 Y. 41 ; Combes v. Chandler, 33 Ohio St. 175 ; and 10 Casey, 32 ; Forsyth v. Day, 46 Me. 176, 197 ; 
 
 see ante, % 710, Hentz v. Miller, 94 N. Y. 64; Cummingsii. Webster, 43 Me. 192; Holden o. 
 
 Mooreo. Metropolitan B'k, 55 N. Y. 41; Gass ». Torrey, 31 Vt. 690; Truan *. KeifFer, 31 Ala. 
 
 Hampton, 16Nev. 185. 136; Railroad Co. v. Dubois, 12 Wall 47; East 
 
 * Dorlarque v. Cress, 71111. 380; Anderson v. v. Dolihite, 72 N. C. 562. 
 
 142 
 
OH. VI.] EQUITABEE ESTOPPEL. § 114 
 
 more rare, yet, it is possible that the estoppel may arise from the mis- 
 representation, where such misrepresentation induced another, to his 
 loss, to refrain from doing what he otherwise would have done.* 
 
 § 114. Operation and extent of estoppel — as to persons. — The 
 estoppel extends in its opera.tion to the value and scope of the thing 
 represented or rights referred to; and it is intended to place the party 
 who is to be benefited by the estoppel in the same position as he would 
 have been in if the statement jhad been true.* But the estoppel wiU 
 not apply to mere strangers; it can only operate upon and be claimed 
 by parties to the transaction, in which the misrepresentation or con- 
 cealment was made and their privies, whether by blood, by estate, or 
 by contract.* And no one can claim the benefit of an estoppel who is 
 not free from the taint of bad faith and fraud in the assertion of his 
 rights.* It also is a question of some moment, how far the disability 
 of marriage or infancy will affect the obligation of an estoppel. Li 
 respect to married women, the question whether the doctrine of 
 estoppel will apply or not, depends in a large measure upon the con- 
 dition of the law in respect to the rights and powers of married 
 women. Where the common law disability prevails, a great many of 
 the cases maintain that since a married woman cannot be directly bound 
 by her contracts, even when they are tainted with fraud, she could not 
 be indirectly bound by means of an estoppel; and that she will only be 
 estopped by her misrepresentation, where she undertakes affirmatively 
 to enforce a right which is inconsistent with the truth of her represen- 
 tation, and upon the truth of which the other party has relied.' But 
 even where the common law disability still obtains, the courts are not 
 altogether unanimous in respect to the limitations just stated of the 
 application to married women of the doctrine of estoppel. In these 
 courts, the estoppel is sustained against her, whether she undertakes to 
 enforce an alleged right or defend herself against the enforcement of a 
 claim by another. ° This conflict of authority is, of course, completely 
 disposed of in those states like New York, in which a married woman is 
 
 ' Continental B'k«. Bank of Comm'tli, SON. Green) 257j Royoe v. Watrous, 73 N. Y. 697j 
 
 Y. 575, and cases cited by Folger, J. ; Voorhees Wilcox v. Howell, 44 N. Y. 398; Moore i;. Bow- 
 
 V. Omlstead, 3 Hun, 744. man, 47 N. H. 494 
 
 aphlladelpliia ». Williamson, 10 Phila. 176; 6 Keen ».Hartman, 18 Wright 497; Rumfelt 
 
 GTlEsler V. Powers, 81 N. Y. 57, per Andrews, J. j v. Clemens, 10 Wright, 455; Olidden v. Strup- 
 
 Tilton V. Nelson, 27 Barb. 595; Pickett v. ler, 52 Pa. St. (2 P. P. Sm.) 400; Williams v. 
 
 Merch. Nat. B'k, 32 Ark. 346; Murray v. Jones, Baker, 71 Pa. St. (21 P. F. Sm.) 476; Kane Co. 
 
 60 Ga. 109; Campbell v. Nichols, 33 N. J. L. (4 ti. Herrlngton, 50 111. 232; Oglesby Coal Co. v. 
 
 Vroom) 81. Pasco, 79 111. 164; Bemls v. Call, 10 Allen, 512; 
 
 'Wright V. Hazen, 24 Vt. 143; Parker v. Crit- Merrlam v. Boston E. E., 117 Mass. 241; Lowell 
 
 tenden, 37 Conn. 148; McCravey v. Bemson, v. Daniels, 2 Gray, 161. 
 
 19 Ala. 430; Simpson v. Pearson, 31 Ind. 1, per « Carpenter v. Carpenter, 25 N. J. Eq. (10 C. 
 
 Elliott, C. J. ; Eaton v. N. E. Tel. Co., 68 Me. 63; E. Green) 194; Drake v. Glover, 30 Ala. 382; 
 
 Southard ». Sutton, 68 Me. 575; Kinnear v. Connolly v. Branstler, 3 Bush, 702; Couch v. 
 
 Mackey, 85 111. 96; Murray v. Sells, 63 Ga. 257; Sutton, 1 Grant's Cas. 114; MoCulIough o. Wll- 
 
 Peters v. Jones, 35 Iowa, 512 ; Thistle v. Buford, son, 9 Harris, 436 ; Blgelow v. Poss, 59 Me. 162 ; 
 
 BO Mo. 278; Gould v. West, 32 Tex. 338. Frazier v. Gelston, 35 Md. 298; Brinkerhoff v. 
 
 4 Thome «. Mosher, 20 N. J. Eq. (5 C. E. Brinkerhoff, 23 N. J. Eq. (8 C. E. Green) 477, 
 
 483. 
 
 143 
 
§ 115 EQUITY JUKISPEUDENCE. [CH. VI. 
 
 by statute entirely relieved of her common law disability.' The same 
 question has been raised in respect to the extent to which infants may 
 be bound by estoppel by their misrepresentation; and the general doc- 
 trine is laid down, that where the infant undertakes to assert affirma- 
 tively his claim to some property, or to interfere with another's 
 possession of it in contradiction of his own statement, he will be 
 estopped to the same extent as an adult would be. But if the question 
 of estoppel is claimed to apply to a case where he is defending himself 
 against the assertion of some right in an action brought against him 
 by another, then he will not be estopped by this misrepresentation.^ 
 
 § 115, Qnasi-estoppel in the case of acquiescence. — Somewhat 
 similar to the ordinary equitable doctrine of estoppel is the quasi- 
 estoppel which arises from the failure of one to assert his rights in, or 
 in respect to property, while he sees another proceeding to make 
 extensive improvements upon the land in reliance upon the supposed 
 perfection of his title. It will be borne in mind, that in the particular 
 case under inquiry, there is no intention to influence, nor is there any mis- 
 representation of material facts, nor, in the strictest sense of the term, 
 a concealment of such facts. There is simply a failure to assert one's 
 claim, which induces a sense of security on the part of another in the 
 title he is supposed to have to the property, which would, of course, be 
 dissipated, if the party having the outstanding claim should give 
 notice of such claim. The common cases are those in respect to 
 easements; where one has an easement over the land of another, 
 and the [party to whom the land belongs undertakes to make improve- 
 ments in the shape of buildings on the land, which are erected in 
 locations which will practically destroy or take away the easement 
 by making its enjoyment impossible. If the party claiming the 
 easement sees the buildings in course of construction and does not give 
 notice of his claim of title; or does not secure an injunction against 
 the construction of the building while it is in the course of construction, 
 he cannot, after the completion of the building, or after the building 
 has been for some time in course of construction, claim the right to 
 enforce his easement and secure a demolition of such building. He 
 is said in that case to be estopped from asserting his right to such 
 easement in any equitable action, although he may still proceed to use 
 his legal remedies in the enforcement of such rights.' This is, how- 
 
 lOglesby Coal Co. o. Pasco, ^79 111. 164; Up- 111. 500; Wilkinson v. Filby, 24 Wis. 441; Tan- 
 
 Bhawr. Gibson, 53 Miss. 341; McBeth v. Tra- turn v. Coleman, 86 N. J. Eq. (11 C. E. Green) 
 
 bue, 69 Mo. 642; McCaa v. Woolf, 42 Ala. 389; 128; Drake v. Wise, 36 Iowa, 476; Wilie v. 
 
 Bodine v. Killeen, 53 N. Y. 93; Treman v. Brooks, 45 Miss. 54S. 
 
 Allen, 15 Hun, 4; HookettD. Bailey, 88 111. 74; »Tasb v. Adams, 10 Gush. 258; Briggs -a. 
 
 Dingens v. Clancey, 67 Barb. 566; Fryer v. Smith, 5 E. L 213; Giey v. Ohio, &c. B. R., 1 
 
 Eishell, 84 Pa. St. 521; Tow\esv. Fisher, 77 N. Grant's Gas. 412; Litttle v. Price, 1 Md. Ch. 
 
 C. 437; Godfreys. Thornton, 46 Wis. 677. 188; Burden v. Stein, 27 Ala. 104; Pillow «. 
 
 SDorlarque v. Cress, 71 111. 380; McBeth v. Thompson, 20 Tex. 206; Borland «. Thornton, 
 
 Trabne, 69 Mo. 642, Montgomery v. Gordon, 51 12 Cal. 440; Phelps v. Peabody, 7 Gal. 50; Wil- 
 
 Ala. 377 ; Upshaw v. Gibson, 53 Miss. 341 ; Handy son v. Cobb, 28 N. J. Eq. 177 ; Bassett v. Salis- 
 
 V. Noonan, 51 Miss. 166; Padfleld v. Pierce, 72 bury Man. Co. 17 N. H. 426, 439; Odlino. Gove, 
 
 144 
 
CH. VI. J 
 
 EQUITABLE ESTOPPEL. 
 
 § 114r 
 
 ever, not the only case of acquiescence; and the same doctrine may be 
 found to apply to all sorts of cases of contracts and conveyances of 
 legal titles, where a party maintains silence when in conscience he 
 ought to speak. He will in these cases be debarred from asserting his 
 title after someone has acted upon the apparent absence of any out- 
 standing claims. The common example of such cases of aquiescence is, 
 where one standing by sees his own property being sold as the property 
 of another, and permitting the purchaser to buy it without disclosing to 
 him his own claim against the property.^ It has also been applied to 
 cases, where a corporation inserts in its circular false statements in 
 respect to the shares of stock which are offered for sale. ^ So, also, are the 
 stockholders of corporations estopped from objecting to the acts of the 
 corporation which are ultra vires, where they know of these acts and 
 do not prevent their commission.' It has likewise been held that the 
 estoppel by acquiescence arises where the mortgagor, or other debtor, 
 by keeping silence permits an assignee of such debt to assume that 
 there is no defense to the action, under circumstances like those 
 explained in the foregoing examples, which would impose upon the 
 mortgagor, or other debtor, the conscionable duty of disclosing such 
 defense.* 
 
 41 N. H. 465; Peabody v.. Flint, 6 Allen, 53, 57; 
 Fuller V. Melrose, 1 Allen, 166. 
 
 iHart ». Giles, 67 Mo. 175; Hayes ». Living- 
 ston, 34 Mich. 384; Fold o. Loomis, 33 Mich. 
 131; Mich., Ac. Co. v. Paroell, .38 Mich. 475, 480, 
 ■per Cooley, J. ; Vlcksbuig, &c. E. E. v. Eagsdale, 
 54 Miss. 200; Broyles v. Nowlen, 59 Tenn. 
 (Baxt.) 191; Millingarc. Sorg, 61 Pa. St. (IIP. 
 P. Sm.) 471; Earitan Water P. Co. o. Veghte, 
 31 N. J. Eq. (6 C. E. Green) 463; Brooks o. 
 Curtis, 4 Lans. 283; Blackwood v. Jones, 4 
 Jones' Eq. 54; Donovan v. Fireman's Ins. Co., 
 
 10 
 
 30 Md. 155; Evansvillei). Pfisterer, 34 Ind. 36; 
 Schaefer v. Gildea, 3 Col. 15; Martin ■». Eighter, 
 2 Stockt. Ch. 510; Cumberland V. E. R. v. Mc- 
 Lanaban, 59 Pa. St. (9 P. F. Sm.) 23. 
 
 21ns. Co. 17. Eggleston, 96 U. S., 572; Curnen 
 V. Mayor, Ac, 79 N. Y. 611, 514; Continental 
 Bank v. B'k of the Comm'th, 50 N. Y. 575. 
 
 8Kent». Quicksilver Min. Co., 78 N. Y. 159, 
 187, 188; and cases cited; Zabriske v. Cleveland 
 E. E., 23 How. (U. S.) 381, 395, 398; Parks v. 
 Evansville R. E., 33 Ind. 567. 
 
 * Lee V. Kirkpatriok, 1 McCarter, 364; Grissler 
 V. Powers, 81 N. Y. 57. 
 
 145 
 
CHAPTER VII. 
 
 THE EQUITABLE DOCTRINE OF MERGER. 
 
 Sbctiok Section 
 Legal merger . .... 117 Cases of merger where the mortgage or In- 
 Equitable doctrine of merger . , ,118 cumbranoe is paid 120 
 
 Merger in cases of incumbrances . 119 Law of merger as applied to equitable 
 
 easements . . . ... 121 
 
 § 117. Legal merger. — The rule of the common law is well set- 
 tled, that wherever two estates in the same land come into the posses- 
 sion of the same person without any intervening interest between such 
 estates, and they are acquired by such person in the same character, 
 there will be a merger of the smaller estate in the greater. Thus, 
 where a life-tenant, or tenant for years, acquires a reversion, or the 
 reversioner acquires the life-estate or leasehold, there will be a merger 
 of the life-estate or leasehold in the greater estate of the reversioner, 
 so that the ultimate interest of such an owner would be an estate in 
 fee and not a particular estate plus the reversion. This rule was 
 enforced by the common law rigidly and under all circumstances, 
 whether it worked a hardship or wrong or not. Where two estates 
 for years are acquired by the same person successively, the first estate 
 is said to merge into the last estate, even though the latter was one of 
 shorter duration.^ So, also, will there be a merger where the interests 
 of the mortgagor and mortgagee come into the possession of the same 
 party.' Not only did this rule of merger apply where there was an 
 acquisition by the same party of two distinct legal estates in the land; 
 but also where the same person acquired a legal and equitable estate of 
 unequal duration, in which instance the equitable estate is said to merge 
 in the legal estate, the legal estate always being considered the superior.* 
 The only well-settled exception in the common law to the operation of 
 the law of merger was in regard to the estate tail. It could not 
 
 1 Jones ®. Davies, 7 H. & N. 507; Lady Piatt 
 V. Sleap, Cro. Jac. 275 j 2 Black. Com. 177 j 8 
 SpenceEq. Jur. 879, 880; White u. Greenish, 11 
 C. B. N. S. 209, 233; Allen v. Anderson, 44 Ind. 
 395; Cary». Warner, 63 Me. 571; see Welsh ». 
 Phillips, 54 Ala. 309. 
 
 2 Stephens v. Bridges, 6 Madd. 66 ; see Hughes 
 V. Eobotham, Cro. Eliz. 302. 
 
 8Hunt». Hunt, 14 Pick. 384; Lockwood v. 
 Sturdevant, 6 Conn. 387; James v. Morey, 3 
 Cow. 246; Bamett ». Denniston, 5 Johns. Oh. 
 35; Gardner ». Astor, 3 Johns. Ch. 53; Stantons 
 V. Thompson, 49 N. H. 272; White v. Hampton, 
 13 Iowa, 259; Burhans v. Hutcheson, 25 Kans. 
 625; 37 Am. Rep. 274; Wilhelmi v. Leonard, 
 Id. 330; Gregory v. Savage. 32 Conn. 264; Edger- 
 
 146 
 
 ton V. Young, 43 111. 464; Shin v. Fredericks, 56 
 111. 448; Warren ». Warren, 30 Vt. 530; Clary t>. 
 Owen, 15 Gray, 525; Bean v. Boothby, 57 Me. 
 296; Purdy«. Huntington, 42 N. Y. 334; 1 Am. 
 Rep. 532; Barkers. Flood, 103 Mass. 474; Model 
 Lodging House Ass'n «. City of Boston, 114 
 Mass. 133; Pratt v. Bank of Bennington, 10 Vt. 
 293; Champney v. Coope, 32 N. Y. 543; Sher- 
 man?). Abbott, 18 Pick. 448; Bailey » Richard- 
 son, 15 E. L. & E.?18; Dickason ii. Williams, 129 
 Mass. 182; 37 Am. Rep. 316; Thomas v. Sim- 
 mons, 103 Ind. 538j Bredenburg v. Landrum- 
 10 S. C. 956; Collins v. Stocking, 98 Mo. 290. 
 * Welsh !). Phillips, 54 Ala. 309; Capel ». Glrd- 
 ler, 9Ves. 509; Selby «. Alston, 3 Ves. 339; 
 Brydges v. Brydges, 3 Ves. 125a, 
 
■CH. Vn.J DOCTEINE OF MEBGER. § 118 
 
 merge in the ultimate remainder; and this was the rule whether the 
 ^tate tail was legal or equitable.' 
 
 §118. Equitable doctrine of merger.— The court of equity, in 
 dealing with the equitable interests which came under its jurisdiction, 
 ■did not wholly discard the legal doctrine of merger; so that, as a 
 general proposition, where there is a coming together into the posses- 
 sion of one person a legal and an equitable title of equal extent, in 
 equity, as well as in law, there will ordinarily be a merger of the 
 equitable estate in the legal.* But the merger will take place only 
 -when the legal and the equitable estate are acquii-ed by the same party 
 in the same character. If, for example, the legal title is transferred 
 to trustees to be held for the party who has the equitable estate; or if 
 one of the interests, whether legal or equitable, is held by one in his 
 own right, and the other title or interest is transferred to another to 
 be held as trustee for him, there will be no merger.' The only 
 exception to the general rule of a merger being recognized in equity, 
 was, in regard to the case where the result of the merger would be to 
 enable the rule in Shelley's case to apply; and in order to prevent the 
 application of this rule, equity would not permit the merger of an 
 equitable in a legal estate. * Where the owner of a legal estate acquires 
 a less or greater equitable estate, the equity courts do not always 
 follow the legal rule of merger. Merger would, in such cases, take 
 place or not, according to the apparent effect upon the rights of the 
 parties and according to the declared intention of such parties. If, 
 in other words, the parties have declared their intention not to have 
 the merger take place, or such intention can be implied from the fact 
 that the merger would result in detriment to one or the other of 
 the parties, then equity will not permit the merger to take place, but 
 wdU keep the equitable estate alive unaffected by the conveyance; so 
 that, whenever there is a termination of union of the legal and equi- 
 table estates, the party thereafter entitled to the equitable estates would 
 acquire his interest, unaffected by the prior union of the legal and 
 equitable estate in the same person. This is not only the rule, where 
 one interest is equitable and the other is legal, but the same principle 
 is applied to all classes of interests, whether legal or equitable, where 
 the smaller interest is acquired by the owner of the greater, or w'ce- 
 versa.^ 
 
 1 Merest v. James, 6 Madd. 118; Browne v. E. 10 Oh. D. 743, 745; see Adams v. Angell, L. 
 
 Blate, 1 Molloy, 382; 2 Black. Com. 177; Parker K. 5 Oh. D. 634, Ml, 645, and cases cited; Toul- 
 
 ■». Turner, 1 Vem. 458; Dunn v. Green, 3 P. mint). Steere, 3 Meriv. 210, 324, per Sir William 
 
 Wms. 9; seeSPreston on Conyey., 240. For a Grant; Greswold ti. Maraham, 2 Ch. Caa. 170; 
 
 fuller discussion of the legal doctrine of and Mocatta v, Murgatrod, 1 P. Wms. 393. 
 
 merger, see Tledeman Real Prop., §§ 49, 63, 61, * Venables v. Morris, 7 T. H. 342-438; Silvester 
 
 197, 331, 451 <fe 454. v. Wilaon, 2 T. E. 444; see Shapland v. Smith, 
 
 sjames v. Morey, 2 Cow. 246; Wykham i). 1 Bro. Oh. 76; Lord Say in Seal v. Jones, 3 
 
 Wkham, 18 Ves. 418, per Lord Eldon; Brydgea Bro. P. 0. 113. 
 
 c. Brydges, 3Ves. 125a; Selby ». Alston, 3 Ves. 6 Welsh v. Phillips, 54 Ala. 309; Fowler v. 
 
 339. Fay, 62111. 375; Worcester B'k v. Cheeney, 
 
 ^Belaney ». Belaney, L. E. 2 Ch. 138; Tifln 87 111. 6Q3; Brydges v. Brydges, 3 Ves. 125a; 
 
 ■». TMn, 1 Vern. 1; Chambers v. Kingham, L. Chambers n. Kingham, L. E. 10 Ch. D. 743, 745; 
 
 147 
 
§ 119 EQUITY JURISPRUDENCE. [CH. VH. 
 
 § 119. Merger in cases of incumbrances. — As has already Ibeen 
 stated, the legaj doctrine is, that when the legal estate comes into pos- 
 session of the same party who holds a mortgage or other incumbrance 
 upon the land, the mortgage or incumbrance becomes merged into the 
 legal absolute estate, and there can never after be any separation of the 
 two interests. The mortgage or other incumbrance will always merge in 
 the general title to the property, unless there be some intervening 
 interest or lien on the property which would interfere with the applica- 
 tion of the doctrine of merger.^ 
 
 There are two cases that might arise in respect to merger of 
 incumbrances; one, where there is a transfer of the mortgage or 
 incumbrance to the owner of the fee, or vice versa; and secondly, 
 where the mortgage or incumbrance is paid off by one having an 
 interest in the land; a different rule obtains in the two cases. 
 Where it is a mere transfer of the mortgage to the owner of the 
 property, or a transfer of the title of the property to the mortgagee, 
 without any question as to settlement or payment of the mortgage 
 debt, the merger will take place only when the parties have not 
 expressly agreed or intended that the merger shall not take place; in 
 other words, the merger is in most instances only a presumption which 
 may be rebutted by a proof of the intention to the contrary.^ The 
 intention to prevent a merger in consequence of the acquisition of the 
 mortgage by the party holding the legal title, or vice versa, may either 
 be expressed; or it may be implied from the fact that the merger 
 would result to the detriment of the party, into whose possession have 
 come the two distinct interests. Wherever the parties' best interests 
 are to be subserved by an avoidance of the merger, then equity vsdll 
 
 Thorn v. Newman, 3 Sw. 603; Hart v. Chase, 46 Allen, 466; Miokles v. Townsend, 18 N. Y. 575; 
 
 Conn. S07; Malloney v. Horan, 49 NY. Ill; Leavitt !). Pratt, 53 Me. 14; Kellogg v. Ames, 
 
 Blnase iJ. Paige, 1 Abb. App. Dec. 138; Adams 41 N. Y. 859; Abbott v. Kasson, 72Pa. St. 185; 
 
 V. Angell, L. R. 5 Ch. D. 634, 645, and case- Walker v. King, 44 Vt. 601 ; Wadsworth v. 
 
 cited; Forbes ». Moffatt, 18 Ves. 384; Sheehan Williams, 100 Mass. 186; Wade v. Baldmier, 40 
 
 !>. Hamilton, 8 Keyes, 304; St, Paul 1). Lord Dud- Mo. 486; Chaplain v. Laytin, 18 Wend. 407; 
 
 ley and Ward, 15 Ves. 167, 173; AndrusD. Vree- Skilhnan v. Teeple, 1 N. J. Eq. 232; Dudley v. 
 
 land, 89 N. J. Eq. 394. Bergen, S3 N. J. Eq. 397; Russell v. Mixer, 48 
 
 ' Grice v. Shaw, 10 Hare, 76 ; Smith v. Phillips, Cal. 475 ; Baker v. Flood, 103 Mass. 47 ; Ebert v. 
 
 1 Keen, 694; Baldwin v. Sager, 70 111. 503; Rob- Gerding, 116 111. 816; Stelzioh v. Weidel, 87 111. 
 
 bins «. Swain, 68111. 197; Stantons». Thompson, App. 177; Averill v. Taylor, 8 N. Y. 44; Loud 
 
 49 N. H. 872; Edgerton «. Young, 43 111. 464 v. Lane, 8 Met. 617; Bacon v. Bowdoin, 22 
 
 Lilly i>. Palmer, 51 111. 331; Gardners. Astor, Pick. 401; Burrell o. Earl of Efremont, 7 
 
 3 Johns. Ch. 53; Forbes i). Moffatt. 18 Ves. 384; Beav. 805; Pitt u. Pitt, 82 Beav. 294; Morley 
 
 Lord Compton v. Oxenden, 2 Ves. 261, 264; v. Morley, 5 De G. M. & G. 610; McCabe v. 
 
 Swlnfen v. Swinfen, 29 BeaT. 199; Starr v. Bellows, 7 Gray, 148; Gibson *. Crehore, 3 
 
 Ellis, 6 Johns. Ch. 393; James «. Johnson, 6 M. Pick. 475; Houghton v. Hapgood, 13 Pick. 
 
 417; James «. Morey, 8 Cow. 846, 286, 300, 313; 158; Shrewsbury v. Shrewsbury, 1 Ves. 233; 
 
 Byamti. Sutton, 19 Beav. 556; Swabeyii.Swabey, Drinkwater v. Combe, 2 S. & S. 340, 345; 
 
 15 Sim. 106; Tyler J). Lake, 4 1(i. 351, 358; Brown, Carll „. Butman, 7 Me. 108, 105; Spencer v. 
 
 V. Stead, 5 J3. 535; Gregory v. Savage, 32 Conn. Waterman, 36 Conn. 348; Foster v. Hilliard, 1 
 
 250, 864; Bassettu. Mason, 18 M, 131; Wilhelmi Story, 77; Swaine v. Ferine, 5 Johns. Ch. 490; 
 
 ■K. Leonard, 13 Iowa, 330. Bell t>. Mayor, Ac, 10 Paige, 49; Lamson«. 
 
 2 Hinds ». Ballon, 44 N. H. 619; Stantons v. Drake, 105 Mass. 567; Davis v. Wetherell, IZ 
 
 Thompson, 49 N. H. 872; Butler v. Seward, 10 Allen, 63; MoCabe v. Swap, 14 Allen, 191; New- 
 hall V, Savings B'k, 101 Mass. 431. 
 
 148 
 
CH. VII.J 
 
 DOCTKINE OF MERGER. 
 
 § 119 
 
 permit them to continue as two distinct and separate interests, instead 
 of causing a merger.^ 
 
 In order that a merger may in any case take place, the person 
 must be the owner of the land and of the mortgage at the same time.^ 
 The possession of the mortgage and the land by the husband and wife 
 respectively, will not operate as a merger under modern statutes, where 
 the wife's, property is declared to be her sole and separate estate.* 
 The general rule that a court of equity will not allow a merger to take 
 place, if the party had not intended that such a merger should take place, 
 is subject to the single exception that, where the primary obligor of the 
 debt has paid the debt, he cannot claim the right of enforcing the mort- 
 gage against the land, even though the mortgage has been formally 
 assigned to him.* The common case, where the intention to prevent a 
 merger is implied, is where there are other incumbrances upon the 
 land between the mortgage which has been assigned and the equity of 
 redemption. In such a case, the merger will not be permitted to 
 take effect; for if such were the general rule, the junior incumbrance 
 
 iMallory v. mtchoock, 89 Conn. 187; Bassett 
 V. Mason, 18 Conn. 131 ; Forbes v. Moflfatt, 18 
 Ves. 384, per Sir Wm. Grant; Adams v. Angell, 
 L. H. 5 Ch. D. 634, 645, per Sir Geo. Jessel; 
 Swabey v. Swabey, 15 Sim. 106; Lockwood v. 
 Sturdevant, 6 Conn. 373; Campbell v. Vedder, 
 1 Abb. App. Dec. 295; Purdy v. Huntington, 43 
 N. Y. 334; Grice v. Shaw, 10 Hare, 76; Bailey v. 
 Eicbardson, 9 Hare, 734, 736; Tyrwhitt v. 
 
 Tyrwbitt, 32 Beav. 244; Hancock v. Hancock> 
 22N. Y. 668; Judda. Seekins, 62 Id. 266; Sbeldon 
 V. Edwards, 35 Id. 279; Bascom v. Smith, 34 Id. 
 
 Ji20; Simonton v. Gray, 34 Me. 50; Given v. 
 Marr, 27 Me. 213; Holden v. Pike, 24 Id. 427; 
 Clarke. Clark, 56 N. H. 105; Cliftu. White, 12 
 N. Y. 519; Spencer «. Ayrault, 10 N. Y. 202; 
 Vauderkemp ». Shelton, 11 Paige, 28; Skeel v. 
 Spraker, 8 Id. 182; Stantons v. Thompson, 49 N. 
 H. 272; Hinds v. Ballon, 44 Id. 619; Moore v. 
 Beasom, Id. 215; Drewr.Eust,36J!i. 335; White 
 
 -V. Knapp, 8 Paige, 173; Millspaugh v. McBride, 
 7 Id. 509; James v. Johnson, 6 Johns. Ch. 417, 
 
 423; Bell v. Woodward, 34 N. H. 90; Weld v. 
 Sabin, 30 Id. 533; BuUard v. Leach, 27 Vt. 491 ; 
 Walker v. Baker, 26 Vt. 710; Starr v. Ellis, 6 
 
 Johns. Ch. 393 J Gardner v. Astor, S Id. 53; 
 Loomer D. Wheelwright, 3 Sandf. Ch. 135, 157; 
 
 Angel V. Boner, 38 Barb. 425; Slocum v. Catlin, 
 
 22 N. H. 137; Evans v. Kimball, 1 Allen, 240, 
 
 242; New Eng. J. Co. v. Merriam, 2 Id. 390; 
 
 Savage v. Hall, 18 Gray, 363; McGiven v. 
 
 Wheelock, 7 Barb. 22; James ii. Morey, 2 Cow. 
 
 246; Hoppock v. Eamsey, 28 N. J. Eq. 413; Mul- 
 
 ford V. Peterson, 35 N. Y. Law 127; Grover v. 
 
 Thatcher, 4 Gray, 526; Loud o. Lane, 8 Met. 
 
 517,518, 519; Brown v. Lapham, 3 Gush. 551; 
 
 Hunt V. Hunt, 14 Pick. 374; Duncan v. Smith, 
 
 SI N. J. Law, 325; Van Wagenen v. Brown, 26 
 
 Id. 196; Hinchman v. Emans, Saxt. Ch. 100; 
 
 Duncan v. Drury, 9 Pa. St. 332; Gibson v. 
 
 Ciehore, 3 Pick. 475; 5 Id. 146; Knowles]ti. 
 
 Carpenter, 8 E. L 548; Bailey v. Eichardson, 
 9 Hare, 734, 736;; Moore v. Harrisburg B'k, 
 8 Watts, 138; Wallace v. Blair, 1 Grant's 
 Gas. 75; Polk v. Reynolds, 31 Md. 106; Bell 
 V. Tenny, 29 Ohio St. 240; Warren v. War- 
 ren, 30 Vt. 530; Campbell v. Vedder, 1 Abb. 
 App. Dec. 295; Hill v. Pixley, 63 Barb. 200; Loud 
 V. Lane, 8 Met. 517; Jordan v. Porlong, 19 Ohio 
 St. 89;^Tower J). Divine, 37 Mich. 443; Snyder ». 
 Snyder, 6 Mich. 470; Eichardson ». HookenhuU 
 85 111. 124; Swinfeu v. Swinfen, 29 Beav. 199; 
 Davis V. Barrett, 14 Beav. 542; Baldwin v. Sager, 
 70 111. 503; Huebschc. Scheel, 81 Id. 881; Robins 
 V. Swain, 68 Id. 197; Fowler «>. Fay, 68 Id. 375; 
 Smith «. Ostermeyer, 68 Ind. 432; Shimer v. 
 Hammond, 51 Iowa, 401; Waterloo Bank v. 
 Elmore, 52 Id. 541; Scott v. Webster, 44 Wis. 
 185; Clark r. Langlin, 62111.278; Lilly i.Palmer, 
 51 111. 331; Edgerton v. Young, 43 Id. 464; 
 Meacham v. Steele, 93 111. 135; Dunphy v. Eid- 
 dle, 86Ii:2. 22; Worcester Bank v. Cheeney, 87 
 Id. 602; Aiken v. Milwaukee, &c. E. R., 37 Wis. 
 469; Webb v. Meloy, 32 Wis. 319; Lyon v. Mc- 
 Ilvaine, 24 Iowa, 9; Wilhelmi v. Leonard, 13 
 Iowa, 330; Delaware, &c. Go. v. Bonnell, 46 
 Conn. 9; Hart v. Chase, 46 Conn. 207; N. J. Ins, 
 Co. V. Meeker, 40 N. J. L. 18; iEtna Life Ins. 
 Co. «7. Com, 89 111. 170; White v. Hampton, 13 
 Iowa, 259; Davis v. Pierce, 10 Minn. 376; Chris- 
 tian V. Newberry, 61 Mo. 446; Grellet v. Heils- 
 horn 4 Nev. 526; Carter v. Taylor, 3 Head, 30; 
 Tucker «, Crowley, 187 Mass. 400; KnowlessJ. 
 Lawton, 18 Ga. 476; Atkinson v. Morrissy, 3 
 Oreg. 332; Bessei v. Hawthorn, 3 Oreg. 129. 
 
 2 Campbell v. Vedder, 1 Abb. Appt Dec 295; 
 Purdy V. Huntington, 42 N. T. 334. 
 
 5 Power V. Lester, 33 N. Y. 527; and see 
 Gillig». Maas, 88 N. Y. 191; Bean v. Boothby, 
 67 Me. 895; Bemis v. Gall, 10 Allen, 512; Mode, 
 Lodg. H. Ass'u V. Boston, 114 Mass. 133; Faults 
 ^. Dimock, 27 N. J. Eq. (12 C. B. Green) 66i 
 
 * See post, §344. 
 
 149 
 
§ 119 EQUITY JURISPRUDENCE. [CH. Vn. 
 
 would become the senior incumbrance, and the party receiving the first 
 mortgage would not have received the special benefit he had anticipated 
 from the purchase of the first mortgage. In all such cases, the senior 
 mortgage or incumbrance will have a separate existence and be kept 
 alive, although it has been transferred to, and is now the property of, 
 the owner of the land, where such owner is not the primary obligor 
 of the mortgage debt.' Where the intention is to be inferred from 
 the surrounding circumstances of the transaction and of the property, 
 parol evidence is admissible for the purpose of discovering the intention, 
 or for the purpose of showing that a merger must take place. ^ But 
 the express intention of the parties can never be proven by paroL 
 evidence.' The intention must be gathered from the terms and pro- 
 visions of the instrument of assignment. Thus, the intention may be 
 expressed by the form of an assignment, not only in the recitals of 
 the deed of assignment, but also by .the fact that the mortgage or other 
 incumbrance* has been assigned to some third person as a trustee for 
 the owner of the land.* 
 
 In order that the intention of the parties may control the question of 
 merger, it must be expressed and exist at the time when the two estates 
 or interests come together in the same person. If, at that time, no 
 intention is expressed or implied to keep the two interests separate and 
 distinct, there will be a merger, although the parties should subse 
 quently form an intention to claim the separate existence of each 
 interest; in other words, the actual intention must exist when the two 
 interests come together, or be implied from circumstances existing at 
 that time.° 
 
 The intention of the parties, as to the question of merger, where 
 the interests of the mortgagor and mortgagee come together in one 
 person, varies with the character of the transfer. Where the. 
 mortgagee takes a conveyance of the land from the mortgagor, 
 or from the grantee of the mortgagor, the presumption of an 
 intention to keep the mortgage alive is very strong. It is gen- 
 erally to the interest of the mortgagee, under these circumstances, 
 to prevent the merger in order not to lose his priority against 
 
 1 Powell V. Smith, 30 Mloh. 451; Swinfen v. 1 Sim. 298, 345; Piske v. McGiegory, 34 N. H. 
 Swinfen, 29 Beav. 199, 804; Davis ». Barrett, 14 414; Miller «. Flohthorn, 31 Pa. St. 2S2, S59; 
 Beav. 542; Hatch v. Skelton, 30 Id. 453; Earl of Prey v. Vanderhoof, 15 Wis. 397. 
 Clarendon v. Barham, 1 T. & C. Oh. 688; Blum. s MeCabe v. Swape, 14 Allen, 188. 
 
 dell C.Stanley, 3 De G. & Sm. 433; Wilkes ». 4Bean ». Boothby, 67 Me. 295; Campbell V. 
 
 Collin, L. E. 8 Eq. 338; Hatch v. Skeltoh, 30 Knights, 24 Me. 332; Crosby v. Chase, 17 Me. 
 
 Beav. 453; Johnson©. Webster, 4 DeG.M.A G. 369; Crosbys. Taylor, 15 Gray, 64; Bailey o. 
 
 474; Astley ». Milles, 1 Sim. 298; Tyrwhltt v. Richardson, 9 Hare, 734; Tyrwhltt ii. Tyrwhitt, 
 
 Tyrwhitt, 38 Beav. 244; Stantons v. Thomps 'n, 32 Beav. 244; Spencer v. Ayrault, 10 N. Y. 302. 
 
 49 N. H. 278; Warren v. Warren, 30 Vt. 530; » Gardner ». Astor, 3 Johns. Ch. 53; Loomec. 
 
 Haneookn. Hancock, 32 N.T. 568; Campbells. Wheelwright, 3 Sandf. Ch. 135, 157; Cole v. 
 
 Vedder, 1 Abb. App. Dec. 295; Hill v. Pixley, Edgerly, 48 Me. 108; Given ». Marr, 27 Me. 212; 
 
 63 Barb. 200; Loud v. Lane, 8 Met. 517. Hunt v. Hunt, 14 Pick. 374, 383; Aikin v. Mil- 
 
 2 Howard v. Howard, 3 Met. 548; Wade v. waukee, &c. E. E., 37 Wis. 469; Champney ».. 
 Howard; 11 Pick. 289; 6 Id. 492; Astley ». Milles, Coope, 34 Barb. 538. 
 
 150 
 
CH. Vn.] DOCTRINE OF MERGEB. § 120 
 
 the landas mortgagee over the junior incumbrance.' Where, also, the 
 assignment is made by the mortgagee to the mortgagor, or to the 
 grantee of the mortgagor, the question, as to the intention of the 
 parties in respect to merger, will vary with the character of the 
 obligation of such mortgagor or grantee of the mortgagor to pay the 
 debt. The presumption against merger still holds good as to such 
 parties where there is no such obligation to pay off the debt; that is, 
 where the party who owns the land and receives an assignment of the 
 mortgage is not the primary obligor or ultimate debtor.' So, also, 
 will there be no merger where the mortgage has been assigned to one 
 who is only a part owner of the land, whether as life-tenant, lessee, 
 or tenant in common.' While as a general rule the merger, which 
 otherwise would prevail at common law, is prevented by equity, for 
 the purpose of preventing injury to the interests of the parties to the 
 transaction; on the other hand, if the prevention of merger would 
 work an injury or wrong, or would aid in effecting a fraud, equity 
 would not interpose for the prevention of the merger; and any extraordi- 
 nary circumstances, which would indicate that the prevention of the 
 merger would have such an evil effect, could be established as a defense 
 against the interference of equity.* 
 
 § 120. Cases of merger where the mortgage or incnmbrance is 
 paid. — The cases heretofore discussed are where incumbrances and 
 absolute titles to the property come into the possession of the same 
 party without any intention of a settlement of the incumbrance: the 
 question of merger assumes a different phase where the transaction 
 whereby the two interests came into the possession of the same party 
 is not intended in any sense of the term as an assignment of the mort- 
 gage; but the purpose of the transaction is to secure a settlement or 
 payment of the incumbrance over the land. In such a case, the court 
 of equity will only interfere for the purpose of preventing an extin- 
 guishment of the mortgage, where such extinguishment would result 
 in damage or loss to the party making the payment. Where the 
 mortgagor who is under a primary obUgation to pay off the mortgage 
 debt pays the mortgage debt, it will operate as a complete extinguish- 
 ment of the mortgage, whether the mortgage is satisfied upon the 
 
 1 Thompson V. Boyd, 1 Zabr. 58; 2 Id. 543; Allen, 39; Savage v. Hall, 12 Gray, 363; Adams 
 Duncan v. Smltli, 2 Vroom, 325; Pithin v. Cor- v. Angell, L. R. 5 Ch. D. 634; Watts v. Symea, 1 
 win, 17 Ohio St. 118; Scott o. Webster, 44 Wis. De G. M. & G. 240. 
 
 185; Mine. L.Ins. Co. v. Corn, 89 111. 135; 'Stan- » Clark ». Clark, 56 N. H. 105; Tltsworth V. 
 tons V. Thompson, 49 N. H. 272; Bdgerton o. Stout, 49 111. 78; Barker «. Flood, 103 Mass. 474, 
 Totmg, 43111. 454; Freeman*. Paul, 3 Me. 360; Countess of Shrewsbury v. Earl of Shrews- 
 Walker V. Baker, 26 Vt. 710; Knowlesv. Law- bury, 1 Ves. 227, 233; Drinkwater v. Combe, 2 
 .ton, 18 Ga. 476; Dunphy v. Riddle, 86 111. 22; & S. S. 340, 345; Pitt v. Pitt, 22 Beav. 294; 
 Worcester B'k v. Cheeney, 87 111. 602; Slocum v. Burrell v. Earl of Egremont, 7 Id. 205 ; Morley 
 Catlln, 22 Id. 137; Mallory ». Hitchcock, 29 v. Morley, 5 De G. M. & Q. 610; Adams v. 
 Conn. 127; Mulford v. Peterson, 35 N. J. Law, Angell, L. R. 5 Ch. D. 634, 64B. 
 127. *McGiveu ». Wheelock, 7 Barb. 23; Hlnch- 
 
 2 Mobile Branch B'k v. Hunt, 8 Ala. 876; man o. Evans, Saxt. Ch. 100; Worthington v. 
 Loud V. Lane, 8 Met. 517; Pitts v. Aldrlch, 11 Morgan, 16 Sim. 547; Hutchins v. Carleton, 19 
 
 N. H. 487. 
 
 151 
 
§ 120 EQUITY JUKISPEUDENOE. [CH. VU. 
 
 records or has been formerly transferred to the mortgagor. And this 
 is the case likewise where the mortgage has been assigned to trustees 
 for the mortgagor; there cannot be any prevention of the merger by a 
 transfer to trustees.^ But this is not the rule where the assignee of 
 the mortgage has assimied the payment of the debt. In that case, pay- 
 ment by the mortgagor will not operate as an extinguishment or 
 merger of the property, but the mortgage will be kept alive to be 
 enforced by him against the land and the assignee.^ But, in such a 
 case there will be a merger where the payment is made by, the assignee 
 of the mortgagor who has assumed the payment of the debt.' 
 
 But where such assignee of the mortgagor merely takes the property 
 subject to the mortgage without the assumption by him of any obligation 
 to pay off that mortgage ; if he should be subsequently called upon to pay 
 the mortgage, it would not operate as a merger or an extinguishment of 
 such mortgage, but it would still be kept alive to be enforced by him, 
 against the mortgagor and other parties who are primarily liable for 
 the debt. The same rule applies against the intention to effect a merger 
 or complete extinguishment of a mortgage, where the one paying off 
 the mortgage has only a part interest in the mortgaged property; in 
 such a case, the party paying off the mortgage has a right to enforce 
 such mortgage against the co-owners of the property. His payment 
 of the mortgage operates as an equitable assignment of the same, and 
 it is kept ahve in his hands as a separate interest for the purpose of 
 being enforced against the interests of those who hold it subject to 
 that mortgage. The common case falling under this heading is, where 
 a widow is entitled to dower subject to a mortgage and pays off the 
 entire mortgage for the purpose of saving her own interest; in that 
 case, she can enforce this mortgage as an equitable assignee against the 
 other owner of the property.* Hie same rule is extended to tenants 
 for years and for life, as well as to tenants in common.^ 
 
 1 MloklesD. Townaend, 18N. Y. 575; Stoddard Wis. 397; Miokles v. Townsend, 18 N. Y. 575; 
 
 ». Kotton, B Bosw. 378; Butler v. Seward, 10 Russell i>. Plstor, 7 M 171 ; Kellogg ». Ames, 41 
 
 Allen, 466; Mlckles v. Dillaye, 15 Hun. 896; N. Y. 259. 
 
 Baton V. Slmonds, 14 Pick, 98; Crafts v. Crafts, * Carll v. Butman, 7 me. 102, 105; Spencer v. 
 
 ISGray, 360; Wadsworth u. Williams, 100 Mass. Waterman, 38 Conn. 342; MoCabe v. Bellows, 
 
 126; Cherry 11. Monro, 2 Barb. Ch. 618; Johnson 7 Gray, 148; Gibson ». Crehore, 3 Pick. 475; 
 
 V. Webster, 4 De G. M. & G. 474; Otter v. Lord Houghton v. Hapgood, 13 Id. 158; Newhall v. 
 
 Vaux, 6 Id. 638; Brown «. Lapham, 3 Cush. Savings B'k, 10 Mass. 431; McCabe ». Swape, 14 
 
 551,554; Wedge v. Moore, 6 IS. 8; Robinson v. Allen, 191; Davis ®. Wetherell, 1314 63; Foster 
 
 XTrquhart, 1 Beasl. 515; Comm. v. Chesapeake, v. Hiliiard, 1 Story, 77; Swaine v, Perine, 5 
 
 Ac. Co., 32 Md. 501; Swift v. Kraemer, 13 Gal. Jonhs. Ch. 490; Bell v. Mayer, &o., 10 Paige, 
 
 .626; Kilborn v. Bobbins, 8 Allen, 466, 471; 49; Lamson d. Drake, 105 Mass. 567. 
 
 Strong V. Converse, 8 Id. 557; Butler v. Seward, 6 Averill v. Taylor, 8 N. Y. 44; Loud v. Lane, 
 
 10 Id. 466; Bemis v. Call, 10 Id. 512. 8 Met. 517; Beacon v. Bowdoin, 83 Pick. 401; 
 
 ' Robinson v. Leavitt, 7 N. H. 73, 100; Funk Pitt v. Pitt, 82 Beav. 294; Morley v. Morley, 5 
 
 -». McKeynold, 33 111. 481, 495; Baker v. Terrill, De G. M. & G. 610; Shrewsbury v. Shrewsbury, 
 
 8 Minn. 195, 199; StiUman v. Stillman, 21 N. J. 1 Ves. 833; Drinkwater v. Combe, 3 S. & S. 340, 
 
 Eq. 126; Jumel v. Jumel, 7 Paige, 591; Cox v. 345; Burreli v. Earl of Egremont, 7 Beav. 205; 
 
 Wheeler, 7 Paige, 248, 257; Fletcher v. Chase, Id.,- Titsworth v. Stout, 49 IlL 77; Barker v. 
 
 16N. H. 38, 42;Klnnearo. Lowell, 34 Me. 299; Ford, 103 Mass. 474; Clark v. Clark, 56 N. H. 
 
 Halsey D. Reed, 9 Id. 446. 105; Adams v. Angell, L. R. B Ch. D. 634, 645; 
 
 8 Fitch o. Cotheal, 2 Sandf. Ch. 89; Lilly v. Countess of Shrewsbury ». Barl of Shrewsbury, 
 
 Palmer, 51 111. 331 ; Frey v. Vanderhoof , 15 1 Ves. 227, 233. 
 
 152 
 
<3H. Vn.] DOCTRINE OF MEKGEK. § 121 
 
 § 121. Law of merger as applied to equitable easements. — At 
 
 law, it is impossible for an easement to exist between two estates owned 
 by the same person. If the two parcels had had separate owners, 
 upon the union of them in the one owner, as we have seen, the ease- 
 ment would at least be suspended during the continuance of such 
 union and revive upon their sepai'ation. The easement would revive 
 only when the dominant and servient estates were of unequal value in 
 the matter of duration.* But notwithstanding the fact that at law 
 there can be no easement in favor of one parcel imposed upon another, 
 both being held by the same owner, yet in equity such a relation may 
 exist. If the owner of two parcels so uses them as to make one servi- 
 ent to the other, as, for example, in the construction of a drain carry- 
 ing waste water from one estate over the other, in equity an easement 
 will be imposed upon one lot in favor of the other, which, upon the 
 severance of ownership by alienation, assumes the character of a legal 
 easement, if its continuance is essential to the enjoyment of the estate 
 which is sold.^ It seems, also, that the servitude must be an open and 
 notorious incumbrance, particularly where the servient estate is con- 
 veyed away.^ The same principle has been applied to a case where 
 the owner of two lots conveys them to different grantees, and so divides 
 them that the wall of the house conveyed to one of them falls within 
 the boundary line of the other. It is held to create an equitable ease- 
 ment in favor of the owner of the house.* Especially does an ease- 
 ment arise when the quasi dominant estate is granted to another. If 
 the qtoasi servient estate has been conveyed, it is a question of some 
 doubt whether there is reserved to the grantor, by implication, an ease- 
 ment to maintain the drain or other burden upon the granted estate. 
 The authorities, English and American, are at variance on this question. 
 In this country, the better opinion is that the rule would be the same 
 as in the case of the conveyance of the quasi dominant estate,^ if it was 
 strictly necessary to the enjoyment of the dominant estate, and the 
 existence of the easement is apparent or known to the grantee. 
 
 1 See Tiedeman, Eeal Prop., § 598. cock, &c. Ins. Co. v. Patterson, 103 Ind. 582j (53 
 
 2 Smith ». Blaupied, 62 N. H., 652; Smiths. Am. Rep. 550. 
 Smith, 62 N. H. 429; Crosland v. Rogers, (S. C. swarren v. Blake, 54 Me. 289; Johnson v. 
 
 ■90) 10 S. E. 874. Jordan, 2 Mete. 234; Carbrey v. Willis, 7 Allen, 
 
 ^TredwellB. Inslee, 120 N. Y. 458 (24 N. E. 369; Randall v. McLaughlin, 10 Allen, 366; 
 
 651) ; Pyerc. Carter, 40Eng. L. & Eq. 410; Guy ti. Keats v. Hugo, 115 Mass. 204; 15 Am. Rep. 80; 
 
 Brown, 5 Moore, 644; Johnson v. Jordan, 2 Butterworth ti. Crawford, 46 N. Y. 349; 7 Am. 
 
 Mete. 234; Kenyon v. Nichols, 1 R. I. 411, Rep. 352; Parsons u. Johnson, 68 N. Y. 68; 23 
 
 New Ipswich Factory ». Batcheldor, 3 N. H. Am. Rep. 149; Haverstiok v. Sipe, 33 Pa. St. 
 
 190; Brakely ». Sharp, 9 N. J. Eq. 9; s. c, 10 N. 368; MoCarty v. Kitcheuman, 47 Pa. St. S43; 
 
 J. Eq. 206; KiSfer v. ImhoSF, 26 Pa. St. 438; Mo- Powell v. Slmms, 5 W. Va. 1; 13 Am. Rep. 629; 
 
 Tavlshs). Carroll, 7 Md. 352; Jones v. Jenkins, Turner v. Thompson, 58 Ga. 268; 24 Am. Rep. 
 
 34 Md. 1; 6 Am. Rep. 300; Lampman v. Milks, 297; Mullen v. Strieker, 19 Ohio St. 135; 2 Am. 
 
 21 N. Y. 505; Hubbard v. Town, 33 Vt. 295; Rep. 379; Morrison v. Marquardt, 24 Iowa, 35; 
 
 Geber v. Grubell, 16 111. 217 ; Smith v. Blanpied, but see Jones v. Jenkins, 34 Md. 1 ; 6 Am. Rep. 
 
 62 N. H. 652; Smith ». Smith, 68 N. H. 429; 300; Hubbard v. Town, 33 Vt. 295; Gerber«. 
 
 ■Crosland ». Rogers, (S. C. '90) 10 S. E. 874. Grubell, 16 111. 217; Sloat v. McDougall, 9N. Y. 
 
 <ReinerB v. Young, 38 Hun, 335; John Han- S. 631 ; Burr v. Mills, 21 Wend. 290; Treadwell 
 
 V. Inslee, 120 N. Y. 458. 
 
 153 
 
CHAPTER VIII. 
 
 ELECTION. 
 
 Section 
 The fundamental principles of the doc- 
 trine 123 
 
 The scope and effect of the doctrine . 134 
 Doctrine applies both to wills and deeds . 125 
 Intention to convey another's property 
 
 essential 126 
 
 Intention where donor has partial interest 
 
 in property disposed of . . . ; 127 
 An independent substantial benefit neces- 
 sary 128 
 
 Ordinary cases of election where grantor 
 
 has no Interest in property ... 189 
 Cases of election arising under powers of 
 
 appointment 130 
 
 Cases of election where the testator has at- 
 tempted to dispose of his property by 
 will which is inoperatiye . . .131 
 
 Sectiok 
 Oases in which the donor nas a partial in- 
 terest In property donated . . . 132 
 Election by widow between her dower and 
 
 the testamentary provision . . . 13* 
 From what circumstances Intention of 
 
 election may be implied .... 134 
 Statutory changes in this rule . . . 135 
 Election and devise of community prop- 
 erty 13ft 
 
 Election in the case of statutory provisions 
 for widow's share in inheritance of hus- 
 band's property ISf 
 
 Who may elect, persons under disabilities 13S 
 
 Time of election 13* 
 
 Mode of election 140 
 
 Effect of an election 141 
 
 Equitable jurisdiction in matters of elec- 
 tion 148 
 
 § 123. The fundamental principles of the doctrine. — The equi- 
 table doctrine of election is not to be confounded with the right of 
 election given by a statute in particular cases; but it is a right and an 
 obligation, depending upon the principles of equity. The rule adopted 
 and enforced by the court of equity under the head of " election," is 
 as follows: wherever one undertakes by will or grant, to convey 
 property belonging to another, and in the same will or grant, conveys 
 other property of his own to the person whose property he wrongfully^ 
 attempts to dispose of; the party whose property he does wrongfully 
 dispose of, and to whom benefits are granted by the same instrument, 
 is held to be obliged to elect between repudiating the terms of the 
 instrument and the benefit provided for him therein, or doing what- 
 ever is necessary, in the way of a transfer of his own property, which 
 was attempted to be conveyed in the instrument in question, to the 
 party who was intended to be benefited thereby. In other words, if 
 A. by his wiU devises to B. property belonging to C. , and in that same 
 will gives to C. property of his own; in such a case, the court pre- 
 sumes, that the testator intended, or assumes it to be the equitable duty 
 of C, in order that C. may avail himself of the benefit intended for 
 him under the wiU of A. , to do whatever is necessary in the way of a 
 transfer to B. of all the property which the will indicates to be given 
 to B. , so that the entire will might be carried out. The doctrine of 
 election denies to C. the right to repudiate one part of the will of A., 
 viz. : that part which purports to dispose of property belonging to 
 154 
 
CH. Vin.] ELECTION. § 123 
 
 C, and at the same time claim the enforcement of that part of the will 
 which provides for the bestowal of profits upon C 
 
 This doctrine is not peculiar to the American and English equity 
 jurisprudence; it is to be found in a modified form in the Roman law.. 
 In that jurisprudence it was a common provision of a will to devise 
 the testator's property to one person subject to the bestowal of certain 
 benefits upon others named therein. Where the provision for the 
 benefit of others was in the nature of a grant to them of property that 
 was not the testator's, and therefore could not be directly conveyed to 
 such persons by the vriU, this provision appeared as a condition upon, 
 the acceptance of the testament by the general devisee, or heir in the 
 Roman sense, that the testamentary heirs shall procure for the bene- 
 ficiaries by purchase the property or benefits, which the testator 
 intended they should have. The application of the rule in the Roman 
 law was limited to the cases in which the testator attempted to dispose 
 of property which he knew to be the property of others, and not 
 where he undertook to dispose of property under the erroneous 
 impression that he owned such property. In the latter case, the doc- 
 trine of election did not in the Roman law apply. In that case, the 
 devisee was under no obligation to procure the property in question as 
 a condition precedent to the enjoyment of the devise.^ It is very 
 probable that this limitation in the Roman law to the application of the 
 doctrine of election, is the cause of the confusion which prevails among 
 the cases, not only as to limitations of the doctrine in American 
 and English law, but likewise as to the fundamental principles upon 
 which the whole doctrine is supported. In the American and English 
 law, the limitation, just explained as existing in the Roman law, is not 
 recognized, the courts holding that the doctrine of election will apply, 
 and will be enforced whether the testator or grantor undertook to 
 convey the property of another with the knowledge of the fact that 
 the property did not belong to him, or ignorant of such fact, and 
 believing that it was his own property. In both cases, the doctrine of 
 election applies.' Now, in consequence of the limitation imposed upon 
 
 1 The operation of this rule may be shown the fee a<;re to the eldest son must be under- 
 
 by the facts of the following case which was stood to be with a tacit condition that he shall 
 
 oneof the earliest cases in which the question suffertheyoungest son to enjoy the tall acre 
 
 of election arose namely, the case titled quietly, or else that the youngest son shall 
 
 "anonymous." Gilbert's Eq., p. 15: "A. was have an equivalent out of the fee acre, and 
 
 seized of two acres, one in fee, t'other In tall ; decreed the same accordingly." See, also, 
 
 and haying two sons, he, by his will, devises Hyde v. Baldwin, 17 Pick. 303, 308, Shaw C. J. 
 
 the fee-simple acre to his eldest son, who was See, also, Smith «. Guild, 34 Me. 443, 447 ; Weeks 
 
 Issue in tail; and he devises the tail acre to his v. Patten, 18 Id. 42; Hamblett v. Hamblett,6 
 
 youngest son, and dy'd: the eldest son entered N. H. 333; Glen v. Fisher, 6 Johns. Ch. 33; Pul- 
 
 npon the tail acre ; whereupon the youngest ton v. Moore, 25 Pa. St. 468; Cauffman v. Cauff- 
 
 son brought his bill in this court against his man, 17 Serg. & E. 16; Preston v. Jones, 9 Barr. 
 
 brother, that 'he might enjoy the tail acre 456; George v. Bussing, 15 B. Men. 558; Buist 
 
 devised to him, or else have an equivalent out v. Daws, 3 Rich , Eq. 281 ; Stump v, Flndlay, 2 
 
 of the fee acre; because his father plainly Eawle, 168, 174 ; McGinnls ». MoGinnls, 1 Kelly, 
 
 designed him something. Zord Chancellor 496, 503. 
 
 Cowper, This devise being designed as a spomeroy's Eq. Jur., Vol. 1,§463. 
 
 provision for the youngest son, the devise of 'See Cooper v. Cooper, L. E. 6 Ch. 15, 16, 20t 
 
 155 
 
I 124 EQUITY JUKISPKUDENCE. [CH. Vm. 
 
 the application of the doctrine of the Roman law to the case in which 
 the testator or grantor attempts to dispose of property which he knew 
 belonged to another, it was presumed that the foundation for the doc- 
 trine was the implied intention of the grantor that the beneficiary, 
 whose property he attempted to dispose of, should convey in accord- 
 ance with his attempted disposition of it; and that has been considered 
 by the majority of the authorities to be the true foundation for the 
 doctrine.^ This presumption of an intention of the testator is not pos- 
 sible, however, where it can be shown that he undertook to convey 
 property belonging to another under the erroneous impression that the 
 property was his own. This fact of error in respect to the ownership 
 of the property, is inbonsistent with the presumption of his intention 
 that the beneficiary, to whom the property belonged, should receive 
 his benefits under the will upon the condition of his making good the 
 attempted disposition of the beneficiary's property; for the testator 
 made the attempted disposition, under the impression that the property 
 was his own. Professor Pomeroy suggests the only reliable foun- 
 dation in principle for the whole doctrine when he states that "the 
 whole theory and process of election is a practical application of the 
 maxim : He who seeks equity must do equity. "^ In other words, the 
 obligation to elect is imposed upon a grantee or devisee whenever 
 such a duty is plainly equitable, and whenever the facts of the case 
 make it inequitable for the beneficiary to take the benefits under the 
 grant or will, and at the same time repudiate other provisions of the 
 will which affect him injuriously. 
 
 § 124. The scope and effect of the doctrine. — ^Whenever a case 
 does arise to which the doctrine of election applies, it becomes an 
 important question, what is the scope and effect of the application of 
 the doctrine ? To recur to the illustrative example given in the pre- 
 <!eding paragraph: if A. undertakes to dispose by will of property 
 belonging to C. in favor of B. , and by the same instrument makes 
 bequests to C. , the court of equity pronounces it to be inequitable for 
 C to accept for himself the benefits bestowed by the will, while he 
 refuses to transfer to B. that part of his own property which the tes- 
 tator (A.) undertook to give to B. If C, under the enforcement of 
 this duty of election, should decide to comply with the terms of the 
 will — and ordinarily he would do this whenever the benefits to be 
 derived from the will were more valuable than the property which, 
 under the doctrine of election, he would be obliged to return to B. in 
 carrying out the provision of the will referring thereto — no difficulty 
 is likely to be encountered. But when the testamentary provision in 
 
 see Ingram v. Ingram, cited in Kirkham v. 1 Sw. 359,394, 401; Lord Alvanley, In Whistler 
 
 Smith, 1 Ves. Sen. 858, S59; Thellusson v. ». Webster, 2 Ves. 367, 370; Noyes«. Mordaunt, 
 
 Woodford, 13 Ves. 209, 220; Whistler v. Web- (2 Vera. 581; Eq. Gas. Abr. 873, pi. 3; Qilb' 
 
 ster, 2 Ves. 367; Birmingham ». Kirwan, 8 Sch. Eq. E. 2) ; Streatfleld v. Streatfleld, (Gas. temp. 
 
 & Lef. 444; Grissell v. Swlnhoe, L. R. 7 Eq. Talbot, 176). 
 
 291. 2 See 1 Pomeroy's Equity Jurisprudence, 
 
 1 Mr. Swanston to the case of Dillon v. Parker, % 465. 
 
 156 
 
CH. Vin.] ELECTION. § 124 
 
 behalf of C. is of less value than the property belongmg to C, which 
 is by A. 'swill transferred to B. ; or where C. has an attachment to 
 his own property of a sentimental character which induces him to 
 refuse to part with it as a condition precedent to the reception of the 
 benefits designed for him by A. , two difficult questions could arise. 
 In the fii'st case, where the property of C. , wtiich A. undertakes to 
 devise to B., is pecuniarily more valuable than the benefit provided for 
 C, C.'s course is plain; namely, he would refuse to accept the pro- 
 vision made for him in A.'s will and keep his own property. It is 
 plain that the court could not justly compel C. to obey or carry out 
 the provision of the will; for apart from the inequitable character of 
 such an order, it is itself inconsistent with the doctrine of election 
 which imposes upon C. the duty of performing the condition attached 
 to the devise in his favor, or refusing to accept the same. If, there- 
 fore, the court of equity undertakes to provide for his enjoyment of 
 some benefit imder A.'s will, when C. rejects the benefits bestowed 
 upon him by A.'s wiU and refuses to transfer his own property to B. 
 in accordance with the provision of A.'s will, there is but one course 
 for the court to follow, viz: to take the property which A. had given 
 to C. and turn it over to B. In the exercise of such a power the 
 court would be creating a new species of title. It is plain that B. 
 could not claim title to the property devised to C, either by grant 
 or by devise; in other words, the title which he could claim, whatever 
 it may be called, he did not acquire by transfer from A. ; the title 
 originated with the judgment or decree of the court of equity. It 
 is, however, plainly the fact that the decree of a court of equity, 
 imder the circumstances just explained, would operate to transfer to 
 B. the property devised by A.'s' will to C 
 
 In the second case, where the refusal of C. to comply with the 
 terms of the will, and to transfer to B. the property A. designed B. 
 to have, is due not to the fact that the benefits under the will designed 
 for C. are of less value than that part of C.'s property which A. has 
 undertaken to give to B. , but because C. has a sentimental attach- 
 ment to his own property above and beyond its pecuniary value, 
 which induces him to give up the benefits provided for him under 
 A.'s will, rather than to part with his own property: what should in 
 such a case be the judgment of the court in behalf of B. is a doubtful 
 
 ' "I conceive it to be the universal doctrine now to dispute this principle, established more 
 
 that the court possesses power to sequester than a century, merely on the ground of diffi- 
 
 the estate till satisfaction has been made, not culty in reducing it to practice, and dlspo ing 
 
 permitting it to devolve in the customary of the estate taken from the heir-at-law with- 
 
 course. Out of that sequestered estate so much out any will to guide It; the will destined to 
 
 is taken as is requisite to Indemnify the dis- the devisee not this estate, but another; he 
 
 appointed devisee ; if sufficient, it is left in his takes by the act of the court (an act truly 
 
 hands. In the case to which I have referred, described as a strong operation) ; not by 
 
 Lord Loughborough uses the expression that descent, not by devise, but by decree ; a creat- 
 
 the court 'lays hold of what is devised, and ure of equity." Opinion of Sir Thomas 
 
 makes compensation out of that to the disap- Plumer, M. R., in Grettou v. Haward, 1 Sw. 409, 
 
 pointed party.' ♦ » * It would be too much 433, 441. 
 
 157 
 
§ 126 EQUITY JUKISPKUDENCE. [CH. Vin. 
 
 question. According to some of the older cases, it appears that in 
 this case, as in the case just discussed, where C.'s provision is of less 
 Talue than the provision for B., C, by his refusal to comply with 
 the terms of the will, in respect to his own property, would forfeit 
 altogether the provision made for him in the will.^ But inasmuch as 
 the court of equity only interferes in such cases for the purpose of 
 securing to B. the substantial interest which he was designed to have, 
 if the court went beyond providing for B. full compensation in 
 money for the loss of the property which he would have received 
 with C.'s consent to the full operation of the will, it would be doing 
 more than securing for B. the satisfactiofi of his equitable claims. 
 And such would be the case if the entira provision in favor of C. was 
 declared to be forfeited by C. in favor of B., where the devise to C. 
 was more valuable than the property of C. which the will undertook 
 to give to B. The full consideration of B.'s equitable claim only 
 Tequires, that B. should get in money the full value of the property 
 which the will designs to go to him; and such js the conclusion of the 
 majority of the courts, such courts holding that when C. refuses to 
 transfer to B. the property A. undertook to dispose of in favor of 
 B., C. will not forfeit his entire interest in the testamentary pro- 
 Tision, but he shall take this benefit subject to the payment of money 
 to B. in consequence of the latter' s loss of the property designed for 
 Mm; and if C.'s refusal is absolute, and, in consequence of such 
 absolute refusal to have anything to do with the will, it becomes 
 necessary for the court to sell the property devised by A. to C, 
 whatever surplus remains imdisposed of after a full satisfaction of 
 B.'s claim for compensation, such surplus is the property of C. under 
 A.'swill.^ 
 
 § 125. Doctrine applies both to wills and deeds. — ^Not only does 
 the doctrine of election apply to cases of conflicting interest arising 
 in the attempted disposition of property by will, which belonged to 
 some other person than the testator, but likewise to all similar cases 
 which arise, or appear in deeds and other instruments of conveyance 
 inter vivos. ^ The doctrine also applies to contracts of every descrip- 
 tion which involves the transfer or assignment of property.* 
 
 §126. Intention to convey another's property essential.— 
 IVbile it is true that the doctrine applies to cases where the testator 
 undertakes or attempts to convey property belonging to another under 
 
 'Cowperv. Scott.SP. Wms. 124; Villareali;. 5 Md. 306; Maskell ». Goodall, 2 Disney 282- 
 
 lord Galway, 1 Bro. Ch. 898 n; Green v. Roe v. Eoe, 21 N. J. Eq. (6 C. E. Green) 253- 
 
 •Green, 2 Meriv. 86; and Lord St. Leonards, in Estate of Delaney, 49 Gal. 77; TIernan v 
 
 2 Sugd. on Powers, 145 (7th ed.) . Roland, 3 Harris, 430, 451 ; Wilbank v. Wllbank 
 
 »SpreadD.Morgan,llH.&L.CaB.588; Cauff- 18 111.17. " ' 
 
 man v. Cauffman, 17S. & R. 16,24, 85; Philadel- a Moore v. Butler, 2 Soh. A Lef. 266; Bacon 
 
 phia V. Davis, 1 Whart. 490, 502; Stump ». Find- v Cosby, 4 De G. & Sm. 261 ; Anderson o Ab- 
 
 lay,2Rawle, 168, 174; Lewisjj.Lewis, ISPa.St. bott, 23 Beav. 457. 
 
 79,88; VanDyke'sAppeal,60Iii.(10P.P.Smith) ■'Bigland v. Huddleston, 3 Bio. Ch. 285n- 
 
 481,490; Sandoe'a Appeal, 65 Id. 314; Key v. Bacon o. Cosby, 4 De G. & Sm, 261j Mosby v 
 
 Griffin, 1 Rich. Eq.67; Marriott v. Sam Badger, Ward, 29 Beay. 407. 
 
 158 
 
CH. VUI.J ELECTION. § 127 
 
 the erroneous impression that the property was his own, as well as 
 to cases where he attempts to convey property which he knows at 
 the time to be another's, yet in order that the doctrine may apply 
 at all, he must intend to dispose of that property. It is, however, not 
 necessary that he should intend to deprive another of his property;^ 
 but it is necessary to show that he intended to dispose of the specific 
 property or interest which is proven to be the property of another. 
 Unless that fact is established, it is impossible for the doctrine of elec- 
 tion to apply. ' Thus, for example, if he expresses in his will some 
 doubt as to his right to the property referred to, and disclaims an 
 intention to dispose of such property if it should not be his own, and 
 makes some other provision, in that event he has not manifested any 
 absolute intention to disposes of such property, and hence the doctrine 
 of election could not apply.' So, also, where the description of the 
 property conveyed or transferred by the wiU, or conveyance, is so 
 general in character that it would be satisfied by the interpretation 
 that the grantor or testator intended to transfer only that property 
 which was the testator's: in such a case the presumption of an inten- 
 tion to convey property that did not belong to the testator would not 
 be sustained, and for that reason, in such cases, the doctrine of election 
 would not apply.* 
 
 § 127. Intention where donor has partial interest in property 
 disposed of. — Where the donor of property belonging to another has 
 no interest whatsoever in the property which he attempts to dispose of, 
 the intention to dispose of the interest of another is manifest and is a 
 necessary presumption from the attempted disposition of the property 
 itself. But where the donor has a partial interest in that property in 
 conunon with others, and he undertakes, or makes a general disposi- 
 tion of such property under a general description, the intention to dis- 
 pose of the interest of others is not so plain. The presumption of 
 law would, in the absence of a positive proof of the intention to dis- 
 pose of the interest of others, be against the operation of the grant or 
 ■devise on anything but his own interest; and the presumption would 
 prevail until it was shown as a matter of fact that he did intend to 
 convey not only his own interest in the property, but likewise the 
 interest of other owners.' But in order that the intention of the 
 
 >Cooper«. Cooper, L.E. 6 Ch. 15, 16,20 ;Coutts v. Thompson, 3 Strobh. Eq. 48 j O'EeUly v. 
 
 -p. Ackworth, L. K.9Eq. 519; Stump i>. Findlay, Nicholson, 45 Mo. 160. 
 
 2 Eawle, 168, 174; McGiunlss v. McGlnnlB, 1 SBor v. Bor, 3 Bro. P. C. 167 (Toml. ed.); 
 
 Kelley, 496, 503. Church v. Kemble, 5 Sim. 525. 
 
 2 Maxwell v. Hyslop, L. E. 4 Eq. 407; Cod- * Maxwell v. Maxwell, 2 De G. M. & G. 705; 
 Tington f. Lindsay, L. E.8Ch. 578; McElfresh 16 Beav. 106; Johnson v. Telford, 1 Euss. & 
 Tj. ScWey, 2 Gill, 183, 201; Jones v. Jones, 8 My. 344; Allen ». Anderson, 5 Hare, 163; Max- 
 Gill, 197; Waters v. Howard, 1 Md. Ch. 112; well ». Hyslop, L. R. 4 Eq. 407 ; Lamb «. Lamb, 
 Hall II. Hall, 1 Bland Ch. 130, 135; Wilson v. 5 W. E. 720. 
 
 Amy, IDev. & Bat. Eq. 376, 377; Penn. Life 'Stephens v. Stephens, 1 De G. & J. 62; 
 
 Ins. Co. V. Stokes, 61 Pa. St. (11 P. F. Smith) Wilkinson v. Dent, L. E. 6 Ch. 339; Grlssell v. 
 
 136- 3 Brews. 590; Weeks v. Weeks, 77 N. C. Swinhoe, L. E. 7 Eq. 291; Havens v. Sackett, 
 
 421 ■ Havens v. Sackett, 15N. T. 360; Thompson 15 N. Y. 365; Lewis v. Smith 9 Id. 502; Adist v. 
 
 159 
 
§ 129 EQUITT JUEISPRUDENCE. [CH. VHI.. 
 
 donor to dispose of more than his OAvn interest in the property may- 
 be established, it must be proven by the terms of the instrument of 
 conveyance. Parol evidence is inadmissible to prove such intention.^ 
 
 § 128. An independent substantial benefit necessary. — Not only 
 must there be a manifest intention of one to dispose of property, or 
 of an interest in property, which is not his, in order that the docti-in& 
 of election may apply, but there must also be in conjunction with 
 this intention an actual bestowal of substantial benefits by the will or 
 grant upon the person whose property or interest has been illegally 
 disposed of by the "same instrument. Where, therefore, the testator 
 or grantor gives property to one to whom he is obliged to give it, 
 and he then proceeds to give to another person the property belonging 
 to the first devisee; in such cases, there being no independent substan- 
 tial benefit received by such devisee under the will, there is no ground 
 for the application of the doctrine of election, although there was a. 
 manifest intention of the testator to give to the other person property 
 belonging to the former.^ 
 
 § 129. Ordinary cases of election where grantor has no interest 
 in property. — The simplest case of election in which the donor has no. 
 interest in the property which he attempts to dispose of, is that in 
 which by words of specific description he undertakes to devise or grant 
 to another property not belonging to him, and by this same instrument 
 confers upon such property-owner bequests or devises of his, the tes- 
 tator's, property. In this case, there is very little room for doubt or 
 uncertainty in respect to the application of the doctrine of election. 
 Given the intention to dispose of another's property and the bestowal 
 by the same instrument of a substantial benefit upon such property- 
 owner, the claim for an election is clearly made out.' 
 
 AdiBta, Jolins. Ch. 448; Bull ». Church, 5 Hill, 42 Conn. 276; Brown «. Brown, 55 N. H. 106; 
 
 806; Fuller 1). Yeates, 8 Paige, 385; Sanfordu. Cot ». Sogers, 77 Pa. SL 160; Youngs ». Plck- 
 
 Jaokson, 10 Id. 866 ; Vernon v. Vernon, 53 N. Y. ens, 49 lud. S3 j Metteer v . Wiley, 34 Iowa, 214 j 
 
 351; Lefevre v. Lefevre, 59 Id. 435; Eeedu. Colgate «. Colgate, 8 C. E. Green, (83 N. J. Eq.) 
 
 Dickerman, 12Plek. 146; Morrison ». Bowman, 373; Wortheu «. Pearson, 33 Ga. 385; Havens 
 
 29 Gal. 337, 348 ; Peck v. Brummagin, 31 Id. 440, ». Sackett, 15 N. T. 365 ; Hall v. Hall, 1 Bland 
 
 447; DeGodey v. Godey, 39 Id. 157, 164; Inre Ch. 130, 135; Gable v. Daub, 4 Wright, 217. 
 
 Buchanan's Estate, 8 M. 507 ; Beard u. Knox, 5 • Philadelphia!). Davis, IWhart. 490; Timber- 
 
 Id. 258; Button v. Lies, 21 Id. 91 ; In re Silvery's lake V. Parish, 5 Dana, 345; Waters u. Howard, 
 
 Estate, 42 I<i. 211; Havens w. Sackett, 15 IMd. Ch. 112; McElfreshB. Schley, 2 Gill, 182; 
 
 N. Y. 365; Church v. Bull, 2 Denio, 430; Jones*. Jones, Sid. 197; Pickersgill».Eogers, 
 
 Bull v. Church, 5 Hill, 207; Puller v. Yates, 5 Ch. D. 163, 170. 
 
 8 Paige, 335; Sanford o. Jackson, 10 Id. " Box ». Barrett, L. R. 3 Eq. 244; Dashwood 
 
 266; Savage v. Burnham, 17 N. Y. 561, 577; ». Peyton, 18 Ves. 41; Blake ». Banbury, 1 Id. 
 
 Leonard D. Steele, 4 Barb. 20; Lewis v. Smith, 515,523; Forrester*. Cotton, Ambl. 388; lEden, 
 
 9N. Y.502; Millsa. Mills, 28 Barb. 454; Mor- 532,535; GrisseU «. Swinhoe, L. E. 7 Eq. 291;, 
 
 rison v. Bowman, 29 Cal. 348; Chapin *. Hill, and see Cooper v. Cooper, L. E. 6 Ch. 15. 
 
 1E.I.446; Collins*. Carman, 5 Md. 503; Stark 3 DiUon ». Parker, 1 Sw. 359, 376, 381, 394, and 
 
 B. Hunton, Saxt. (N. J.) 216; Higginbotham v, notes by Mr. Swanstou; Gretton ». Haward, 1 
 
 Cornwell, 8Gatt. 83; Douglas *. Feay, 1 W. Va. Sw.409,413, 420, 425, 433; Streatfield ». Streat- 
 
 26; Hide v. Baldwin, 17 Pick. 303, 308; Smith*. field, Cas. temp. Talb. 176; 1 Eq. Lead. Cas. 503, 
 
 Guild, 34 Me. 443, 447; Weeks *. Patten, 18 Id. 510, 541 {4th Am. ed.); Welby ». Welby, 2 V. & 
 
 42: George ». Bussing, 15 B. Mon. 558: Apper- B. 199; Lord EanclifCe *. Parkyns, 6 Dow. 149, 
 
 son V. Bolton, 29 Ark. 418; Ailing v. Chatfleld, 179; Ker v. Wauchope, 1 Bligh, 1, 25. 
 
 160 
 
CH. Vni.] ELECTION. § 130 
 
 § 130. Cases of election arising under powers of appointment. — 
 
 These cases do not occur very often in the United States, although 
 it is possible for them to arise. They arise in the attempted 
 exercise of a special or particular power of appointment in favor 
 of someone other than those for whose benefit the power was 
 given. In the same instrument which does wrongfully exercise the 
 power of appointment, the donee of the power grants other independ- 
 ent benefits to the intended beneficiary of the power. For example, 
 if A., having the power to appoint certain property to the children of 
 B. by will, and he should by his will appoint this property to some 
 stranger, and by the same will give to the children of B. property of 
 his own; in such a case, the children of B. would not be permitted to 
 deny the validity of A.'s appointment of the property to the stranger, 
 and at the same time claim the benefit given to them under A.'s will; 
 these children must elect between the two. There would not, however, 
 be a case of election if the children of A. did not acquire title to the 
 property over which the power operated in case of the failure to exer- 
 cise the power, for in that case it would not be within the power of 
 the children to make good the wrongful e:iercise of the power by A. 
 The right of election would only apply when the property, ia default 
 of a defective appointment, became vested in the objects of the appoint- 
 ment.^ Here, as elsewhere, it is an indispensable requirement of the 
 application of the doctrine of election, that the testator should give to 
 the objects of the appointment property of his own which they are 
 impliedly intended to receive in the place of the property to which 
 they are entitled under the power. Without such an independent 
 benefit, the right of election could not be claimed.'' Where, therefore, 
 the two pieces of property disposed of by the will, did not belong to 
 the testator — ^both cases being simply an exercise of a power of 
 appointment — and the parties receiving interest under the will do not 
 receive anything more than what they were entitled to receive under 
 the terms of the powers of appointment, the doctrine of election can- 
 not apply. For example, if there are two powers, one of them being 
 exclusive and the other not; and there are several persons who are 
 beneficiaries under both powers; the appointment of the whole fund 
 under the exclusive power to A., who is the object of both, and the 
 appointment of the whole fund under the non-exclusive power to aU 
 the objects of that power with the exception of A., who is an object 
 of both powers, A. would not, in that case, be compelled to elect 
 between his enjoyment of the exclusive appointment under the first 
 power, and his claim of a proposed share of the property under the 
 second power. The second appointment would be invalid, on account 
 of the wrongful exclusion of A. ; while in the former case the exercise 
 
 > Whistler v. Webster, 8 Ves. 367; England v. Warde, 2 Vea, 336; Coutts v. Aokworth, L. K. 9 
 Layers, L. R. 3 Eq. 63. Eq. 519. 
 
 2J» re Fowler, 27 BeaT. 368; Bristowe v. 
 
 161 
 
§ 131 EQUITY JUEISPEUDKNCE. [CH. VIH. 
 
 of the power was valid, because the exclusive appointment was per- 
 missible under the terms of the power, and A. is not put to his election.' 
 The same principle applies where both powers are exclusive, as where 
 one power is to be exercised by appointment to the children and grand- 
 children, and the second power by appointment only to children. 
 Where the appointment is made under the former power to children 
 only, and under the latter power the appointment is made to chUdren 
 and grandchildren, who cannot, under the terms of this power, be the 
 object of it, the appointment to grandchildren is void; but notwith- 
 standing siich void appointment and the exclusive appointment imder 
 the first power, of which grandchildren were possible objects, the 
 doctrine of election does not apply in favor of the grandchildren who 
 are thus excluded from the benefit of both powers.^ 
 
 Not only must there be in this case of appointment an actual bestowal 
 of an independent benefit, in order that the doctrine of election may 
 apply, but there must likewise be an intention to make an unlawful, 
 or wrongful, exercise of the power. Where, therefore, the donee makes 
 the wrongful appointment conditional upon his power to do so, 
 there is no case for the doctrine of election, because there has been no 
 positive disposition of property belonging to another.' Where an 
 appointment is made lawfully, the donee can, in the absence of restric- 
 tions, impose upon the acceptance of such an appointment whatever 
 conditions he pleases; and he may, therefore, direct that the appointee 
 shall, upon acceptance of an appointment, bestow upon some third 
 party some benefit or property designated. Where that condition is 
 plainly manifested, it can be enforced; but where there is any doubt as 
 to the intention of the donee to impose a positive condition of that 
 kind upon the appointment, the presumption is against the positive 
 character of the condition, and in favor of its being merely a request, 
 that the appointee should confer some benefit upon some third party. 
 If, however, the donee imposes a positive condition upon the enjoy- 
 ment of the appointment, that the appointee shall give to some stranger 
 the benefit indicated, then, unquestionably, the condition must be per- 
 formed; but this is not a case for the application of the equitable 
 doctrine of election, but rather one for the enforcement of an express 
 condition.* ' 
 
 § 131. Cases of election where the testator has attempted to 
 ^spose of his property by will which is inoperative.— In this class 
 of cases a new feature is introduced into the law of election. In most 
 of the cases the doctrine arises where the testator undertakes by his 
 lawful will to convey to another property which is not his own. In 
 this case which we are about to explain, the doctrine arises, if at all, 
 
 J In re Aplin, 13 W. R. 1082. Churchill, L. R. 5 Eq. 44; WoUaston v. King, L. 
 
 « In re Fowler, 87 Beav. 368. E. 8 Eq. 165; but see Moriarty v. Martin, 3 Ir. 
 
 , 3 Church V. Kemble, 5 Sim. 525. Ch. E. 86; see Walllnger v. Wallinger, L. R. 9 
 
 !«Woolridgeii.Woolridge,lJohns. 63; Carver Eq. 301; King «. King, l.ilr. Ch. B.479; Bough- 
 
 r. Bowles, 2 Rubb. & My. 301; Churchill v. tons. Boughton, 2 Ves. Sen. 12. 
 
 162 
 
CH. VIII.] ELECTION. § 131 
 
 where the testator makes a will under which he undertook to dispose 
 of all his property, both real and personal, but which is inoperative as 
 to some of the property, and operative as to others, and in consequence 
 of this supposed invalidity of his will, he bestows a benefit upon some 
 of his heirs greater than the interest which such persons would have 
 acquired as heirs under the law of descent, if the" ancestor had 
 died intestate, inasmuch as the heirs, to whom valid devises or 
 bequests had been made, could likewise claim their share of inheritance 
 in the property not lawfully disposed of by the will, on the ground that 
 in respect to this property the ancestor had died intestate. That is, if 
 A. should die leaving his sons, B. and C, and he should by his will 
 give to B. all the property of a certain kind, and to C. all the property 
 of another kind; and for some reason the will would be invalid as to 
 the gift of property to B. : B. would not be able to claim any share 
 under the devise to him on account of its invalidity; the ancestor in 
 respect to the property covered by the devise to B. would be declared 
 to have died intestate, and hence this property would be divided among 
 his heirs, just as it would be if he had never made a will at all. The 
 outcome of the transaction would be that A. would receive not only 
 the property designed for him by the will, and in respect to which the 
 will was valid, but he would also share equally with B. in the division 
 of the property which the ancestor had designed to B., but in respect 
 to which the will was invalid. 
 
 This iaequality furnishes some ground for the application of the 
 doctrine of election. There are four cases in which this question may 
 arise. The first case is where, in consideration of the infancy or covert- 
 ure of testator, the will is invalid in its attempted disposition of lands 
 or other species of property, but it is valid as to the other dispositions 
 of property. In the case of infant-testators, the infant is held to have 
 the power of disposing by will of his personality before he acquires 
 the power to dispose of his lands. ^ In the other case, that of a married 
 woman, the common law did not permit her to make a will of any of 
 her property, except that which she held as her separate estate.^ In 
 both cases, it has been held that, notwithstanding the attempted dis- 
 position of property in violation of the law and the consequent 
 inequality or bestowal of benefits under the will among those who 
 had a moral claim upon the consideration of the testator, the doctrine 
 of election would, nevertheless, not apply; in conformity with the gen- 
 eral rule, that a testator must have a legal capacity to do the intended 
 act in order that the doctrine may apply. ^ In the second case, the 
 testator has the full capacity to dispose of all of the property; but in 
 
 iHearlej!.Greenbank,3Atk.695,715;Ves.Sen. 189; Tongue ». Nutwell, 17 Md. S12, 229; Jones 
 298; Brodie v. Barry, 2 V. & B. 127; Sheddon v. Jones, 8 Gill, 197. 
 
 Goodrich, 8 Ves. 481; Snelgrove v. Snelgrove, ^Kich v. Cockell, 9 Ves. 369; Blalklook v. 
 
 4 Desau. 274; Melchor v. Burger, 1 Dev. <fe Batt. Grlndle, L. E. 7 Eq. 215. 
 
 £q. 634; Kearney v. Macotab, 1 C. B. Green, 'Thellussonu. Woodford, 13 Ves. 233; Gar- 
 
 diner V. Fell, 1 J. & W. 22. 
 
 163 
 
§ 131 EQUITY JURISPRUDENCE. [CH. VIII. 
 
 consequence of his failure to comply with the rules of law in respect 
 to the execution of the will, his will is invalid so far as the devises 
 of real property are concerned, while the will is vaM in respect to 
 the dispositions of personal property. 
 
 At common law, the requirements of the execution of a will of per- 
 sonal property were different from those imposed in the execution of 
 a will of real property. Where, therefore, the will was executed in 
 compliance with the requirements of a will of personal property only, 
 and the will undertook to dispose of lands also, the will, so far as the 
 devise of lands, would be invalid, while it would be valid as to the dis- 
 position of personal property. The same general principle controls 
 the determination of the question, whether in this case the doctrine of 
 election applies, viz. : that the doctrine will not apply to a case where 
 there has not been a valid exercise of the power of disposition. In this 
 case, the conclusion of the courts is, that unless there be an express 
 condition imposed upon the enjoyment of the bequest of personal prop- 
 erty, to the effect that such legatee shall make good the ineffectual dis- 
 position of lands by the same will, the doctrine of election does not 
 apply; and such legatee could appropriate the benefits accruing to him 
 under the valid operation of the will, and enforce his claim as heir in 
 the lands of the testator, as to which he must be declared to have died 
 intestate, in consequence of the invalidity of the will in respect to the 
 devise.' While the courts generally concede that this conclusion must 
 be taken as an established rule of law, a number of able judges have 
 expressed their conviction that the rule is not sound in principle.^ And. 
 it seems that, in consequence of this doubt concerning the correctness 
 of the rule, the coiurts were inclined to recognize the existence of such 
 a condition on very slight evidence of the intention to impose it; and 
 they would pronounce the bequest to be subject to such a condition, 
 whenever in their judgment the whole tenor of the instrument indi- 
 cated the testator's intention to give the bequest only upon condition 
 that the devise is operative. In such a case, the courts permitted the 
 doctrine of election to apply, even though there was no direct imposi- 
 tion of a condition.' In this country, at the present time, the same 
 law governs the validity of wills as to real estate which controls the 
 validity of the will as to personal property; and hence the necessity for 
 determining whether the doctrine of election applies to this case is no 
 longer an important one in America. In the third case — which also is- 
 obsolete in consequence of a change in the law which permits a will to 
 
 iSheddono. Goodrich, 8 Ves. 481; Gardiner 2V. & B. 127; and Lord Kenyon, in Gary v. 
 
 V. Fell, IJ. & W. 28j Thellusson v. Woodford, Askew, 1 Cox, 344. 
 
 13 Ves. 820, S21; Wilson v. Wilson, 1 De G. & «Sheddon v, Goodrich, 8 Ves. 481, 496, per 
 
 Sm. 153; Kearney i>. Macomb, 1 C. E.Green, Lord Eldon; Melchorv. Burger, 1 Dev. & Batt. 
 
 189; Tongue v. Nutwell, 17 Md. 812, 219 j Jones Eq. 634; Snelgrove v. Snelgrove, 4 Desau. 274, 
 
 C.Jones, 8 Gill, 197; Melchord v. Burger, 1 Dev. 300; Jones «. Jones, 8 Gill, 197; Kearney v. 
 
 (Si.Batt. Eq. 634; McBlfreshti. Schley, 1 Gill, 181. Macomb, 1 C. E. Green, 189; MoElfresh ti. 
 
 2Lord Eldon, in Sheddon i?. Goodrich, 8 Ves. Schley, 1 Gill, 181; Nutt v. Nutt, 1 Freem. Ch.. 
 
 481, 496; Sir Wm. Grant, In Brodie v. Barry, 128. 
 
 164 
 
CH. VIII.] ELECTION. § 131 
 
 be operative under the conditions existing at the time the will goes into 
 effect, instead of operating only upon the circumstances existing 
 when_the will was executed — ^the doctrine of election finds a pos- 
 sible application, where a will undertakes to devise property which 
 is acquired by the testator subsequent to its execution. Under 
 the old law, the will could not be made to apply to such subse- 
 quently acquired property, on the ground that the testator could not be 
 presumed to have intended to dispose of property which he did not own 
 when he made the will. Now, the law provides that if the description 
 contained in the will be broad enough to include the property acquired 
 subsequent to the execution of the will, the will will be as operative in 
 xespect to such property as it is in respect to the property already 
 owned by the testator when he made the wUl. Under the old law, 
 however, in respect to the devise of after-acquired lands, the will was 
 void. In this case, the courts have held that where a clear intention is 
 manifested by the will to dispose of the after-acquired lands to some 
 stranger, and some additional or independent benefit is granted to the 
 heir, the heir would be compelled to elect between rejecting the benefit 
 imder the will, or making good the testator's attempted disposition of 
 the after-acquired lands. ^ But if the words of description in the will 
 were general and did not necessarily include or apply to the after 
 acquired property, and therefore this description could be satisfied by 
 confining its operation to property already owned by the testator when 
 he made the will, the doctrine of election would not apply. ^ 
 
 The last, and the only case under this heading to which the doctrine 
 of election would now be held to apply in this country, is in respect to 
 a will which undertakes to dispose of property situated in different 
 states, or countries, whose laws in respect to the formalities of exe- 
 cution of wills are different, and the will in question was executed in 
 conformity to the law of one of these states, and in violation of the 
 provisions of the law of the other state. In such a case, the will would 
 be valid in respect to its disposition of lands situated in the former 
 state, but would be invalid in respect to the disposition of lands situ- 
 ated in the latter state. Now, two questions are raised in determining 
 the application of the doctrine of election: in the first place, it must 
 be shown that the testator intended to dispose of both species of prop- 
 erty. If the terms of the description are so general in character, that 
 the devise would be satisfied by its application to the property, situated 
 in the coimtry in conformity with whose law of wills this will has been 
 executed, the courts hold that the testator did not intend to convey the 
 property situated in the country, whose law has not been complied with 
 in the execution of the will. But if the terms of the description are 
 not satisfied by their confinement to the property situated in the coun- 
 
 » Churchman v. Ireland, 1 Euss. & My. 250; 4 Philadelphia v. Davis, 1 Whart. 490, 503; Hall 
 
 Sim. 580; Thelluason v. Woodford, 13 Ves. 209, v. Hall, 2 MoCord Ch. 269, 297, 306. 
 211; 8. c, sub nom. Eendleshamo. Woodford, ^john'on v. Telford, 1 Russ. & My. 244; and 
 
 IDow. 849; McElfresh v. Schley, 2 Gill, 181; see Plowden v. Hyde, 2 De G. M. &. G. 684, 687. ' 
 
 165 
 
§ 131 EQUIJY JLxi,xojrttuiJj!irv<JJ!;. L*^H. VHI. 
 
 try or state whose law has been complied with in the execution of the 
 yfiH, thten it is a necessary conclusion that the testator intended to dis- 
 pose of both kinds of property. For example, where one undertakes 
 to dispose in terms of "all my real and personal estate whatsoever, and 
 wheresoever situated," the intention of the testator is clear to dispose 
 of property, no matter where it is situated. The will, therefore, must 
 apply to all the testator's property, whether it is situated in a country 
 in which the will is valid, or invalid.' In all such cases of a manifest 
 intention that the will should cover all of the testator's property, where- 
 ever situated, the courts declare that the doctrine of election applies, 
 and compel the devisee and heir — who acquires in his former character 
 interests which he could not claim in the same property as heir, if the 
 ancestor had died intestate — to elect between the repudiation of this 
 extraordinary benefit, or to make good the attempted or unlawful dis- 
 position of the lands which were situated in another state. This con- 
 clusion of the courts is sustained as the rule of law, both in England 
 and in this country. The common case for the application of the doc- 
 trine in England is, where a will validly executed according to the 
 English law provides for the disposition of lands situated in Scotland, 
 whose peculiar law has not been complied with in the execution of the 
 will.' In America, the common example is the excution of a will by 
 the employment of two witnesses, where the will undertakes to dispose 
 of lands situated in a state whose law requires the attestation of three 
 witnesses. Notwithstanding a contrary ruling in Maryland, in which' 
 the court held that the doctrine of election did not apply,' it must be 
 taken to be the American doctrine, that the doctrine of election does 
 apply in such cases.* 
 
 1 Maxwell v. Maxwell, 2 De G. M. & G. 705; 16 if the devise had been valid according to th9 
 
 Beav. 106; Maxwell v. Hyslop, L. E. 4 Eq. 407; laws of New Jersey. In delivering the opinion 
 
 Lamb v. Lamb, 5 W. E. 720. of the court, Judge Sharswood said: " It may 
 
 SBrodies. Barry, 2 V. &. B. 127; OrrellD. certainly be considered as settled In England, 
 Orrell, L. E. 6 Ch. 302; Dewar v. Maltland, L. that if a will purporting to devise real estate, 
 E. 2 Bq. 834; McCall v. MoCall, Drury, 283, per but ineCFectually, because not attested accord- 
 Lord Chancellor Sugden. ing to the statute of frauds, gives a legacy to 
 
 s See Jones v. Jones, 8 Gill, 197. the heir-at-law, he cannot be put to his election. 
 
 iThe case of Vandyke's Appeal, 60 Pa. St. (Hearle v. Greenbank, 3 Atk. 695; Thellusson 
 489, is an exceedingly important one, and ». Woodford, 13 Ves. 209; Buckeridgec. Ingram, 
 lays down what must be accepted as the Amerl- 21(2.652; Sheddonu. Goodrich, 8 M. 482.) These 
 can view. The testator, in this case, gave to oases have been recognized and followed in 
 his daughters legacies which fairly exhausted this country. (Melchor v. Burger, 1 Dev. & 
 all his property situated in Pennsylvania, and Batt. Bq. 634; McBlfresh v. Schley, 2 GUI, 181; 
 then gave to the sons the real estate which was Jones ». Jones, 8 Gill, 197; Kearneys. Macomb, 
 situated in New Jersey; and the will was so ICE. Green, 189.) Yet It Is equally well 
 executed that it was valid In Pennsylvania, established, that if the testator annexed an 
 but invalid in respect to the disposition of the express condition to the bequest of the person- 
 lands situated in New Jersey, because In the alty, the duty of election will be enforced, 
 execution of the will the law of New Jersey (Boughton «. Boughton, 3 Ves. Sen. 12; Whist- 
 was not complied with. The courts decreed lem. Webster, 2 Ves. 367; Kem. Wauohope, 1 
 that the sons should receive out of the personal Bligh, 1; McElfresh v. Schley, 2 Gill, 181.) 
 estate bequeathed to the daughters, sums That this distinction rests upon no sufficient 
 equal in value to the shares of the real estate reason has been admitted by almost everv 
 in New Jersey which went to the daughters, in judge before whom the question has arisen, 
 consequence of the invalid disposition of such Why an express condition should prevail, and 
 lands, and which would be vested in the sons one however clearly implied should not, has 
 
 166 
 
OH. vm.:] 
 
 ELECTION. 
 
 § 132 
 
 § 182. Gases in which the donor has a partial interest in prop- 
 erty donated. — Where one of two joint-owners of property under- 
 takes to convey the property in its entirety to a stranger, and conveys to 
 the part-owner another independent interest or property, the doctrine 
 of election applies, imposing upon such part-owner the duty of electing 
 whether to carry out the provision of the will in respect to the prop- 
 erty of which he is part-owner, or of rejecting the benefits he derives 
 under the will. But inasmuch as the donor has a part interest in the 
 property which he undertakes to give away, it is not always clear, 
 from the attempted disposition of that property, that he intended to 
 convey to the stranger anything more than his own interest in the 
 property; and unless the terms of the gift clearly and unmistakably 
 prove the intention to convey more than his own interest in the prop- 
 erty — either by an express declaration of such interest, or by implica- 
 tion from the fact that the terms of the gift could not be satisfied by 
 the transfer of his interest only — ^the presumption is that the gift affects 
 only his own interest, and, therefore, the doctrine of election does 
 not apply in such a case. The part-owner of the property con- 
 veyed would then retain his interest in such property, as well as take 
 the benefits provided for him in the will.^ But if the intention of the 
 
 never been and cannot be satisfactorily ex- 
 plained. It is said tbat a disposition absolutely 
 void is no disposition at all, and being incapable 
 of (taJting?) effect as sucb, it cannot be read 
 to ascertain the intent of tbe testator. But an 
 express condition annexed to the bequest of 
 the personalty does not render the disposition 
 of the realty valid ; it would be a repeal of the 
 statute of frauds so to hold. How, then, can it 
 operate any more than an implied condition to 
 open the eyes of the court, so as to enable them 
 to read those parts of the will which relate to 
 the realty ; and without a knowledge of what 
 they are, how can the condition be enforced ? " 
 He then quotes the language of several eminent 
 judges, in which they strongly dissent from 
 the soundness of this distinction, although 
 admitting that it has become settled law, viz. : 
 of Lord Kenyon, M. B., in Carey v. Askew, 1 
 Cox, 241; and of Sir Wm. Grant, in Brodie v. 
 Barry, 2 V. & B. 12?; and of Lord Eldon, in 
 Ker V. Wauchope, 1 Bligh, 1; and SheddouB. 
 Goodrich, 8 Ves. 482. Proceeding, Judge Shars- 
 wood says: " We are equally clear that this is 
 a case of election. The intention of the tes- 
 tator does not rest merely upon the implication 
 arising from his careful division of his property 
 among his children in different classes, but 
 he has indicated it in words by the clause: ' I 
 direct and enjoin on my heirs that no excej)- 
 tion be taken to this will, or any part thereof, 
 on any legal or technical aoconnt.' It is true, 
 that for want of a bequest over, this provision 
 would be regarded as in terrorem only, and 
 would not induce a forfeiture. (Chew's 
 Appeal, 9 Wright, 228.) But it has been often 
 said, the equitable doctrine of election is 
 
 grounded upon the ascertained intention of 
 the testator, and we can resort to every part 
 of the will to arrive at it. ' The intention of 
 the donor or testator ought doubtless to be the 
 pole star in such cases; and whenever it 
 appears from the instrument itself conferring 
 the benefit, with a certainty that will admit of 
 no doubt, either by express declaration or by 
 words that are susceptible of no other mean- 
 ing, that it was the intention of the donor 
 or testator that the object of the bounty should 
 not participate in it without giving his assent 
 to everything cbntained in the instrument, 
 the donees ought not to be permitted to claim 
 the gift, unless they will abide by the intention 
 and wishes of the author.' (Philadelphia v. 
 Davis, 1 Whart. 510, per Kennedy, J.) This, 
 however, is not the only mode In which the 
 equity of the ease can be reached. The 
 doctrine of equitable election rests upon the 
 principle of compensation, and not of forfeit- 
 ure, which applies only to the non-performance 
 of an express condition. Besides, no decree 
 of this court could authorize the guardians of 
 the minors to execute release of their rights 
 and titles to the New Jersey lands, which 
 would be effectual in that State. The alterna- 
 tive relief prayed for in the bill is that which 
 is most appropriate to the case." 
 
 1 Church i>. Bull, 2 Denio, 430; Adslt r. 
 Adsit, 2 Johns. Ch. 448; Havens w. Saokett^ 
 15 N. Y. 365; In re Silvey's Estate, 42 Cal. 21U 
 Burton v. Lies, 21 Jd. 91; Beard v. Knox, 5. 
 Id. 262; In re Buchanan's Estate, 8 Id. WTi 
 De.Godey«. ( odey, 39 Id. 157, 164) Morrison v.. 
 Bowman, 29 Cal. 337, 348; Eeed v. Dlckerman, 
 12 Pick. 146; Lefevre v. Lefevre, 59 Id. 435; 
 
 16Y 
 
§ 132 EQUITT JTJEISPEUDENCE. [CH. Vm. 
 
 donor to convey the entire property, the interest of the part-owner aa 
 well as his own interest in the same, is clearly established, then such 
 part-owner is put to his election, between parting with his interest in 
 such property or rejecting the testamentary benefits.* One example 
 of cases of this description is, where the donor owns a future interest 
 in the property, while the immediate right to it is in another; in such a 
 case the presumption of the courts, in the absence of an express 
 declaration of the intention to the contrary, is against the intention of 
 the donor to transfer by his gift anything more than his own future 
 interest in the property, it matters not what may be the form of the 
 devise, i. e., whether it be a general or specific devise; and hence there 
 is no opportunity for the application of the doctrine df election. But 
 if the context of the will shows unmistakably that the testator intended 
 to convey an immediate right of possession to the estate which could 
 not, therefore, be satisfied by a simple devise of the future interest, 
 then the presumption of the court would be changed to one of an 
 intention to convey the entire estate in the property, including the 
 interest of the immediate tenant. Where that intention is established 
 by the terms of the wiU, the doctrine of election applies and compels 
 such tenant in possession to elect between the transfer of the estate to 
 the devisee, in accordance with the will, or the rejection of his own 
 benefits under that will.^ And the same rule often applies, although 
 the future interest of the testator be only contingent, and it becomes 
 void prior to his death so that at his death there was nothing in the 
 nature of his own interest upon which the will could operate. 
 
 Another example is, where a debtor conveys lands whose title is 
 incumbered to a stranger, and by the same will makes a devise or 
 bequest to the creditor who holds and owns the incumbrance on the 
 property. Unless there be something in the will indicating the inten- 
 tion of the testator, that the bequest or devise given to such creditor 
 shall be taken by him in payment of that debt, the devisee takes the 
 property subject to the incumbrance, and the creditor takes his bequest 
 under the will free from the duty of making an election.* And so also 
 have the courts refused to apply the doctrine of election, even where 
 
 Vemon ». Vernon, 53 N. Y. 351; Sandfordu. w. Bolton, 29 Ark. 418; Ailing v. Chatfield, 'IS 
 
 Jackson, 10 Id. 266; Fuller v. Yates, 8 Paige, Conn. 276; Brown i>. Brown, 5oN. H. 106; Cox 
 
 325; Bull V. Church, 5 Hill, 206; Lewis v. v. Rogers, 77 Pa. St. 160, Young v. Pickens, 49 
 
 Smith, 9 Johns. Ch, 502. Ind. 23; Metteers. ^lley, 34Iowa,214; Colgate 
 
 1 Fuller u. Yeates, 8 Paige, 325; Sandford o. D.Colgate, 8 C. E. Green, (23 N.J. Eq.) 373; 
 
 Jackson, 10 Jc2. 266; Vemon v. Vernon, 53 N. Y. Worthen v. Pearson, 33 Ga. 385; Bull v. Church, 
 
 351; Savage v. Burnham, 17 N. Y. 561, 577; 5mil, 207; SDenlo, 430. 
 
 Leonard 27. Steele, 4 Barb. 20; Lewis v. Smith, 9 'See, also. Smith ». Smith, 14 Gray, 532; Hyde 
 
 N. Y. 502; Mills v. Mills, 88 Barb. 454; Morrison v. Baldwin, 17 Pick. 308; Smith v. Guild, 34 Me. 
 
 V. Bowman, 29Cal. 348; Chapin v. Hill, 1 H. I. 445; Hamblett v. Hamblett, 6 N. H. 333; Fulton 
 
 446; Collins v. Carman, B Md. 503; Stark v. v. Patten, 18 Me. 42. 
 
 Hunton, Saxt. (N. J.) 216; Hlgglnbotham v. ' Havens D. Sackett, 15 N. Y. 365. 
 
 Comwell, 8 Gratt. 83; Douglasii. Peay, 1 W. Va. •< Lord Chief Baron Eyre, in Blake v. Ban- 
 
 26; Hyde v. Baldwin, 17 Pick. 303, 308; Smith v. bury, 1 Ves. 514; Sadller v. Butler, 1 L. E. Bq. 
 
 Guild, 34 Me. 443, 447; Weeks v. Patten, 18 Id. 415, 423; Stephens v. Stephens, IDe G. <& J. 62; 
 
 42; George v. Bussing, 15 B. Mon. 558^ Apperson 3 Drew, 697. 
 
 168 
 
<3H. VIII.J ELECTION. § 133 
 
 the bequest to the creditor is expressly for the purpose of paying the 
 debts due to him, as long as there is no express condition of a release 
 of the incumbrance on the other property.^ 
 
 § 133. Election by widow between her dower and the testa- 
 mentary provision. — Where the husband devises or bequeathes prop- 
 erty to his wife, it also becomes a question whether he intended that 
 that property should be taken by her in the place of her dower so 
 that she must elect which she will take; or whether she is entitled to 
 claim both the dower-right and the testamentary provision. If he 
 intended that she shall elect between the two provisions, then she will 
 be compelled to do so, and cannot claim both. If, however, the 
 testator intended that she shall take the testamentary provision in 
 addition to her dower-right, then the doctrine of election would not 
 apply. Now, it is manifest that if the will contains an express declara- 
 tion of an intention to put the widow to her election between the two 
 provisions, that such intention would have to be carried out and the 
 Tvidow would be obliged to elect. ^ But where the will contains no 
 such express declaration of an intention to put her to an election, and 
 the will does not contain facts or circumstances from which such an 
 intention may be implied, then the presumption of the court is that 
 the testamentary provision was not intended to be in lieu of her dower, 
 but was to be additional to such provision in her behalf. Not only is 
 this presumption maintained in her favor generally, but it is so strong 
 that the contrary intention must be established beyond all doubt; and 
 where there is a doubt whatever as to such being the testator's inten- 
 tion, such doubt is solved also in her favor. This is not only the case 
 where the devise to others is in general terms, but also when it assumes 
 the form of a specific devise. Not only may an intention to put the 
 widow to her election be shown by the context of the will, but the 
 intention may be proven by some disposition of the property in the 
 will which is inconsistent with her dower-right. The mere intention to 
 put her to an election, unless expressly declared in the will, will not 
 be sufficient for the purpose, unless the enforcement of that implied 
 Intention is rendered necessary by the fact that the other provisions of 
 the will could not be carried out, if she were permitted to claim her 
 dower-right in addition to the testamentary provision. ' 
 
 'Kidney v. Consmaker, 12 Ves. 136, 154, per terms declared his Intention on the subject, 
 Sir Wm. Grant; Clark ». Guise, 3 Ves. Sen. 617; It is not sufBeient that the will renders 
 Dego. Deg, 3 P. Wms. 412, 418; see Irwin v. It doubtful whether he Intended that she 
 •Tabb, 17 Serg. & R. 419, 423; and Adlum »;. should have her dower in addition to the pro- 
 Yard, 1 Eawie, 163, 171. vision; but the terms and provisions of the 
 
 * Boynton v. Boynton, 1 Bro. Ch. 445; Nottley will must be totally Inconsistent with her 
 
 V. Palmer, SDrew. 93. claim of dower in the property in which her 
 
 2 "A wife cannot be deprived of her dower dower is claimed." Church v. Bull, 2 Denio, 
 
 by a testamentary disposition in her favor, 430, per Chancellor Walworth ; Lewis v. Smith, 
 
 unless the testator has declared the same to be 9 N. Y. (SSeld.) 502; Adsitt). Adsit, 2 Johns. 
 
 i» Zi«M of dower, either in express words or by Ch. 458; Smith «. Kinskern, 4 Id. 9; Swain «. 
 
 "necessary Implication. To compel a widow Perrine, 5 Id. 482; Larrabee v. Van Alstyne, 1 
 
 to elect between the dower and a testament- Johns. 307; Van Orden v. Van Orden, 10 Id. 
 
 ary provision where the testator has not lu 30; Jackson «. Churchill, 7 Cow. 287; Wood v. 
 
 169 
 
§ 13i 
 
 EQUITY JUEISPKUDENCE. 
 
 [cH. vm. 
 
 § 134. From what circumstances intention of election may be 
 implied. — In the first place, a general devise of property to others in the 
 will, in which the widow receives a testamentary provision, will not sup- 
 port the presumption of an intention to put her to an election; not only 
 where the general devise is made to others for their own personal 
 benefit,' but also where the devise of such property is given in trust 
 to sell and to distribute the proceeds of sale among certain benefi- 
 ciaries. '^ In both cases there must be something in the transaction 
 which is inconsistent with the widow's claim of dower in the lands so 
 devised in order that she may be put to her election. It is also a gen- 
 eral rule that there will be no case for election where the devise to 
 others is specific, instead of being general.' Biit it has been held that 
 where the specific devise is to one who has a moral claim for support 
 on the testator, and the amount of the property devised is so limited 
 that such dependent person could not be supported by it, if the 
 widow should assert her claim of dower against it, the courts 
 have held that these facts show an intention to exclude the widow from 
 
 Wood, 5 Paige, 597, 601; Fuller v. Yates, 8 Id. 
 325; Sandford v. Jackson, 10 Id. 266; Havens v. 
 Havens, 1 Sandf. Oh. 325, 330; Bull v. Church, 
 5 Hill, 206; Sheldon v. Bliss, 8 N. Y. (4 Seld.) 
 31; Dowson v. Bell, 1 Keen, 761; Harrison v. 
 Harrison, Id. 765; Savage v. Burnham, 17 N. Y. 
 561, 577j Tobias v. Ketchum, 32 Id. 319, 386; 
 Vernon i>. Vernon, 53 Id. 351, 362; Lefevre v. 
 Lefevre, 59 Id. 435; Leonard v. Steele, 4 Barb. 
 80; Lasher v. Lasher, 13 Barb. 106; Mills «. 
 Mills, 28 Id. 454; Vedder v. Saxton, 46 Id. 188; 
 Evans V. Webb, 1 Yeates, 484; Hamilton v. 
 Buckwalter, 8 Id. 389; Duncan ». Duncan, 2 Id. 
 302; WebB«. Evans, 1 Binney, 565, 578; Oaufif- 
 man v. Cauflfman, 17 Serg. &, E. 16, 85; Preston 
 V. Jones, 9 Pa. St. 456, 460; Herbert v. Wren, 7 
 Cranch, 370, 378 ; Mitteer v. Wiley, 34 Iowa, 814 j 
 Clark V. Griffith, 4 Clark, {Id.) 405; Pemberton 
 V. Pemberton, 29 Mo. 408, 413; Douglas v. Feay, 
 1 W. Va. 26 ; Bailey v. Duncan, 4 Mon. 256, 265, 
 866; Timberlake v. Parish's Ex'r, 5 Id. 346; 
 Shaw V. Shaw, 2 Dana, 342 ; Carroll v. Carroll, 
 20 Tex. 731, 744; Apperson v. Bolton, 29 Ark. 
 418; Adams v. Adams, 39 Ala. 274; Worthen v. 
 Pearson, 33 M. 385 ; Tooke v. Hardeman, 7 Ga. 
 20; Snelgrove v. Snelgrove, 4 Desau. 274, 294; 
 Brown V. Caldwell, 1 Speer's Eq. 322; Gordon 
 V. Stevens, 8 Hill's Oh. 46; Pickett v. Testy, 3 
 Brevard, 545; Dixon v. McCue, 14 Gratt. 540; 
 Higginbotham v. Comwell, 8 Gratt. 83; Ambler 
 V. Norton, 4 Hen. & Mun. 23, 44; Wisely v. 
 Findlay, 3Rand. 361; Collinsu. Cannan,5Md. 
 503; Chapin v. Hill, 1 E. I. 446; Hall's Cage, 1 
 Bland Ch. 203; Ailing v. Chatfleld, 42 Id. 276; 
 Lord V. Lord, 23 Conn. 387, 331; Smith v. Smith, 
 14 Gray, 532; Kempston's Appeal, 23 Pick, 163; 
 Hide V. Baldwin, 17 Id. 303, 308 ; Reed v. Dicker- 
 man, 12 Pick. 145 149; Hamblett, 6 N. H. 333; 
 Brown v. Brown, 55 N. H. 106; Smith v. Guild, 
 34 Me. 443; Weeks v. Patten, 18 Id. 42; O'Brien 
 
 V. Elliott, 15 Me. 125; Perkins v. Little, 1 
 Greenl. (Me.) 148; Colgate v. Colgate, 8 C. E. 
 Green, (23 N. J. Bq.) 372; Van Arsdale v. Van 
 Arsdale, SDutch. (26 N. J..L.) 404, 417; Stark o. 
 Hunton, Saxton, (N. J.) 217,224; Cox». Rogers, 
 77 Pa. 160; iFulton v. Moore, 25 Id. 468; Kon- 
 vallnka «. Schlegel, 29 Hun, 451 ; Snyder v. 
 Miller, 67 Iowa, 261 ; In re Hatch's Est. (Vt. '90) 
 18 Atl. 814; Chase v. Alley, 88 Me. 234; Calla- 
 han V. Eobinson, 30 S. C. 849; Starr v. Starr, 54 
 Hun, 300; Howard v. Watson, 76 Iowa, 829. 
 
 ' Jackson v. Churchill, 7 Cow. 287; Havens v. 
 Havens, 1 Sandf. Ch. 325, 329; Evans o. Webb, 1 
 Yeates, 424; Pickett v. Peay, 3 Brevard, 546; 
 Wiseley ii. Findlay, 3 Eand. 361; Brown f. 
 Coldwell, 1 Speer's Bq. 322, 385; Brown v. 
 Brown, 55 N . H. 106 ; but see, per contra, Ailing 
 V. Chatfleld, 42 Conn. 276; Apperson v. Bolton, 
 29. Ark 418; Lefevre v. Lefevre, 59 N. Y. 435; 
 Leonard v. Steele, 4 Barb. 20; Bull v. Church, 
 5 Hill, 307; 8 Denio, 430; Lewis v. Smith, 9 N. 
 Y. (5 Seld.) 608; Mills v. Mills, 26 Barb. 454. 
 
 2 Savage v. Burnham, 17 N. Y. 561, 577; Her- 
 bert 0. Wren, 7 Cranch, 370, 379; Morris s. 
 Clark, 2 Stockt. Ch, 51 ; Vernon v. Vernon, 53 
 N. Y. 351, 382; Kinseyo. Woodward, 3 Earring. 
 459; Timberlake t>. Parish's Ex'r, 5 Dana, 345; 
 Gordon v, Stevens, 2Hill's Ch. 46; Hall v. Hall, 
 8 Eich. 407; Whilden v. Whilden, Eiley Ch. 
 205; Lewis v. Smith, 9 N. Y. (5 Seld.) 502$ 
 Wood V. Wood, 5 Paige, 601 ; Fuller v. Yates, 8 
 Paige, 325; Bull v. Church, 5 Hill, 207; 2 Denio, 
 430; Adsit v. Adsit, 8 Johns. Ch. 448 ; French v. 
 Davies, 2 Ves. 572; Ellis v. Lewis, 3 Hare, 310; 
 Dowson V. Bell, 1 Keen, 761 ; Gibson v. Gibson, 
 1 Drew. 42, 57; Bending v. Bending, 3 K. & J. 
 257. 
 
 « Kennedy v. Nedrow, 1 Dall. 415, 418; Jackson 
 V. Churchill, 7 Cow. 887; Strahan v. Sutton, 3 
 Ves. 249. 
 
 170 
 
CH. Vni.] ELECTION. § 134 
 
 her dower in such property, in consideration of the testator's provision 
 for her.^ 
 
 Another opportunity for the application of the doctrine of election 
 is to be found in the case where an annuity or rent-charge is given 
 to the widow, and charged upon lands which are subject to her 
 claim of dower. According to some of the earlier English cases, the 
 distinction is made between annuity which is chargeable on both real and 
 personal property, and the rent-charge which is only chargeable upon 
 real property; these cases holding, that where the provision rfor the 
 widow is an annuity, the doctrine of election does not apply, but 
 where it is a rent-charge, it does apply.' But this distinction has been 
 repudiated by the English and American authorities, which maintain 
 that, except when peculiar circumstances point unmistakably to the 
 contrary intention, whenever annuity or rent-charge is given to the 
 widow, she takes such provision in addition to her dower-right, and is 
 not put to an election between the two interests.' 
 
 Another case to which the right of election might apply is, where 
 lands are devised to the widow for life, with the devise of the rest of 
 the lands to third persons. Two questions are raised, or can be raised, 
 in this connection: one is in respect to the right to dower in the residue 
 of the property which is devised to others; the invariable ruling of 
 the courts being, that she is entitled to dower in the other property, 
 as well as to her life estate.* The second question is, whether she can 
 claim both the express devise for life and her dower-right in the specific 
 property which is given her in the will; or whether, in respect to that 
 specific property, she is obliged to elect between the devise for life and 
 her dower-right. One set of decisions maintain that she can claim 
 both; these decisions holding that there is no inconsistency between 
 the two.' But according to another group of cases, the devise for 
 life is held to be inconsistent with the widow's claim of dower, and 
 she is then obliged to elect between the two." 
 
 In all of these cases cited above, in which the courts deny the appH- 
 
 iSee Herberts. Wren, 7 Cranch, 370, 378, per 'Sandford v. Jackson, 10 Paige, 266; Lewis ». 
 
 Marshall, C.J. ; Ailing®. Chatfield,4S Conn. 876. Smith, 9 N. Y. (5 Seld.) 502; Mills u. Mills, 2S 
 
 2 Villa Eeal v. Lord Galway, 1 Bro. Ch. 292 n; Barb. 454; Mltteer v. Wiley, 34 Iowa, 214; Bull 
 
 Ambl. 682; Jones v. Collins, Ambl. 730; Wake v, Church, 5 Hill, 207; 2 Denio, 430. In Bull v. 
 
 V. Wake, 3 Bro. Ch. 255; Arnold v. Kempstead, Church, the testator devises all of his property, 
 
 Ambl. 466; 2 Eden, 236. both real and personal, to his wife during 
 
 SHall V. Hill, 1 Conn. & Law. 129; 1 Dr. & widowhood, with remainder to the children. 
 
 War. 103, per Sir Ed. Sugden; Roadley v. She entered into possession of the property 
 
 . Dixon, 3 Euss. 192, 201, 202, per Lord Lynd- under the will, but when she married and 
 
 hurst; Smith v. Kinskern, 4 Johns. Ch. 9; forfeited by such marriage her testamentary 
 
 Adist V. Adist, 2 Id. 448; opinion of Chan. interest in the property, the courts held that 
 
 Kent; Lashers. Lasher, 13 Barb. 106; Hatch u. she could still claim her dower in the same, 
 
 Bassett, 52 N. Y. 359; White v. White, 1 Harr. because her testamentary provision did not 
 
 202, 211 ; Birmingham v. Kirwan, 2 Sch. & Lef. exclude her from subsequently claiming the 
 
 444, 453, per Lord Bedsdale. dower. 
 
 * Havens v. Havens, 1 Sandf. Ch. 325; Jack- "Hamilton v. Buckwa ter, 2 Yeates, 389, 392; 
 
 son V. Churchill, 7 Cow. 287; Sandfordu. Jack- Stark v. Hunton, S ixton, (N. J.) 217, 224, 285; 
 
 son, 10 Paige, 866; Mills v. Mills, 28 Barb. 454 ; Smith v. Bone, 7 Bush, 367; Wilson Hayne. 
 
 Lewis V. Smith, 9 U. Y. (5 Seld.) 502; Bull v. Cheves' Eq. 37, 40; Gaston v. Caston, 2 Rich. 
 
 Church, 5 Hill, 807; 2 Denio, 430. Eq. 1 ; Cunningham v. Shannon, 4 Id. 135. 
 
 171 
 
§ 135 EQUITY JUEISPKUDENOE. [OH. VJH. 
 
 cation of the doctrine of election, their decision is based upon the 
 presumption, that the testator did not intend to make his devise to the 
 wife conditional upon her waiver of her dower-right; but if in any- 
 particular case the intention to make the testamentary provision a 
 substitute for the dower-right is established, or the intention may be im- 
 plied from a disposition of such property, inconsistent with the widow's 
 enjoyment of both the testamentary provision and the widow's dower, 
 the widow would be put to her election between the two. But the 
 nature of the devise to others must make the widow's claim of dower 
 in such property inconsistent with the provisions of the will, in order 
 that the doctrine of election may apply; and, as we have seen, ordi- 
 narily there is no such inconsistency. It has, however, been held in a 
 very large number of cases, that if the devisee of the property is 
 given the power of management and of leasing the estate without words 
 of qualification, such devise is held to be inconsistent with the widow's 
 claim of dower in the property, and hence she is obliged to elect 
 between her dower-right and the testamentary provision.' So, also, it 
 has been held that, where property is devised to the widow and others, 
 with the express direction that the property shall be divided equally, 
 between them, such a devise is inconsistent with the widow's claim of 
 ■dower, and she would be obliged to make her election.^ 
 
 § 135. Statutory changes in this rule. — In many of the states it 
 is provided by statute that, whenever a testamentary provision is made 
 lor the widow, she is presumed to take it as a substitute for her dower, 
 unless it be shown by the express declaration of the testator in the will 
 that she is to enjoy both the provision and the dower-right. Such is 
 iound to be the statutory law in a number of the states. In some of 
 them the provision is applied only to cases of devise of real property, 
 leaving bequests of personal property subject to the presumption of 
 law which has heretofore been explained; in other words, if the testa- 
 mentary provision in her behalf consists of a devise of real estate, she is 
 presumed, under this statute, to take the provision in lieu of her dower- 
 right; but if the testamentary provision is a bequest of personal 
 property, the statute does not apply, leaving the presumption, as it is 
 elsewhere, in favor of the widow's right to both the dower and testa- 
 mentary provision. This is the statutory law of Arkansas, Delaware, 
 Georgia, Missouri and New Jersey.' In the other class of states, the 
 statutory provision, creating the presumption of an intention to put the 
 
 1 Parker v. Sowerby, 4 De G. M. & G. 321 ; 1 bin, 24 Id. 185; Worthen v. Pearson, 33 Id. 385; 
 Drew. 488 ; Hall v. Hill, 1 Dr. & War, 94; 1 Conn. Clayton v. Alkln, 38 Jd. 380; Gibbon ».Gibbon,40 
 & Law. ISO; Eaynard v. Spenoe, 4 BeaT. 103; Id. 563; Pumphrey v. Pumphrey, 52 Ark. 198; 
 Lowest). Lowes, 5 Hare, 501; Grayson B.Deakin, see Pemberton v. Pemberton, 29 Mo. 408; 
 3 De G. & Sm. 298; Holdioh v. Holdich, 2 Y. & Brant «. Brant, 40 Id. 268; Cook v. Concli, 100 
 C. 23; Birmingham v. Kirwan, 2 Soh. & Lef. Mo. 29; see Stark v. Hunton, Saxt. Ch. 216; 
 ■444; Goodfellow ii. Goodfellow, 18 Beav. 355. Morgan v. Morgan, 41 N. J. Eq. 235; Van Ara- 
 
 2 Chalmeis v. Storil, 2 V. & B. 222 ; Roberts v. dale v. Van Arsdale, 17 N. J. L. 404 ; Thompson 
 Smith, 1 S. & S. 413; EUisB. Lewis, 3 Hare, 531. ». Egbert, 17 N. J. L. 459; White ». White,lHar. 
 
 3 See Chandler ». Woodward, 3 Barring. 428; 202;English». English, Id. 504; Morgans. Titus, 
 see Tooke e. Hardeman, 7 Ga. 20; Rainesj). Cor- 2 Green Ch. 201; Colgate v. Colgate, 8 C B 
 
 172 
 
CH. Vin.] ELECTION. § 13& 
 
 widow to her election, applies not only to cases of devise of real estate,. 
 but also to bequests of personal property. This is the statutory rule 
 of law in Alabama, Illinois, Kansas, Maine, Massachusetts, Maryland, 
 Michigan, Minnesota, Mississippi, Nebraska, North and South Caro- 
 lina, Ohio, Oregon, Pennsylvania, Tennessee and "Wisconsin. ' 
 
 Not only do the statutes change the presumption of intention in res- 
 pect to the duty of election, but they also limit the time in which the 
 widow can make the election; so that she will be obliged to claim her 
 dower within the statutory period of time in order to make the claim 
 at aU. In some of these states, the period is one year; ^ in others of 
 these states, the time is limited to six months; ' in one state, the time 
 is eighteen months; * while in two states, she is compelled to make her 
 election within thirty days after service of a citation issued to her by 
 the court of probate. 
 
 § 136. Election and devise of community property. — ^In Cali- 
 fornia, and a few other western states, the common law dower has 
 been abolished and its place taken by the principle of community 
 property, drawn from the French and Spanish laws. Under the 
 principle of community property, whatever the husband and wife, 
 respectively, own at the time of marriage, remains the separate 
 property of each and free from the attachment thereto of any rights 
 of the other; but all the earnings of the husband, after the marriage, 
 become the common property of husband and wife, each being entitled 
 to an undivided half. During the marriage, the husband has control 
 of the whole property and it is liable for his debts; 'but upon his death, 
 leaving the widow surviving, she is entitled absolutely to one-half of 
 such property, and the husband cannot by his will interfere with her 
 claim to the same. She has, therefore, the power of disposition by~ 
 wiU over only one undivided half of this community property. 
 Where, therefore, he undertakes by will to dispose of the whole of 
 
 Green Ch. 201 ; Adamson u. Ayres, 1 Halst. Oh. StlUey ». Folger, U Ohio, 610, 646; Luigartu. 
 
 349; Norris v. Clark, 3 Stockt. Ch. 51; Griggs v. Ripley, 1901iio St. Zi; Jennings ». Jennings, 21 
 
 Veghte, (N. J. '90) 19 Atl. 867. Id. 56; Davis V. Davis, 11 Id. 386; Stockton v. 
 
 1 Hilliard v. Benford's Heirs, 10 Ala, 977, 990; Wooley, 20 Id. 184; Thompson v. Hoop, 6 Id. 480; 
 
 McGrath».McGrath, 38/(1.246; Haynie ». Dick- Bowen r. Bowen, 31 J3. 164; Baxter ». Bojei, Id. 
 
 ens, 68 111. 267; Jenkins v. Smith, 29 Id. 116; 490; Anderson's Appeal, 12 Casey, (36 Pa. St.) 
 
 Brown u. Pitney, 39 Id. 468; Mowbry u. Mow- 476; Borland w. NichoUs, 2 Jones, (12 Pa. St.)38; 
 
 bry, 64 Id. 383; Gauoh v. St. Louis, &c. Ins. Co., Leinaweaver v. Stoever, 1 Watts & Serg. 160; 
 
 SSId.SS; PadfieldD.Padfleld, 78I(?.17;Suther- Beed ». Reed, 9 Watts, 263; Melizet's Appeal, 5- 
 
 land V. Sutherland, 69 Id. 481; Stunz ». Stunz, Harris, (17 Pa. St.) 449; CaufiFman v. Cauffman, 
 
 (01. '90), 23 N. E. 407; Allen v. Hannum, 15 17 S. & R. 16; Heron v. Hofifner, 3 Eawle, 303; 
 
 Kans. 625; Allen v. Pray, 3 Fairf. (12 Me.) 138, Eeid v. Campbell, Meigs, 378, 388; Malone p. 
 
 142; Dow V. Dow, 38 Me. 211 jHastlngs ».Clifford, Majors, 8 Humph. 577, 579; Demoss v. Demoss, 7 
 
 32 Me. 132; Reed u. Dickerman, 12 Pick. 146; Coldw. 256, 258; Waddle v. Terry, 4 Coldw. Bl> 
 
 see Atherton v. Corliss, 101 Mass. 40, 44; Adams 54; McClung v. Sneed, 3 Head, 218, 223. 
 
 r.Adams, 5M 277; Pratt «. I"elton,4Cush, 174; 2 Alabama, Illinois, Michigan, Minnesota, 
 
 Delay v. Vinal, 1 Met. 57; Knighton v. Young, Nebraska, Ohio, Oregon, Pennsylvania, Ten- 
 
 22 Md. 359; Hilleary v. Hilleary's Lessee, 28 Id. nessee, Wisconsin and Missouri. 
 
 274; Gough «. Manning, Id. 347, 366; Lynn » Maine, Massachusetts, Maryland, Missis- 
 
 V. Gephart, 27 Id. 647; Hinckley v. House of sippi. North Carolina and New Jersey. 
 
 Refuge, 40 Jd. 461; Plndell o. Pindell, Id. 537. * Arkansas. 
 
 Craven v. Craven, 2 Dever. Eq. 338; Bray v. * Delaware and Kansas. 
 Lamb, Id. 872; Hair v. Goldsmith, 22 S. C. 566; 
 
 173 
 
§ 137 EQUITT JUEISPEUDENCE. [CH. Vni. 
 
 this communiiy property, and makes some other provision for the wife 
 as a substitute for her interest in the community property, a case 
 arises for the application of the doctrine of election. The question is 
 here, as in the case of the common law dower, whether the testament- 
 ary provision disposing of community property was intended to 
 transfer her undivided interest in such property as well as his own. 
 The right of election applies where the intention to convey the whole 
 property exists, and is inapplicable when the husband intended to dis- 
 pose only of his own interest in the property. Inasmuch as this is a case 
 of joint ovraership of property, one would expect, in determining this 
 question of intention, that the same rule would apply as in the English 
 law in respect to devise by a co-tenant of the whole of the ordinary 
 joint estate.^ But inasmuch as the community property is a modern 
 substitute for the common law dower, we find, as a fact, that the same 
 circumstances are considered to control the proof of intention of the 
 testator, in respect to the disposition of the community property, which 
 prevail in the determination of the election of the widow between her 
 dower and a testamentary provision. ^ 
 
 § 137. Election in the case of statutory proyision for widow's 
 share in inheritance of Iinsband's property. — ^In many of the states, 
 the Statutes of Descent and Distribution provide for the division of 
 decedent's estate between his children and his wife; making the wife 
 an heir to her husband, and providing that she will inherit either a 
 child's part, or some fixed proportion of the estate, absolutely. The 
 authorities agree that the statutory provision for inheritance does not 
 abolish dower, but is intended to be, and must be taken as, m Ueu of 
 her dower, and she must elect which of the two interests she will take.' 
 Inasmuch as the statutory provision is ordinarily more valuable than 
 the dower-right, the natural presumption would be, where there has 
 been a division of the property between the widow and children, that 
 she has elected to take as heir of her husband, instead of the dower- 
 right of the widow. But since the estate which she takes as heir is 
 subject to the claim of creditors, and the dower-interest is superior to 
 such claims,* in the case of an insolvent estate, the dower would be 
 more valuable; and it has been held that under those circumstances 
 only her dower-right would be allotted to her.* The dower-right is, 
 however, not inconsistent with her claim of a share, under the Statute 
 of Distribution, in her husband's personal estate as to which he may 
 die intestate. She may claim such distributive share as well as her 
 
 ISee ante, §§ 12T, 138. of Prey, 52 Id. 658; Smith v. Smith, 12 Id. 216, 
 
 2 Ira re Estate of Staus, Myrick's Prob. E. 6; 225; Scott v. Waid, 13 Id. 458, 469, 470; Payne v. 
 
 In re Estate of Mumf ord, Id. 133 ; In re Estate Payne, 18 Id. 292, 301 ; Burton ». Lies, 21 Id. 87, 
 
 of Low, Id. 148j In re Estate of Rioaud, Id. 158; 91; In reSUvery, 42/d.210; Broad v. Murray, 44 
 
 In re Estate of Patton, Id. 243; Morrison v. Id. 229. 
 
 Bowman, 29 Cal. SSI; King v. Lagrange, 50 • Shoot ». Galbreath, 128 111. 214. 
 
 Cal. 328; Beard v. Knox, 5 Cal. 252, 257; In re *Hunkins v. Hunkins, (N. H. '89) 18 Atl. 655. 
 
 Buchanan's Estate, 8 Id. 6CW, 510; In re Estate ' « Cloyd v. Cloyd, 15 Lea. 204. 
 
 174 
 
CH. Vin.] ELECTION. § 138 
 
 dower. ^ It has been held in Missouri, under the statute, that if the 
 widow rejects a testamentary provision, she still has the right to elect 
 between her dower and the distributive share in the estate, although 
 there may be no intestacy." 
 
 § 138. Who may elect, persons under disabilities. — Where the 
 devisee — ^whose property is disposed of in favor of another by the same 
 will which secures to him a devise of the testator's property, and is 
 therefore put to an election between the rejection of such a devise or 
 the loss of his property — ^is a person free from all legal disabilities, no 
 question can exist as to his ability to make an election which wiU be 
 blading upon him. But where, at the time he makes the election, a 
 disability exists, it does become a question, how far the original dis- 
 ability affects his right of election. The original common law dis- 
 abilities to make binding contracts are those of coverture, infancy and 
 insanity. In respect to the first disability, the authorities generally 
 agree upon the following proposition: If in respect to the devise to a 
 married woman, where she has to make an election, the husband is 
 excluded from all vested interest in the same, the wife can make a 
 valid election which will be binding upon all parties concerned in the 
 estate; ' but if the husband has marital rights in the property of the 
 wife which is affected by the devise to her and the consequent obliga- 
 tion to make her election, no election of hers without the consent of 
 the husband to surrender his interest in her property, in consideration 
 of the receipt of the devise or bequest, will be valid and binding, 
 except so far as such election does not interfere with or cut off the hus- 
 band' s rights therein. * Where the party who is to make the election is an 
 infant, the court denies to such infant, during infancy, the power to make 
 a valid election, and one of two courses will be pursued by the court. 
 Where it is possible, without prejudice to the rights of other parties, to 
 postpone the election until the infant comes of age, this will be done." 
 But where it is to the disadvantage of the infant, or of other parties who 
 are interested in the matter, to postpone the election, the court of equity, 
 as a guardian of the interest to such infant, will itself make the election 
 for such infant.' The same rule applies where the party who is to 
 make the election is a lunatic; the court assuming power to make an 
 election in behalf of the lunatic, even where the property of the lunatic 
 is in charge of a committee.' If the widow dies during the time pre- 
 
 iVower's Will, j»re, 113N. Y. 569. b Streatfleld v. Streatfleld, Cas. temp. Talb. 
 
 2 Young «. Broadman, 97 Mo. 181. 176j 1 Bq. Lead. Cas. 504 (4th Am. ed.) ; Bough- 
 
 s Cooperi). Cooper, L. E. 7 H. L. 53, 67; Tier- ton v. Boughton, 3 Ves. Sen. 18; Bor v. Bor, 2 
 nan v. Eoland, 3 Harris, 430, 452; Robinson v. Bro. P. C. 473 (Toml. ed.). 
 Buck, 71 Pa. St. 386; Robertson v. Stephens, 1 • McQueen v. McQueen, 2 Jones Kq. 16; Ad- 
 Ired. Eq. 247, 251 ; McQueen,;2 Jones Eq. 16; but dison v. Bowie, 2 Bland Ch. 606, 623; Mr. Swan- 
 see Kreiser's Appeal, 69 Pa. St. 194; note of Mr. ston's note to Gretton v. Haward, 1 Sw. 409, 
 Swanston to Gretton v. Haward, 1 Sw. 409, 413. 413; Bigland v. Huddleston, 3 Bro. Ch. 285 n. 
 
 <SeeWaIl». Wall, 15 Sim. 513, 520; Whittle '/» re Marriott, 2 Moll. 516; Kennedy ti.John- 
 
 V. Henning, 3 Phil. 731; Robinson v. Wheel- son, 65 Pa. St. 451; Young v. Boardman, 97 Mo. 
 
 right, 6 De G. M . & G. 535, 546. 181 
 
 175 
 
§ 140 EQUITY JUEISPKUDENCE. [CH. VIU. 
 
 scribed for making the election, she will be presumed to have elected 
 that provision which was most favorable to her.^ 
 
 § 139. Time of election. — ^Where the statute does riot provide any 
 limitation of time, within which the election must be made under the 
 provisions of the will, the party having the right of election may 
 exercise it at any time after the probate of the will, as long as the 
 rights of third parties have not been prejudiced by the delay. Under 
 such circumstances, the right of election has been conceded, notwith- 
 standing the lapse of many years. ^ But if the delay has induced third 
 parties to acquire rights in the property, in reliance upon the supposed 
 acquiescence of such a person in the dispositions of the will, equity wiU 
 not permit these rights to be disturbed by the subsequent exercise of 
 the right of election.^ The question whether the delay is reasonable 
 or not, independently of statute, can only be answered by a considera- 
 tion of the peculiar circumstances of the particular case. But in a 
 number of the states, the statutes provide a period within which the 
 widow niust make an election or be presumed to have chosen the test- 
 amentary provision.* But where no such statutory provision is made 
 as to the time within which the election must be made, the circum- 
 stances of the case must determine the length of time within which the 
 election must be made or be surrendered. No more specific rule can 
 be given for determining this question in any particular case, than 
 that the party to whom the right of election is given is not required 
 to exercise that right, until he has become apprised of all the facts 
 and circumstances which are necessary to an intelligent election 
 between the two provisions. As long, therefore, as he or she has not 
 had sufficient opportunity to learn the relative value of the provisions 
 between which the election is to be made, he cannot be required to 
 make the election.' 
 
 § 140. Mode of election. — ^Where the party, who has the right to 
 elect, makes a positive declaration in favor of one of the provisions 
 for his benefit, no question can arise as to the propriety or effectiveness 
 of this mode of election. His positive declaration in favor of one does 
 
 ' Merrill v. Emery, 10 Pick. 507. Barnett's Adin'r v. Bamett, 1 Id. 257, 258, 259; 
 
 2Sopwitli». Maughan, SOBeav. 235; Reynard Worsley's Ex'r v. Worsley, 16 B. Mon. 470; 
 
 V. Spenoe, 4 Beav. 103; Butricke v. Brodhurst, Leonard v. Steele, 4 Barb. 20; Church v. Bull, 
 
 3 Bro. Oh. 90; Brlce « . Brice, 2 Moll. 21 j Dillon 2 Denio, 430 ; Bull v. Church, 5 Hill, 206 ; Hawley 
 
 V. Parker, 1 Sw. 381, 386. v. James, 5 Paige, 318, 447; see Lewis v. Smith, 
 
 8Tibbitts V. Tibbitts, 19 Ves. 663; Dewar v. 9N. T. 504, 511; Jackson v. Churchill, 7 Cow. 
 
 Maitland, L. E. 2 Eq. 834. 287. 
 
 *In Arkansas, Florida, Kentucky, New York 'Kreiser's Appeal, 69 Pa. St. 194; U. S. «. 
 
 and Bhode Island the time prescribed is one Duncan, 4 McLean, 99; Hall v. Hall, 2 MoCord 
 
 year; in Vermont, eight months; Iowa, six Eq. 269, 280; Snelgrove v. Snelgrove, 4 Desau. 
 
 months; and Connecticut, two months. See Eq. 274, 300; Pickney ti. Plokney, 2 Blch, Eq. 
 
 Lord «. Lord, 23 Conn. 337; Hickey u. Hickey, 219, 237; see Mr. Swanston's note, 1 Sw. 359, 
 
 26 M. 261; Metteer v. Wiley, 34 Iowa, 215; 381; Eeayes ». Garrett, 34 Ala. 563; Bradford*. 
 
 Corriel v. Ham, 2 Id. 552; Sully v. Nebergall, 30 Kent, 7 Wright, 474, 484; Macknet v. Macknet, 
 
 Id. 339; Clark v. Griffith, 4 Id. 405; McGuire v. 29 N. J. Eq. 54; Cox v. Eogers, 77 Pa. St. 160; 
 
 Brown, 41 Id. 650; Stoddard i>. Cutcompt, 41 Id. Waterbury «. Netherland, 6 Heisk. 512; Dabney 
 
 329; Kyne v. Kyne, 48 Id. 21,24; In re Davis ». Bailey, 42 Ga. 581; Elchart «. Richart, 30 
 
 Estate, 36 1(2. 24; Dawson v. Hayes, 1 Mete. 461 ; Iowa, 465. 
 
 176 
 
CH. VIII.] ELECTION. . § 14:1 
 
 not admit of any doubt as to the intention to take that provision in the 
 place of the other. But in the absence of a positive declaration in 
 favor of one of the provisions, it is settled that there may be an 
 election by implication; but no very exact rule can be given for 
 determining from what facts and circumstances an election may be 
 implied. The following general rule will, however, serve ordinarily 
 as a guide: Whenever the party having the right of election main- 
 tains the same attitude toward both provisions, whether that attitude 
 be one of inaction or of action, as where he refuses the rents and 
 profits of both, or he exercises the rights of a proprietor over both, 
 there are no facts in the case from which an election can be implied.^ 
 But wherever the party varies his attitude towards the two provisions, 
 assuming towards one an attitude of inaction and towards the other an 
 attitude of action, and the attitude towards the one involves the 
 assumption of proprietorship over such provision or property of an 
 absolute character, such acts are sufficient to support the presumption 
 of an election in favor of that provision for his benefit. Hence, the 
 taking of the rents and profits from one fund or property, or the sale 
 or mortgage of such property, would be circumstances from which 
 the election of that fund of property may be implied, where nothing is 
 done of the same character in respect to the other estate or property.'' 
 But in every such case, in order that these acts, on the part of the 
 person having the right of election towards one of the benefits or 
 properties, may operate as an implied election, they must be done 
 when the party doing them and having the right of election has a f uR 
 knowledge of all the facts concerning the property; he must not only 
 know of his right of election, but likewise all the facts and circum- 
 stances of the case, which are necessary to an intelligent exercise of 
 the right.' 
 
 § 141. Effect of an election. — Once an election has been made, 
 under facts and circumstances indicating the intention of election, 
 there can be no revocation of such election; and it is binding upon all 
 parties who claim or take property under the party making the elec- 
 tion, namely, his heirs and representatives.* Where, however, the 
 election has been made under the influence of some mistake of fact, 
 the party making the election may revoke it and exercise anew the 
 
 iInPadburyo.Clark,»Mpra,LordCottenham; 29 N. J. Eq. 54j Cox v. Eogers,77 Pa. St. 160j 
 
 Whitrldge v. Parkhurst, 80 Md. 62, 72 ; Padbury Waterbury v. Netherland, 6 Helsk. 512 ; Dabney 
 
 «;. Clark, 2Macn. &. G. 298, 306, 307; see note to v. Bailey, 43 Ga. 521; Richart v. Riohart, 3Q 
 
 Dillon V. Parker, 1 Sw. 359, 381, 382j Spread v. Iowa, 465; Dillon v. Parker, 1 Sw. 359, 381, and 
 
 Morgan, 11 H. L. Cas. 588. note; I Jacob, 505; 1 CI. & Fin, 303; Krelser'a 
 
 ^Dewar v. Maitland, L. E. 2 Bq. 834; Gid- Appeal, 69 Pa. St. 194; U. S. v. Duncan, 4 
 
 dings i>. Giddings, 3 Rubs. 241; Spread v. Mor- McLean, 99; Hall v. Hall, 2 McCord Eq. 269„ 
 
 gan, 11 H. L. Cas. 588; Padbury v. Clark, 2 280; Suelgrove v. Snelgrove, 4 Desau. Bq. 274, 
 
 Macn. & G. 298, 306, 307; Campbell v. Ingilby, 300. 
 
 21BeaT. 582; Edwards ». Morgan, McClell, 641 ; < Hurley v. Mclver, 119 N. Y. 13; Worthlng- 
 
 13 Price, 782; 1 Bligb, N. s., 401. ton t>. Wigington, 20 Beav. 67 ; Whitley v. Whlt- 
 
 apickney v. Piokney, 2 Rich. Eq. 219, 237; ley, 31 Beav. 173; Dewar v. Maitland, L. R. 2 
 
 Reaves v. Garrett, 34 Ala. 563; Bradford v. Eq. 834; Dillon v. Parker, 1 Sw. 385; Moore ti. 
 
 Kent, 7 Wright, 474, 484; Macknet v. Macknet, Butler, 2 Sch. & Lef. 268. 
 
 12 
 
 177 
 
§ 141 EQUITY JURISPRUDENCE. [CH. VIU. 
 
 right of election.' But where the mistake is not one of fact, but one 
 of law, it has been held by some authorities to be irrevocable,^ 
 although it, perhaps, may be taken as the opinion of the majority of 
 the cases, that ignorance of one's right to elect is to be considered a 
 mistake of fact, instead of one of law; and, therefore, an implied elec- 
 tion under the influence of such ignorance may be revoked, and the 
 right exercised anew.^ Where the election is made subject to an 
 express condition, the election is held to be subject to that condi- 
 tion, so that the breach of the condition will revoke the election and 
 permit the party having the right of election to make a second elec- 
 tion.* Where the party, who is to make the election, is only entitled 
 to a life estate, his election would not aflfect the rights of the remainder- 
 men in the same property." So, also, where the right of election is 
 given to two or more individuals as a class, each having his propor- 
 tionate share of the property, as where the right of election is to be 
 exercised by the nearest of kin or heirs, each of those individuals has 
 a separate right of election; and the election by one, in respect to his 
 interest under the wiU, in nowise affects the interest or right of elec- 
 tion of the others." Whenever an election has been validly and irre- 
 vocably made, the effect of it upon the properties to which the right 
 refers, will depend upon the election which has been made. If the 
 election has been in favor of carrying out the provision of the wiU, 
 the party making the election accepts the full benefit of the testament- 
 ary provision in his behalf, but relinquishes his own property, which 
 has, by the same vdll, been transferred or given to another; but if the 
 election is made against the provisions of the will, then the party 
 making the election retains the title to his own property and loses 
 only so much of the benefit provided for him under the will, as may 
 be necessary to secure for the party to whom this devisee's property 
 has been devised by the will, full compensation for the loss thus occa- 
 sioned by the election against the provision of the will.' This matter 
 has been already more fully explained in a prior paragraph, and will 
 not, therefore, need fuller explanation in this connection." 
 
 1 Dabney v. Bailey, 42 Ga. 521 ; Snelgrove v. son v. Skelton, 2 Macq. 492, 495; Ward v. Bangh, 
 
 Snelgrove, 4 Desau. Eq. 27; Hall v. Hall, 2 Mc- 4 Ves. 623. 
 
 Cord Ch. 269, 289; Adist v. Adist, 2 Johns. Oh. « Pytehe v. Fytche, L. E. 1 Eq. 494; Ward x. 
 
 448, 451; Macknet v. Maoknet, 29 N. J. Eq. 64; Baugh. 4 Ves. 623. 
 
 Dillon V. Parker, 1 Sw. 359, 381 note ; 1 CI. & ' Cauffman v. Cauffman, 17 f erg. & E. 16, 24, 
 
 Pin. 303. 25; Philadelphia v. Davis, 1 Whart. 490, 502; 
 
 2In Waterbury v. Netherland, 6 Heisk. 612; Stump v. Pindlay, 2 Eawle, 168, 174; Lewis v. 
 
 see, also. Light v. Light, 21 Pa. St. 407; Brad- Lewis, 13 Pa. St. 79, 82; Vandyke's Appeal, 60 
 
 ford V. Keuts, 43 Pa. St. 475; Cox v. Rogers, 77 Pa. St. 490; Sandoe's Appeal, 65 Pa. St. 314; Key 
 
 Pa. St. 160. V. Griflfen, 1 Rich. Eq. 6?; Marriott v. Sam 
 
 sDabney v. Bailey, 42 Ga. 521; Snelgrove v. Badger, 5 Md. 306; Maskell v. Goodall, 2 Dis- 
 
 Snelgrove, 4 Desau. Eq. 27; Hall v. Hall, 2 Mo- ney, 282; Eoe v. Eoe, 21 N. J. Eq. (6 C. E. Green) 
 
 Cord Ch. 269, 289; Adist v. Adist, 2 Johns, Ch. 253; Allen o. Hunnum, 15 Kans. 625; Estateof 
 
 448,451; Macknet v. Macknet, 29 N. J. Eq. 64; Delaney, 49 Gal. 77; Tieman v. Roland, 3 H^r- 
 
 Dillon V. Parker, 1 Sw. 359, 381, note; 1 01. & rls, 430, 451; Wilbanks v. Wllbants, 18 HI. 17; 
 
 Fin. 303; Pusey v. Desbouverie, 3 P. Wms. 315. Jennings i; . Jennings, 21 Ohio St. 56. 
 
 *Richartti. Richart,30Iowa, 465. 'J 124. 
 
 ^Longv. Long, 5 Ves. 445; and see Hutchin- 
 
 178 
 
CH. VIII.] ELECTION. § 142 
 
 § 142. Eqnitable jurisdiction in matters of election. — In most 
 of the states the equity courts have become merged in the ordinary 
 circuit courts of the state; and hence this question in respect to those 
 states needs no answer. But wherever the court of equity still retains 
 its separate autonomy, or a distinction is made by the rules of court 
 between the equitable and legal jurisdiction of the same court, it is 
 important to know when the enforcement of the right of election falls 
 within the legal or equitable jurisdiction. Suffice it to say, in this con- 
 nection, that whenever modern statutes have superseded the equitable 
 rules here set forth, in respect to the right of election, the right falls 
 within the jurisdiction of the court of law, and ceases to be within the 
 jurisdiction of the court of equity; but in other cases, that is, in the 
 absence of statutory changes in the right of election, the equitable 
 jurisdiction is maintained.' 
 
 1 Dillon V. Parker, 1 Sw. 381, note by Mr. Swanstonj Vandyke's Appeal, 60 Pa. St. 481, 489, 
 jjer Sharswood, J. 
 
 179 
 
CHAPTER IX. 
 
 EQUITABLE DOCTRINES OF SATISFACTION, ADEMPTION AND 
 PEEFOBMANCE. 
 
 Section 
 
 Election distinguished from tlie subject 
 of tliis chapter . .... 
 
 Admissibility of parol or extrinsic evi- 
 dence 
 
 Satisfaction and ademption distinguished 
 
 Ademption of legacies by portions and 
 advancements ... . . 
 
 Donor in toco parentis 
 
 Subsequent portion or advancement less 
 than the legacy ... 
 
 Circumstances which affect and do not 
 affect the presumption 
 
 Gift to husband of legatee . 
 
 145 
 
 146 
 147 
 
 148 
 149 
 
 150 
 
 Sectios 
 Effect of a subsequent codicil . . .153 
 Satisfaction of legacies between strangers 154 
 Satisfaction of portions or advancements 
 
 by legacies . .... 155 
 
 Satisfaction of legacy by subsequent 
 
 legacy 156 
 
 Satisfaction of debts by legacy . . 157 
 What prevents the presumption of satis- 
 faction of debts by legacies . . . 158: 
 Debt owing to a child or wife . . .159 
 Legacy by a creditor to his debtdr . . 160 
 Equitable doctrine of performance dis- 
 tinguished from satisfaction . . .161 
 
 § 145. Election distinguished from tlie subject of this chapter. 
 
 — ^In the preceding chapter/ the equitable doctrine of election has 
 been explained; and inasmuch as it bears a close resemblance to the 
 doctrine of satisfaction, the distinction between the two is necessary 
 at the outstart of this discussion. The doctrine of election applies, 
 whenever one undertakes by his will to give to one the property 
 belonging to another, and by the same will gives to this third person 
 property of his own; such third person is held to be obliged to elect 
 between the rejection of the bequest or devise to him, or see to it that 
 the testamentary disposition of his own property is carried out by a 
 transfer of such property to the intended donee. Satisfaction may be 
 defined as the gift of a property with the intention that such property 
 be taken by the donee as a substitute for, or satisfaction of, some claim 
 or provision which had previously existed in favor of the donee. In 
 the case of election, the donee has to part with some specific property 
 which he had and owned independently of any act of the donor. In 
 the case of the satisfaction, the eflfect of the subsequent gift is to 
 extinguish or satisfy some outstanding claim or right to property 
 of an executory character." The principle underlying both the doc- 
 trines is the same, viz. : that the gift was made with the intention that 
 the acceptance by the donee shall operate as a release by him of some 
 claim or property of his. It is generally a question of fact whether 
 the donor intended by his gift to substitute such gift for, and to make 
 it a satisfaction of, the claim held against him by the donee. Where 
 the donor expressly declares his intention, for or against the applica- 
 
 i^ra«e,Chapt. VIII. 
 
 ^Z Eq. Lead. Cas, 754 (4th Am. ed.), approved 
 
 180 
 
 in Lord Chichester v. Coventry, L. E. 2 H. Ii» 
 71, 95; Goldsmith v. Goldsmith, 1 Sw. 211. 
 
CH. rx.j SATISFACTION, ADEMPTION AND PEEFOKMANOE. § 146 
 
 tion of the doctrine of satisfaction, and in such a manner that the declared 
 intention may be proven by competent evidence, no difficulty is experi- 
 enced in ascertaining what is the effect of the gift. The difficulty 
 arises when the donor, in making the gift, makes no express declara- 
 tion of his intention therewith; and the intention and purpose of the 
 gift can only be inferred or presumed by law from the character of 
 such gift, the relation of parties, and other circumstances of the case. 
 In all such cases, if the equitable doctrine of satisfaction is permitted 
 to apply at all, it must rest upon a presumption of law inferred from 
 the peculiar facts of the case; and this presumption will be permitted 
 to control in determining whether this doctrine of satisfaction is to 
 apply or not, unless evidence is admitted proving or establishing a 
 contrary intention on the part of the donor.* 
 
 § 146. Admissibility of parol or extrinsic evidence. — Inasmuch 
 as the whole doctrine of satisfaction rests upon the presumption of the 
 donor's intention, and the presumption controls the judgment of the 
 court, only in the absence of the proof of an express intention of the 
 donor, it is exceedingly important to know under what circumstances, 
 and how, such declared intention of the donor may be established. 
 The intention, which controls the determination of the question, 
 whether the doctrine of satisfaction is to apply or not, is that with 
 ■which the subsequent gift is made, and not that which he held in 
 respect to the original claim, which is to be satisfied by the subsequent 
 gift, if the doctrine of satisfaction applies; in other words, if the gift 
 is made with the intention that it shall constitute a satisfaction of the 
 prior claim or right, then such intention, if proven, must prevail. Two 
 cases can arise in connection with this question: one is where the gift 
 is made by parol, and secondly, where it is made by some written 
 instrument. In the first case, the fact that the gift is made by parol 
 prevents any application of the rule, which excludes all but 
 
 1 Pomeroy, Vol. I, § 523. Lord Eomilly, M. E., diminished ol satisfied by benefits derived 
 
 In Cooper v. Cooper, L. E. 8 Cli. 813, 819 n.: from any other source, and if so, what other 
 
 "In considering these cases, it is important to source. This maybe shown pointedly in a 
 
 notice in the first Instance, whether the donor case where the gifts supposed to be a satisfac- 
 
 of the benefit which is claimed to be satisfied tion of the original gifts are gifts of land. In 
 
 by subsequent benefits, stands in the place of the case of a parent or person in loco parentis^ 
 
 a parent, or in the place of a stranger. If he land would be no satisfaction for a covenant to 
 
 stands in loco parentis, the presumption of pay in money. The presumption against double 
 
 equity being against double portions, the pre- portions does not arise in such case. But if 
 
 *Mmp<«)» of satisfaction arises at once. * * * the original gift was to a stranger, the doctrine 
 
 In the case of a stranger, the presumption of satisfaction becomes applicable according 
 
 against double portions does not arise at all. to the words of the original donor. Then the 
 
 It is wholly a question of construction, and no question is, whether the words he has used, 
 
 evidence is admissible either to sustain or rebut fairly interpreted, meant the gift of land as 
 
 any presumption, for the reason that none satisfaction of the benefits he has bequeathed 
 
 arises. In this latter case the question of satis- or previously conveyed. It is, therefore, of 
 
 faction never arises, except upon the express paramount Importance to consider in all cases, 
 
 ■words of the donor; and whether the gifts said whether the doctrine of presumption against 
 
 to be given in satisfaction are given by a double portions, or the doctrine pf construc- 
 
 f ather or stranger, is wholly immaterial ; and tion of instruments, is that which applies to 
 
 it is solely a question whether the original the case." 
 benefactor intended that his benefit should be 
 
 181 
 
§ 146 EQUITY JURISPRUDENCE. [CH. IX. 
 
 written evidence in the establishment of the fact; for, inasmuch as the 
 transaction itself is verbal or parol, the intention with which the 
 transaction is done must itself be a parol fact. "Written evidence of 
 the intention of a parol transaction is not ordinary or to be expected; 
 hence the general rule is, that in all such cases of verbal donations, 
 any evidence of any kind is sufficient to establish the intention of the 
 donor.* But where the gift is made by some written instrument, 
 particularly when it is made by will, the attempt to prove the inten- 
 tion, with which the gift was made, by any evidence outside of the 
 instrument in which the gift appears, would constitute the violation 
 of the cardinal rule of evidence, that the terms of a written instru- 
 ment cannot be varied or controlled by parol or extraneous evidence. 
 In the absence of any special ground for claiming an exception to the 
 application of this rule of evidence, one would be inclined to suppose 
 that the rule must apply to the case under inquiry without limitation; 
 for the intention with which the donor made the gift constitutes, 
 under the circumstances of the case, an essential part of the gift, and 
 for that reason the proof of that intention by extraneous evidence 
 would be permitting such extraneous evidence to vary or control, if 
 not the terms of the instrument, at least their legal effect; and hence 
 the later English cases have held, that when the written instrument 
 contains no facts or statements from which the intention of the donor 
 may be presumed or proven, extrinsic evidence of his intention cannot 
 be admitted.^ But where the written instrument of donation does 
 not contain any declaration of the donor's intention, but the facts and 
 circumstances of the gift are such that the law presumes therefrom 
 an intention to apply the doctrine of satisfaction to the case, compel- 
 ling the donor to take the gift in satisfaction or substitution of 
 his prior claim or right, then extrinsic evidence is admissible to 
 rebut this legal presumption.' In the latter case, the extrinsic 
 evidence is held only to vary or control, not the terms of the written 
 instrument or the interpretation of them, but only to rebut the 
 existence of a legal presumption; and for that reason, the evidence is 
 admissible, and the admission of it is held not to violate the cardinal 
 
 1 Lord Hardwioke, In Eosewell ». Bennett, 3 7 Ves. 508i Palmer v. Newell, 20 Beav. 32; 
 
 Atk. 77; Richards ». Humphreys, 15 Pick. 133 
 Allen, J., citing Williams v. Crary, 4 Wend. 443 
 see, also, Langdon v. Astor's Ex'rs, 16 N. Y. 9 
 
 Powys II. Mansfield, 3 My. & Cr. 389; Hartopp 
 V. Hartopp, 17 Ves. 192; Guy v. Sharp, 1 My. 
 K. 589; Pole v. Lord Somers, 6 Ves. 331; 
 
 Hine v. Hine, 39 Barb. 507, 512; Payne v. Par- Freemantle v. Bankes, 5 Ves. 79; Clenden- 
 
 sons, 14 Pick. 313; Sims ». Sims, 2 Stockt»Ch. ning v. Clymer, 17 Ind. 155; Timberlake 
 
 158, 162,163; Belli). Coleman, 5 Madd. 22; Gill's v. Parish's Bxr's, 5 Dana, 346; Paine v. 
 
 Estate, 1 Pars. Eq. 139; Jones v. Mason, 5 Parsons, 14 Pick. 313; Parks v. Parks, 19 Md. 
 
 Hand. 577; Clendenning «. Clymer, 17 Ind. 155. 323; Cecil v. Cecil, 20 Md. 153; Lawson's 
 
 spowler V. Fowler, 3 P. Wms. 353; Wallace Appeal, 11 Harris, (23 Pa. St.) 85; Hine«. Hine, 
 
 V. Pomfret, 11 Ves. 542; Kirk ». Bddows, 3 39 Barb. 507; Gill's Estate, 1 Pars. Eq. 139; 
 
 Hare, 509; Hall ». Hill, 1 Dr. & War. 94; Palmer Zeigler v. Eckert, 6 Barr. (6 Pa. St.) 13, 18; 
 
 V. Newell, 20 Beav. 32; Guy ». Sharp, 1 My. & Sims V. Sims, 2 Stookt. Ch. 152, 153, 158; Jones 
 
 K. 589; Weall v. Rice, 2 Euss. & My. 251. v. Mason, 5 Rand. 577; Gilliam v. Chancellor, 
 
 ^Monck V. Lord Monck, 1 Ball & B. 298; 43 Miss. 437, 453-456; Langdon v. Astor's Ez'ts, 
 
 Halle. Hill, 1 Dr. & War. 94; Timmerv. Bayne, 1611. Y.9. 
 
 182 
 
CH. IX. J SATISFACTION, ADEMPTION AND PEBFORMANCE. § 147 
 
 rule of evidence just referred to. This distinction, laid ^own by the 
 later English cases, in respect to the admission of parol or extrinsic 
 evidence to establish the intention of a donor in making a gift by 
 some writteri instrument, is not universally conceded or recognized 
 by the American cases; some of them recognize it,^ while others 
 seem to ignore the distinction altogether, permitting the use of parol 
 and extrinsic evidence in both class of cases.' And some of the 
 earlier cases have permitted the admission of parol evidence, whether 
 there is oris not any presumption of satisfaction arising from the gift. ' 
 § 147. Satisfaction and ademption distingaislied. — An important 
 distinction is to be recognized between cases of satisfaction and of 
 ademption. Wherever the donee has a positive legal claim against 
 the donor, existing at the time of and prior to the gift, and the gift is 
 made subsequently with the intention to make the gift a satisfaction 
 of such claim, then the case is one of satisfaction, and is called such 
 by the authorities. For the acceptance of the gift in that case con- 
 stitutes the payment or satisfaction of an absolutely valid claim, and it 
 rests with the donee to determine whether he shall take the gift or 
 enforce his claim; in other words, he is put to his election between 
 the two. But where the prior interest, for which the subsequent gift 
 is substituted, does not constitute a valid irrevocable claim against 
 the donor, but is itself an interest created by the donor by will; in 
 other words, it is a legacy or devise; inasmuch as the revocation of 
 such prior legacy or devise is within the power of the donor, he may 
 revoke it without the consent of the legatee or devisee.* If, therefore, 
 he should subsequently make a gift to this intended legatee, with the 
 express or implied intention that the subsequent gift shall be taken 
 by such legatee in satisfaction of the prior legacy, such intention, 
 coupled with the gift, constitutes in fact a revocation of the prior 
 legacy, and the intention of the donor may be effectuated with or 
 without the consent of the donee. The donee in that case has no 
 right of election between the gifts; the last gift is, by the donor, 
 expressly declared to be a substitute for the former gift, and the con- 
 sent of the donee is not at all necessary to the effectuation of this inten- 
 tion. In this case, the name of "ademption" is employed, for the 
 reason that the prior legacy is by the subsequent gift and the inten- 
 
 ' See preceding notes. ' Earl of Glengall v. Barnard, 1 Keen, 799 
 
 9 Parks V. Parks, 19 Md. 323; Cecil v. Cecil, 794, Lord Langdale, M. B.; Booker v. Allen, 
 
 20 Md. 153; Lawson's Appeal, 11 Harris, (23 Pa. Russ. & My. 270; Lloyd v. Harvey, 2 Euss. & 
 
 St.) 85; Gilliam v. Chancellor, 43 Miss. 437; My. 310, 316; Weall v. Eice, 2 Buss. &. My. 251, 
 
 Langdon v. Astor's Ex'rs, 16 N. Y. 9, reversing 263. 
 
 B. c, 3 Duer, 477; Hine v. Hine, 39 Barb. 607; *In New York the doctrine of ademption 
 
 Jones V. Mason, 5 Rand. 577; Clendenning v. does not apply to devises of realty. It can 
 
 Clymer, 17 Ind. 155; Timberlake v. Parish's only be predicated of legacies of personalty. 
 
 Ex'rs, 5 Dana, 346; Paine ». Parsons, 14 Pick. Burnham v. Comfort, 108 N. Y. 535, citing 
 
 313; Gill's Estate, 1 Pars. Eq. 139: Zelgler v. Langdon «. Astor, 16 N. Y. 34. But a legacy of 
 
 Eckert, 6 Barr. (6 Pa. St.) 13, 18; Sims v. Sims, personalty may be adeemed by a gift of real 
 
 2 Stockt. Ch. 158, 162. 163. estate. Snell v. Tuttle, 44 Hun, 324. 
 
 183 
 
§ 149 EQUITT JUKISPEUDENOE. [CH. IX. 
 
 tion of the donor adeemed or taken out of the will.' The cases for 
 the application of the doctrine of satisfaction and ademption are four 
 in number: First, ademption of legacies by portions or advancements; 
 second, satisfaction of portions by legacies; thi/rd, ademption of lega- 
 cies by subsequent legacies; fourth, satisfaction of debts by legacies. 
 
 § 148. Ademption of legacies by portions and advancements 
 
 These are cases where a testator has inserted in his will a prevision 
 for the benefit of another, and subsequently makes a gift in prcBsenti 
 to such person, either with the declared intention of making thereby 
 an ademption or substitution of the legacy, or under circumstances 
 from which such intention may be presumed. Of course, if there is 
 a declared intention, there can be no question as to the effect of the 
 subsequent gift; the intention unquestionable prevails.' The difficulty 
 arises, whenever the subsequent gift is made without any such 
 declaration of intention, and it is desired to determine whether the 
 presumption of such an intention can arise from the facts of the case. 
 This presumption is controlled by a variety of facts, and the more 
 important of them will be presented in the following paragraphs. 
 
 § 149. Donor in loco parentis. — Whenever the testator or donor 
 stands m loco parentis to the legatee and donee, it is generally held, in 
 the absence of facts indicating a contrary intention, that the donee 
 should take the gift as a substitute for the legacy previously provided 
 for. This presumption rests upon the doctrine that the legacy, as 
 well as the gift in prwsenti, constitute the performance of what is, 
 at least, a moral duty to make provision for the beneficiary; and 
 hence if there ai'e more than one, in respect to whom the donor or 
 testator stands in loco parentis, a recognition of the right of one to 
 receive both the legacy and the gift would operate as an injustice to 
 the other parties, who have similar claims for consideration on the 
 donor. While, however, this is the reason for the doctrine, yet it 
 does not follow that the doctrine only applies when the donor stands 
 in loco parentis to others; it applies in every case where the parental 
 relation exists between the donor and donee, whether there are others 
 bearing the same relation to the donor or not. In all cases, therefore, 
 of a gift by one standing in loco pa/rentis to another, to whom he has 
 previously given a legacy, this gift will be presumed to operate as a 
 satisfaction or ademption of the tegacy.' By a person in loco parentis 
 is meant not only the parents, natural or by adoption, but anyone 
 who has manifested his intention to act as a parent towards the donee, 
 in respect to the bestowal of gifts upon him. Any such person stands 
 
 1 Inre Tusaaud's Estate, L R. 9 Ch. D. 363, 380; » Lord Chlehester v. Coventry, L. E. 2 H. L. 
 Lady Thynne v. Lord Glengall, 2 H. L. Gas. 71, 88, 86, 90, 91; In re Tussaud's Estate, L. H. 
 131 ; Lord Chichester v. Coventry, L. E. 2 H. L. 9 Ch. D. 363, 380; WIgram, V. C, in Suisse v. 
 '71, 82, 86, 90, 91. Lowther, 2 Hare, 424, 433, 435; 2 Eq. Lead. Cas. 
 
 2 Hardingham v. Thomas, 2 Drew. 353 ; Howze 741, and notes (4th Am. ed.) ; Shudall v. Jekyll, 
 ■V. Mallett, 4 Jones Bq. 194; Richards v. Hum- 2 Atk. 518. 
 
 phreys, 15 Pick. 133; Cooper v. Cooper, L. R. 8 
 Ch. 813, 819 n, per Lord Romilly, M. R. 
 
 184 
 
CH. IX.] SATISFACTION, ADEMPTION AND PEKFOKMANCE. § 151 
 
 in loco parentis, although his conduct towards such a person in other 
 respects does not assume a parental form.' But in order that the 
 presumption of satisfaction may arise from the implication, that the 
 donor stands in loco parentis to the donee, the intention to assume 
 such a relation must be proven to exist as a fact; it is not to be 
 inferred from any other relation existing between the donor and the 
 donee; for example, the fact that the donor is the grandparent of the 
 donee. ^ So, also, is there no presumption of an intention to stand m 
 loco parentis in the case of a gift of a father to his illegitimate child.' 
 
 § 150. Subsequent portion or adTancement less than the legacy. 
 — Where the subsequent portion or advancement is made of a smaller 
 amount than the legacy, it is doubtful what would be its effect upon the 
 legacy. According to the earlier English cases, this subsequent provi- 
 sion, when made with the express or presumed intention of satisfaction 
 of the legacy, will constitute a complete satisfaction of the legacy, 
 notwithstanding its amount is smaller than the legacy. * But the earlier 
 English doctrine has been repudiated by the later English authorities 
 and the American cases, wherever the doctrine of satisfaction rests 
 upon the presumption of intention, in the absence of an express decla- 
 ration of such intention.^ 
 
 § 161. Circumstances which affect and do not affect the pre- 
 sumption. — Wherever the donor stands in loco, parentis to the donee, 
 in respect to the matter of donation, the presumption is almost con- 
 clusive. It has been already shown in the preceding paragraph that 
 the difference in amount does not prevent the application of the doc- 
 trine.° It has also been held that it is not even necessary that the 
 provisions should be of the same kind. The difference in the charac- 
 ter of the limitation, or of the interest in the two provisions, will not 
 interfere with the presumption that the latter provision is to be taken 
 in satisfaction of the prior legacy.' So, also, if the legacy is of an 
 
 ' Monck V. Monck, 1 Ball & B. 398; Clenden- Appeal, 3 Casey, 58; Hopwoodti. Hopwood, 7 H. 
 
 nlng V. Clymer, 17 Ind. 175; Gill's Estate, 1 L. Gas. 728; Nevin s. Drysdale, L. R. 4 Eq. 617; 
 
 Pars. Eq. 139; Langdon v. Astor's Ex'rs, 16 N. Langdonj). Astor's Bx'rs, 16 N. T. 9, reveralng 
 
 Y. 9, reversiAg s. c. in 3 Duer, 477; Exparte s. c. in 3 Duer, 477; De Graaf v. Teerpennlng, 
 
 Pye, 18 Ves. 140, 151; Booker v. Allen, 8 Euss. 52 How. Pr. 313; Jones v. Mason, 5 Band. 577; 
 
 & My. 270; Campbell v. Campbell, L. K. 1 Eq. Howze v. Mallett, 4 Jones Eq. 194; Richards v. 
 
 383; Powys v. Mansfield, 3 My. & Cr. 359; 6 Humphreys, 15 Pick. 133, 138; Paine v. Parsons, 
 
 Sim. 544. . 14 Pick. 318; Sims v. Sims, 3 Stockt. Oh. 158; 
 
 2See Langdon v. Astor's Ex'rs, 16 N. Y. 9; 3 Gill's Estate, 1 Pars. Eq. 139; Roberts ». Weath- 
 
 Duer, 477; Clendenning v. Clymer, 17 Ind. 155; ertord, 10 Ala. 72; Timberlake v. Parish's Ex'rs, 
 
 De Graaf v. Teerpennlng, 53 How. Pr. 313; 5 Dana, 346; Clendenning t). Clymer, 17 Ind. 155, 
 
 Ellis V. Ellis, 1 Sch. & Lef. 1; Campbell v. 159; Weston v. Johnson, 48 Ind. 1; Moore v. 
 
 Campbell, L. R. 1 Eq. 383; Powell v. Cleaver, 2 Hilton, 12 Leigh, 1 ; Hauberger V. Root, 5 Barr. 
 
 Bro. Ch. 499, 517; Perry v. Whitehead, 6 Ves. 5 (Pa. St.) 108; Clark v. Jetton, 5 Sneed, 229; 
 
 516; Eoome v. Roome, 3 Atk. 183. . Dugan v. HoUins, 4 Md. Ch. 439. 
 
 'JJciJaWsPye, 18Ves. 140,152; Weatherby v. « See § 150. 
 
 Dixon, 19 Ves. 406. 'Miner v. Atherton's Ex'rs, 11 Casey, 528; 
 
 * Ex parte Pye, 18 Ves. 140, per Lord Eldon. Paine v. Parsons, 14 Pick. 313 ; Hartopp v. Har- 
 
 spymo. Lockyer, 5 My. & Cr. 29; Miner®. topp, 17 Ves. 184, 191; Powys ti. Mansfield, 3 My. 
 
 Atherton's Ex'rs, 11 Casey, 528; Garrett's Ap- &Cr. 359, 374; Lord Durham V. Wharton, 3 Cl. 
 
 peal, 3 Harris, 212; Hine v. Hine, 29 Barb. 507: & Fin. 146; 10 Bligh, s. s., 526; 3 My. & K. 472; 5 
 
 Richards ». Humphreys, 15 Pick. 133; Swoope's Sim. 297. 
 
 185 
 
§ 152 EQUITY JUKISPKUDENCE. [CH. IX. 
 
 uncertain amount or of a contingent character, it is held that the sub- 
 sequent gift must nevertheless be presumed to have been made with 
 the intention to constitute a satisfaction of the legacy.* But there 
 have been earlier cases in which it was held, that where the legacy 
 was of an uncertain amount, and the subsequent gift definite, such gift 
 would not be presumed to have been given in satisfaction of the prior 
 legacy.'' But where a legacy is given to one party with a provision 
 for its transfer to another upon the happening of some contingency, 
 and a subsequent gift is made with the express or presumed intention 
 to satisfy the prior legacy, and the gift is made to the legatee who 
 would have the immediate right to such legacy, such subsequent gift 
 would operate as a satisfaction, not only of the interest of such legatee; 
 but the contingent limitation of such legacy would likewise fall with 
 the ademption of the interest of the immediate legatee. 
 
 If the advancement is made before the execution of the will, there is 
 no presumption of ademption of the legacy;' so, also, the presumption 
 will not be permitted to apply where the donor makes frequent gifts 
 of smaller sums of money to the legatee from time to time; the fre- 
 quency of the gifts and their smaller amount, together are held to 
 rebut the presumption of the intention to make such gifts constitute a 
 satisfaction of the prior legacy.* 
 
 Whether the difference in the character of the legacy and of the 
 subsequent portion shall constitute any obstacle to the application 
 of the doctrine of ademption, is answered differently by the different 
 authorities. According to some of the English authorities, such 
 difference in character will have a material effect and prevent the pre- 
 sumption of an intention to adeem the legacy.^ But the other English 
 authorities and the American cases, do not permit this difference in 
 character to control the question of intention to make the transaction 
 constitute the satisfaction of the prior legacy. ° 
 
 § 152. Gift to husband of legatee. — Where a father has given a 
 legacy to his daughter, and subsequently makes an advancement of a 
 substantial character to the husband of such daughter, the presump- 
 tion that he intended such subsequent gift to the husband to operate 
 
 1 Lady Thynne o. Earl of Glengall, 2 H. L. o. Heap, ZT Beav. 93; Watson v, Watson, 33 
 
 Cas. 131 ; Meinertzhagen v. Walters, L. E. 7 Ch. BeaT.574 ; Nevin «. Drysdale, L. E. 4 Eq. 517. 
 
 770j Schofield V. Heap, Beav. 93; Monteflore v. ' Lord Cottenham, in Pym. v. Lookyer, 5 My. 
 
 Guadalla, 1 De G. E. & J. 93; Beckton V. Beck- & Or. 48; Grave v. Lord Salisbury, 1 Bro. Ch. 
 
 ton, Z! Beav. 99. 435; Splnksv. Eobins, 2 Atk. 491, 493; Compton 
 
 « Watson V. Earl of Lincoln, Ambl. 327; Glen- r,. Sale, 2 P. Wms. 553. 
 
 denning V. Clymer, 17 Ind. 155; Clark v. Jetton, ° Sheffield v. Coventry, 2 Euss. <& My. 317; 
 
 5 Sneed, 289. Phillips v. Phillips, 34 Beav. 19; Miner v. Ather- 
 
 * Langdon ». Astor's Ex'rs, 16 N. Y. 9; 3 Duer, ton's Ex'rs, 11 Casey, 528; Paine i». Parsons, 14 
 
 477; Matter of Crawford, 113 N. Y. 560; Matter Pick. 313; Piatt v. Piatt, 3 Sim. 503; Lord Dnr- 
 
 of Townsend, 5 Dem. 147; Yundt's Appeal, 1 hamu. Wharton, 3 Cl. &Ein. 146; 10Bligh,N. s.» 
 
 Harris, 575; Musselman's Estate, 5 Watts, 9; 526; 3 My. & K. 472; 5 Sim. 297; Gill's Estate, 1 
 
 Kreider v. Boyer, 10 Watts, 54 ; Zeiter v. Zeiter, Pars. Eq. 139 ; Hamberger v. Eoot, 5 Barr. 108 ; 
 
 4 Watts, 212; Upton v. Prince, Cas. temp. Talb. Swoope's Appeal, 3 Casey, 58 ; Jones v. Mason, 
 
 71; Tayler v. Cartwright, L. K. 14 Eq. 167, 176, 5 Band. 5r?; Moore v. Hilton, 12 Leigh, 1; 
 
 per Wickens, V. C. Dugan v. Holllns, 4 Md. Ch. 439; Weston t>. 
 
 «Suisse2i. Lowther, 2 Hare, 424, 434; Schofield Johnson, 48 Ind. 1. 
 
 186 
 
CH. IX.] SATISFACTION, ADEMPTION AND PEEFOKMANCE. § 154 
 
 as a satisfaction pro tanto of the legacy to the daughter, is just as 
 strong as where the subsequent gift is made directly to the legatee; 
 for, unless this presumption is recognized, or some other motive for 
 the gift is pi'oven, no other reason for making the gift to the husband 
 can be presumed, than that it was done in consideration of his love 
 for his daughter, or at her own request. For these reasons, such gifts 
 to the husband are presumed to operate as a satisfaction of the legacy 
 to the daughter.* 
 
 § 153. Effect of a subsequent codicil.— Where, from the facts 
 and circumstances of the case, a subsequent portion or advancement 
 is presumed to have been made with the intention of operating as a 
 substitute for the legacy given to this same party, such intention will 
 prevail, and the legacy will be considered as extinguished by such 
 gift, notwithstanding the fact that the will has been confirmed and 
 republished by express reference thereto in a codicil, which is executed 
 subsequent to the gift. The gift is held, under these circumstances, 
 to operate as an ademption of the legacy, and the will, as confirmed 
 by the codicil, will be read as if there had been an actual erasure of 
 the legacy.^ But if the codicil should contain an express reference 
 to that particular legacy, of such a character as to indicate the testa- 
 tor's understanding that such legacy is still in force, then such a 
 statement or reference would constitute a fact sufficient to rebut the 
 presumption of the testator's intention to make the gift a satisfactiott 
 of the legacy, and the donee in that case could claim the legacy as. 
 well as the gift.* 
 
 § 154. Satisfaction of legacies between strangers. — Where the 
 testator and donor does not stand in loco parentis to the legatee and 
 donee, the fact that a subsequent gift is made to such a legatee is not 
 a circumstance, from which it might be presumed that the gift was 
 intended as a satisfaction of such legacy, even though the legacy was 
 of the same amount as was the gift. The legatee, under those circum- 
 stances, takes both gift and legacy free from the presumption that the 
 donor intended the gift to be in satisfaction of the legacy.* But this 
 presumption, like all other presumptions of the same kind, may be 
 rebutted by extrinsic evidence of the donor's intention to make the 
 gift substitutionary instead of accumulative. ° There is an exception 
 
 iNevin v. Drysdale, L. R. 4 Eq. 517; Llnsay Jones, 4 De G. J. <fc G. 334, S28j Montagues. 
 
 V. Piatt, 9 Fla. 150; Towles v. Eoundtree, 10 Montague, 15 Beav. 565, 571. 
 
 Id. 299; Bridges v. Hutehins, 11 Ired. 68; Bar- ' Hopwood v. Hopwood, 32 Beav. 493; 3 Jur. 
 
 ber V. Taylor, 9 Dana, 84; Wanmaker v. Van n. d., 649; and see In re Aird's Estate, L. E. la 
 
 Buskirk, 1 N. J. Eq. 685; Paine v. Parsons, 14 Ch. Div. 291. 
 
 Pick. 103; McClure v. Evans, 29 Beav. 422, 425; < Parkhurst v. Howell, L. R. 6 Ch. 136; SlmsB. 
 
 Eavenscroft ». Jones, 32 li. 669; 4 De G. J. & Sims, 2 Stockt. Ch. 158; Hine v. Hine, 39 Barb. 
 
 S. 224. 507; Langdon ». Astor's Ex'rs, 16 N. Y. 9; a 
 
 2 Langdon v. Astor's Ex'rs, 16 N. Y. 9 : Hovrze Duer, 477 ; Trimmer ». Bayne, 7 Ves. 516 ; Will- 
 
 ». Mallett, 4JonesEq. 194; Miners. Atherton's iams' Appeal, 23 P. P. Smith, (73 Pa. St.)249i 
 
 Ex'rs, 11 Casey, 528, 537; Powys v. Mansfield, 3 Roberts «. Weatherford, 10 Ala. 72; Jones ®. 
 
 My. & Cr. 359, 376, ■per Lord Cottenham; Paine Mason, 5 Rand. 577. 
 
 ». Parsons, 14Plck.313;Alsop's Appeal, 9 Barr. f Richards «. Humphreys, 15 Pick. 135; Trim- 
 374: Knight-Bruce, L. J., in Eavenscroft v. 
 
 187 
 
§ 155 EQUITY JUKISPKUDENCE. [CH. IX. 
 
 to the general rule here laid down where the legacy is given to a 
 stranger for a particular purpose, and the testator subsequently makes 
 a payment or gift to him expressed to be for the same purpose. In 
 such cases, the payment or advancement will be presumed to have 
 been made with the intention of satisfying the legacy.* 
 
 § 155. Satisfaction of portions or advancements by legacies.— 
 In the preceding paragraphs, the legacy preceded the advancement, 
 and the advancement operated as an ademption or satisfaction of the 
 legacy. In the present case, it is the portion or settlement of prop- 
 erty upon one which is to be satisfied by the specific legacy. The 
 American cases, in which this phase of the doctrine of satisfaction 
 appears, are very few, inasmuch as it is not an American custom for 
 a father to make such settlement; and hence the opportunity for the 
 application of the doctrine in this particular phase is not frequent. 
 A few American cases are given in the notes below. ^ The ordinary 
 form in which this class of cases appears is that of a settlement made 
 by a father upon a daughter on the eve of her marriage. It ordi- 
 narily takes the form of an agreement, to bestow upon her a certain 
 quantity of property, and this agreement remains executory. Then, 
 subsequently, the father makes a provision in the will for the same 
 married daughter, and the question arises, whether this testamentary 
 provision was intended by the father in satisfaction of the prior 
 agreement for a portion or settlement of property upon her, or 
 whether it should be taken by her in addition to such portion. Inas- 
 much as the ordinary case appears where the testator and donor is a 
 parent or one standing in loco parentis to the donee, the presumption 
 is in favor of the legacy or other testamentary provision having been 
 intended to be a substitute for the portion. While it is usual for the 
 subsequent provision to take the form of a legacy, the same oppor- 
 tunity for the application of the doctrine of satisfaction would be 
 presented, if the subsequent provision was, like the first provision, in 
 the nature of a present settlement or portion; but in that case, the 
 presumption in favor of the intention to make the second provision a 
 satisfaction of the first, would not be so strong as when the. subse- 
 quent provision is found in a will.' Inasmuch as the agreement for 
 the portion, which is intended by the testator to be satisfied by the 
 legacy, grants to the beneficiary a positive vested right which the 
 
 mers. Bayne,7Ves.516jDebeze«).Mann,2Bro. » In re Tussaud's Estate, L. E. 9 Oh. D. 363; 
 
 Ch. 166, 519, 521. Cooper v. Cooper, L. R. 8 Ch. 813; Palmer v. 
 
 1 Williams' Appeal, 33 P.F.Smith, <73 Pa. St.) Newell, 20 Beav. 32, 40; 8 De G. M. & G. 74; 
 
 249; Eoberts ». Weatherford, 10 Ala. 72; Jones Hincholiffe ». Hinoholi£fe, 3 Ves.516; Chiches- 
 
 ». Mason, 5 Rand. 577 ; Parkhurst v. Howell, L. ter v. Coventry, L. R. 2 H. L. 71 ; Dawson v. 
 
 E. 6. Ch. 136; Sims v. Sims, 2 Stockt. Ch. 158; Dawson, L. R. 4 Eq. 504; Paget!). Greenfell, L. 
 
 Hines. Hine, 39Barb. 507; Langdon^i, Astor's R. 6 Eq. 7; Duke of Somerset v. Duchess of 
 
 Ex'rs, 16N. Y. 9;3Duer, 477. Somerset, 1 Bro. Ch. 309 n; Campbell V 
 
 ^Guignard v. Mayrant, 4 Desau. 614; Winn's Campbell, L. E. 1 Eq.383; L&dyThynne®. Earl 
 Adm'r v. Wier, 3 B. Mon. 648; Taylors. Lan- of Glengall, 2 H. I,. Cas. 131; 1 Keen, 769: Cop- 
 leer, 3 Murphy, 198; see Gilliam v. Chancellor, ley v. Copley, 1 P. Wms. 147; Moulson v. Moul- 
 43 Miss. 437. son, 1 Bro. Ch. 82. 
 
 188 
 
CH. IX.] SATISFACTION, ADEMPTION AND PERFOEMANCE. § 155 
 
 testator cannot, by his intentional substitution of the legacy, infringe 
 or take away without the consent thereto of such beneficiary, when- 
 ever the case arises in which the intention of the testator to make his 
 testamentary provision operate as a satisfaction of the prior settle- 
 ment is expressed or implied, it is not a case of ademption, but 
 strictly one of satisfaction; that is, the beneficiary is not obliged to 
 accept the testamentary provision in the place of her portion, but 
 may enforce the specific performance of the marriage settlement. 
 She is, therefore, put to her election, to determine which of these 
 provisions she shall accept; she cannot accept both, but she may take 
 whichever of them she prefers.' This case of satisfaction differs from 
 the ordinary cases of election, in the fact that in the present case, the 
 prior provision is an executory agreement for the bestowal of prop- 
 erty, and not an actual transfer of such property. If there had been 
 an actu transfer of the property at the time of marriage, then it 
 would have been a case of election properly so-called, and not one of 
 satisfaction. So strong is the presumption of the intention to make 
 the legacy operate as a satisfaction of the prior portion, that very 
 slight differences in the characteristics of the prior portion and the 
 subsequent legacy will not be permitted to rebut such presumption, 
 and raise by implication the contrary intention to make an addi- 
 tional provision for such daughter. In many of the cases, often great 
 differences in character between the two provisions do not interfere 
 with the application of the presumption; for example, it has been 
 held that the bequest of a residue of property, which, of course, is 
 uncertain in amount, will be presumed to have been intended as a 
 satisfaction of the prior portion agreed to be given to the same bene- 
 ficiary.^ While the general rule applies to these cases, in respect to 
 the presumption of an intention to make the legacy operate as a sat- 
 isfaction of the prior portion — as obtains in the case of a prior legacy 
 followed by a subsequent advancement — ^yet when the question is not 
 one of presumption, but one of fact, as to whether the testator did 
 have such an intention, slighter evidence of such intention is required 
 to rebut the presumption where the portion precedes the legacy and 
 is presumed to be satisfied by such subsequent legacy, than in the 
 case where the legacy precedes the portion and is presumed to be sat- 
 isfied by such portion. The reason for the distinction is to be found 
 in the fact, that where the portion precedes the legacy the substitu- 
 tion of the legacy for the portion requires the consent of the benefi- 
 ciary, and is in violation of the vested right of such beneficiary in 
 respect to the portion. In the latter case, the prior provision by will 
 is revocable by the donor or testator, with or without any further 
 
 ipole?;. Lord Somere, 6 Vee, 309; Hinehcliffe Campbell v. Campbell, L. R. 1 Eq. 383; Lady 
 
 v. Hinehcliffe, 3 Ves. 516; Finch v. Finch, 1 Thynne v. Earl of Glendall, 2 H. L. Gas. 131; 1 
 
 Ves. 534; Thynne v. Earl of Glengall, 2 H. L. Keen, 769; Sparks v. Cator, 3 Ves. 630; Weall v. 
 
 Cas. 131 J Copley u. Copley, 1 P. Wms. 147. Eice, 2 Euss. & My. 251 , 268. 
 
 ^Eussell V. St. Aubyn, L. E. 2 Oh D. 398; 
 
 189 
 
§ 156 EQUITY JURISPKUDENCE. [CH. IX. 
 
 provision for such beneficiary; and hence the substitution of a second 
 provision for the former does not require the consent of the benefi- 
 ■ciary. The presumption of an intention to substitute the subsequent 
 provision for the former, would in the latter case be t rong and in 
 the former case weaker, because it is not so reasonable to suppose 
 that the testator intended to violate the vested rights of the donee in 
 the prior provision, which he cannot do without the consent of such 
 ■donee.' 
 
 § 156. Satisfaction of legacy by subseqaent legacy. — This is a 
 case where the testator after making a provision in his will for 
 another, and, either by the same instrument or by a subsequent will or 
 codicil, he makes an additional pi-ovision for the same person. Where 
 the two provisions appear in different instruments, the presumption of 
 an intention to make the second legacy or testamentary provision a 
 substitute for the first arises whenever the legacies are specific, i. e., 
 ■where the same thing is specifically devised in both cases. Inasmuch 
 as the same thing cannot be disposed of twice, there is a necessary 
 presumption that the second legacy was intended to operate as a sub- 
 stitute for the first legacy.^ But where the testator gives, by differ- 
 ent instraments, two legacies of a general character, i. e. , of a given 
 amount of money or of things, without any words of qualification 
 accompanying the bequest, the second legacy is regarded and treated 
 as additional to the prior legacy, and the testator is not presumed to 
 have intended such subsequent legacy to be a substitute for the prior 
 legacy. The beneficiary, therefore, would be entitled to both gifts, 
 tinder the presumption that the testator intended him to have them 
 both, whether the second legacy is in amount equal or less than the 
 ^rst legacy, or whether the legacies are of a different character. 
 "When this presumption of the intention to giy,e both provisions to 
 such beneficiary is still further strengthened by the fact that there 
 is some variation between the two legacies, either as to the amount, 
 character, or terms of settlement, it becomes almost conclusive.* 
 Where, however, they are expressed to be for the same pur- 
 pose in both instances, and the legacies are for the same amount, the 
 presumption of an intention to make the additional provision for the 
 legatee is overthrown and the contrary presumption established, that 
 
 'Surges V. Mawbey, 10 Ves. 319, 327; Donee St. 597; Cunningliam v. Splokler, 4 Gill, 280; 
 
 ■V. Lady Torrington, 8 My. & K. 600; Lord Chi- Elce v. Boston, &e. Aid Soc, 56 N. H. 191; Pitt 
 
 ■Chester «. Coventry, L. E. 2H. L. 71; Goodfel- v. Pigeon, 1 Ch. Gas. 301; Hurst V. Beade, 5 
 
 low V. Burchett, 2 Vem. 298; Bellasis v. tJth- Madd. 358; Lyon v. ColTille, 1 Coll. 449; Johns- 
 
 -watt, 1 Atk. 486, 428; Grave v. Earl of Sails- tone v. Lord Harrowby, 1 De G. F. & J. 183; 1 
 
 tury, 1 Bro. Ch. 425; Ray v. Stanhope, 2 Ch. Johns. 425; Eadburn v. Jervis, 3 Beav. 450; 
 
 Eep. 159; Dawson v. Dawson, L. E. 4 Eq. 504; Eussell v. Dickson, 4 H. L. Gas. 304; Hooley ». 
 
 Lethbridge v. Thurlow, 15 Beav. 334. Hatton, 1 Bro. Ch. 390 n; Balllie V. Butterfield, 
 
 2 Duke of St. Albans «. Beauclerk, 2 Atk. 638; 1 Cox, 392; Forbes®. Lawrence, 1 Coll. 495. 
 Suisse!). Lowther, 2 Hare, 424, 438, per Wigram, 4Wray v. Field, 2 Euss. 257; 6 Madd. 300; 
 
 V. G. strong v. Ingram, 6 Sim. 197; Atty.-Gen. v. 
 
 8De Witt V. Yates, 10 Johns. 156; Jones v. George, 8 Sim. 138; Bartlett ». Giliard, 2 Euss. 
 
 Creveling's Ex'rs, 4 Harrison, 127; 1 Zabr. 573 149; Spire v. Smith, 1 Beav. 419; Sawrey v. 
 
 <N. J.); Edwards v. Rainier's Ex'rs, 17 Ohio Eumney, 5 De G. & Snl. 698. 
 
 190 
 
CH. IX.J SATISFACTION, ADEMPTION AND PERFORMANCE. § 156 
 
 the second legacy was intended to be a substitute for the first. But 
 it must be observed that there must be a concurrence of the two ele- 
 ments, viz. : the same amount and the same motive, in both legacies, 
 in order that the second legacy may be presumed to be a substitute 
 for the first. If either Of these elements is absent, the presumption is 
 in favor of the second legacy being accumulative instead of substitu- 
 tionary. The presumption, therefore, in favor of the substitutionary 
 character of the second legacy will not arise where the second legacy, 
 although expressed to be for the same motive as the first, is for a 
 different amount than the first. ^ 
 
 It must in this connection, however, be borne in mind that 
 we are dealing so far only with the question of presumption of the 
 intention of the testator. If there be any language employed 
 by the testator in either case, any statement from which it can be 
 inferred that the testator intended the second legacy to be a substitute 
 ior the first, the usual presumption would be overthrown by such 
 evidence of a contrary intention. In this case, the question is not 
 one of presumption, but one of interpretation of the will and the inten- 
 tion of the testator.' 
 
 The same rule would apply when the second instrument expressly 
 refers to the former instrument. The two instruments would have to 
 be compared together, in order to ascertain from the language of the 
 testator his intention in creating a second provision for the same 
 beneficiary. Where, by comparison of the two instruments, it appears 
 that the one instrument is almost an exact copy of the other, with only 
 slight modifications, it would be presumed that the second instrument 
 was intended simply as the revision of the first, and that the testator 
 intended the one instrument, in all its parts, to be a substitute for the 
 former.* So, also, would it be possible to show an intention, to make 
 the second legacy a substitute for the former, by proof of the fact that 
 changes have taken place in the relation of the parties and in their 
 circumstances, which would satisfactorily account for the intention to 
 make the second legacy a substitute for the first.* 
 
 Where the two legacies are given by the same instrument, and they 
 are legacies for the same amount, the presumption is that the testator 
 Intended the second to be a substitute for the former.' This rule is 
 
 1 Hurst i>. Beach, 5 Madd. 352; Lord v. Sut- 133, per Lord Chan. Sugdeu; s. u., 4 H. L. Cas. 
 
 •Cliffe, 2 Sim. 273; Eoch v. Callen, 8 Hare, 531j 293. 
 
 EldgesB. Morrison, 1 Bro. Ch. 388; Maolclnnon 'Tuckey v. Henderson, 33 Beav. 174; Fraser 
 
 ». Peach, 2 Keen, 555. v. Byng, 1 Euss. & My. 90; Campbell u. Lord 
 
 'Blaekler v. Boott, 114 Mass. 24; and see Radnor, 1 Bro. Ch. 271 ; Barclay «. Wainwright, 
 
 Mason t). M. E. Church, 27 N. J. Eq. (12 C. E. 3 Ves. 462; Hemming v. Gurrey, 2 S. & S. 311; 1 
 
 Green) 47; Eioe v. Boston, &c. Aid Soo., 56 N. Bligh, n. s., 479; Coote v. Boyd, 2 Bro. Ch. 521 
 
 H. 191; Lee V. Pain, 4 Hare, 201, 221,233, per (Belt's ed.), per iMid Thurlow; Curiieo. Pye, 
 
 Wigram, V. C; Mackensiet). Mackensie, 2Ru8S. 17 Ves. 462. 
 
 273; Townsend V. Mostyn, 26 Bear. 72; Suisse »Leet). Pain, 4 Hare, 201, 242, 243, 7)«r Wigram, 
 
 ti. Lord Lowther, 2 Hare, 424, 429-438, per V. C. V. C. ; Osborn v. Duke of Leeds, 5 Ves. 369 ; 
 
 Wigram; Allen «. Callow, 3 Ves. 289, per Lord Allen v. Callow, 3 Ves. 289, per Lord Alyanley. 
 
 Alvanley; Eussell t. Dickson, 2 Dr. <fe War. 6jonea ti. Crevellng's Ex'rs, 4 Harrison, 127; 
 
 191 
 
§ 157 EQUITY JUKISPRUDENCE. [CH. IX. 
 
 based upon the reasonable presumption that the second provision is 
 an unintentional repetition of the first. But where the legacies given 
 by the same instrument are of unequal amounts, this presumption of 
 repetition cannot apply, and the second provision is presumed by the 
 testator to be intended by him as an additional provision, and the lega- 
 tee is entitled to both.* Here, as elsewhere, this presumption of 
 intention will also be controlled by direct proof of a contrary inten- 
 tion on the part of the testator. In every case, the actual intent of 
 the testator will prevail, whenever such intent is established by com- 
 petent evidence.^ But so strong is the presumption, that in the case 
 of second legacies by the same instrument, the testator intended the 
 second legacy to be accumulative rather than substitutionary, that the 
 strongest evidence of a contrary intention is required to rebut it.' 
 
 § 157. Satisfaction of debts by legacy. — Legacy by a debtor to 
 his creditor. — ^It is stated, as a general rule, by a leading authority * 
 that if one who is indebted bequeathes to his creditor a sum of money 
 as great as, or greater than, the debt, the presumption of law is that 
 such legacy was intended by the debtor to be taken by the creditor in 
 satisfaction of the debt. It is manifest that this intention of the tes- 
 tator can only be carried out by putting the creditor to his election 
 between the enforcement of the debt and the acceptance of the legacy. 
 Where the intention is manifest that the legacy shall be taken in sat- 
 isfaction of the debt, the creditor cannot claim the legacy in addition 
 to the payment of the debt; and it is, of course, possible for the 
 debtor to insert in the bequest the express declaration of his intention 
 to have the legacy operate as a satisfaction of the debt. In every such 
 case, the intention will be carried out by putting the creditor to his 
 election.* But this presumption is not in favor with the courts, and 
 in many cases it is condemned; and wherever it is still recognized as 
 a binding rule of law, it is enforced only within the strictest limita- 
 tions. Wherever it is possible for the courts to find a ground, in the 
 facts of the case, for the contrary presumption, that the debtor 
 intended a gift instead of making a provision for payment of the debt, 
 the courts will avail themselves of such circumstances, it matters not 
 
 1 Zabr. 573; Edwards v. Eainier's Ex'rs, 17 6 Crouch v. Davis, 23 Gratt. 62; Gilliam o. 
 
 Ohio St. 597; Greenwood d. Greenword, 1 Bro. Chancellor, 43 Miss. 437; Gilliam V. Brown, 
 
 Ch. 31 n; Barlyp. Middleton, 14 Beav. 453; De 43 Miss. 641j Powleri). Fowler, 3 P. Wms. 353; 
 
 Witt V. Yates, 10 Johns. 156; Garth v. Meyrlck, Bichardson «. Greese, 3 Atk. 68; Parker v. Co- 
 
 1 Bro. Ch. 30; Manning ».Thesiger,3 My.ife K.29. bum, 10 Allen, 82; Allen ». Merwin, 121 Mass. 
 
 iBaylee v. Quinn, 2 Dr. & War. 116; Adnam 378; Eaton v. Benton, 3 Hill, 576; Harris v. 
 
 ». Cole, 6 Bear. 353; Windham v. Windham, Rhode Island, &c. Co., 10 R. I. 313; Ward ti.Cof- 
 
 Rep. temp. Finch, 267; Brennan v. Moran, 6Ir. field, 1 Dev. Eq. 108; Byrne v. Byrne, 3 Serg. & 
 
 Ch. 126; DeWitt v. Yates, lOJohns. 156; Jones R. 54; Wesco's Appeal, 52 Pa. St.(2P. F.Smith) 
 
 e.Creveling'sEx'rs, 4 Harrison, 127; 1 Zabr. 573. 195; Horner's Ex'r V. MoGaughy, 63 Pa. St. (12 
 
 SRussellii. DlokBon,4H. L. Gas. 293; Lobley P. F. Smith) 189; Van Riper v. Van Riper, \ 
 
 V. Stocks, 19 Beav. 392. Green Ch. 1; Strong v. Williams, 12 Mass. 389; 
 
 * Lee V. Pain, 4 Hare, 201, 218, 236, per Wigram, Bensusan v. Nehemias, 4 De G, & Sm. 381 ; Shad- 
 V. C. ; Russell ». Dickson, 2 Dr. & War. 137, per bolt v. Vanderplank, 29 Beav. 405; Dey u. Will- 
 Lord Chan. Sugden. lams, 2 Dev. & Bat. Eq. 66; Perry v. Maxwell, 
 
 * Talbot V. Duke of Shrewsbury, Preo. in Ch. 2 Dev. Eq. 488, 499. 
 394; 2 Eq. Lead. Cos. 751 (4th Am. ed.). 
 
 192 
 
CH. IX.] SATISFACTION, ADEMPTION AND PERFORMANCE. § 168 
 
 how slight the circumstances may be, or how insufficient they would 
 be considered in other cases falling under the doctrine of satisfaction.^ 
 § 158. What prevents the presumption of satisfaction of debts 
 by legacies. — As a general proposition, it may be stated that any 
 variance in character, conditions, or terms, between the debt and 
 the legacy, will operate to prevent the presumption of an intention to 
 make the legacy a satisfaction of the debt. Thus, for example, the 
 presumption will be prevented from applying, where the debt is 
 greater than the legacy.^ There is also no presumption of satisfaction 
 where the legacy is payable at a different time from the debt;" or 
 where the debt was contracted subsequent to the execution of the 
 will.* It has also been held that the presumption of satisfaction is 
 repudiated where there is an express provision in the will to pay debts 
 and legacies, or simply to pay debts. ^ In these cases, as in every 
 other case of the application of the doctrine of satisfaction, the pre- 
 sumption of satisfaction only exists or arises, in the absence of express 
 proof of intention. The declared and proved intention, that the 
 legacy shall constitute a satisfaction of the debt, will unquestionably 
 prevail over any presumption which might otherwise arise or be 
 inferred from the facts of the case. There are two principal ways, 
 in which this express intention may be manifested: One case is where 
 the testator declares in his will that the legacy shall constitute a 
 settlement of the debt.° In the second case, the intention is mani- 
 fested by an agreement, made when the debt was contracted, that 
 that debt shall be paid, or its payment provided for, by a testamentary 
 provision. Where the intention is manifest by such an agreement, cod .- 
 temporaneous with the contraction of the debt, not only must the legar jy 
 be accepted by the creditor in satisfaction of the debt, but that is t^he 
 only way in which he could enforce it. In that case, he is not permi tied 
 to exercise a right of election; he must accept the legacy or nothing.* 
 
 iHaynes't). Mico, 1 Bro. Oh. 130; Cramer's ». Judson, 2 Atk. 300,332; Charlton ». West, 30 
 
 Case, 2 Salt. 508; Mathews v. Mathews, 2 Ves. Beav. 124, 127j Byrne v. Byrne, 3 Serg. & E. 54. 
 
 Sen. 636; Stocken v. Stocken, 4 Sim. 152; Lady * Thomas b. Bennet, 2 P. Wms. 343; Crau- 
 
 Thynnet). Earl of Glengall, 2 H. L. Gas. 153; mer's Case, 2 SaUc. 508; Plunkett v. Lewis, 3 
 
 Strong V. Williams, 12 Mass. 389; Eaton v. Ben- Hare, 330; Strong ». Williams, 12 Mass. 389; 
 
 ton, 2 Hill, 576 ; Van Riper v. Van Eiper, 1 Green Homer V. McGaughy, 62 Pa. St. (12 P. F. Sm.) 
 
 Ch. 1 ; Byrne v. Byrne, 3 Serg. & R. 54 ; Homer 189. 
 
 V. McGaughy, 62 Pa. St. (12 P. P. Sm.) 191; eeioyer v. Hartoup, 34 Beav. 74; Lord Ohl- 
 
 Smlthti. Smith, 1 Allen, 129; Edelen v. Dent, 3 Chester «. Coventry, L. R. 2 H. L. 71; Dawson 
 
 Gill* J. 185; Gilliam v. Brown, 43 Miss. 641; v. Dawson, L. R. 4 Eq. 504; Richardson v. 
 
 Crouch V. Davis, 23 Gratt. 62; Dey v. Williams, Greese, 3 Atk. 64, 68; Hales v. Darell, 3 Beav. 
 
 2 Dev. & Bat. Eq. 66; Perry v. Maxwell, 3 Dev. 324, 332j JeflFertes v. Mitchell, 20 Beav. 15; Eowe 
 
 Eq. 488, 499. ■». Bowe, 2 De G. & Sm. 297, 298; Strong v. Will- 
 
 2Eaton V. Benton, 2 Hill, 576; Strong v. Will- lams, 12 Mass. 389, per Putnam, J. 
 
 lams, 12 Mass. 389; Cranmer'sCa8e,2Salk. 508; « Clark ». Bogardus, 12 Wend. 67; Van Riper 
 
 Atkinson v. Webb, 2 Vem. 478; Eastwood *. v. Van Riper, 1 Green Ch. 1; Morris v. Morris, 
 
 Vlncke, 2 P. Wms. 613, 617. 3 Houst. (Del.) 568; Williams V. Crary, 5 Cow. 
 
 8 Clark V. Sewell, 3 Atk. 96; Cole v. Willard, 368; 8 Cow. 246; 4 Wend. 443; see, also, Eaton 
 
 25 Beav. 568; Eaton V. Benton, 2 Hill, 576; Van v. Benton, 2 Hill, 576. 
 
 Eiper «. VanBiper, 1 Green's Ch. 1; Edelen ». 'Eaton ». Benton, 2 Hill, 576, 578; Williams 
 
 Dent, S Gill & J. 185; Perry v. Maxwell, 2 Dev. ■». Crary, 4. Wend. 443, 450; Patterson V. Patter- 
 
 Eq.488; Haynes». Mico.lBro.Ch, 129; Jeacock son, 13 Johns. 379; Jaoobsoui). Legrange, 3 Id. 
 
 ■V. Falkener, 1 Bro. Ch. 195; 1 Cox, 37; Nichols 199; Morris v. Morris, 3 Houst. (Del.) 568. 
 
 13 
 
 193 
 
§ 161 EQUITY JURISPRUDENCE. [CH. IX. 
 
 § 159. Debt owing to a child or wife. — ^According to the authori- 
 ties, it seems that no distinction is made, in respect to the strength 
 of the presumption of the intention to make the legacy a satisfaction 
 of the debt, between the cases in which no other relation but that of 
 debtor and creditor exists between the parties, and those in which the 
 debtor and creditor sustain the relationship to each other, respectively, 
 of father and child, and husband and wife. Where the creditor is a 
 wife or child, the presumption that the debt is to be satisfied by 
 the legacy is overthrown by the same circumstances which we have 
 seen tend to overthrow such presumption in the ordinary case of 
 debtor and creditor. That is, at least, the case where the subsequent 
 provision for such wife or child is made by will.' If the subsequent 
 provision is made by an advancement, instead of by will, it is held 
 that such advancement is taken under a stronger presumption of an 
 intention to make it a satisfaction of the debt, than in the case where 
 the subsequent provision appears in a will. * 
 
 § 160. Legacy by a creditor to his debtor. — Where the legacy 
 is made by the creditor to his debtor, instead of by the debtor to the 
 creditor, there is no room, of course, for the application of the doc- 
 trine of satisfaction. The only connection between the debt and the 
 legacy, which may be inferred from the relation existing between the 
 parties, is that the executor may refuse to pay such legacy except by 
 way of ofiset to the debt; and ordinarily an executor may do this in 
 a court of equity, independently of any express directions of the tes- 
 tator.' But the will may contain a declaration, accompanying the 
 testamentary provision, expressly making the payment of the debt a 
 special charge upon the legacy; or there may be express declarations 
 accompanying the legacy, or contained in the will, releasing the debt, 
 as well as making the testamentary provision.* Wherever such is the 
 case, the satisfaction of the debt by the enforcement of the legacy 
 must also be taken subject to the claims of the creditors of the testa- 
 tor; in other words, the gift by will of the debt can only be carried 
 out or enforced like any other legacy, viz. : subject to the rights of 
 the creditors of the testator.^ 
 
 § 161. Equitable doctrine of performance distinguished from 
 satisfaction. — ^As has already been made to appear, the equitable doo- 
 
 iTolson*. Collins, 4 Ves. 482; Fairer W.Park, Hudson, [27 N. J. Eq. (12 C. E. Green) 135; 
 
 L. E. 3 Ch. D. 309; Cole v. Willard, 35 Beav. 568; Blackler v. Boot, 114 Mass. 24; Huston v. Hus- 
 
 Gilllam v. Chancellor, 43 Miss. 437; Bryant v. ton, 37 Iowa, 668; Zelgler u. Eckert, 6 Barr. (6 
 
 Hunter.S Wash. C. C. 48; Guignard v. Mayrant, Pa. St.) 13, 18; W;imot v. Woodhouse, 4 Bro. 
 
 4 Desau. 614; Bryan v. Hunter, 3 Wash. C. C. Ch. 227; Clark u. Bogardus, 2 Edw. Ch.387; s. c, 
 
 48; Kelly v. Kelly's Ex'rs, 6Rand. 176. 12 Wend. 67; Stagg v. Beckman, 2 Edw. Ch. 89. 
 
 2 Wood V. Briant, 2 Atk. 521 ; Sneed » . Brad- * Weskett v . Hahy, 2 Bro. P. 0. 386 ; Bym v. 
 
 ford, 1 Ves. Sen. 501; Chaves. Farrant, 18 Ves. Godfrey, 4 Ves. 6; Kidder v. Kidder, 9 Casey, 
 
 8; Hardlngham!). Thomas, 2 Drew. 353; Hayes 268; Pole v. Lord Somers, 6 Ves. 309, 323; Zeig- 
 
 ». Garvey,2 Jo. & Lat. 268; Plunfcettu. Lewis, 3 lerji. Eckert, 6 Barr. (6Pa. St.) 13, 18. 
 
 Hare, 316, per Wigram, V. C. ; see, also. Mack- ^ Clark v. Bogardus, 2 Edw. Ch. 387 ; 12 Wend, 
 
 idowell V. Halfpenny, 2 Vern. 484. 67; Stagg v. Beekman, 2 Edw. Ch. 89; Hobart v. 
 
 » Hayes «. Hayes, 2 Del. Ch. 191; Brokaw u. Stone, 10 Pick. 215. 
 
 194 
 
CH. IX.] SATISFACTION, ADEMPTION AND PEKFOEMANCE. § 161 
 
 trine of satisfaction involves the taking of a subsequent provision as a 
 substitute for the obligation or provision previously made for the same 
 person. The second provision is, therefore, not performance of the 
 previous obligation, but something that takes the place thereof. 
 Where, however, the second provision is not a substitute, but is in 
 iact the transfer of the identical thing which the donor was obliged 
 to give under the previous obligation, it is a case of performance; 
 and the equitable doctrine of performance provides, that when- 
 «ver one has definitely bound himself to do something by which 
 a, particular benefit, or proprietary interest is to be acquired by 
 another in a specified manner; and subsequently, or perhaps in a 
 slightly different manner, he bestows the same proprietary interest 
 upon the person for whom it was intended, or permits the same inter- 
 est to descend upon and vest in such a person by operation of law, so 
 that the person for whom the provision was intended is substantially 
 in the same position, as if there had been a performance of the obliga- 
 tion, equity treats this particular result as the equivalent of the per- 
 :f ormance of the contract or obligation, and will consider the obliga- 
 tion or contract as fully performed and hence discharged.* Two cases 
 may arise under this doctrine: One is where a person covenants to 
 purchase and settle lands upon another, or simply to settle lands upon 
 another, and he purchases the lands or owns them when he dies; but 
 instead of settling them upon the person for whom provision is made 
 by the previous agreement or contract, he dies intestate, and the 
 property devolves by descent upon the covenantee as heir-at-law; that 
 is, the covenantee as heir-at-law of the covenantor becomes vested of 
 lands to the amount or extent, which the ancestor had covenanted to 
 settle upon him. In such a case, the court of equity would presume 
 that the covenant had been fully performed, so that it could not be 
 enforced against the estate, while such covenantee in his character as 
 heir claims his share of the estate in addition to the lands called for 
 in the covenant. This is only another application of the equitable 
 presumption against the intention of bestowing double benefits upon 
 one, to the detriment of another who might be interested in the same 
 ■estate.^ If the lands which descend to the covenantee are less in value 
 than the lands to be purchased under the covenant, it would only oper- 
 ate as a performance ^rt> tcmto.^ There are several forms which the 
 ■covenant might have, and in which the doctrine will apply: One is, 
 where the person at the time owns no real estate, but covenants 
 to purchase and settle the lands upon another.* Secondly, where 
 
 1 Goldsmith «. Goldsmith, 1 Sw. 211; Blandy Carlisle, 3 P. Wms. 211; Tooke v. Hastings, 2 
 
 V. Wldmore, 1 P. Wms. 324; 2 Vem. 709; 2 Bq. Vem. 97. 
 
 Lead. Gas. 833 (4th Am. ed.) ; Deacon v. Smith, ' Sowden v. Sowden, 1 Bro. Oh. 582 ; 3 P. Wms. 
 
 3 Atk. 323; Snowden v. Snowden, 1 Bro. Ch.582; 228 n; Lechmere v. Earl of Carlisle, 3P. Wms. 
 
 3P. Wms. 228n. 211. 
 
 * Sowden «. Sowden, 1 Bro. Ch. 582 ; Mathias * Deacon v. Smith, 3 Atk. 323 ; and see Welles- 
 
 «. Mathias, 3 Sm. & GiflF. 552; Mornington V. ley ulWVellesIey, 4 My. & Or. 561 ; Momington I). 
 
 £eane, 2 De G. & J. 292; Lechmere v. Earl of Keane, 2 De G. <& J. 292. 
 
 195 
 
§ 161 - EQUITY JUKISPEUDENCE. [CH. IX. 
 
 he merely covenants to settle lands. ^ Third, where he covenants 
 to pay a sum of money ovei- to trustees to be invested in lands.* 
 In the third case, the descent of lands to the covenantee or 
 beneficiary to the value, or less than the value, of the land called for 
 by the covenant, would be treated as a performance of such covenant, 
 in whole or pro ta/nto, as the case may be.' But in order that the 
 covenant might be presumed to have been performed by the descent 
 of lands to the covenantee as heir, the lands acquired by descent must 
 be of the same nature or estate, as those which are called for by the 
 contract.* So, also, if the covenant is to purchase lands and settle 
 them upon the covenantee, it cannot be performed by any transfer of 
 lands owned by the covenantor at the time when he makes the cove- 
 nant; and hence the descent of such lands to the covenantee would not 
 be any presumptive performance of the covenant.^ But the fact, that 
 the purchase of the lands was made without the consent of trustees, 
 in disregard of the provision of the contract to that effect, will not be 
 considered a material obstacle to the application of the equitable doc- 
 trine of performance. 
 
 The second case is where one covenants to bequeath property to 
 another of a certain amount or kind and the covenantor dies intes- 
 tate and leaving the property to be divided among the next of kin, 
 one of whom is the covenantee for whom he had covenanted to make 
 provision in his will. Will the covenant to bequeath property be pre- 
 sumed to.be performed to the extent that such covenantee acquires prop- 
 erty by inheritance from the covenantor? ° Where the covenant is by 
 its terms to be performed within a certain specified time, the equitable 
 doctrine of performance will not apply if the covenantor survives the 
 time of performance; for as soon as the time of performance is expired, 
 the contract becomes broken; or, in other words, a positive debt 
 becomes due from the covenantor to the covenantee, which he can en- 
 force by an appropriate action. And if a subsequent provision should 
 be made for such covenantee, it would not be a case of performance, but 
 a case of satisfaction. But since the doctrine of satisfaction does not 
 apply to the distributive share which the covenantee might acquire, 
 as next of kin or heir of the covenantor, the covenantee would in 
 such a case, as heir to such covenantor, claim his distributive share in 
 the estate and at the same time enforce the covenant against the 
 same estate.' If, however, the covenantee be provided subsequently 
 
 1 Tooke r. Hastings, S Vem. 97; Powdrelli;. Lechmere v. Earl of Cailisle, 3 P. Wms. 211. 
 
 Jones, 3 Sm. & Glff. 336. OLord Eldon, in Grathshore V. Chalie, 10 Ves. 
 
 "Sowdeni). Sowden, lBro.Cli;682;3P.Wms. 1; Thaoker ». Key, L R. 8 Eq.408; Goldsmid 
 
 228 n. V. Goldsmid, 1 Sw. 211; Blandy v. Widmore, 
 
 3Wilson«.Piggott, 2 Ves. 351,356;! Watson's 1 P. Wms. 324; 2 Vem. 209; 2 Eq. Lead. Gas. 
 
 Compend. of Eq., p. 609, 834, 842 (4tli Am. ed.). 
 
 * Pinnell «. Hallett, AmM. 106; Atty.-Gen. •!). 'Lang». Lang, 8 Sim. 451; and see Grath- 
 
 Whorvfood, 1 Ves. Sen. 534, 540;; Deacon v. shore ». Chalie, 10 Ves. 1, l%per Lord Eldon;. 
 
 Smith, 3 Atk. 323. Couch v. Stratton, 4 Ves. 391; Salisbury v. 
 
 'SeeWarde*. Warde, 16 Beav. 103; I«tch- Salisbury, 6 Hare, 526; Young ». Young, 5 L 
 
 mere v. Letchmere, Gas. temp. Talb. 80; Eep. Eq. 615. 
 
 196 
 
•CH. IX.] SATISFACTION, ADEMPTION AND PERFORMANCE. § 161 
 
 with a legacy, as an after-thought and not in performance of a con- 
 temporaneous agreement, while the equitable doctrine of perform- 
 ance will not apply, it is a case for the application of the doctrine of 
 satisfaction.* In this connection it must be borne in mind, that the 
 covenant, which is presumed to have been performed by the subse- 
 quent devolution of property of the same kind upon the covenantee 
 as the covenantor's heir, is not a covenant for the purchase and settle- 
 ment of a specific piece of property upon the covenantee, but of lands 
 in general of a certain kind or character. Hence the covenantee 
 <5aimot claim to have, under the covenant, any equitable lien upon the 
 land, in the event of a purchase by the covenantor, as he would 
 be able to do if the covenant had provided for the purchase of a speci- 
 fied parcel or tract ©f land, and the same tract had been purchased by 
 such covenantor.^ 
 
 1 Note of Mr. Cox to Blandy v. Widmore, 1 ' Boundell v. Breary, 2 Vem. 482; see Pincli 
 
 P. Wms. 324: and see remarks in Goldsml^ v. v. Anthony, 8 Allen, 536; Mornington v. Keane, 
 Goldsmid, 1 Sw. 211, 220, 221; Ante, Section 158 2 De G. <fc J. 282; Deacon ». Smith, 3 Atk. 323. 
 on Satisfaction ; see Haines v. Mico, 1 Bro. Ch. 
 129; Devese v. Poutet, 1 Cox, 188. 
 
 197 
 
CHAPTER X. 
 
 EQUITABLE DOCTRINE OF CONVERSION AND RECONVERSION. 
 
 Sbction 
 Definition or general explanation . . 161 
 What words are sufficient to produce con- 
 version 
 
 Conrersion in a contract of sale 
 
 Time from wMch conversion takes place . 
 
 Effect of conversion 
 
 Conversion as between life tenant and 
 remainder-man . . . , 
 
 165 
 166 
 167 
 168 
 
 169 
 
 Sectios 
 Conversion by paramount authority.— In- 
 voluntary sales under statute and by 
 
 order of court 17ft 
 
 Eeoonverslon defined 171 
 
 Double conversion 172 
 
 Resulting trust upop failure of the purpose 
 
 of conversion ITS 
 
 Conversion by deed 174 
 
 § 164. Definition or general explanation. — ^The general meaning 
 of the equitable maxim, "Equity regards as done that which ought ta 
 be done," has already been fully explained in a preceding chapter;^ 
 and as was stated there, the maxim finds its most important applica- 
 tion in the case of conversion. Conversion of property may be defined 
 to be that change in the character and characteristics of property in 
 the contemplation of law, which follows a direction, in a deed or will, 
 to change the character of property given by such an instrument, 
 from real into personal property, or vice versa. Under the operatioa 
 of the equitable maxim just referred to, equity will treat the property, 
 so directed to be sold or converted into property of another kind, as 
 having been actually converted; and will determine the rights of 
 parties in and to the property so directed to be converted, according 
 to their claims on the property when actually converted. In other 
 words, if the property is land, and the will or deed which transfers it 
 directs the land to be sold, and the proceeds of sale to be divided 
 among certain beneficiaries, equity wiU treat the interest of all the 
 parties in the property subject to this provision, and determine their 
 rights in detail, by treating the property as personal property. So, 
 on the other hand, if a sum of money is directed to be invested itt 
 lands for the benefit of certain persons, the rights of the beneficiary, 
 under that provision, or of persons claiming through such beneficiary, 
 will be determined by treating the property, so disposed of, as real 
 estate, and not as personal. This is a doctrine of purely equitable 
 origin, and wherever the courts of equity are still retained in their 
 separate autonomy, the courts of equity alone have jurisdiction in the 
 enforcement of the rights of parties under this doctrine." 
 
 iChap. n, §20. 
 
 «Dodge«. Williams, 46 Wis. 70j Gould v. 
 •Taylor Orphan Asylum, 46 Wis. 106; Janes o. 
 Throckmorton, 57 Cal. 368; Hilton v. Hilton, 2 
 MacArthur, 70j Lorrillard v. Coster, 5 Paige, 
 
 198 
 
 172, 218, Chancellor Walworth; Succession of 
 Gamble, 23 La. Ann. 0; Collins v. Champ's 
 Heirs, 15 B. Mon. 118j Green v. Johnson, 4 
 Bush, 164, 167; Hocker v. Gentry, 3 Mete. (Ky.> 
 463; Thomas v. Wood, 1 Md. Ch. HKiExparU 
 
CH. X.] CONVEESION AND RECONVERSION. § 165 
 
 § 165. What words are sufficient to produce conversion. — It is 
 
 not necessary, in order that the equitable conversion of property may 
 take place, that the donor shall manifest his intention to have the con- 
 version take place; ^ but it is necessary that he should direct the actual 
 conversion of the property from one character to another. If the act 
 of converting the property is not an imperative duty of the trustees or 
 executors, and such conversion is left to the discretion of such trustees 
 or executors, then no equitable conversion will take place, and the 
 rights of parties in and to the property, prior to the actual conversion 
 of the property, will be treated as if there was no provision for conver- 
 sion; for llie doctrine of equitable conversion applies only when the 
 conversion of the property is imposed upon the trustees or executors 
 as an imperative duty and not as a discretionary authority. ^ But when 
 one speaks here of a discretion, as to the conversion of the property, 
 operating to prevent the application of the doctrine of equitable con- 
 version, reference is made only to cases of absolute discretion as to 
 whether the conversion shaU be made at all. If the discretion only 
 applies to the time and the manner of making the conversion, but the 
 conversion of the property at some time and in some reasonable man- 
 ner is imposed upon the trustee as an imperative duty, then the doc- 
 trine of equitable conversion will apply.' Where money is directed to 
 be laid out in land, or lands sold and the proceeds of sale required to 
 be invested in personal property, with the consent or request of the 
 beneficiary, then the equitable doctrine of conversion does not apply 
 imtil the consent or request has been made.* In all of these cases, 
 where the conversion of the property is left to the absolute discretion 
 of the trustee or other party, whether the conversion should take place 
 or not, as soon as the discretion has been exercised, as by the sale of 
 the property, then the equitable doctrine of conversion would apply 
 
 kcBee, 63 N. C. 332; Tayloe v. Johnson, N. C. ^ chew v. Nioklin, 45 Pa. St. 84; Anewalt's 
 
 381 ; Masterson v. PuUen, 62 Ala. 145; High v. Appeal, 42 Pa. St. 414; Bleight v. Man. & Mech. 
 
 Worley, 33 Ala. 199; Scudders' Ex'rs v. Van Bank, 10 Barr. 131; Cook's Bx'r v. Cook's 
 
 Aisdale, 3 Beaal. 109;'Orriek v. Boehm, 49 Md. Adm'r, 20 N. J. Eq. 375; Pratt jj. Toliaferro, 3 
 
 72; Lynn v. Gephart, 27 Md. 547, 563; Holland Leigh, 419; Hilton v. Hilton, 2 MacArthur, 70; 
 
 c.Cruft, 3 Gray, 162, 180; Cook's Ex'rs ». Cook's Montgomery ». Milliken, Sm. & Mar. Ch. 495; 
 
 Adm'r, 20 N. J. Eq. 375 ; Smith v. Bayright, 34 Dodge v . Williams, 46 Wis . 70 ; Gould v . Taylor 
 
 N J. Eq. 424; Prentice v. Janssen, 79 N.Y. 478; Orphan Asylum, 46 Wis. 106; Janes v. Throok- 
 
 Power V. Cassidy, N. T. 602; Van Vechten v. morton, 57 Cal. 368; Jones v. Caldwell, 97 Pa. 
 
 Keator, 63 N. Y. 52; Moncrlef «. Boss, 50 N. Y. St. 42; McClure's Appeal, 73 Pa. St. 414; MU- 
 
 431; Brolasky «. Gally's Ex'rs, 51 Barb. 509; ler's and Bowman's Appeal, 60 Pa. St. 404; Es- 
 
 Estate of Dobson, 11 Phila. 81 ; Estate of Mc- tate of Dobson, 11 Phila. 81 ; Hood v. Hood, 85. 
 
 Avoy, 12 Phila. 83; Parkinson's Appeal, 32 Pa. N. Y. 561; White «. Howard, 46 N. Y. 144; Law~ 
 
 St. 455; Bur v. Sim, 1 Whart. 252; White v. How- rence v. Elliott, 3 Eedf. 235; Dominiok v. Mloh- 
 
 ard, 46 N. Y. 144; Hood v. Hood, 85 N. Y. 561 ; ael, 4 Sandf. 374; Peterson's Appeal, 88 Pa. St. 
 
 Delaney D. McCormack, 8^N. Y. 174; Pleasant's 397; Prentice v. Janssen, 79 N. Y. 478; Power ».. 
 
 Appeal, 77 Pa. St. 356; Eby's Appeal, 84 Pa. St. Cassidy, N. Y. 602; Fisher v. Banta, 66 N. Y.. 
 
 241 ; McClure's Appeal, 72 Pa. St. 414; Jones v. 468; Moncrief v. Ross, 50 N. Y. 431. 
 
 Caldwell, 97 Pa. St. 42; Page's Estate, 75 Pa. St. ' Tazewell v. Smith's Adm'r, 1 Rand. 313; but 
 
 87- Wells V. Wells, 88 N. Y. 323; Lawrence v. fee Chrlstler's Ex'r v. Meddis, 6 B. Hon. 35s 
 
 Elliott, 3 Redf. 235; Kloek v. Buell, 56 Barb. Stagg v. Jackson, 1 N. Y. 206. 
 
 398; Arnold v. Gilbert. 5 Barb. 190. * Lord v. Wrightwlck, 4 De G. M. & G. 803; 
 
 1 Lechmere v. Earl of Carlisle, 3 P. Wms. 211, Sykes v. Sheard, 33 Beav. 114; Davles v. Good- 
 
 215* Scudamore v. Scudamore, Prec. Chan. 543. hew, 6 Sim. 585. 
 
 199 
 
§ 166 EQUITY jueispkudence: [ch. X. 
 
 for the purpose of providing that the .rights of -all parties in and to 
 such property shall be determined by the character and kind of prop- 
 erty into which it has been converted; that is, from the time when the 
 discretion has been exercised, but not before. "^ 
 
 It is a doubtful question, how far the imperative character of the 
 direction for conversion should be proven by express statements of the 
 vsdll. It is believed that the direct expression of an intention to make 
 the conversion of the property an imperative duty is not necessary, 
 where the context of the will and the nature of the provision for the 
 ultimate disposition of the property are such that they would not be 
 consistent with any other intention than that of an absolute direction 
 for the conversion of the property. In all such cases, the imperg,tive 
 duty of making the conversion will be necessarily implied.^ The more 
 common cases of this kind are, where the power to sell and reinvest is 
 given without any words of command, and on the other hand, without 
 words of discretion. In such a case, the intention of the testator 
 will be. largely determined by the character of the provisions of the 
 will in which he directs what to-do with the property when converted 
 or changed. If this provision of the will would not be reasonable or 
 effective, unless the exercise of the power to convert the property 
 is imposed as an imperative duty, then such an intention will be 
 implied and overturn the presumption that otherwise might prevail, 
 that the power to convert was a discretionary, and not an imperative 
 duty.' 
 
 § 166. ConTersion in a contract of sale. — ^Not only wiU the equi- 
 table doctrine of conversion apply to cases of gifts, whether by deed or 
 by will, but Mkevidse it applies to contracts for the sale of real prop- 
 erty. Where lands are sold, during the time that the sale remains 
 executory, i. e., before the formal transfer of the legal title to the 
 property, the vendor is treated as the trustee for the fund in respect 
 to the land, and the vendee as the trustee for the vendor in respect to 
 the purchase money. Under the doctrine of equitable conversion, the 
 vendee is treated as the real owner of the land, and the vendor as the 
 real owner of the purchase money. The interest, therefore, of the 
 vendee in the transaction will be treated as real estate, and the interest 
 of the vendor as personal property, and the rights of the parties claim- 
 ing under them will be determined accordingly.* But to work a con- 
 version, the contract must be in every respect legal and binding upon 
 
 ' Lawrence v. Elliott, 3 Eedf . 235j Van Veoh- B24 ; Power v. Cassldy, 79 N. Y. 608; Simpson v 
 
 ten ». Keator, 63 N. Y. 58 ; Bourne u. Bourne, 8 Ash worth, 6 Beav. 412; Cowley ». Hartstonge, 
 
 Hare, 35; In re Ibbitson's Estate, L. E. 7 Bq. 1 Dow. 361 ; Cookson v. Cookson, 13 CL & Fin. 
 
 286; Eich v. Whitfield, L. E. 8 Eq. 583. 121; Hereford v. EaTenhiU, 5 Befiv. 51. 
 
 2 Wurts' Ex'rs W.Page, 19 N.J. Eq. 385; Page's < Green v. Smith, 1 Atk. 572- PoUexfer o. 
 
 Estate, 75 Pa. St. 87; Dodgew. Williams, 46 Wis. Moore, 3 Atk. 272; Atcherley v. Vernon 10 Md. 
 
 70; Goulds. Taylor Orphan Asylum, 46 Wis. 106; 518; Masterson r. PuUen, 68 Ala. 145- seeTie- 
 
 Mower».Orr,7Hare,473;Fisher«.Banta,66N. deman, Eeal Prop., § 498, and posi, S 309 fora 
 
 Y. 468; Dodge o. Pond, 83 N. Y. 69; Stagg u. discussion of implied trusts, arising out of 
 
 Jackson, 1 N. Y. 206. executory contracts of sale. 
 
 ' De Beauvoir v. De Beauvolr, 3 H. L . Gas. 
 
 200 
 
•CH. X.J CONVERSION . AND EECONVEKSION. § 167 
 
 the parties, and one that the court of equity will specifically enforce.^ 
 3ut, on the other hand, the doctrine of conversion will apply, notwith- 
 standing the fact that the sale is made at the option of the purchaser; 
 in such a case, the equitable conversion takes place whenever the pur- 
 chaser exercises the option.* 
 
 § 167. Time from which conversion takes place. — Independently 
 of the agreement of the parties, affecting the question in one 
 way or another, it may be stated, as a general rule, that the 
 •equitable conversion takes place, where the provision for the 
 •conversion of the property is contained in the will, from the death 
 of the testator;^ and when given in some deed or other conveyance 
 ^ter vwos, from the date of their execution.* There is, how- 
 ever, one exception to the general rule just stated, viz.: in the case 
 of mortgages with a power to sell, due to the fact that a mortgage 
 is given as a security, with no positive intention to provide for the 
 absolute conversion of the property, the provision for the conversion 
 of the property being conditional upon the default in the payment of 
 the debt.' This general rule, as to the time when the equitable con- 
 version takes place, may also be modified by the express direction of 
 the party making the provision for the change in the character of the 
 property; and whatever may be the express provision of the party 
 executing the instrument of conveyance, as to the time when, or the 
 •conditions under which, the conversion shall take place, will be 
 Tespected in determining when and how the equitable conversion is 
 made. ° One common case — ^where the time of the equitable conversion 
 is postponed after the execution of the deed, or the death of the testa- 
 tor, as the case may be, in consequence of provisions contained in the 
 instrument, indicating the intention of the donor or vendor as to the 
 time when the conversion shall take effect — is where the contract of 
 sale is made at the option of the purchaser; in such a case, the equi- 
 table conversion of the property will only take place when the 
 purchaser exercises his option to take the property; but whenever he 
 does so exercise his option and determines to buy, the equitable con- 
 version, although it arises only with the exercise of the option, relates 
 back to the time when the contract of sale was made; and the rights 
 of parties claiming under the vendor, will be determined by the consid- 
 eration of the effect of equitable conversion of the interest of the 
 vendor under the contract of sale.'' The equitable conversion cannot 
 
 1 Prayne ». Taylor, 10 Jur. n, b., 119; Garnett Franklin, 4 K. & J. 257; Griffith v. Eleketts, 7 
 
 ■V. Acton, 28 Beav. 333; Ingle v. Elohards, 28 Hare, 299, 311. 
 
 Beav. 361. 6 Jones v. Davies, L. E. 8 Ch. D. 205; Bourne 
 
 2Lawes B.Bennett, 1 Cox, 167; Totraley*. j>. Bourne, 2 Hare, 35 ; Wright n. Eose, 2 S. & S. 
 
 Bedwell, 14 Ves. 591; Collingwood v. Eow, 3 323. 
 
 •Jur., N. s. , 785. « Wards. Aroh,15 Sim. 389;Polley».Seymour, 
 
 « McClure's Appeal, 72 Pa. St. 414; Jones v. 2 Y. & C. Ex. 708; Moncrief v. Boss, 50 N. Y. 
 
 Caldwell, 97 Pa. St. 42; Cook's Ex'r v. Cook's 431; McClure's Appeal, 72 Pn. St. 414. 
 
 Adm'r, 20 N. J. Bq. 375; Beauclerk v. Mead, 2 'Edwards t). West, L. E. 7 Ch.D. 858,862,863; 
 
 A.tk. 167; Fisher v. Banta, 66 N. Y. 468. Emuss». Smith, 2 De G. & Sm. 722; D'Arras v. 
 
 *Hewett V. Wright, 1 Bro. Ch. 86; Clarke t. Keyser, 26 Pa. St. 249; Kerr v. Harris, 112, 114; 
 
 201 
 
§ 168 EQUITY JUKISPEUDENCE. [CH. X. 
 
 take effect until the discretion or option has been exercised, whether 
 the case is a gift or a sale.' 
 
 § 168. Effect of conversion. — It may be stated, as a general prop- 
 osition, that when the equitable doctrine of conversion applies to a 
 case in which provision is made for the actual conversion of the prop- 
 erty from real into personal, or from personal into real property, the 
 effect of such application of the doctrine is to determine the rights of alL 
 persons in and to the property, and of all persons claiming under such 
 beneficiaries, or owners of the property prior to the actual conver- 
 sion of such property, as if there had been an actual conversion. 
 Thus, if lands are directed or agreed to be sold, while they are still 
 unsold, such lands wUl be treated in every respect as personal prop- 
 erty, in determining the rights of claimants thereto. Thus, it would not 
 pass under the devise of the owner's land, ^ but it would pass under the 
 general gift or bequest of personal property, if there be such a 
 bequest.' And in the absence of a will, this land which is directed to. 
 be sold would, under the equitable doctrine of conversion, go to the 
 personal representatives as money, to be by them distributed among^ 
 the next of kin, after the satisfaction of the debts of the decedent.^ 
 The same rule applies to the conversion which is effected by an execu- 
 tory contract for the sale of land. The interest of the vendor in 
 that case will be so far considered personal property, as that the 
 personal representatives and legatees, and not the heirs, could claim 
 title thereto. ° On the other hand, where monetary investments, or 
 other personal property, are directed to be sold and laid out in lands, 
 prior to the performance of this duty, the interest of the beneficiary 
 will be treated as real estate and not personal property. It vnll, 
 
 Lawes v. Bennett, 1 Cox, 167; Weeding v. 127 j Jones «. Caldwell, 97 Pa. St. 42 j McClure's 
 
 Weeding, IJ.&H. 484; Woods ». Hyde, 31 L. J. Appeal, 72 Pa. St. 414; Brolasky v. Gally's 
 
 Ch. 295. Ex'rs, 51 Pa. St. 509; Brothers v. Cartwright, » 
 
 1 WWte V. Howard, 46 N. Y. 144; Van Vech- Jones Eq. 113; Croom v. Herring, 4 Hawks, 
 ten V. Keator, 63 N. Y. 52; Eich v. Wliitfleld, 393; Hxparte McBee, 63 N. C. 332; Wllklns «. 
 L. E. 2 Eq. 683; Lawrence o. Elliott, 3 Eedf. Taylor, 8 Eieh. Eq. 291; and see 1 Eq. Lead. 
 235; In r« Ibbitson's Estate, L. E. 7 Eq. 226. Gas. 1157-1160, 1160-1162 (4tli Am. ed.). 
 
 2 Elliott V. Fisher, 12 Sim. 505; but see Klock ' Masterson v. PuUen, 82 Ala. 145; Parrar v. 
 V. Buell, 56 Barb . 398. Winterton, 5 Bear. 1, 8, per Lord Langdale, M. 
 
 3 Chandler v. Pocock, L. B. 10 Ch. D. 648; K.; Haughwout v. Murphy, 7 C. E. Green, 
 Pisher v. Banta, 66 N. Y. 468 ; Estate of Dobson, 531 ; Crawford t>. Bertholf , Saxton, 460; Hoag^ 
 11 Phila. 81 ; Stead «. Newdigate, 2 Merlv. 521; land v. Latourette, 1 Green's Ch. 254; HufE- 
 Wall «. Oolshead, 2 De G. & J. 683. man r. Hummer, 2 C. E. Green, 264; Klng^ 
 
 * Harris ». Slaght, 46 Barb. 470; Ferguson «. n. Euckman, 6 C. E. Green, 599; Fletcher 
 
 Stuart's Ex'rs, 14 Ohio, 140, 146; Collier v. Col- v. Ashburner, 1 Bro. Ch, 497; 1 Eq. Lead. Cas. 
 
 lier'sEx'rs, 30hioSt. 369; Eawllngs' Ex'rs ». 1118, 1123, 1157 (4th Am. ed.); Hoagland v. 
 
 Landes, 2 Bush, 158; Loftls v. Glass, 15 Ark. Latourette, 1 Green's Ch. 254; Downing ». EIs- 
 
 680; Carr v. Ireland, 4 Md. Ch. 251; Hood v. ley, 2 McCarter, 94; Peters ». Beyerly, 10 Pet. 
 
 Hood, 85 N. Y. 561 ; Van Veohten v. Keator, 63 532, 533; Taylor v. Benham, 5 How. (U. S.) 234; 
 
 N. Y. 52; Moncrief v. Eoss, 50 N. Y. 431 ; Mad- Murray v. Ballon, 1 Johns. Ch. 566, 581 j Llnd- 
 
 doxo. Dent, 4 Md. Ch. 543; SmlthersD. Hooper, say v. Pleasants, 4 Ired. Eq. 321; Brewer v. 
 
 23 Md. 273; Fisher v. Banta, 66 N. Y. 468; Free- Herbert, 30 Md. 301 ; Elchter v. Selln, 8 Seig. &. 
 
 man v. Smith, 60 How. Pr. 311; Wurts' Ex'rs v. R. 425, 440; Robb v. Mann, 1 Jones, 300; Kerrr. 
 
 Page, 19 N. J. Eq. 365; Eby's Appeal, 84 Pa. St. Day, 2 Harris, 12; Thompson v. Smith, 63 N. Y. 
 
 241; Washington's Ex'r v. Abraham, 6 Gratt. 301, 303; Worrallt). Munn, 38 N. Y. 139; Wood 
 
 66, 77; Siter v. M'Clanachan, 2 Gratt. 280; «. Keyes, 8 Paige, 365; Wood«. Cone, 7 Paige, 
 
 Commonwealth v. Martin's Ex'rs, 5 Munf. 117, 472; Champion v. Brown, 6 Johns. Ch. 403. 
 
 202 
 
CH. X.J CONVEESION AND KECONVEESION. § 168 
 
 therefore, pass under a general devise of lands to the devisee; or, in 
 the absence of a will, it will descend to the heir as real estate, and 
 will not be treated as coming within the provisions of a bequest or 
 gift of personal property.^ 
 
 If the heir or the beneficiary should himself die intestate, before the 
 completion of the conversion, the fund or money to be converted would 
 then descend to his heir.^ Nor will the equitable conversion be pre- 
 vented, where the trustees are directed to find temporary investments 
 ■ for the fund until the provisions of the will can be carried" out/ So, 
 also, where money is directed to be invested in lands for the benefit of 
 a married woman, her husband can claim courtesy in such fund; and, 
 under analogous circumstances, the wife can claim dower in such prop- 
 erty.* So, also, it has been held in several of the states that the 
 widow has dower in lands which her husband has contracted to pur- 
 chase, where he died before the deed was delivered. ' 
 
 It is held, however, that there are some limitations to the effect of 
 equitable conversion; and it is stated by some of the cases, that a 
 conversion takes place only so far as such conversion is necessary for 
 the due execution of the willor other instrument. ° For example, it 
 has been held that conversion shall not be permitted to take effect so 
 as to evade the statutes of mortmain.'' On the other hand, it has been 
 held that the bequest of land which is to be converted into money to an 
 alien is valid, although the devise of such land as land would be void.* 
 
 Whether the fact that partnership lands would have to be sold for 
 the satisfaction of the debts of the firm, shaU be considered as working 
 a complete conversion, or only so far as such conversion is necessary 
 for the protection of the interests of the creditors and of the partners, 
 has been differently decided by the English and American courts. 
 According to the English courts, the conversion is complete for all 
 purposes, so that persons claiming interest in such property through 
 one of the partners can only claim it in its character as personal prop- 
 erty; that is, the surplus of the proceeds of sale of the partnership 
 
 iTayloe v. JohnBon, 63 N. C. 381; Gott *. Young ». Young, 45 N. J. Eq. 27; Bowen v. 
 
 Cook, 7 Paige, 521, 534; Hawley ». James, 5 Brockenbrough, 119Ind. 560; see contra, Mor- 
 
 Paige, 318, 443; Green v. Stephens, 17 Ves. 64, gan u. Smith, 25 S. C. 337; Morgan v. Wright, 
 
 77; Biddulphr. Biddulph, 12 Ves. 161;Greent>. 25S. C. 601. But if the contract of sale rests 
 
 Johnson, 4 Bush, 164; Collins ». Champ's Heirs, upon a condition precedent, which was not 
 
 15 ,B. Hon. 118; and see 1 Eq. Lead. Gas. 1162 performed by the husband, the wife's dower 
 
 1171 (4th Am. ed.) . does not attach. Waiters v. Walters, {111. 1890) 
 
 ^Gillies i,. Longlands, 4 De 6. & Sm. 373; 23 N. E. Eep. 1120; Beebe v. Lyle, 73 Mich. 114. 
 
 Lechmere v. Earl of Carlisle, 3 P. Wms. 211 ; " See Orrick v. Boehm, 49 Md. 72; Hilton v. 
 
 Edwards v. Countess of Warwick, 2 P. Wms. Hilton, 2 MacArthur, 70. 
 
 171 ; Scudamore v. Scudamore, Prec. Chan. 543. ' Brook v. Bradley, L. R. 3 Ch. 672, 674, per 
 
 ' Edwards v. Countess of Warwick, 2 P. Lord Calms; Foster's Appeal, 74 Pa. St. 391, 
 
 Wms. 171; Frederick ». Aynscombe, 1 Atk. 392. 397; Estateof McAvoy, 12Phila. 83; Atty.-Gen. 
 
 < Sweetapple «. Bindon, 2 Vem. 536. v. Brunning, 8 H. L. Cas. 243, 265; Pleasants' 
 
 « Church V. Church, 3 Sandf . Ch. 434 ; Smiley Appeal, 77 Pa. St. 356. 
 
 v. Wright, Z Ohio, 512; Kobinson v. Miller, IB. » De Barante v. Gott, 6 Barb. 492, 497; Anstice 
 
 Mon 93: Davenport©. Farrar,2 111. 314; Reed v. Brown,6Paige,448;Craigo. Leslie, 3 Wheat, 
 
 V. Whitney, 7 Gray, 533; Lobdell «. Hayes, 4 563; Du Hourmeiin v. Sheldon, 1 Beav. 79; 4 
 
 Allen, 187; Joseph v. Fisher, 122 Ind. 399; My. & Cr. 525. 
 
 203 
 
§ 169 EQUITr JUKISPRUDENCE. [CH. X. 
 
 property, falling to one of the partners in case of his death, would go 
 to the personal representative of such partner as personal property, 
 instead of to the heir and widow as real property.^ The American 
 rule, on the other hand, limits the conversion to the interest of the 
 partners, and of the creditors of the partnership, and permits the sur- 
 plus proceeds of sales to go to the widow and heirs of the deceased 
 partner as real property.^ 
 
 § 169. Conyersion as between life tenant and remainder-man. — 
 Questions under this heading are not likely to arise in this country, 
 although it is possible that they may; but they are quite common in 
 the English courts. The cases are divided into two classes: one 
 where the testator who devises the estate to life tenant and remainder- 
 man provides for the conversion of his property; and the other 
 cases are those in which he does not make such provision at all. In 
 the first class of cases, the question arises as to whether the life tenant 
 is entitled to any income of the property, and if so, to what income 
 before the conversion is made. It is manifest, of course, that the 
 direction of the will, in respect to this question, must be followed, if 
 there be any such direction.' In the majority of cases, in the absence 
 of any such direction, the tenant for life is held to be entitled to the 
 income from the testator's death.* Under special circumstances, the 
 conversion is, sometimes, considered to have taken place at the end of 
 a year from the testator's death.' And where the circumstances of 
 the case are such that a conversion cannot be made within a year after 
 the testator's death, the life tenant is entitled to income from the 
 expiration of the year." "Where the testator does not direct any con- 
 version of the property, the question arises whether a conversion 
 should be made, whereby property may be invested in a different way 
 from what had been done by the testator during his life, and the 
 interest thereon paid to the life tenant, or whether the life tenant 
 should enjoy the property itself. The general rule is, where per- 
 sonal property is given to different legatees in succession, that such 
 property should be sold and the proceeds of sale reinvested in such a 
 form that the successive legatees may enjoy the income thereof during 
 their lives.' Where, however, there is anything in the will from 
 which may be deduced the intention of the testator to give to the life 
 
 1 Dixie V. Wright, 32 Beav. 668j Kelland v. s Maopherson -o. Macpherson. 1 Macqueen, 
 Fulford, L. E. 6 Ch. D. 491 ; Forbes v. Stevens, 243 ; Robinson v. Robinson, 1 De G. M. & G. 
 L. E. lOEq. 178, 188, 189; Atty.-Gen. v. Brun- 247; Dimes v. Seott, 4 Russ. 195; Morgan v. 
 ning, 8 H. L. Cas. 243, 265. Morgan, 14 Beav. 72. 77. 
 
 2 Foster's Appeal, 74 Pa. St. 391, 397, 398; 'Sitwelle. Bernard, 6 Ves. 520; Kilvlngtono. 
 Estate of McAvoy, 13 Phila. 83; OfiFut v. Scott, Gray, 2 S. & S. 396; Tucker v. Boswell, 5 Beav. 
 47 Ala. 105; 22 Am. Law Reg. 300, notes 307-310. 607. 
 
 See, also, generally. Shearer v. Shearer, 98 'Johnson u. Johnson, 2 Coll. 441; Blann e. 
 
 Mass. 107; Jones' Appeal, 70 Pa. St. 169; Bopp Bell, 2 De G. M. & G. 775; Hood v. Clapham, 19 
 
 V. Fox, 63 111. 540; 1 Pars, on Con. 150. Beav. 90; see Howe v. Earl of Dartmouth, 7 
 
 s Sparling v. Parker, 9 Beav. 5S4. Ves. 137; Thornton v. ElUs, 15 Beav. 193; Mills 
 
 *Wilday v. Sandays, L. E. 7Eq. 355; Brown v. Mills, 7 Sim. 501; Sutherland v. Cooke, 1 
 
 V. Gullatly, L. R. 2 Ch. 751 ; AUhusen v. Wittell, Coll. 498. 
 
 L. R. 4 Eq. 295. 
 
 204 
 
CH. X.] CONVEKSION AND RECONVERSION. § 170 
 
 tenant the enjoyment of the property in specie, then that intention 
 would be carried out, and no conversion of the property ordered by 
 the court. ^ It is also the rule that when specific legacies are given 
 to one for life, then to another absolutely, that the life tenant should 
 enjoy the income of the property in its original form.^ 
 
 § lYO. Conversion by paramount anthority. — Involuntary sales 
 of land under statute and by order of court. — Under this heading, an 
 entirely different view is presented of the doctrine of conversion. So 
 far, we have discussed when and under what circumstances the prop- 
 erty which has been ordered to be converted into another form, will 
 be treated as having been converted into its intended form, before the 
 actual conversion takes place, and what effect that doctrine has on the 
 rights of the party in and to the property prior to the actual conver- 
 sion. Here, the question is, how far will the property in its actually 
 converted form, where that conversion takes place by compulsory pro- 
 cess, be considered and treated by the courts as being still in its origi- 
 nal character, in determining the rights of the parties thereto. The 
 common cases are those, where land is sold under the order of a court or 
 the authorization of a statute, for the satisfaction of some claim against, 
 or right to, such land; while the proceeds of sale, in whole or in part, 
 remain undisposed of in the satisfaction of such claim or right; and 
 the question arises, to whom do those proceeds belong ? Shall the pro- 
 ceeds of sale be treated as personal property, according to its true char- 
 acter, or will the court apply the doctrine of equitable conversion to 
 this case, and treat the surplus proceeds of sale as real estate, and, 
 therefore, belonging to the party from whom the land was taken? The 
 general rule is, that the latter construction will prevail. It must be 
 observed that no reference is made to any voluntary assignments which 
 the parties might make in view of the fact, that if they refuse to make 
 a voluntary assignment, a compulsory process will issue.' The cases 
 to which we now have reference are cases in which the process 
 by which the sale is effected is compulsory. The general proposition 
 in that connection is, that where the owner of the land which has been 
 sold, or taken under compulsory process, is sui juris, then a complete 
 conversion of the property is effected, and the purchase money or sur- 
 plus proceeds of sale become, to aU intents and purposes, personal prop- 
 erty. But if the owner of the property is an iafant or a lunatic, then 
 the court of equity will permit the conversion of the property to take 
 place only so far as such conversion is necessary to accomplish the par- 
 ticular purpose held m view; but as to the interest of such infant or 
 lunatic in the surplus proceeds of sale, the court will treat the prop- 
 
 iHoIgate V. Jennings, 24 Beav. 633; Burton v. Harvey, 6 Bear. 134; and see Phillips v. Sarjent, 
 
 Mount, 2 De G. & Sm. 383; Cafe v. Bent, 5 Hare, 7 Hare, 33; Vincent «. Newcombe, 1 Younge, 599. 
 
 24, 36; Pickering ». Pickering, 4 My. & Cr. 289; 'In re Skeggs, 2 De G. J. & S. 533; Eighton v. 
 
 Alcock V. Sloirer, 2 My. & K. 699; Hubbard v. Eighton, 30 L. J. Oh. 61 ; Regent's Canal Co. v. 
 
 Young, 10 Beav. 203; Skirving v. Williams, 24 Ware, 23 Beav. .WS; Ex parte Hawkins, 13 Sim. 
 
 Beav. 275; Green v. Britten, 1 De G. J. A S. 649. 569; In re Manchester, &c. E'y, 19 Beav. '^ 
 
 *ln re Beaufoy, 1 Sm. & Giff. 20; Harvey v. 
 
 205 
 
§ 171 EQUITY JURISPRUDENCE. [CH. X. 
 
 erty as not having been converted, and will determine the rights of 
 such party to the proceeds of sale, as if there had never been any con- 
 version of the property.' Not only does this application of the doc- 
 trine of conversion apply in respect to insane and infant owners of 
 property, but it likewise attains in respect to a wife's dower in the 
 lands of her husband, which are often sold for the satisfaction of some 
 claim against the property. Where her dower is subject to the claim, 
 to satisfy which the property has been sold, she then has dower in 
 the surplus proceeds of sale, the proceeds of sale being treated as still 
 having the characteristics of real property. But it has been held that 
 she is not entitled to dower in the surplus proceeds of sale of the land 
 in foreclosure of a mortgage in which she has renounced her dower. 
 That is, she is not entitled to a share in such surplus, where the fore- 
 closure and sale took place during the life of her husband.^ 
 
 § 171. Reconversion defined. — Reconversion is defined as "that 
 notional or imaginary process by which a prior constrncti/ve conversion 
 is annulled and taken away, and the constructweVy converted property 
 is restored, in contemplation of a court of equity, to its original actual 
 quality."' A reconversion takes place whenever the parties, for 
 whose benefit the conversion is directed to be made, agree among 
 themselves to take the property in its original form, and thus prevent 
 an actual conversion of the property. Inasmuch as the parties bene- 
 ficially interested are alone interested in effecting the conversion of 
 the property, with consent or agreement to waive the conversion and 
 to take the property in its origiual form, would be a sufficient protec- 
 tion for the trustees or executors against liability for failure to carry 
 out the provision of the will in this respect. The parties beneficially 
 interested are estopped from holding the executor or trustee liable in 
 such an event. It is not necessary that an express declaration of the 
 intention of the beneficiaries to receive the property in its unconverted 
 form should be made ; such a declaration is sufficient, but not necessary. * 
 The intention to take the property in this unconverted form may be 
 manifested by acts as well as by words; any act or any writing which 
 shows or establishes such an intention being sufficient to effect a recon- 
 
 1 In re Skeggs, 2 De G. J. & S. 533; In re Stew- v. Chureli, 3 Sandf. Ch. 434; Smith v. Jackson 
 
 art, 1 Sm. & Giff. 32, 39; Ira re Bagot, 31 L. J. 3 Edw. Ch. 28; Queen Anne's Co. ». Pratt, 10 
 
 Ch. 772; Dixie v. Wright, 32 Beav. 662; Pleas- Md. 3; Bank of Commerce v. Owens, 31 Md. 
 
 ants' Appeal, 77 Pa. St. 356; Richards v. Atty.- 320; s. o., 1 Am. Rep. 60; Bonner ». Peterson, 44 
 
 Gen., 6 Moo. P. C. 381; In re Harrop, 3 Drew. 111. 258; Barnes ». Gay, 1 Iowa, 26; Thompson 
 
 726; Kelland v. Fulf ord, L. R. 6 Ch. D. 491. v. Cochran, 7 Humph. 72; Williams t). Woods, 
 
 2Genobles». West, 83S. C. 154; see co»i<ro, N. 7 Humph. 408; Keith ij. Trapler, 1 Bailey Eq. 63; 
 
 Y. Life Ins. Co. v. Mayer, 14 Daly, 318; see Pifer v. Ward, 8 Blackf. 252; Hartshome v. 
 
 Kauffman v. Peacock, 115 111. 212; Jennlson v. Hartshome, 2 N. J. Eq. 349; Nazereth Inst. v. 
 
 Hapgood, 14 Pick. 345; Van Vronker v. East- Lowe, 1 B. Mon. 257; but see Newhallu. Five 
 
 man, 7 Mete. 157; Hawley r. Bradford, 9 Paige, Cents Savings Bank, 101 Mass. 428; 3Am.Rep.38i'. 
 
 200; Titus v. Neilson, 5 Johns. Ch. 452; Schmitt » Haynes' Outlines, p. 367. 
 
 ». Willis, 40 N. J. Eq. 515 ; Willett v. Beatty, 12 « Wheldale v. Partridge, 8 Ves. 226, 236; Brad- 
 
 B. Mon. 172; Crane v. Palmer, 8 Blackf. 180; ish ». Gee, Ambl. 229; Van v. Bamett, 19 Ves. 
 
 Beavers r. Smith, 11 A]a.33;Chaney». Chaney, 102, 109; Pulteney o. Earl of Darlington, 1 Bro. 
 
 38 Ala. 35 ; Shaeffer v. Ward, 5 111. 611 ; Church Ch. 223, 236, 237. 
 
 206 
 
CH. X.j CONVERSION AND KECONVEE8ION. § 171 
 
 version.' Among the acts which are considered sufficient evidence of 
 an election to take the property without conversion are, the entry into 
 possession of the land and the receipt of the rents and profits,^ or 
 receiving the possession and the income of securities which are directed 
 to be laid out in lands;' the possession of the property by the bene- 
 ficiary, it matters not how that possession has been acquired; * and any 
 other acts which indicate that the trust is at at end/ But in order 
 that a beneficiary may elect and take the property in its unconverted 
 form, he must be suijwris; he cannot make this election if he is under 
 any legal disability.' Infants' and lunatics' cannot elect to have a 
 reconversion. The trustees will not be protected from liability for 
 failure to make the conversion, where the consent of the lunatic or 
 infant is given to such conversion. Married women can, under the 
 general law, elect and take the property in its unconverted form by 
 securing the co-operation of their husbands, in the form in which the 
 law allows married women to convey or release their rights; that is, 
 by a deed signed and sealed by husband and wife, and acknowledged 
 by her in the manner prescribed by the law.' So, also, a difference is 
 recognized, in the power of a beneficiary to elect to take the property 
 in its unconverted form, between the case of an absolute owner of the 
 property and the case in which the property, which is directed to be 
 converted, is given to two or more persons, either as co-owners or as 
 tenants for life and remainder-men. Where the party who makes the 
 election for a reconversion is not the absolute owner, but has only a 
 •definite share or a partial interest in such property, he will be per- 
 mitted to effect a reconversion only when such reconversion, as to his 
 share of the property, takes place without affecting in any manner 
 injuriously the rights and interests of those who are interested with 
 
 > Biddulph V. Biddulph, 12 Ves. 161 ; Prentice ' Van v. Barnett, 19 Ves. 103 ; Seeley v. Jago, 
 
 V. Janssen, 79 N. Y. 478; Beatty v. Byers, 6 IP. Wms. 389; Eobinson «. Eobinson, 19 Beav. 
 
 Harris, 1(B; Harcourtji. Seymour, 8 Sim., K. s'., 494; Carre. Ellison, 2 Bro.Ch. 56; JrersHarrop, 
 
 12, 46; Cookson v. Cookson, 18 01. & Fin. 121, 146. 3 Drew. 726, 734. 
 
 2 Dixon V. Gayfere, 17 Beav. 433; In re Gor- 'In re Wharton, 5 De G. M. & 6. 33; Ashby 
 
 don, L. E. 6 Ch. D. 531 ; Griesbach v. Tremantle, V. Palmer, 1 Meriv. 296 ; In re Barker, L. E. 17 
 
 17 Beav. 314; Kirkman v. Miles, 13 Ves. 338; Cb. D. 241. 
 
 Crabtree v. Bramble, 3 Atk. 680; Mutlow v. OBriggs». Chamberlain, 11 Hare, 69; Bowyer 
 
 Bigg, L. E., 1 Ch. D. 385. v. Woodman, L. E. 3 Eq. 313; Taer v. Turner, 
 
 8 Ira re Pedder, 5 D^ G. M. & G. 890; Gillies SO Beav. 560; Forbes v. Adams, 9 Sim. 462; 
 
 V. Longlands, 4 De G. & Sm. 372; Lingen v. May r. Eoper,4Slm. 360; Slandering d. Hall, L. 
 
 Sowray, 1 P. Wms. 172, 176; Hareourt v. Sey- E. 11 Ch. D. 652; Wallace v. Greenwood, L. E. 
 
 mour, 2 Sim. n. s., 12; Trafford v. Boehm, 3 16 Oh. D. 362; Oldham v. Hughes, 8 Atk. 452, 
 
 Atk. 440; Book v. Worth, 1 Ves. Sen. 460, 461; 453; Blnford v. Bawden, 1 Ves. 512; 2 Ves. 38; 
 
 Cookson t). Cookson, 12 CI. <fc Fin. 121, 147. Frank v. Frank, 3 My. & Cr. 171; Sisson «. 
 
 4 In re Pedder. 5 De G . M. & G. 890 ; Chiches- Giles, 32 L. J. N. S. (Ch.) 606 ; 3 De G. J . & S. 
 
 ter V. Brickerstaff, 2 Vern. 295; Wheldale v. 614; Franks v. BoUans, L. B. 3 Ch. 717. This 
 
 Partridge, 8 Ves. 226, 235 ; see Pulteney ». Earl statement of the law in respect to married 
 
 of Darlington, 1 Bro. Ch. 223. women is, of course, materially affected by the 
 
 ' J» re Davidson, L. E. U Ch. D. 341; Sharp modern statute, in many of the American 
 
 V. St. Sauveur, L. E. 7 Ch. 343; Davies v. Ash- states which have more or less planted the 
 
 ford, 15 Sim. 42. disabilities of coverture, to which reference is 
 
 « Sisson V. Giles, 32 L. J. N. S. (Ch.) 606; Ben- made In other connections. See ante, § 257. 
 son V. Benson, 1 P. Wms. 130; 3 De G. J. & S. 
 «14; Prentice ». Janssen, 79 N. Y. 478. 
 
 207 
 
§ 173 EQUITY JURISPKUDENCE. [CH. X^ 
 
 him in tke property to be converted. In the case of joint owner- 
 ship of the property, the distinction is made in this connection 
 between the conversion of land into money, and that of money into 
 land. Where lands are directed to be converted into money for the 
 joint benefit of two or more persons, then one of them cannot elect to- 
 take his share in the lands without conversion, but must take his 
 share as directed by the will in the proceeds of sale; unless, of course, 
 all of the co-owners consent to the conversion.^ On the other hand, 
 where money is directed to be laid out in lands for the joint benefits, 
 of two or more persons, then one of these parties may elect to take 
 his share of money and leave the surplus to be invested in the lands. ^ 
 In the latter case, no possible injury could result to the other in conse- 
 quence of the election of one to take his share in money; but in the 
 former case, the purchase price of a part of the land may not be so 
 profitable, as it would be if the entire tract of land was sold without, 
 division. In consequence of the effect of such conversion upon the 
 interest of the life tenant^ and other prior ownfers, there is a general 
 agreement of the authorities that the remainder-man may take a. 
 reconveroion, which will be binding upon his own real and personal 
 representatives, but such reconversion shall not have the effect of 
 interfering in any way with the interests of the life tenant.' 
 
 § 172. Double conversion. — Somewhat similar to reconversion, 
 in its effect, is what is known as double conversion; but its operation 
 is different from reconversion. Double conversion takes place where 
 a will or deed directs land to be sold and converted into money, and 
 the proceeds of sale thus attained are directed to be again invested in 
 lands so that the ultimate form of the property is the same as obtained 
 before the conversion took place at all. In such a case, all the interests; 
 of the party in and to the property will remain unaffected by the double 
 conversion, except, of course, that such rights will be transferred from 
 the property sold to the lands bought with the proceeds of sale.* 
 
 § 173. Eesnlting trust upon failure of the purpose of conversion.. 
 — Where property is given by will or deed, with the direction that it 
 shall be converted into another form for the carrying out of certain pur- 
 poses, it is always a disposition of property in trust; and the trust will 
 only continue to exist or call for the act of conversion, so far as th& 
 performance of the trust is necessary for securing the purpose intended. 
 Where, therefore, there should be a failure of the purpose of the trust, 
 and of the conversion, there will be a resulting trust to the grantor, or 
 to the heirs or representatives of the testator, of whatever part of the. 
 property is not required to bfe converted, in consequence of such fail- 
 
 1 Deeth V. Hale, 2 Moll. 317; Holloway v. Bad- Thornton, 13 Ves. 345; Gillies v. Longlands, 4 
 ellffe, 23 Beav. 163; Fletcher v. Ashburner, 1 De G. & Sm. 372, 379; Sisson v. Giles, 32 L. J.N. 
 Bro. Ch. 497, 500. S. (Oh.) 606; 3 De G. J. &. S. 614; Cookson ti. 
 
 2 Elliott V. Fisher, 12 Sim. 505 ; Seeley v. Jago, Cookson, 12 Cl. & Fin. 121 ; Prentice v. Janssen,. 
 1 P. Wms. 389. 79 N. Y. 478. 
 
 3 Meek v. Devenish, L. E. 6 Ch. D. 566; Wal- * In re Pedder, 5De G. M. & G. 890; Pearson v. 
 rondv. Kosslyn, L. E. 11 Ch. D. 640; Triquet ii. Lane, 17 Ves. 101 ; White J). Howard, 46 N.Y. 144., 
 
 208 
 
CH. X.J CONVERSION AND EECONVEKSION. § 173 
 
 ure. There is such a resulting trust, whether the failure of the pur- 
 pose of the conversion is total or partial; but the character of such 
 trust varies with the extent of such failure.^ The character of the 
 resulting trust also varies with the form of the instrument in which 
 the conversion is provided for. 
 
 Where a conversion of land into money, or of money into land, is 
 directed either by will or by an instrument inter vivos, and there 
 should be a total failure of the purpose and object for which the con- 
 version was directed, the property so directed to be converted will, of 
 course, remain in its original condition and, therefore, will in nowise 
 be affected by the provision for conversion. It will, therefore, pass in 
 its original form to the heirs or to the personal representatives of the 
 testator and to the grantor, or to his heir and personal representative, 
 as the case may be. There is no exception to the operation of this rule. ^ 
 
 The variance of the authorities arise in the case of partial failure in 
 testamentary directions for the conversion of property. Where, instead 
 of a total failure of the purpose of the conversion, only a partial failure 
 occurs, it is still necessary to effect the conversion of the property, in 
 order to carry out those purposes of the conversion which still exist 
 and are valid. In the case where the conversion is of land into money, 
 the land is still to be sold, and the question arises, what is to become 
 of the surplus of the proceeds of sale of the land, after the valid and 
 effective purpose of the conversion has been satisfied? It is quite 
 likely that, if the valid purpose of the conversion can be satisfied by a 
 sale of only a part of the land, and the failure occurs prior to any sale 
 at all, the trustee would be obliged to limit the conversion of the prop- 
 erty to the extent of the needs of the trust; and the surplus land which 
 remains unconverted would pass to the heir of the testator or to the 
 grantor, or to his heir, as real estate in its unchanged form. But 
 where the entire land has been sold, before the partial failure of the 
 purpose of the conversion took place, then the rule applies that the 
 surplus proceeds of sale shall go to the heir of the testator as real 
 estate, but in its form as personal property; that is, the heirs would be 
 entitled to claim the surplus proceeds of property in its form as per- 
 sonal property, but under the doctrine of equitable conversion, as if it 
 
 » Marsh v. Wheeler, 2 Edw. Ch. 156, 160; Pen- " Edwards v. Tuck, 23 Beav. 268; McCarty v. 
 
 nell's Appeal, 8 Harris, 515j Nagle's Appeal, 1 Demlng, i Lans. 440, 443; Giraud V. Giraud, 58 
 
 Harris, 260-264; Craig v. Leslie, 3 Wheat. 563, How. Pr. 175; Ackroyd v. Smlthson, 1 Bro. Ch. 
 
 682; Holland v. Craft, 3 Gray, 162, ISO; Wood». 503; 1 Eq. Lead. Gas. 1171, 1181, 1197 (4th Am. 
 
 Cone, 7 Paige, 471, 476; Wood ». Keyes, 8 Paige, ed.); Clarke v. Franklin, 4K. & J. 257; Slo- 
 
 365, 369, Hawley v. James, 5 Paige, 318, 323, 486; cum v. Slocum, 4 Edw. Ch. 613; Davis" Appeal, 
 
 Proctor V. Ferebee, 1 Ired. Eq. 143, 146; Newby 83 Pa. St. (2 Norris) 318; Morrow v. Brenizer, 2 
 
 V. Skinner, 1 Dev. & Bat. Eq. 488; North v. Rawie, 184; Smith v. Claxton, 4 Madd. 484, 492j 
 
 Valk, Dudley's Eq. 212, 216; Arnold v. Gilbert, Eipley ». Waterworth, 7 Ves. 425, 436; Chitty v, 
 
 3 Sandf. Ch. 531,556; Arnold ». Gilbert, 5 Barb. Parker, 2 Ves. 271; Wilson V. Major, 11 Ves. 
 
 190, 195; Bogert v. Hertell, 4 Hill, 492, 495, 600; 205, Commonwealth v. Martin's Ex'rs, 5Munf. 
 
 Wrights. Trustees, Ac, Hoflf. Ch. 202, 205, 219; 117; Smith v. McCrary, 3Ired.Eq. 204; but sea 
 
 Burr V. Sim. 1 Whart. 253, 263; Pratt v. Talla- Evans' Appeal, 63 Pa. St 183. 
 ferro, 3 Leigh, 419, 433; Lindsay v. Pleasants, 1 
 Jred. Eq. 320, 323. 
 
 14 
 
 209 
 
§ 174 EQUITY JURISPKUDENCE. [CH. X. 
 
 had been, and still was, real property. But if the heir of the testator 
 should in turn die, even though his death should occur before the 
 partial failure of the purpose of the conversion, his share of the sur- 
 plus proceeds of sale, althou gh he would claim it as real estate, would 
 go to his personal representatives as personal property, instead of to 
 his heirs as real estate; in other words, the doctrine of reconversion 
 would only apply so far as to determine the right of the testator's heir 
 to the surplus proceeds of sale, but would not be extended so as to 
 give to the heir of the testator's heir the claim to such proceeds of 
 sale as real estate, in the place of the personal representative of such 
 a heir. ^ 
 
 This rule is enforced strictly in favor of the heir of the testator, 
 even though the will should contain a declaration that the heir should 
 not participate at all in the benefits of the estate. And it has also been 
 held that the heir could claim the surplus proceeds of sale upon the 
 partial failure of the conversion, even though the will directed that all 
 of the property left by the testator, whether personal or real, should 
 be converted into cash and blended into one fund, out of which all 
 legacies are to be paid. Even under these circumstances, the heir of 
 the testator, under the doctrine of conversion, would be entitled to his 
 share of the surplus proceeds of sale." But this view is not supported 
 by the American cases, at any rate by some of them; according to 
 these American cases, a declar ation that the property should all be 
 sold and the proceeds of sale blended into one fund, would preclude 
 the claim of the testator's heirs to any share in the surplus proceeds." 
 The same general rule applies in the case of a will directing the con- 
 version of money into land; the partial fail ure of the conversion will 
 cause the Surplus fund, whether it has actually been converted into 
 land at the time of the partial failure of the purpose of the conversion, 
 or before, to go to the personal representatives of the testator or his 
 next of kin, or the residuary legatee, as the case may be.* 
 
 § 174. Conversion by deed. — Where a deed directed a conversion 
 of land into money, inasmuch as the conversion took place during the 
 
 1 Collins ». Wakeman, 2 Ves. 683j Watson v. inson v. Governors of London Hospital, 10 
 
 Hayes, 5 My. & Or. 125; Jones v. Mitchell, 1 S. Hare, 19; Barrs v. Fewkes, 3 Hem. & M. 60; 11 
 
 & S. 290, S94j Buchanan v. Harrison, 1 J. & H. Jur. N. s., 669; Spencer v. Wilson, L. E. 16. Eq 
 
 662; Ackroydo. Smithson, 1 Bro. Oh. 503; 1 501 ; see Ackroyd v. Smithson, supra; Taylor 
 
 Eq. Lead. Gas. 1171, 1181, 1197 (4th Am. ed.); v. Taylor, supra; Jessopp v. Watson, 1 My. & 
 
 Fitch V. Weber, 6 Hare, 145; Taylor v. Taylor, K. 665; Cruse v. Barley, 3 P, Wms. 80, 22, note by 
 
 3 DeG. M. &. G. 190; Wall v. Colshead, 2 De G." Mr. Cox; Edwards v. Tuck, 23 Beav. 268; Wall 
 
 & J. 683; Smith v. Claxton, i Madd. 484; see, v. Colshead, 8 De G. <Sc J. 683; Beotiye v. Hodg- 
 
 also, Wright v. Wright. 16 Ves. 188; Jessopp v. son, 10 H. L. Gas. 656. 
 
 Watson,! My. & K. 665; Hatfield*. Pryme, 2 SBurrt). Sim, 1 Whart. 858; also Morrows. 
 
 Coll. 204; Spencer «. Wilson, L. E. 16 Eq. 501; Brenlzer, 2 Eawle, 185; Craig D.Leslie, 3 Wheat. 
 
 McCarty v. Demlng, 4 Lans. 440, 442; Wood v. B63. 
 
 Cone, 7 Paige, 471; Craig v. Leslie, 3 Wheat. * Eeynolds ». Godlee, Johns. 536, 582; Curteis 
 
 563; North «. Valk, Dudley's Eq. 212; Newby v. v. Wormald, L. E. 10 Ch. D. 172; Cogan ». Ste- 
 
 Skinner, 1 Dev. & Bat. Eq. 488; Lindsay v. phens, 1 Beav. 482 n.; 5 L. J. N. S. (Ch.) 17; 
 
 Pleasants, 4 Ired. Eq. 320; Wright v. Trustees, Hereford v. Ravenhill, 1 Beav. 481; 5 Beav. 51; 
 
 Ac, Hofif. Ch. 202. Hawley v. James, 5 Paige, 318. 
 
 " Amphlett v. Parke. 2 Russ. & My. 221 ; Eob- 
 
 210 
 
CH. X.] CONVEESION AND EECONVKKSION. § 174: 
 
 life of the grantor, the surplus of the proceeds of sale of the conver- 
 sion of the land into money would go to such grantor, not as land, but 
 as personal property, and, therefore, would devolve upon the personal 
 representatives as a part of the general personal estate.' 
 
 So, on the other hand, if the deed directs the conversion of money 
 into land, in case of a partial failure of the trust after the money has 
 been completely converted into land, the portion of land which remains 
 undisposed of will result to the grantor, or his heir, as land and not as 
 personal property.* 
 
 1 In re Newberry's Trusts, L. E. 5 Ch. D. 746 ; » Pulteney v. Earl of Darlington, 1 Bro. Ch. 
 
 and see Van v. Barnett, 19 Ves. 1085 Hewitt t>. 223;Leclimereu. Lechmere, Gas. temp. Talb.80. 
 Wright, 1 Bio. Ch. 86; Clarke v. Franklin, 4 K. 
 & J. 257. 
 
 211 
 
CHAPTEK XI. 
 
 EQUITABLE BELIEF ON THE GKOUND OF ACCIDENT AND MISTAKE. 
 
 Section Section 
 Limitation of iuiisdiction in cases of acci- Mistakes common to all parties.— Mis- 
 dent .175 takes as to legal effect of written instru- 
 
 Cases in which the court will not grant ments 188 
 
 relief from accident . . 178 Relief where mistake is as to existent 
 
 Equitable relief in suits on lost instru- legal rights ISd 
 
 ments 177 Compromises and settlements of disputes 
 
 Defective executions of powers . . 178 over legal rights as affected by mistakes 
 
 Equitable relief in non-execution of of law 190 
 
 powers . . ... .179 Payment of money under mistake of law 191 
 
 Accidental forfeitures . . . 180 Mistakes of fact.— General statement 192 
 
 Judgments at law 181 The requisites to relief in mistakes of fact 19& 
 
 Failure of subject-matter of the contract Compromises and speculative contracts 194 
 
 or bequest 182 Remedies and nature of relief . . , 19& 
 
 Mistake defined and distinguished from Illustrations of cases in which affirmative 
 
 accident, fraud and negligence 183 relief may be granted.— Relief in cases 
 
 Kinds of mistake , . . 184 of wills . . 195 
 
 Mistakes of law.— General rule. — Ignor- How mistakes may be proven. — When 
 
 antia juris 7ton excusat 185 parol evidence is admissible , 197 
 
 Mistake of law accompanied by inequi- Parol evidence in suits for specific per^ 
 
 table conduct of the other party . . 186 formance ... ... 198 
 
 Mistake of law between parties in rela- Effect of the Statute of Frauds upon the 
 
 tlons of trust ... . 187 admissibility of parol evidence . . 199 
 
 § 1Y5. Limitation of jnrisdiction in cases of accident. — "Acci- 
 dent," as defined by Mr. Pomeroy, as a ground for equitable juris- 
 diction, " is an unforeseen and unexpected event, occuring. to the 
 party affected by it, and of which his own agency is not the proxi- 
 mate cause, whereby, contrary to his intention and wish, he loses 
 some legal right and becomes subject to some legal liability; and 
 another person acquires a corresponding legal right, which it would 
 be a violation of good conscience for the latter person, under the 
 circumstances, to retain."^ The jurisdiction of equity was assumed 
 in all such cases for the purpose of providing for relief, where the 
 courts of law did not and could not furnish adequate remedy. It 
 will be remembered, from the definition quoted from Mr. Pomeroy, 
 that the remedy for the accident exists only in cases of unex- 
 pected and unforeseen events, which happen independently of any 
 acts of the party claiming relief, and from causes existing outside 
 of the party affected by the event. In that respect, it differs from 
 the ground of equitable relief in the case of mistake, which is 
 to be discussed in the same chapter. It will also be observed, 
 that the relief is only afforded when the party who profits by the con- 
 sequences of the unforeseen event is held by a court of equity to be in 
 
 1 2Fom. Eq Jur., S 823, see, also, Earl of Bath r. Sherwln, 10 Mod. 1, 3; Story's Eq., { 78, 
 
 212 
 
CH. XI. J RELIEF ON GROUND OF ACCIDENT AND MISTAKE. § 176 
 
 conscience bound to give up such benefit, or to restore the party suf- 
 fering from such accident to the condition in which he "was prior to 
 the accident. The extent of the jurisdiction of the court in such a 
 case has always been more or less uncertain. At an early day, it was 
 supposed that the court would grant relief in every case of an unex- 
 pected occurrence, which brought misfortune to one withotit any fault 
 of his. Such is the definition given by Lord Coke. But in the course 
 of time, the jurisdiction has been brought within narrower limits; and 
 while the distinction between the cases in which equity will afibrd 
 relief from accident, and those in which the equitable relief will be 
 refused, is sometimes irrational and arbitrary, yet it is very well 
 established by the adjudications, and the courts are not likely to 
 enlarge such jurisdiction in the absence of modifying statutes. 
 
 § 176. Cases in which the court will not grant relief from 
 accident. — Where a contract is made by parties, without a provision 
 for release from liability in the case of an inability to perform the 
 contract, equity will not afford any relief by way of defense against 
 the enforcement of the obligation, although the inability to perform 
 the obligation is due to some accident which places it beyond the power 
 of the obligor to perform, without being traced to any fault of his 
 own, and where such accident could not be foreseen or anticipated; ^ 
 except in cases of penalties, which have been already fully discussed.* 
 
 Relief will, of course, be refused to one whose negligence causes the 
 accident.' While it has also been held to be impossible, as a general 
 rule, for a court of equity to supply or establish the records of a court 
 of law which have been lost or destroyed, yet a court of equity will 
 afford relief to judgment creditors by enabling them to prove by 
 parol evidence the rights which they had acquired by the record.* 
 But in order that in any case the equitable relief might be claimed, 
 one must have a vested right of some sort which is affected by the 
 accident. If a mere possibility of acquiring an interest was lost or 
 prevented by accident, as where a testator has been by accident pre- 
 vented from making a bequest in favor of another, the latter could 
 not claim equitable relief.* So, also, will this equitable relief be 
 refused to one who only has an equity equal to that of the party 
 against whom the relief is to be granted.- In order that one may 
 ask for such equitable relief, he must show that his equity is superior 
 to that of the other party ;° and the claim for relief in this, as in every 
 
 1 Mortimer t). Capper, 1 Bro. Ch. 156; Pym v. chase V. Barrett, 4 Paige, 148; Barnetr. Tump. 
 Blackburn, 3 Ves. 34, 38j Fowler D.Bott, 6 Mass. Co., 15 Vt. 757; Marine Ins. Co. s. Hodgson, 7 
 63; HallettJ). Wylie, 3 Johns. 44; Woods. Hub- Cranch, 336. 
 
 bell, 10 N. Y. 479; 5 Barb. 601 ; Brewer v. Her- ^ Garrett v. Lynch, 45 Ala. 204. 
 
 bert, 30 Md. 301; McKecknie i). Sterling, 48 6 pierson «, Garnet, 3 Bro. Ch. 38, 326; Brown 
 
 Barb. 330, 335; but see Smith v. McCluskey, 45 ^. Higgs, 8 Ves. 561; Toilet ». Toilet, 2 P. Wms. 
 
 Barb. 610, 613. 4g9, 
 
 2 See ante. Chap. 111. « Jenkins v. Kemls, 1 Chan. Cas. 103; Wealf. 
 ' Ex parte Greenway, 6 Ves. 812; Penny v. Lower, 1 Eq. Abr. 266; Powell v. Powell, Free. 
 
 Martin, 4 Johns. Ch. 566, 569; see, however, Ch. 278. 
 
 213 
 
§ 177 EQUITY JUBISPEUDENOE. [CH. XX. 
 
 other case, will not be granted against the rights of a bona fide pur- 
 chaser/ 
 
 § 177. Equitable relief in suits on lost instruments. — Since the 
 common law required profert to be made of the legal instrument of 
 indebtedness upon which the action is brought, and did not provide 
 for a bond of indemnity, where suit is brought on a lost instrument, 
 the general rule has been laid down, that where an instrument of 
 indebtedness has been lost, the party entitled to recover on it must 
 resort to a court of equity for relief; and upon giving a bond of 
 indemnity, the court of equity will order the payment of the amount, 
 called for in the lost instrument. • A bond of indemnity is executed 
 for the purpose of indemnifying the payor against the possible neces- 
 sity of having to pay the same sum over again to a bona fide holder of 
 the lost instrument. The equitable remedy was very generally 
 resorted to in cases of lost sealed instruments, bonds and the like;^ 
 but the same relief was granted in cases of loss of all sorts of negotiable 
 instruments, where they are lost before maturity, whether they were 
 payable to bearer, indorsed in blank, or not indorsed at all.' It has 
 been denied, that the equitable jurisdiction will extend to actions on 
 non-negotiable instruments, which are unsealed; for the reason that 
 an action at law could also be maintained, and that no indemnity was 
 necessary.* But the weight of authority is certainly against this posi- 
 tion and in favor of recognizing the equitable jurisdiction over these 
 cases, as well as over cases of lost negotiable instruments. ^ It has been 
 held also that the equitable jurisdiction does not extend to destroyed 
 instruments as distinguished from lost instruments.' But this is not 
 likely to be recognized by any of the American cases.' It is custom- 
 ary in all such equitable actions for the plaintiff to put in his complaint 
 an offer of indemnity; but if he should fail to make this offer, it would 
 not affect the jurisdiction of the court, as it could be corrected by the 
 decree making the recovery conditional upon the filing of a bond of 
 indemnity.' In all these cases it will be seen that the action is strictly 
 a legal action, and the decree is legal in effect, with the exception of 
 the execution of the bond of indemnity; and the court of equity 
 assumes jurisdiction only for the purpose of securing the bond of 
 
 1 Ligon V. Rogers, 12 6a. 281, 292; Whitman v. * See Massop v. Eadon, 16 Ves. 430, 433, 434. 
 
 Weston, 30 Me. 285; Penny v. Watts, 2 De G. & 6 Hickman v. Painter, 11 W. Va. 386; Allen 
 
 Sm. 501; B. c, 1 Macn. AG. 150; Marshall ». Col- ■B. Smith, 29 Ark. 74; Force ». City of Elizabeth, 
 
 lett, 1 Y. & C. Exoh. 232, 238; Maiden v. Menll, 87 N. J. Eq. (12 C. E. Green) 408j Macartneys. 
 
 ZAtk. 8. Graham, 2 Sim. 285; Hardeman v. Battersby, 
 
 s Hickman v. Painter, 11 W. Va. 386; Force v. 53 Ga. 36, 38. 
 
 City of Elizabeth, 27 N. J. Eq. (12 C. E. Green) « Wright v. Lord Maidstone, 1 K. & J. 701, 708, 
 
 408; Donaldson v. Williams, 50 Mo. 407; Living- per Page- Wood, V. C. 
 
 ston ®. Livingston, 4 Johns. Oh 294; Thornton ' See American cases cited In previous note. 
 
 ». Stewart, 7 Leigh, 128; Hudspeth v. Thoma- s Bromley «. Holland, 7 Ves. 3, 19-21; Mossop 
 
 son, 46 Ala. 470; Lawrence®. Lawrence, 42 N.H. ®. Eadon, 16 Ves. 430, 433, 434; Savannah Nat. 
 
 109; Patton ». Campbell, 70 111. 72; Howe B. Tay- B'k s). Haskins, 101 Mass. 370; Walmsley ». 
 
 lor, 6 Oreg. 884, 291; Allen V. Smith, 29 Ark. 74. Child, 1 Ves. Sen. 341, 344, 345; Glynn 11. B'kof 
 
 8 Hansard v. Bobinson, 7 B. & C. 90; Crowe Eng., 2 Id. 281. 
 V. Clay, 9 Exch. 604. 
 
 214 
 
CH. XI.] RELIEF ON GROUND OF ACCIDENT AND MISTAKE. § 179 
 
 indemnity and giving judgment subject to that condition. Actions on 
 lost iustruments of indemnity are now permitted by statute in courts of 
 law of the states in which the reformed code of procedure has been 
 adopted, as well as in others. In these states, this question as to 
 equitable jurisdiction does not arise; for the equitable remedy, in case 
 of lost instruments, has become there a common remedy in law as 
 well as in equity. 
 
 § 1Y8. Defective execution of powers. — The general rule is that 
 an execution, defective because of a failure to conform to the direc- 
 tions of the donor, will be nugatory, and the appointment absolutely 
 void. And if the appointment is a mere gift to the appointee, and the 
 power is general and free from the character of a trust, the slightest 
 defect will invalidate the execution.* But if the power is special, or 
 the execution is a trust and a peremptory duty upon the donee; or if 
 the donee has received a valuable consideration for the appointment; 
 equity will correct or make good the defective execution by ordering 
 a re-execution,* provided there has been a substantial compliance with 
 the conditions of execution, and the defect relates only to the formali- 
 ties of execution, such as the number of attesting witnesses, the tech- 
 nical words of limitation, or conveyance, etc' But there is no relief 
 against the defective execution of a statutory power. The remedy 
 for relief is confined to powers created by act of the owner of the 
 property.* 
 
 § 179. Equitable relief in non-execution of powers. — But if the 
 donee has failed altogether to execute the power, or disregarded the 
 material conditions imposed by the donor upon its execution, equity 
 will not interfere to compel an execution,^ unless the power be a 
 trust, the execution of which is mandatory. In such a case, equity 
 will not permit any accident or neglect of the donee to defeat the 
 trust, and thus deprive the beneficiaries of their right under the 
 
 1 Sugden on Pow., 98; Tud. Ld. Gas. 317. 337; Garth v. Townsend, L. R. 7 Eq. 220; Piatt 
 s Hughes V. Wells, 9 Hare, 749; Toilet o. Tol- v. McCullough, 1 McLean, 69; Mitchell v. Den- 
 let, 1 Eq. Lead. Gas. 365, and notes; Beatty v. son, 29 Ala. 327; Kearney v. Vaughan, 50 Mo. 
 
 Glark, 20 Cal. 11 ; Love v. Sierra, A-c. Co., 32 Id. 284; Stewart v. Stokes, 33 Ala. 494; Blackwell 
 
 639, 653; Thorp v. McCuUum, 1 Gllman, 614; v. Ogden, 2 Bush, 265; Porter v. Turner, 3 Serg. 
 
 Houtt). Hout, 20 Ohio St. 119; Schenok«. EUing- & R. 108, 111, 114; Long v. Hewitt, 44 Iowa, 363; 
 
 wood, 3 Edw. Ch. 175; Clifford v. Burlington, 2 Bradish v. Gibbs, 3 Johns. Ch. 523, 550; Barr V. 
 
 Vem. 379; Bruce v. Bruce, L. R. 11 Eq. 371; Hatch, 3 Ohio, 527. 
 
 Pepper's Will, 1 Pars. Eq. 436, 446; Porter v. < Gridley's Heirs i,. Phillips, 5 Kans. 349; 
 
 Turner, 3 Serg. & R. 108, 114; Dennison v. Goeh- Kearney v. Vanghan, 50 Mo. 284; Smith v. 
 
 ring, 7 Barr. 175;Huss». Morris, 63 Pa. St. 367 j Bowes, 38 Md. 463; Earl of Darington ». Pul- 
 
 Atty.-Gen. v. Sibthorp, 2 Rass. & My. IW; In re teney, Cowp. 260; and see Stewart v. Stokes, 33 
 
 Dyke's Estate, L. R. 7 Eq. 337; Dowell v. Dew, Ala. 494. 
 
 1 Y. & G. 345; Watt v. Watt, 3 Ves. 244; Tudor ' Howard v. Carpenter, 11 Md. 259; Lines V. 
 
 V. Anson, 2 Ves. Sen. 582. Darden, 5 Fla. 51 ; Mitchell v. Denson, 29 Ala. 
 
 'Story Eq.Jur.,§§ 169-175; 2 Sugden on Pow. 327; Wilkinson v. Getty, 13 Iowa, 157; Bull ». 
 
 88, et eeq.; Schen«k v. ElUngwood, 3 Edw. Ch. Vardy, 1 Ves. 270; Johnson v. Gushing, 15 N. 
 
 175; Hunt B.Rousmaniere, 2 Mason, 251; Rob- H. 298; Lippenoott o. Stokes, 2 Halst. Ch. 122; 
 
 erts V. Stanton, 2 Munf. 129; McRea v. Far- Toilet v. Toilet, 2 P. Wms. 489; 1 Eq. Lead. 
 
 row, 4 Hen. & M. 444; Mutual Life Ins. Go. v. Gas. 365, and notes (4th Am. ed.) ; Arundell v. 
 
 Everett, 40 N. J. Eq. 345; Toilet v. Toilet, 1 Eq. Phlllpot, 2 Vem. 69. 
 
 Lead Gas. 365; In re Dyke's Estate, L. B. 7 Eq. 
 
 215 
 
§ 182 EQUITY JUKISPEUDENCE. [CH. XI. 
 
 power. All mandatory powers, whether general or special, are 
 trusts; and courts of equity will execute such powers, even if the 
 donee has failed to exercise the power, and died. But there can 
 never be any interference by the courts with discretionary powers, if 
 the donees have refused to exercise them. ' 
 
 § 180. Accidental forfeitures. — The ordinary rule which equity 
 affords against penalties, as distinguished from forfeitures, has been 
 already fully explained.^ But the case referred to in this connection, 
 is that of forfeitures strictly so-called; where the breach of the con- 
 dition, which caused the forfeiture, is the result of some unforeseen 
 accident and is not occasioned by the party's fault or negligence. In 
 such cases, the courts will afford relief against the forfeiture, even 
 though compensation cannot be accurately made in money, provided 
 everything is done, that is possible under the circumstances, to place 
 the party claiming the forfeiture in the position in which he would 
 have been, had the breach of the condition not occurred.' It has 
 also been held that a court of equity will afford this extraordinary 
 relief to one who has by some accident or mistake tendered less than 
 the required amount in the payment of a debt; he will be saved from 
 the forfeiture of his property or rights in consequence of a failure to 
 make tender.' 
 
 § 181. Judgments at law. — Another case for relief on the ground 
 of accident is, where a judgment has been obtained at law against 
 one who has an equitable ground for avoiding such judgment, which 
 could not, however, be entered as a defense in a legal action. In 
 such a case, a court of equity will relieve the defendant from the 
 judgment at law by the employment of whatever remedy may be 
 suitable to that end.^ 
 
 § 182. Failure of subject-matter of the contract or bequest. — 
 Equity will also afford relief wherever the subject-matter of a con- 
 tract fails from some accident, and the party is, therefore, unable to 
 deliver the subject-matter of the contract. The court will also afford 
 relief to the party who is obliged to pay the consideration, and 
 secure substantial justice in the settlement of the claims of the par- 
 
 iStory Eq Jur., §§ 169-175, 1062; 2 Sugden Zimmerman, 63 Mo. 72; Eveleth v. Little, 16 
 
 on Pow. 88, et acq.; Gorin v. Gordon, 38 Miss. Me. 374, 377; Atkins ». Sison, 85 Ark. 138; Bost- 
 
 214; Neves v. Scott, 9 How. 196-213, Sedgwick wickii. Stiles, 35 Conn. 195; Whelan v. Eeilly, 
 
 •». Laflin, 10 Allen, 432; 1 Sugden on Pow. 158; 61 Mo. 565. 
 
 TVamefoid v. Tliompson, 3 Ves. 513; Gibbs v. 'Clark v. Drake, 63 Me. 354. 
 
 Marsh, S Met. 243; Noroum v, D'Oencb, 17 Mo. 6 Richmond Enquirer v. Robinson, 24 Gratt. 
 
 ■98; Thorp ». McCullum, 1 Gilm. 614, 625; With- 548; Shields v. McClung, 6 \V. Va. 79; see Earl 
 
 ers V. Yeadon, 7 Rich. Eq. 324, 329; Browns. of Oxford's Case, 1 Ch. Rep. 1; 8 Eq. Lead. 
 
 Hlggs, 8 Ves. 561, 574. Cas. 1291, and notes (4th Am. ed.) ; Robinson 
 
 ^Seeante, Chap. III. v. Wheeler, 5i N. H. 384; Craft!). Thompson, 
 
 sDuke of Beaufort v. Neeld, 12 CI. & Pin. 51 Id. 536; Holland v. Totter, 22 Gratt. 136: N. 
 
 ■248; Baton v. Lyon, 3 Ves. 690, 693, per Lord Y., &o. R. R. v. Haws, 56 fl. Y. 175; Barber ?), 
 
 Alvanley; Wheelers. Conn. Mut. Life Ins. Co., Rukeyser, 39 Wis. 590; Thomason V. Fannin, 
 
 :82 N. Y. 543, 549; Giles D.Austin, 62 N. Y. 486; 54Ga. 361; Grubbs. Kolb,55 2o!. 630; Cairo, Ac. 
 
 Whitbeck v. Van Rensselaer, 64 N. ■» . 27; 2 R. E. B. Titus, 27 N. J. Eq. (13 C. E. Green) 102; 
 
 Bun, 55; 4 T. & C. 283; Wing v. Harvey, 5 De G. Darlings. Baltimore, 51 Md. 1 ; Alford v. Moore, 
 
 M, <t G. 265; Palmer v. Ford, 70 111. 369; Orr v. 15 W. Va. 597. 
 
 216 
 
CH. Xr.] RELIEF ON GROUND OF ACCIDENT AND MISTAKE. § 183 
 
 ties against eacli other. ^ So, also, where an executor or administrator 
 has paid out debts or legacies in full, believing the assets to be suffi- 
 cient, and by some unforeseen accident the amount of assets has 
 proved insufficient, equity will afford the executor or administrator 
 the relief needed for securing him against such loss, and compelling 
 an equitable redistribution of the assets among the creditors and 
 legatees.^ 
 
 § 183. Mistake defined and distingnished from accident, fraud 
 and negligence. — The authorities and judges are not always happy in 
 their definitions of mistake, in many cases defining, as Professor 
 Pomeroy has pointed out,' the consequences of mistake instead of the 
 fact itself. Such has been particularly the case with Judge Story in 
 his Equity Jurisprudence, and those who have followed him. Thus, 
 Judge Story says, mistake " is some unintentional act, or omission, or 
 error, arising from ignorance, surprise, imposition, or misplaced con- 
 fidence. "* 
 
 Mistake consists of an erroneous mental conception, concerning 
 the circumstances of the law which surrounds a given transaction. 
 The erroneous mental conception of the condition of affairs leads one 
 to do an act, which he would not have done, had not his misconception 
 led him to believe that the consequences of that act would have been 
 different from what they really were. As defined by Mr. Pomeroy, 
 mistake is "an erroneous mental condition, conception, or conviction, 
 induced by ignorance, misapprehension, or misunderstanding of the 
 truth, but without negligence, and resulting in some act or omission 
 done or suffered erroneously by one or both the parties to a trans- 
 action, but without its erroneous character being intended or known 
 at the time." ^ As will be observed by a close study of this definition, 
 mistake is to be distinguished from accident in that accidents are the 
 result of some external aberration which produces results not expected 
 or contemplated by the parties to the transaction; whereas mistakes 
 consist of misconceptions, not due to external causes. The mistake 
 is also to be distinguished from fraud, in that there is no intention or 
 design on the part of anyone to produce the misconception. And, 
 furthermore, the mistake must occur under circumstances, which 
 would not justify the imputation of negligence against the person 
 laboring under the mistake. One cannot ask relief of a court of equity 
 from a mistake which has been occasioned by his own negligence . 
 He must be able to show that the mistake occurred, notwithstanding 
 he exercised the care of a reasonably prudent man, and that a pru- 
 
 iHale V. Webb, 3 Bro. Ch. 78; Davlea v. Clough v. Bond, 3 My. & Cr. 490; Jones v. 
 
 Wattier, 1 S. &. S- 463; May v. Bennett, 1 Russ. Lewis, 2 Ves. Sen. 240. 
 370; Haohett v. Pattle, 6 Madd. 4. ' 2 Pom. Eq. Jur., § 839. 
 
 20iT V. Kaines, 3 Ves. Sen. 194; Moore v. * Story's Eq, Jur, § 110; see, also, Snell (Prin- 
 
 Moore, Id. 596, 600; Noel V. Robinson, 1 Vcrn. olples of Equity, 370) and Kerr (Fraud and 
 
 90, 94; Edwards v. Freeman, 2 P. Wms. 435, Mistake, 396). 
 447; Walcot v. Hall, 2 Bro. Cli. 305; Hawkius». ' 2 Pom, Eq. Jur., § 839. 
 
 Day, Ambl. 160; Pooley v. Kay, 1 P. Wms. 355; 
 
 217 
 
§ 186 EQUITY JUKISPKUDENCB. [CH. XI. 
 
 dent man would have been misled by the circumstances of the case.^ 
 § 194. Kinds of mistake. — The misconception or erroneous under- 
 standing, which leads one to the expectation, from a given transaction, 
 of consequences different from what are realized, may arise from a 
 misapprehension of the inile or rules of law which govern the transac- 
 tion in question, or from ignorance of the real facts, either past or 
 present, which bear upon and produce the result. Where one enters 
 into a transaction, having a full knowledge of all the facts of the 
 case, but ignorant of the legal effect of the transaction upon his 
 ii^terests, either he does not know what are his antecedent legal 
 rights, or he misunderstands the legal effect of the proposed trans- 
 action on his rights and interests. In both these instances the 
 mistake is essentially and primarily one of law. On the other hand, 
 where one is cognizant of the law governing the transaction and of his 
 own antecedent legal rights, but he is mistaken as to some material 
 fact, which leads him to expect from the transaction different results 
 from what are realized, it is a mistake of fact. These two classes of 
 mistakes are different in character and consequences, and must be 
 discussed separately. 
 
 Mistakes as to foreign laws are not held to be mistakes of law, but 
 mistakes of fact." 
 
 § 186. Mistakes of law.— General rule. — Ignorantia jnris non 
 excnsat. — As has already been hinted in the preceding paragraph, 
 there are three distinct and different cases of mistakes of law, 
 which must be separately defined and differentiated. In the first 
 place, the mistake of the law may consist of ignorance of the rules of 
 law which govern one's duties and relations to the state and to third 
 persons in general, independently of any contractual relations. In 
 the second place, the mistake of law may consist of a misunderstand- 
 ing as to the legal effect of a given transaction, arising ex contractu, 
 although one fully understands the antecedent legal rights bearing 
 upon the case, and the facts connected witii the transaction. The 
 third case, is where one understands the legal effect of the transaction 
 he is about to enter into, and is fully cognizant of all the material 
 facts affecting the consequences of the transaction, but he is ignorant 
 of his antecedent legal rights which bear upon the transaction and 
 
 iLambt). Harris, 8 Ga. 546 i Wallace e.Hussey, 166; Waller's Appeal, 103 Pa. St.594; Peareet). 
 
 63 Pa. St. 24; Smith ». Fly, 24 Tex. 353; 76 Am. Suggs, 85 Tenn. 734; Massey v. Cotton States. 
 
 Dec. 109; Kuhlmans. Baker, ."JO Tex. 630; Eowe Life Ins. Co., 70 Ga. 794; Foster ». Schneer, 1& 
 
 V. Horton, 65 Tex. 89; Capehart ■</. Mhoon, 5 Oreg. 383; Rhoae Island, <fec. Bank d. Hawkins, 
 
 Jones (N. Car.) Eq. 178; Bonney v. Stoughton, 6E. 1. 198; Trigg v. Read, 5 Humph. (Tenn.> 
 
 122 111. 5.36; Voorhisv. Murphy, 26 N. J. Eq. 434;*" 529; Dimau v. Providence, &c. E. R., 5 R. 1. 130j 
 
 Cannon v. Sanford, 20 Mo. App. 590; Robertson Western E. R, v. Babcock, 6 Met. 346; Kite v. 
 
 V. Smith, 11 Tex. 211; h. c, 60 Am. Dec. 234; Lumpkin, 40Ga. 506. 
 
 Brown v. Fagan, 71 Mo. 563; Toops v. Snyder 2 McCormick v. Gamett, 5 De G. M. & G.278; 
 
 70 Ind. 554 ; Kennerty v. Etiwan Phosphate Co., Leslie v. Bailie, 2 Y. & C. 91 ; Haven v. Foster, 
 
 21 S. Car. 226; a. c, 53 Am. Eep. 669; Woodu. 9Pick. Ill; Bk. of ChilUcother. Dodge, 8Barb. 
 
 Patterson, 4 Md. Ch. 335; Kearney o. Sascer, 37 233; Meroh. Bk. v. Spalding, 18 M, 302; Patter- 
 
 Md. 264; Penny v. Martin, 4 Johns. (N. Y.) Ch. son v. Bloomer, 35 Conn. 57 
 
 218 
 
CH. XI. J RELIEF ON GROUND OF ACCIDENT AND MISTAKE. 
 
 § 185 
 
 affect the result of the same. A distinction has been made by 
 some of the courts between mistakes of law and ignorance of 
 law.* But the distinction is immaterial, if at all well founded, and 
 the transaction is similarly affected, whether it be called a mistake 
 of law or ignorance of the law.^ 
 
 In regard to the first class of cases, there is never an exception to 
 the general rule, embodied in the legal maxim, ignorantia juris non 
 excusai. No one can plead ignorance of the law as a defense 
 in a criminal prosecution or an action ex delicto. But where 
 the action is ex contractu, it becomes doubtful how far the general 
 rule applies in determining the liability of the parties, and pre- 
 cluding a resort to equity for relief from the consequences of the 
 mistake of law. Still, it may be accepted as a general rule, in cases 
 where the mistake relates to the legal effect of the proposed trans- 
 action and not to the character of the party's existent legal rights, 
 that unless the circumstances of the case are complicated by extra- 
 ordinary facts which raise suspicion against the good faith of the 
 other party, or which give rise to exceptional claims far equitable 
 relief, equity wiU not afford any relief from the consequences of the 
 mistake.* 
 
 1 Walker, J., in Gwynu v. Hamilton, 89 Ala. 
 233; compare Hopkins v. Masynk, 1 Hill (S. 
 Car.) Eq. 212; HaU v. Keed, 2 Barb. (N. Y.) Cli. 
 500, 503; Lawrence v. Beaubeln, 2 Bailey (S. 
 Car.) L. 623; s. c, Am. Dec. 155; Champlin v. 
 Laytin, 18 Wend. (N. Y.) 407. 423; s. c, 76 
 Am. Dec. 382; Culbreath v. Culbreath, 7 Ga. 
 64; 8, c, 50 Am. Dec. 375; Lucas «. Lucas, 30 
 Ga. 191 ; s. c, 76 Am. Dec. 642. 
 
 2Heaoock v. Fly, 14 Pa. St. 540; Gwynn v. 
 Hamilton, 29 Ala. 833; Gebb v. Rose, 40 Md. 387; 
 Champlin v. Laytin, 18 Wend. (N. Y.) 407; 
 s. c, 31 Am. Dec. 382; Schlisenger v. United 
 states, 1 Ct. of Cl. 16; Jacobs v. Morange, 47 N. 
 Y. 57; Dow v. Kerr, Spears (S. Car.) Ch. 413. 
 
 3Snell V. Atlantic Ins. Co., 98 U. S. 85; De 
 Give V. Healey, 60 Ga. 391; Ottenhelmer v. 
 Cook, 10 Heisk. 309; Jenkins v. German Luth. 
 Cong., 58 Ga. 125; Hardigree v. Mltchum, 51 
 Ala. 151; Bk. of U.S. ». Daniel, 12 Pet. 32; 
 Hunt V. Rousmaniere, 8 Wheat. 174; 1 Pet. 1; 
 2 Mason, 342; Heavenridge ». Mondy, 49 Ind. 
 434; Gebb v. Rose, 40 Md. 387; Thunnond v. 
 Clark, 47 Ga. 500; Bledsoe v. Nixon, 68 N. C. 
 521 ; McMurray v. St. Louis, Ac. Co., 33 Mo. 377; 
 Rochester v. Alfred Bk., 13 Wis. 432; Smith v. 
 McDougal, 2 Cal. 586; Smith v. Peun, 22 Gratt. 
 402; Jacobs v. Morange, 47 N. Y. 57; Zollman v. 
 Hoore, 21 Gratt. 313; Ooltra v. Sanasack, 53 111. 
 456; Bryant v. Mansfield, 22 Me. 360; Goods. 
 Herr, 7 W. & S. 253; State v. Reigart, 1 Gill, 1; 
 Dayisj). Bagley, 40 Ga. 181; Dill v. Shahan, 85 
 Ala. 694; Lyon ». Sanders, 23 Miss. 530; States. 
 Paup, 13 Ark. 189; Garnart). Bird, 97 Barb. 877; 
 Stoddard t>. Hart, 23 N. Y. 556; Hinchman ii. 
 Emans, Sazt. 100; Wintermute v. Snyder, 2 
 Green's Ch. 489 ; Peters s. Florence, 38 Pa. St. 194 j 
 
 Proctors. Thrall, 22 Vt. 268 ; Shotwell v. Mijrray, 
 1 Johns. Ch. 512; Gilbert v. Gilbert, 9 Barb. 532; 
 see, also, Gerald v. EUey, 45 Iowa, 382; Glenn 
 V. Statler, 48 Id. 107; Nelson v. Davis, 40 Ind. 
 366; Moorman s. Collier, 33 Iowa, 138; Hoover 
 V. Eeilly, 2 Abb. U. S. 471 ; Norris v. Laberee, 
 58 Me. 260; Kennard v. George, 44 N. H. 440; 
 Heaton v. Fryberger, 38 Iowa, 185, 190, 201; 
 Hearst v. Pujol, 44 Cal. 830; Hellish v. Robert- 
 son, 25 Vt. 603; Molony v. Rourke, 100 Mass. 
 190; Haven v. Foster, 9 Pick. Ill; Barnes v. 
 Bartlett, 47 Ind. 98; Wood v. Price, 46 111. 439; 
 Montgomery©. Shookey, 37 Iowa, 107; Wheaton. 
 ». Wheaton, 9 Conn. 96; O'Donnells. Harmon, 
 3 Daly, 421; Clayton ». Freet, 10 Ohio St. 
 544; Evants v. Strode, 11 Ohio, 480; Martin ». 
 Hamlin, 18 Mich. 354; Champlin v. Laytin, 
 18 Wend. 407; Crosier v. Acer, 7 Paige, 137; 
 Hall V. Reed, 2 Barb. Ch. 500; Dupre v. 
 Thompson, 4 Barb. 279; Beutley v. Whitte- 
 more, 18 N. J. Bq. 366; MoEIderry v. Shipley, 3 
 Md. 25; Watkins v. Stockett, 6 Har. & J. 435; 
 Alexander s. Newton, 2 Gratt. 866; Durant v. 
 Bacot, 3 Beael. 801; Garwood v. Eldridge, 1 
 Green's Ch. 145; Light V. Light, 9 Harris, 407; 
 Rankin v. Mortimere, 7 Watts, 378; Storrs v. 
 Baker, 6 Johns. (N. T.) Ch. 166, 167; s. c, 10 
 Am. Dec. 316 ; Wood v. Price, 46 III. 439; Sparks 
 o. Pittman, 51 Miss. 511 ; Nelson v. Davis, 40 Ind. 
 366; Shafers. Davis, 13 ill. 395; Paine v. Jones, 
 75 N. Y. 593; Leavltt v. Palmer, 3 N. Y. 19; s. u., 
 61 Am. Deo. 33; Fellows ti. Heermans, 4 Laua. 
 (N. Y.)230; Burt v. Wilson, 28 Cal. 638; s. c, 
 87 Am. Deo. 142; Kelly v. Turner, 74 Ala. 513; 
 Oiler V. Gard, 23 Ind. 212; Coley v. Coley, 19 
 Conn. 114; Farley v. Bryant, 32 Me. 474; Zane v. 
 Cawley, 21 N. J. Eq. 130; Troops v. Snyder, 70 
 
 219 
 
§ 187 
 
 BQtJITY JUKISPEUDENCE. 
 
 [CH. XI. 
 
 The exceptional circumstances which will entitle the party to relief 
 from such mistake of law will be explained in subsequent paragraphs. 
 
 § 186. Mistake of law accompanied by ineqnitable conduct of 
 the other party. — ^The general rule, that equity will not relieve against 
 mistakes as to the legal import or effect of a transaction is, however, 
 not followed, where the entry of one party into the transaction is not 
 induced solely by his ignorance of the legal effect of the transaction, 
 but by a combination of such ignorance and some inequitable conduct 
 on the part of the other party; in si^ch cases, equity will afford relief 
 from the contract or transaction, although neither the inequitable 
 conduct nor the mistake of law would alone have afforded sufficient 
 ground for relief. Pure cases of fraudulent misrepresentation would 
 always be ground enough for relief from the contract. The relief 
 will be afforded, even when the inequitable conduct consists only of a 
 knowledge that the other party is under the influence of a mistake as 
 to the legal effect of the transaction.^ 
 
 § 187. Mistake of law between parties in relations of trust. — 
 This exception to the general rule, as to denial of relief from mistakes 
 of law, is particularly strong, where a fiduciary relation exists between 
 
 Ind. 554; Hawralty v. Warren, 18 N. J. 124; s. 
 c, 90 Am. Dec. 613; Oswald v. Sproehule, 16 
 111. App. 368; Gordere v. Downing, 18 111. 492; 
 Arthur v. Arthur, 10 Barb. (N. Y.)9; McAninch 
 V. Laughlln, 13 Pa. St. 371 ; Rector v. Collins, 46 
 Ark. 167; s. c, 55 Am. Eep. 571; Bell v. Steele, 
 1 Humph. (Tenn.) 148; Birk Lansei v. Schmitt, 
 45 Wis. 316; Upton v. Triblieock, 91 V. S. 45j 
 Lamborn v. Dickinson Com. , 97 U. S. 181 ; United 
 States V. Ames, 99 U. S. 35; Sandlin v. Ward, 94 
 N. Car. 490; Goodenow v. Ewer, 16 Cal. 461 ; s. c. , 
 76 Am, Dec. 540; Champlin v. Laytin, 6 Paige, 
 (N. Y.) 189; Zenor v. Johnson, 107 Ind. 69; Na- 
 bours V. Cocke, 34 Miss. 44; Sibert v. McAvoy, 
 15 111. 106; Trigg v. Read, 5 Humph. (Tenn.) 
 529; s. L'., 48 Am. Dec. 447; Allen v. Galloway, 
 30 Fed. Rep. (U. S.) 466; Gwynn v. Hamilton, 
 29 Ala. 233; Broadwell v. Broadwell, 6 111. 599; 
 Nelson v. Davis, 40 Ind. 366; Allen v. Ander- 
 son, 44 Ind. 395; Williamson v. Hltner, 79 Ind. 
 233; Newell v. Stiles, 21 Ga. 118; Beebe v. 
 Swartwout, 3 Gil. (111.) 162; Baker v. Pyatt, 
 108 Ind. 61; Norton v. Highleyman, 88 Mo. 
 «21; Price v. Estill, 87 Mo. 378. It may be 
 repeated, in this connection, that all mistakes 
 as to foreign law are held to be mistakes of 
 fact, and, like such mistakes, can always be 
 relieved against. Citing McGonniok v. Gar- 
 nett, 5 De G. M. & G. 278; Leslie v. BailUe, 2 T. 
 & C. Ch, 91; Patterson v. Bloomer, 35 Conn. 
 57; Haven v. Poster, 9 Pick. 112; Bk. of Chilli- 
 cothe V. Dodge, 8 llarb. 233; Mech. Bk. v. 
 Spalding, 12 Barb. 302. 
 
 > Champlin v. Laytin, 18 Wend. 407, 422; Elder 
 •V. Powell, 28 N. Y. 310; Green v. Morris, &c. R. 
 E., 1 Beasl. 165; Whelan's Appeal, 70 Pa. St. 410, 
 425, Light V. Light, 9 Harris, 407, 412; Tyson v. 
 Passmore, 2 Barr. 122; Watts v. Cummins, 59 Pa. 
 St. 84; Phillips v. Hollister, 2 Coldw. 269; Bryan 
 
 220 
 
 V. Masterson, 4 J. J. Marsh. 225; Hardigree v. 
 Mitchum, 51 Ala. 151; Metropolitan Bk. v. God- 
 frey, 23111. 579; Cathcart». Robinson, 5 Pet. 264, 
 276; Wheeleri). Smith, 9 How. (U. S.) 55; Spurrji. 
 Benedict, 99 Mass. 463; Chestnut Hill, &o. Co. v. 
 Chase, 14 Conn. 123; Woodbury, <fec. Bk. v. Char, 
 ter Oak Ins. Co., 31 Id. 517. Cases of Surprise. — 
 Tyson v. Tyson, 31 Md. 134; Jones v. Munroe, 32 
 Ga. 181; Harney ». Charles, 45 Mo. 157; CarleyD. 
 Lewis, 84 Ind. 23; Cooke v. Nathan, 16 Barb. (N. 
 Y.) 342j Wheaton v. Wheaton, 9 Conn. «7, 99; 
 BLgelow?). Barr, 4 Ohio, 358; Williams v. Cham- 
 pion, 6 Ohio, 169; Trigg v. Read, 5 Humph. 
 (Tenn.) 528; a, c, 42 Am. Dec. 447; Sparks v. 
 White, 5 Humph. (Tenn.) 86; Martin v. New 
 York, &c. R. Co., 36 N. J. Eq. 109, 111; Bryan*. 
 Masterson, 4 J. J. Marsh. (Ky.) 825; Drew v. 
 Clark, Cooke, (Tenn.) 374; s. c.,56Am. Ueo. 
 698; Mortimer v, Pritchard, 1 Bail. (S. Car.) 
 Eq. 505; Sands v. Sands, 118 HI. 225; Goode- 
 now V. Ewer, 16 Cal. 461; a. c, 76 Am. Deo. 
 540; Freeman v. Curtis, 51 Me. 140; a, c, 81 
 Am. Deo. 564; Jordan v. Stevens, 51 Me. 78; 
 B. c, 81 Am. Deo. 556; Stover®. Poole, 67 Me. 
 817; Eamey v. Allison, 64 Tex. 697; Berry 
 V. Whitney, 40 Mich. 65; Bales v. Hunt, 77 
 Ind. 355; Mason v. Pelletier, 82 N. Oar. 40; 
 Jenkins v. German Lutheran Cong., 58 Ga. 
 185; Montgomery v. Shockey, 37 Iowa, 107; 
 Briscoe v. Pacific Mut. Ins. Co., 4 Daly, (N. T.) 
 846; Mccormick v. Miller, 102 111. 208; s. c, 40 
 Am. Rep. 577; Wheeler®. Smith, 9 How. (U. S.) 
 65; Metropolitan Bank®. Godfrey, 23 111.579; 
 Rankin v. Mortimere, 7 Watts, (Pa.) 372; see, 
 also. Hunt v, Rousmaniere, 1 Pet. (U. S.) 1; 
 Bank of United States ®. Daniel, 12 Pet. (U. S.) 
 32; Brown v. Armistead, 6 Rand. (Va.) 594, 
 Dill ®. Shahan, 25 Ala. 694; s. u., 60 Am. Dec. 
 510; Haden ®. Ware, 15 Ala. 149. 
 
CH. XI. J BELIEF ON GROUND OF ACCIDENT AND MISTAKE. § 188 
 
 the parties, and the party affected by the mistake of law is the bene- 
 ficiary. Equity will afford relief from a transaction entered into by 
 such parties, in relation to the subject-matter of the trust, under a 
 misapprehension by the beneficiary as to the legal effect of the trans- 
 action, although there may be no direct proof of any inequitable con- 
 duct on the part of the trustee. In consequence of the fiduciary 
 relation between the parties, equity considers it inequitable, on account 
 of the danger of undue influence, to insist upon a performance of the 
 contract, or the maintenance of the transaction.^ 
 
 §188. Mistakes common to all parties. — Mistakes as to legal 
 effect of written instruments. — It has been claimed that mistakes of 
 law, which were common to both parties, could always be relieved 
 against, whatever may be their effect. "If both parties should be 
 ignorant of a matter of law and should enter into a contract for a par- 
 ticular object, the result thereof would by law be different from what 
 they naturally intended: here, on account of the surprise or immedi- 
 ate result of the mistake of both, there can be no reason why the 
 court should not interfere in order to prevent the enforcement of the 
 contract, and relieve from the unexpected consequences of it. To 
 refuse, would be to permit one party to take an unconscientious advan- 
 tage of the other, and derive a benefit from a contract which neither of 
 them intended it should produce." ^ But where there is any foundation 
 for this opinion, it will be found that the case falls within one of the 
 exceptions, which are established on other grounds. Leaving out of 
 consideration, for the present, those cases where the mistake consists 
 of a misunderstanding as to one's existent legal rights, which will be 
 explained in a subsequent paragraph, there are but two cases in 
 which it can be claimed that equity will afford relief where the mis- 
 take is common to both parties, viz. : Where the mistake as to the legal 
 effect of a transaction is complicated by some inequitable conduct 
 of the other party to the transaction;' secondly^ where the parties 
 have fully agreed upon a contract by verbal negotiations, and during^ 
 such negotiations no mistake of law or of facts has been made; but 
 the parties or the scrivener have, in reducing the transaction to 
 
 1 Wheeler v. Smith, 9 How, (tr..S.) 55; Baker BowUn v. Pollock, 7 Mon. (Ky.) 26, 33; Drew ». 
 V. Massey, 50 Iowa, 399; Dickey v. Beatty, 14 Clark, Cooke's, (Tenn.) 373, 374; s. c, 5 Am. 
 Ohio St. 389; Nelson ». Betts, 81 Mo. App. 219; Dec. 698; Willint). Willin, 16 Ves. 73; Stapylton 
 Pickerings. Pickering, 2 Beav. (N.J.) 31; ». Scott, 13 Ves. 424; Bryan t). Masterson,4 J. J. 
 Wheeler v. Smith, 9 How. (U. S.) 56; Jordan v. Marsh. (Ky.) 225; compare Fowler V. Richard- 
 Stevens, 51 Me. 78; B.C., 81 Am. Deo. 556; Lang- son, 3 Sneed, (Tenn.)608:'Harrell j). DeNorman- 
 staffe V. Fenwlck, 10 Ves. 405; and see Cooke die, 26 Tex. 120; Freiknicht v. Meyer, 8 N. J. L. 
 ?;. Nathan, 16 Barb. 342; Dill V Shahan, 25 Ala. J. 167; ChamplinB. Laytin,6 Paige, (N. Y.)189; 
 694; Moreland ». Atchjnson, 19 Tex. 303; Bx Mead v. Johnson, 3 Conn. 592; Lowndea ». 
 jparie James, L. R. 9Ch. 609, 614. Chisolm, 2 McCord (S. Car.) Eq. 455; a. o., 16 
 
 5 State V. Paup., 13 Ark. 129; b. u., 56 Am. Dec. Am. Dec. 667; Lawrence v. Beaubien, 2 Bailey 
 
 303; see, also, Koonegay v. Everett, 99 N. Car. (S. Car.) L. 623; s. c, 23 Am. Dec. 55; Hopkins 
 
 30; Green v. Morris, Ac. K. Co.. 12 N. J. Eq. 165; v. Mazynk, 1 Hill (S. Car.) Eq. 242, 250; Fitz- 
 
 Champlin v. Laytin, 1 Edw. (N. Y.) Ch. 467; gerald v. Peck, 4 Littell, (Ky.) 127. 
 Griffith v. Sebastian Co., 49 Ark. 24. See, gen- » gee ante, § 186. 
 
 eraUy, Glassell v. Thomas, 3 Leigh, (Va.) 113; 
 
 221 
 
§ 189 
 
 EQUITY JURISPEUDENOK. 
 
 [CH. 
 
 XI. 
 
 writing, or in executing the written instrument, which is to consti- 
 tute the perfoi'mance of the agreement, employed words and phrases, 
 whether of a technical or untechnical character, under a mistake as 
 to their legal effect, and which do not represent the intention of either 
 party, as had been embodied in the verbal agreement. Equity will 
 grant relief from this wrongfully executed instrument, on the ground 
 that the mistake did not occur as to the contract which the parties 
 actually made, but in an attempted reduction of the contract to writ- 
 ing. The contract in writing is not the contract which the parties had 
 actually made, and hence it could be properly treated as a mistake of 
 iact.* It seems to be the generally accepted rule of law that equity will 
 grant relief against an instrument which does not express the true intent 
 of the parties, whether the mistake in the terms of the written contract 
 arises from ignorance of law or a mistake of fact.^ But these cases of 
 mistake in reducing the contract to writing must not be confounded 
 with cases, where the parties have accurately expressed their intentions 
 in the written, instrument, and the mistake has not occurred in the 
 reduction of the contract to :writing. Equity will not grant relief in 
 a case where the error as to the law occurred in the original contract, 
 and is merely reproduced in the written instrument.' 
 
 § 189. Eellef where mistake is as to existent legal rights. — 
 Where the mistake consists of a misunderstanding; as to the legal 
 
 1 Canedy v. Maroy, 13 Gray, (Mass.) 373; Clay- 
 ton V. Freet, 10 Ohio St. 544; Cooke v. Hus- 
 l>ands, 11 Md. 492 j Springs v. Harven, 3 Jones 
 <N. Car.) Eq. 96; Youngs. Miller, 10 Ohio, 85; 
 MoNaughtonj). Partridge, U Ohio, 223; s. c, 38 
 Am. Dec, 31; Bushbyu. Littlefleld, 31 N. H. 193; 
 Kennard v. George, 44 N. H. 440; Beardsley «. 
 Knight, 10 Vt. 185; s. c, 36 Am. Deo. 193; 
 Browne v: Glines, 42 N. H. 160; Green «J. Morris, 
 Ac R. Co., 12 N. J. Eq. 165; see, also, Holds- 
 ■worth V. Tuclier, 143 Mass. 369; Stapylton v. 
 Scott, 13 Ves. 424; Champlin v. Laytin, 1 Bdw. 
 <N. Y.) Ch. 467; James v. Cutler, 54 Wis. 172; 
 Hunt V. Bousmaniere, 8 Wheat. 174; 1 Peters, 1; 
 Pitcher V, Hennessey, 48 N. Y. 415; Lanning v. 
 Carpenter, 48 Id. 408;oO'Donnell». Harmon, 3 
 Daly, 424; Gillespie v. Moon, 8 Johns. Ch. 585, 
 S96, Stedwell «. Anderson, 21 Conn. 139; Huss 
 ■». Morris., 63 Pa. St. (13 P. F. Sm.) 367; Moser v. 
 Libenguth, 2 Eawle, 428; Larkinsu. Bibble, 21 
 Ala. 252; Stone v. Hale, 17 Id. 557; Clopton v. 
 Martin, 11 Id. 187; Worley v. Tuggle, 4 Bush, 
 168; Smith v. Jordan, 13 Minn. 264; Sparks V. 
 Plttman, 51 Miss. 511; Stockbridge Iron Co. v. 
 Hudson Iron Co., lOT Mass. 290; Oliver v. Mut., 
 Ac. Ins. Co., 2 Curtis' C. C. 277. 
 
 *Kennard «. George, 44 N. H. 440; see, also, 
 Beardsley v. Knight, 10 Vt. 185; Canedy v. 
 Marcy, ISGray, (Mass )373; Browner. Gllnes,42 
 N. H. 160; Heacock v. Fly, 14 Pa. St. MO; see, 
 also. Gross v. Leber, 47 Fa. St. 620; Leach v. 
 Noyes, 45 N. H. 364; Clayton v. Freet, 10 Ohio 
 St. 544; Remington*. Hlggins, 54 Cal. 6201; see, 
 also, Daggett V. Rankin, 31 Cal. 321; Racouillat 
 
 222 
 
 V. Sausevaln, 32 Cal. 376, 389; Clayton v. Bussey, 
 30 Ga. 946; Larklns v. Bibble, 21 Ala. 252; Clop- 
 ton ». Martin, 11 Ala. 187; Stone v. Hale, 17 Ala. 
 657; 8. c, 52 Am. Dec. 185; Wyohe v. Gneul, 16 
 Ga. 49; Benson v. Markoe, 37 Minn. 30; Greens. 
 Morris, Ac. R. Co., 12 N. J. Eq. 165; McMillan 
 V. New York, &c. Co., 29 N. J. Eq. 610; Winter- 
 mute V. Snyder, 3 N. J. Eq. 489, 500; Huylers. 
 Atwood, 11 C. E. Green, (N. J.) 604; Sisson v. 
 Donelly, 36 N. J. L. 432; McKay v. Simpson, 6 
 Ired. (N. Car.) Eq. 452; Stedwell v. Anderson, 
 21 Conn. 139; Petesch v. Hambach, 48 Wis. 443; 
 German Am. Ins. Co. ■». Davis, 131 Mass. 316; 
 O'Donnell v. Harmon, 3 Daly, (N. Y.) 424; 
 Sparks v. Pittman, 51 Miss. 511; Evants o. 
 Strode, 11 Ohio, 480. 
 
 ' Norman v. Norman, 26 S. Car. 41 ; see, also, 
 De Give v. Healy, 60 Ga. 391; Andrews Bros. v. 
 Youngstown Coke Co., 39 Fed Rep. 353; Marble 
 V. Whitney, 28' N. Y. 297; Goodenow v. Ewer, 16 
 Cal. 461; e. o., 86 Am. Dec. 540; Hoover v. 
 Reilly, 2 Abb. (P. S.) 471; Leonard v. Wills, 24 
 Kans.231; Leavittu. Palmer, 3 N. Y. 19; Durant 
 V. Bacot, 13 N. J. Eq. 201 ; Hunt v. Rousmaniere, 
 2 Mason, (V. S.) 342; Irnham v. Child, 1 Bro. C. 
 C. 91. Arthur v. Arthur, 10 Barb. (N. Y.) 9; 
 Robertson v. Walker, 51 Ala. 484 ; Larkins v. Bib- 
 ble, 21 Ala. 252; Betts «. Gunn, 31 Ala. 219; 
 Trapp i>. Moore, 21 Ala. 693; Gerald v. EUey, 45 
 Iowa, 322; Burt v. Wilson, 28 Cal. 632; 8. c, 87 
 Am. Dec. 142; see, also, Fishback v. Wood- 
 ford, 1 J. J Marsh. (Ky.) 84; s.c, 19 Am,I)ec. 
 65; Farley v. Bryant, 32 Me. 474. 
 
■CH. XI. J BELIEF ON GROUND OF ACCIDENT AND MISTAKE. 
 
 § 189 
 
 effect of a transaction, the mistake is purely one of law; there is no 
 mingling of facts and law in the mistake. But where there is a mis- 
 understanding of one's existent legal rights, and in consequence of 
 such misunderstanding, a party enters into a transaction, which he 
 Tvould have avoided, if he had not been under the influence of his mis- 
 take as to his existent rights; in many, if not in all, of the cases of this 
 kind, the mistake is one both of law and of fact. The existence of the 
 legal right is a fact upon which he bases his determination to enter 
 into the transaction, and about which he is mistaken. An existent 
 legal right is the resultant of a legal rule and the facts of a past 
 transaction; and a misunderstanding concerning the existence or 
 non-existence of a given legal right, must arise from a joint mis- 
 take of law and fact.^ Now, the authorities are not unanimous as 
 to the grounds upon which they grant relief in cases of this kind; 
 but it will be found that whatever may be the reason assigned, 
 the courts very generally grant relief where the mistake relates 
 to the existence or non-existence of antecedent legal -rights.^ The 
 true reason for this distinction, in respect to the grant of relief, 
 
 1 "A misrepresentation of lawistliis: Wlien 
 you state the facts, and state a conclusion of 
 law, so as to distinguish between facts and 
 law. The man who knows the facts is taken 
 to know the law; hut when you state that as a 
 -fact which no doubt involves, as most facts do, 
 a conclusion of law, that is still a statement of 
 :fact and not a statement of law. Suppose a 
 man is asked by a tradesman whether -he can 
 .give credit to a lady, and the answer is, ' You 
 may; she is a single woman of large fortune.' 
 It turns out that the mau who gave that an- 
 swer knew that the lady had gone through the 
 ■ceremony of marriage with a man who was be- 
 lieved to be a married man, and that she had 
 "been advised that the marriage ceremony was 
 null and void, though it had not been declared 
 so by any court; and it afterwards turned out 
 they were all mistaken, that the first marriage 
 ■of the man was void, so that the lady was mar- 
 ried. He does not tell the tradesman all these 
 facts, but states that she is single. That is a 
 statement of fact If he had told him the 
 whole story, and all the facts, and said, ' Now, 
 you see the lady is single,' that would have 
 I)een a misrepresentation of law. But the 
 single fact he states, that the lady Is unmar- 
 ried, is a statement of fact, neither more nor 
 less; and it Is not the less a statement of fact, 
 that in order to arrive at it you must know 
 xaore or less of the law. There is not a single 
 fact connected with the personal status that 
 does not, more or less, involve a question of 
 law. If you state that a man is the eldest 
 son of a marriage, you state a question of 
 law, because you must know that there has 
 been a valid marriage, ^nd that that was the 
 first-bom son after the marriage, or, in some 
 ■countries, before. Therefore, to say it is not 
 A representation of facts seems to arise from a 
 
 confusion of ideas. It is not the less a fact be- 
 cause that fact involves some knowledge or 
 relation of law. There is hardly any fact 
 which does not involve it. If you say that a 
 man is in possession of an estate of ten thou- 
 sand pounds a year, the notion of possession is 
 a legal notion, and involves knowledge of law ; 
 nor can any other fact in connection with 
 property be stated which does not involve such 
 knowledge of law. To state that a man is en- 
 titled to ten thousand pounds consols, involves 
 all sorts of law." Opinion of Sir George Jes- 
 sel, in Englesfield v. Marquis of Londonderry, 
 L. B. 4 Ch. D. 693, 703, 703. 
 
 2 Whelan's Appeal, 70 Pa. St. 410; Hearst V. 
 Pujol, 44 Cal. 230; Morgan v. Dod, 3 Col. 551; 
 ZoUman v. Moore, 21 Gratt. 313; Irick v. Fulton, 
 3 Gratt. (Va.) 193; Williams v. Champion, 6 
 Ohio, 169; Skillman v. Teeple, 1 N. J. Eq. 232; 
 Komegay v. Everett, 99 N. Car. 30; Ply »_ 
 Brooks, 64 Ind. 50; see, also. King v. DooUttle, 
 1 Head, (Tenn.) 77; Lammot v. Bowly, 6 Har. <& 
 J. (Md.) 500; Cumberland Coal & Iron Co. v. 
 Sherman, 20 Md. 117; Gardner v. Gardner, 1 
 Desau. (S. Car.) Eq. 437; Freeman v. Curtis, 51 
 Me. 140; Moreland v. Atchison, 19 Tex. 303; 
 Haden v. Ware, 15 Ala. 149; Chestnut Hill Res- 
 ervoir Co. V. Chase, 14 Conn. 123; Carley v. 
 Lewis, 24 Ind. 23; Layton v. Chaplin, 1 Edw. 
 (N. Y.) Ch. 467; Cocking v. Pratt, 1 Ves. Ch. 400; 
 Trigg V. Read, 5 Humph. (Tenn.) 529; s. o., 42 
 Am. Dec. 447; Bonney ». Stroughton, 122, III. 
 536; Goff V. Gott, 5Sneed, (Tenn.) 568; Fams- 
 worthti.Dlnsmore, 2Swan, (Tenn.) 38, 42. Com- 
 pare Bentley v. Whittemore, 18 N. J. Eq. 366; 
 Peters v. Florence, 38 Pa. St. 194, But see 
 contra, Hudson v. Conway, 9 Lea, (Tenn.) 410; 
 see, also, Baldwin v. Richman, 9 N. J. Eq. 394; 
 Zollmanv. Moore, 21 Gratt. (Va.) 313. 
 
 223 
 
§ 191 EQUITY JUEISPRUDENCE. [CH. XI. 
 
 between mistakes as to existent legal rights and mistakes as to the 
 legal import of the present transaction is, however, believed to be 
 that the former class of mistakes are mistakes both of law and of 
 fact. Mr. Pomeroy states the rule as follows: " Wherever a persou 
 is ignorant or mistaken with respect to his own antecedent and exist- 
 ing private legal rights, interests, estates, duties, liabilities, or other 
 relation, either property, or contract, or personal status, and enters into 
 some transaction the legal scope and opinion of which he correctly 
 apprehends and understands, for the purpose of aflfecting such assumed 
 rights, interests, or relations, or of carrying out such assumed duties 
 or liabilities, equity will grant its relief, defensive or affirmative, 
 treating the mistake as analogous to, if not identical with, a mistake 
 of fact."^ The general rule is, however, subject to exceptions, 
 which will be given in the next succeeding paragraphs. 
 
 §190. Compromises and settlements of disputes over legal 
 rights as affected by mistakes of law. — It must not, however, be 
 supposed that relief will be afforded whenever a party enters into a 
 transaction, under a mistaken conception as to his legal rights. It 
 depends upon the purpose and character of the transaction. If the 
 transaction is altogether an independent one, and the inducement of 
 one of the parties to enter into it is a misunderstanding of his anteced- 
 ent legal rights, relief will be granted to him; as, for example, where 
 one is induced to sell his interest in a piece of property at a given 
 price, because he is under the mistaken impression that he has only a 
 life-interest in such property, equity will relieve him from the contract. 
 But if the parties have had a dispute over each other's rights in and to 
 the property in question, and for the purpose of compromising their 
 dispute without a resort to the courts, they enter into an agreement 
 for a settlement, without any fraud or other inequitable conduct on 
 the part of either of the parties, the fact that the compromise was 
 based upon an erroneous conception of one's rights, will not furnish 
 ground for a relief from the compromise.^ There are some cases in 
 which the judicial dicta seem to lay down a different rule, but a closer 
 examination of the cases will disclose the fact that some inequitable 
 conduct or undue influence has induced the agreement to the compro- 
 mise, and furnished the ground for equitable relief.* 
 
 § 191. Payment of money under mistake of law. — ^Another excep- 
 tion to the general rule that equity will afford relief from a mistake 
 as to one's existent legal rights is to be found in the case of payment 
 of money under a mistake as to one's legal liability to pay. It is 
 
 I 2 Pomeroy Eq. Jur., §849, pp. 314, 315. 'Gross v. Leber, 11 Wright, 520; Light V. 
 
 « Good V. Kerr, 7 Watts & Serg. 253; Stub ii. Light, 9 Harris, 407, 412; Cabot v. Hasklns, i 
 
 Lels, 7 Watts, 43; Shartel's Appeal, 64Pa. St. Pick. 83; Larklns v. Blbble, 21 Ala. 252, 256; 
 
 (14 P. F. Sm.) 25; Wistar's Appeal, 80 Pa. St. Naylor®. Winch, 1 S. & S. 555, 664; Bingham 
 
 (30 P. F. Sm.) 484; Brandon v. Medley, 1 Jones ». Bingham, 1 Ves. Sen. 126; and see Willan ».. 
 
 Eq. 313; Bell j). Lawrence, 51 Ala. 160; Stapil- Willan, 16 Ves. 72. 
 ton V. Stapllton, 1 Atk. 2; 2 Eo Lead Gas. and 
 notes, 1675 (4th Am. ed.). 
 
 224 
 
CH. XI.] RELIEF ON GROUND OF ACCIDENT AND MISTAKE. § 192 
 
 held, without any special ground for the exception, that where one 
 makes payment under the wrongful impression as to his legal liability, 
 but with a full knowledge, or with ample means of obtaining a full knowl- 
 edge, of all the circumstances of the case, he cannot recover back the 
 money so paid,* unless the payment has been induced by misrepresen- 
 tation or other inequitable conduct on the part of the other party to 
 the transaction.* 
 
 § 192. Mistakes of fact. — General statement. — ^The general rule 
 of equity is, that mistakes of fact as distinguished from mistakes 
 of law will be relieved against; and it is rather the exception than the 
 general rule, that equity will refuse relief in mistakes of fact. Mistakes 
 of fact are of an infinite variety; and it will be impossible, in this con- 
 nection, to attempt any general classification of the cases of mistake 
 of fact in which equity will afford relief. It will only be possible to 
 state, in a very general way, the character of the mistakes of fact 
 which are remediable. A mistake of fact involves a mental misconcep- 
 tion as to the existence or non-existence of facts or circumstances in 
 the past or in the present. The party or parties to the agreement 
 may be ignorant or unconscious or forgetful of the fact which existed 
 in the past or is now existent, and which has some relation with the 
 agreement about to be entered into. In this case, the mental miscon- 
 ception is a passive one. On the other hand, the party or parties may 
 believe that a fact or facts existed in the past or are now existent,, 
 when no such fact either did or does exist; in that case the mistake 
 consists of an active or affirmative misunderstanding. In both cl.isses. 
 of cases a court of equity will afford re hef.' From this definition it 
 is plain that the misconception is an involuntary mental condition. 
 There cannot, therefore, be any claim for relief on the ground of a 
 mistake, where the parties have intentionally omitted some condition 
 or provision of the agreement. Whether there be any equitable relief 
 in such a case or not, it will not be afforded on the ground of mistake.* 
 
 1 Livermore v. Peru, 55 Me. 469; Bate v. fulness of a fact, past or present, material 
 Hooper, 5 DeG. M. & G. 338; Clarke », Butcher, to the contract^ or, 2. Belief in the present 
 9 Cow. OT4; Ege v. Koontz, 3 Barr. 109; Shot- existence of a thing material to the oon- 
 well V. Murray, I Johns. Ch. 513, 516; Storrs v. tract which does not exist, or in the past 
 Barker, 6 Id. 166; Railroad Co. v, Soutter, 13 existence of such a thing which has not 
 Wall. 517 524; Bk. of U. S. v. Daniel, 13 Peters, existed." See Mut. L. Ins. Co. v. Wagner, 27 
 32; Elliott v. Swartout, 10 Id, 137; Haven ii. Barb. 354; Clarke v. Dutcher, 9 Cow. 674; Mil- 
 Foster, 9 Pick. 112. nes v. Duncan, 6 B. & C. 671 ; U. S. Bk. v. Bk. of 
 
 ^Bingham v. Bingham, 1 Ves. Sen. 126; Davis Ga., 10 Wheat. 333; MoDaniels v. Bk. of Rut- 
 
 V. Moiier, 2 Coll. 303; Exparte James, L. B. 9 Jand, 29 Vt. 230, 238; Allen v. Mayor, 4 E. D. 
 
 Ch. 609; Rogers v. Ingham, L. R. 3 Ch. D. 351, Smith, 404; Mowatt v. Wright, 1 Wend. 355, 360; 
 
 356; Pusey v. Desbouvrie, 3 P. Wms. 315. Martin v. McCormick, 8 N. Y. 331, 335; Briggs 
 
 3 2 Pom. Eq. Jur., § 854. In the civil code, v. Vanderbilt, 19 Barb. 222, 239; Kip v. Munroe, 
 
 which was designed and proposed for adoption 29 Barb. 579; Gardners. Mayor, &c., 26 Id. 423; 
 
 in the State of New York, and which has been Wheadon v. Olds, 20 Wend. 174; Durkin v. 
 
 adopted as the civil code of California, mis- Craston, 7 Johns. 442; Rheel v. Hicks, 25 N. Y. 
 
 takes of fact are defined as follows: " Mis- 289; Ketchum v. Bk. of Commerce, 19 Id. 499, 
 
 take of fact is a mistake, not caused by the 502; Belknap v. Sealy, 14 Id. 143; Huthmacher 
 
 neglect of a legal duty on the part of the v. Harris' Adm'r, 38 Pa. St. 491; Hastie v. Cou- 
 
 person making the mistake, and consisting turier, 9 Exch. 102; 5 H. L. Cas. 673. 
 in: 1. An unconscious ignorance or forget ^ See Marquis of Townshend u. Slangroom, 
 
 15 
 
 225 
 
§ 193 EQUITY JUEISPKUDENCE. . [CH. XI. 
 
 The general rule is that an intentional omission of a clause or con- 
 dition from a contract cannot be relieved against; ^ but a distinction 
 is made by many of the authorities, who hold that a determination to 
 enforce the contract without the modification of the omitted provision 
 would in itself be a fraud from which equity would afford relief.* 
 The cases in which this rule has been applied involve the enforce- 
 ment of deeds which are absolute on their face, as mortgages or as 
 trusts, where the provision or clause which would establish the 
 character of the deed as a mortgage or as a trust has been intention- 
 ally omitted.' 
 
 § 193. The requisites to relief in mistakes of fact. — In order 
 that one might claim relief from a mistake of fact, whether that relief 
 be defensive or affirmative, two requisites are said to be essential: 
 First, the mistake must be in relation to a fact which is material to 
 the transaction and which affects the interests of the parties in a sub- 
 stantial manner. The mistake must be so material and so important, 
 that the action of the parties in entering into the agreement must 
 have been influenced by such mistake, and but for that mistake the 
 parties would not have made the contract on the terms and conditions 
 as agreed upon. If the mistake is immaterial and does not have any 
 particular effect upon the interest of the parties, no relief will be 
 afforded. The second requisite has often been stated, in terms with- 
 out qualification, to be that the mistake should not have been the 
 result of the negligence of the party complaining. If it can be shown 
 that the party complaining has been guilty of negligence, in his con- 
 sideration of the terms of the contract and the circumstances of the 
 case, no relief will be afforded to him on the ground of the mistake. 
 This, however, is too broad a statement of the requirement of the law. 
 In order that the negligence of the party may be a bar to equitable 
 relief, it must amount to a violation of duty ; and equity will afford 
 relief even in the case of a clearly established negligence, if the other 
 party has not been prejudiced thereby.* 
 
 Ves. 328, 332; Lord Imham V. Child, 1 Bro. 4 Rawle, 141 j Miller ». Henderson, 10 S. & E. 
 
 Ch. 98; Betts v. Gunn, 31 Ala. 219; see, also, 290; Campbell v. McClenachan, 6 7(«. 171; see 
 
 Thompsonville Scale Mfg. Co. v. Osgood, 26 Murray v. Dake, 48 Cal. 644; Taylor v. Oilman, 
 
 Conn. 16; Bellows v. Stone, 14 N. H. 175; Ruflf- 25 Vt. 411; Coger's Ex'rs v. Magee, 2 Bibb, 321. 
 
 ner v. McConnel, 17 III. 212; s. c, 63 Am. Deo . ' See §§ 330, 443. 
 
 .362;GilleBpiet). Moon, 2 Johns. (N. Y.) Ch.585; * Glenn v. Statler, 42 Iowa, lOT, 110; and see 
 
 ;S. c, 7 Am. Dee. 559; Gordere s. Downing, 18 Butman v. Hessey, 30 Me. 263; Hill i7. Bush, 19 
 
 111. 19; Lyman v. United Ins. Co., 17 Johns. Ark. 522; Allen xj. Mayor, <tc., 4 E. D. Smith, 
 
 (N. Y.) 373, Spencer, C. J.; Farley «. Bryant, 32 401; Voorhis „. Murphy, 26 N. J. Bq. 434; 
 
 Me. 474, 475; Leis v. Stubb, 6 Watts, (Pa.) 48; Wood v. Patterson, 4 Md. Oh. 335; Capehartu. 
 
 Cofflngt). Taylor, 16111. 457; Nevius ». Dunlap, Mhoon, 5 Jones Eq. 178; Lewis v. Lewis, 5 
 
 33 N. Y. 676; Wemple v. Stewart, 22 Barb. (N Oreg. 169; West R. R. d. Babcook, 6 Met. 346; 
 
 Y.) 154. Diman v. Providence R. R., 5 R. I. 130; but see 
 
 1 Stevens v. Cooper, 1 Johns. Ch. 425; Dwight Mut. L. Ins. Co. v. Wagner, 27 Barb. 354; Clarke 
 
 «. Pomeroy, 17 Mass. 303; Towner ». Lucas, 13 v. Dutcher, 9 Cow. 674; Mason v. Crosby, 1 
 
 Gratt. 705; Knight v. Bunn, 7 Ired. Eq. 77; Woodb. &. M. (U. S.) 342; Daniel c;. Mitchell, 
 
 Westbrook ». Harbeson, 2 McCord Eq. 112; 1 Story, (TJ. S.) 178; Warner v. Daniels, 1 
 
 Ware v. Cowles. 24 Ala 446. Woodb. & M. (U. S.) 90; Juzin v. Toulmin, 9 
 
 SRearich v. Swinehart, 1 Jones, (Pa.) 233; Ala. 668; s.o., 44 Am. Dec. 448; Ferson B.Sanger, 
 
 BenshawK. Gans, 7Barr. 119; Olivers. Oliver, 1 Woodb. & M. (U. S.) 138; Belt v. Mehen, 2 
 
 226 
 
CH. XI.] RELIEF ON GROUND OF ACCIDENT AND MISTAKE. § 195 
 
 § 194. Compromises and speculative contracts. — As a consequence 
 of the rule, that relief on the ground of mistake will not be afforded, 
 where the parties intentionally do what causes the unexpected results, it 
 has been held that no relief will be afforded to the party to a contract, 
 where the contract consists of a compromise of a dispute over some past 
 transaction, and where the dispute was concerning the facts of that trans- 
 action; or where the parties have knowingly and with their eyes open 
 entered into a contract of a speculative character, the results of which 
 are uncertain. Where such a contract is entered into, and the case 
 is not complicated by any fraudulent conduct of either of the parties, 
 the fact that the results of such a contract were not anticipated by the 
 parties to the contract, or by one of them, will not furnish a ground 
 for relief. In such a case, the parties are supposed to have duly 
 weighed the chances of the speculation or the benefit of the comprom- 
 ise, and whatever mistake has occurred is not a mistake as to exist- 
 ing or past facts, but a mistake of judgment as to the future conse- 
 quences of the present transaction.^ 
 
 § 195. Remedies and nature of relief. — The relief, which equity 
 will afford for mistakes, may in the first place be considered accord- 
 ing to the mode in which the mistake is presented to the court: First, 
 where the mistake is presented as a defense against the action; and, 
 secondly, where it is presented by the plaintiff as a ground for affirma- 
 tive relief. There is little to be said in respect to the relief which 
 is afforded in the case of defense, except to state that the proof of the 
 mistake will enable the defendant to resist the enforcement of the 
 plaintiff's cause of action.^ In states in which the reformed proced- 
 ure has been adopted, the equitable defense of mistake may be set 
 up in a legal action.' But, according to the old practice, mistake 
 vrill only serve as a defense where the action was brought in a court of 
 equity. 
 
 Cal. 159; MoCobb o. Richardson, 24 Me. 82; Eidgway, 39 N. J. Eq. 543; May v. Adams, 58 
 
 Hunter v. Goudy, 1 Ohio, 449; Wilson ii. West- Vt. 74; Jonesu. Monroe, 32 Ga. 1815; Stover «. 
 
 ern N. C. Land Co., 77 N. C. 445. Mitchell, 45 111. 213; Jordan v. Stevens, 51 Me. 
 
 1 Pickering v Pickering, 2 Beav. 31, 56, per 78, 83; s. c, 81 Am. Deo. 556; Steele v. White, 2 
 
 Lord Langdale; Williams ». Sneed, 3 Coldw. Paige, (N. Y.) 478; Trigg -o. Reed, 5 Humph. 
 
 533; Stoverc. Mitchell, 45 111. 213; Belln. Law- (Tenn.) 529; s. c, 42 Am. Deo. 447; Smith v. 
 
 rence, 51 Ala. 160; Shotwellu. Murray, 1 Johns. Penn, 23 Gratt. (Va.) 402; Korne ®. Rome, 30 
 
 Ch.5J2,H8; Goods. Herr, 7 W. & S. 253; Bran- W. Va. 1; Mills i>. Lee, 6 T. B. Mon. (Ky.) 91, 
 
 don ». Medley, 1 Jones Eq. 313; Durham v. 97; s. o., 17 Am. Deo. 118; Bennet v. Paine, 5 
 
 Wadllngton, 3 Strobh. Eq. 258; Walworth o. Watts, (Pa.) 259; Durham v. Wabbington, 8 
 
 Abel, 52 Pa. St. 370; Leis v. Stubb, 6 Watts, (Pa.) Strobh. (S. Car.) Eq. 258. 
 
 48, Gibson, C. J.; Shartel's Appeal, 64Pa. St. ^Doggett v. Emerson, 3 Story, 700; West E. 
 
 25; Burkholder'a Appeal, 105 Pa. St. 31-37; E. ». Babcock, 6 Mete. 346; Post v. Leet, 8 
 
 Ackla t). Ackla, 6 Pa-. St. 228; Wilen's Appeal, 105 Paige, 337 ; Mortimer v. Prltchard, 1 Bailey Eq. 
 
 Pa. St. 121; Hurlbut ». Phelps, 30 Conn. 42-50; 505; Helsham j). Langley, 1 Y. & C. 175; Moxey 
 
 Gordon v. Gordon, 3 Swanst. 463; Prank v. v. Bigwood, 4 De Q. F. & J. 351; Webb v. 
 
 Frank, 1 Ch. Gas. 84; Brooks v. Hall, 36Kans. Kirby, 7 De M. & G. 376; Davis v. Shepherd, L. 
 
 697; Fuller v. Fuller, 23 Fla. 236; Hanson v. R. 1 Ch. 410; Hooper v. Smart, L. E. 18 Eq. 
 
 Jones, 20 Mo. App. 595; Wells v. Nefif, 14 Oreg. 683; Allen v. Eicharflson, L. R. 13 Ch. D. 524; 
 
 66, Lord, J. ; Kraushaar V . Brant, 22 Mo. App. Denny <;. Hancock, L. E . 6 Ch . 1 . 
 
 162; Nabours v. Cocke, 24 Miss. 44; Easton v. 'See Arthur?). Homestead F. Ins. Co., 78 N. 
 
 Strother, .57 Iowa, 506; Hall v. Claggett, 2 Md. T. 462. 
 
 Ch. 148; Newell v. Smith, 53 Conn. 72; Boone v. 
 
 227 
 
§ 196 EQUITY JUEISPEUDENCE. [CH. XI.. 
 
 By way of affirmative relief, the equitable jurisdiction will be 
 resorted to only where the remedies at law prove inadequate. Where- 
 money has been paid, or goods delivered through .mistake, the legal 
 action for the recovery of either of them is adequate, and a resort to 
 equity is not necessary. There are other cases of affirmative relief 
 in which the legal action is not sufficient, as where land, through mis- 
 take, has been conveyed or contracted to be conveyed; and possibly 
 there are cases where the common law action for the recovery of 
 money or goods, which have been delivered by mistake, may prove 
 inadequate. In every such case, a court of equity will furnish the 
 required relief.^ 
 
 The affirmative relief which the court of equity will give in cases 
 of mistakes is of two kinds: One is, that of cancellation or recision of 
 a contract; and the second is, that of reformation or re-execution of the 
 contract. Cancellation is the proper and, in fact, only possible rem- 
 edy, where the mistake of law or of fact is an error of only one 
 of the parties; or where both parties have made different mistakes. 
 For the proof of the mistake or mistakes, under these circumstances, 
 shows that the parties did not enter into an agreement with each other;, 
 that their minds did not meet in agreement in respect to the same 
 subject-matter and on the same terms, and that no agreement waa 
 made at all.^ But where both parties make the same mistake, or one 
 of them makes the mistake and the other fraudulently takes advan- 
 tage of such a mistake; and the evidence in the case discloses the fact 
 that there was a contract made by the parties, in respect to whose terms 
 and conditions the parties were fully agreed; but that the contract as 
 written down did not record the contract which was actually made: 
 in such cases, the court will not cancel the transaction, but will reform 
 the contract and make it represent the real intentions of the parties, 
 as proven by the facts of the case.' 
 
 § 196. Illustrations of cases in which a£Brmative relief may be 
 granted. — Belief in cases of wills. — It may be stated, in very general 
 terms, that instruments of conveyance or agreement which operate 
 inter vivos, of every description whatsoever — whether they be executed 
 contracts, such as deeds of conveyance, leases and the like, or merely 
 
 iWheadon v. Olds, 20 Wend. (N. Y.) 174; Hovey, 3 Allen, 331 ; Woodbury, &c. Bk. o. Ins. 
 
 Van Sauten tj. Standard Oil Co., 17 Hun, (N. Y.) Co., 31 Conn. 617; Tessen ». Atlantic Co., 40 Mo. 
 
 140; Lane v. Pere Marquette Boom Co., 62 33; Childers ii. Childers, 1 De G. <& J. 488; 
 
 Mich. 63; BuffaloB. O'Malley, 61W1S.S55; B. c, Holmes «. Clark, 10 Iowa, 423; Jackson v. 
 
 50 Am. Rep. 137; Billingslea v. Ware, 32 Ala. Andrews, 59 N. Y. 244. 
 
 415; Guild ». Baldridge, 2 Swan, (Tenn.) 295; sWestont). Wilson, SIN. J. Eq. 51; Sanders 
 
 Manzy u. Hardy, 13 Neb. 36 ; Davis«. Krum, 12 v. Wagner, 32 7d. 506; Gump's Appeal, 65 Pa. 
 
 Mo. App. 879; Grimes v. Blake, 16 Ind. 160; St. 476; Chew ti. Gillespie, 56/4 308; Dulanyo. 
 
 Goodspeed v. Fuller. 46 Me. 141 ; s. c, 71 Am. Rogers, 50 Md. 584; Bradford v. Union Bk., 13 
 
 Dec. 578j Glenn v. Shannon, 12 S. Car. 570j How. (U. S.) 55,57,66; Rider u. Powell, 28 N. Y. 
 
 Newell V. Smith, 53 Conn. 72; Wolf «. Beaird, 310; De Peysterc. Hasbrouck, 11 Id. 582; Ford 
 
 123 111. 585; Baldwin v. Fobs, 71 Iowa, 386. v. Joyce, 78 Id. 618; Moran v. McLarty, 75 Id. 
 
 SNevinss. Dunlap, 33 N.Y. 676; Story o. Con- 83; Cone J). Niagara Ins. Co., 60 /d. 619; Comer 
 
 ger, 2&Id. 673; Welles «. Yates, 44 Id. 525; Diman v. Hlmes, 49 Ind. 488, 489; Mackenzie i>. Coul- 
 
 V. Providence R. E., 5 R. 1. 130, 135; Sawyei v. son, L. E. 8 Eq., 368. 
 
 228 
 
<JH. XI.] EELIEF ON GROUND OF ACCIDENT AND MISTAKE. 
 
 § 196 
 
 executory obligations, such as bonds, negotiable paper, policies of 
 insurance, and the like — in all such cases, mistake in the execution of 
 the instrument will not only serve as a good defense in the attempted 
 enforcement of the agreement thus erroneously executed, but equity 
 ■will likewise affirmatively relieve therefrom by a decree of cancella- 
 tion or reformation, as the case may be.' So, also, will equity afford 
 
 1 Prescott V. Hawkins, 16 N. H. 13S; Loss v. 
 Obiy, 22 N. J. Eq. 52 ; Blodgett v. Hobart, 18 Vt. 
 414; Davis v. Cox, 6 Ind. 481; Lindsay ti. Daven- 
 port, 18 111. SrS; Cavnall v. Wilson, 14 Ark. 482; 
 Bartiett v. Judd, 23 Barb. (N. Y.) 262; Richard- 
 son t>. Bleight, 8 B. Mon. (Ky.) 580; Grundy v. 
 Grundy, 13 B. Mon. (liy.) 269; James v. Cutler, 
 « Wis. 172; Kellogg v. Chapman, 30 Fed. Rep. 
 882; Strang*. Beach, 11 Ohio St. 283; Dunbar 
 V. Newman, 46 Miss. 231; Conyers v. Merioles, 
 75 Ind. 443; Levy v. Ward, 33 La. An. 1033; De 
 Ford ti. Mercer, 24 Iowa, 118; s. c, 92 Am. Dec. 
 460; Fowler v. Vreeland, 44 N. J. Eq. 268; 
 Balnes v. Calloway, 27 Tex. 678; Blackburn v. 
 Bandolph, 33 Ark. 119; Christmtin v. Colbert, 
 ^ Minn. 509; Parker v. Benjamin, 63 111. 255; 
 Dayton v. Citizens' Nat. Bank, 11 111. App. 501 ; 
 Jones V. Sweet, 77 Ind. 187; Sowler v. Day, 58 
 Iowa, 252; Davenport v. Sovil, 6 Ohio St. 459; 
 see, also, Wagenblast v. Washburn, 12 Cal. 208; 
 Morrison v. Collier, 79 Ind. 417; Weart v. Hose, 
 16 N. J. Eq. 290; Gouveneur v. Titus, 6 Paige , 
 'CN. Y.) 347; Dod ti. Paul, 43 N. J. Eq. 302; John- 
 son V. Johnson, 8 Baxt. (Tenn.) 261 ; see, also, 
 Warburton v. Lauman, 2 Greene, (Iowa) 420; 
 Mitchell V. Tlnsley, 69 Mo. 442; Eaton v. Ea- 
 ton, 15 Wis. 259; Colchester v. Culver, 29 Vt. 
 Ill; Bullock V. Whip, 15 E. I. 195; Wads- 
 worth V. Wendell, 5 Johns. (X. Y.) Ch. 224; 
 Allen V. Elder, 76 Ga. 674; Daniels v. Davl- 
 ■Bon, 17 Ves. 433; Probate Court v. May, 52 
 Tt. 182; Rutland v. Paige, 24 Vt. 181; Mont- 
 TlUe V. Haughton, 7 Conn. 543; Mitchell v. 
 'Tinsley, 69 Mo. 442; Bernard's Township 
 V. Stebbins, 109 U. S. 341; Draper v. Spring- 
 port, 104 U. S. 501; Neal v. Gregory, 19 Fla. 
 356; Bruce «. Bonney, 12 Gray, (Mass.) 107; 
 Althey v. McHenry, 6 B. Mon. (Ky.) 50; Sawyer 
 ■». Hanson, 48 Wis. 611; Summers v. Coleman, 
 W Mo. 488; Clayton v. Preet, 10 Ohio St. 544; 
 see, also. Day v. Day, 84 N. Car. 408; Wright i>. 
 Delafleld, 23Barb. IN. Y.) 498; Hunts. Prazier, 
 '6 Jones (N. Car.) Eq. 90; Nicholson ». Carless, 
 59 Ind. 39; Randolph v. New Jersey, &0. R. Co., 
 138 N. J. Eq. 49; Wanner v. Sisson, 29 N. J. Eq. 
 141; Galev. Morris, 29N. J.Eq. 222; McMillan i>. 
 Fish, 29 N. J. Eq. 610; Rutledge V. Smith, 1 
 Busb. (N. Car.) Eq..283; Coe v. New Jersey Mid- 
 land R. Co., 31 N. J. Eq. 105; Watson v. Sher- 
 man, 84 111. 263; Jones v. Sweet, 77 Ind. 187; 
 Exchange Bank v. Russell, 50 Mo. 531 ; Real 
 Estate Trust Co. -u. Balch, 45 N. Y. Super. Ct. 
 628; Whltesideso. Taylor, 105111.496; McCann 
 V. Letcher, 8B. Mon. (Ky.) 320; see, also, Court- 
 wrlghtB. Courtwright, 63Iowa,356; Stedwellu. 
 Anderson, 21 Conn. 139; Parlln v. Stone, 1 Mc- 
 ■Crary, (U. S.) 443; Bohanan v. Bohanan,3 111. 
 
 App. 502; Roszell v. Roszell, 109 Ind. 354; Carver 
 V. Carver, 97 Ind. 497; Douglass v. Branch Bank, 
 19 Ala. 659; McMillan v. New York, <Sdc. Co. , 29 
 N. J. Eq. 610; Winston v. Browning, 61 Ala. 80; 
 Hoover v. Senseman, (Pa. 1886) 4 Atl. Rep. 730; 
 Winnipiseogee, &c. Co. v. Perley, 40 N. H. 483; 
 Stamper v. Hawkins, 6 Ired. (N. Car.) Eq. 7; 
 Belknap v. Sealey, 2 Duer, (N. Y.) 570; Quesnel 
 V. Woodlief, 6 Call, (Va.) 218; Harrison v. Tal- 
 bott, 2 Dana, (Ky.) 258; Shelby v. Smith, 2 A. 
 K. Marsh. (Ky.) 504; Couse v. Boyles, 4 N. J. 
 Eq. 212; Large v. Penn, 6 S. & R. (Pa.) 488; 
 Stebbins v. Eddy, 4 Mason, (U. S.) 414; Wil- 
 liams V. Hathaway, 19 Pick. (Mass.) 387; 
 Kreiter «. Bomberger, 82 Pa. St.' 59; Beall 
 V. Berkhalter, 26 Ga. 566; Powell v. Clark, 5 
 Mass. 355; s. c.,4 Am. Dec. 67; Mann v. Pear- 
 son, 2 Johns. (N. Y.) 37; Perkins v. Webster, 2 
 N. H. 287; Marvin v. Bennett, 28 Wend. (N. Y.) 
 169; see, also, Brumbaugh v. Chapman, 45 Ohio 
 St. 368; Whitney B. Smith, 33 Minn. 124; Dun- 
 ham V. New Britain 55 Conn. 378; Martin v, 
 Hamlin, 18 Mich. 354; s. c, 100 Am. Dec. 181; 
 Iverson v. Wilburn, 65 Ga. 103; Goldsborough 
 V. Ringgold, 1 Md. Ch. 239; O'Connell ». Duke, 
 29 Tex. 299; Farenholt v. Perry, 29 Tex. 316; 
 Coons V. North, 27 Mo. 73; Nelson v. Matthews, 
 2 Hen. &, M. (Va.) 164; s. c. Am. Deo. 620; 
 Thomas v. Perry, 1 Pet. (C. C.) 49; O'Connell v. 
 Duke, 94 Am. Dec. 282. Compare Paine ». Upton, 
 87 N. Y. 327 ; s. o. , 41 Am. Rep. 571 ; Noble ». Goo- 
 gins, 99 Mass. 231 ; Smallwood v. Hatton, 4 Md. 
 Ch. 95 ; see, also, Stull v. Hurtt, 9 Gill, (Md.) 446 ; 
 Ketchum ». Stout, 20 Ohio, 453; Marvin v. Ben- 
 nett, 26 Wend. (N. Y.) 169; Morris Canal Co. v. 
 Emmett, 9 Paige, (N. Y.) 168; s. c, 37 Am. Dec. 
 388; see, also, McCasland v. .lEtna Life Ins. Co., 
 108 Ind. 130; Armstrong v. Short, 95 Ind. 327; 
 Heavenridge v. Mondy, 49 Ind. 4.34; Easter v. 
 Severin, 64 Ind. 375; Easter v. Severln, 78 Ind. 
 540; Nelson v. Davis, 40 Ind. 366; Nicholson v. 
 Caress, 59 Ind. 39; Schwlckerath v. Cooksay, 53 
 Mo. 75; Bums v. Hamilton, 33 Ala. 210; B. o., 
 70 Am. Dec. 570; see, also, Bennett v. Owen, 3 
 Ark. 117; Miller v. Craig, 83 Ky. 633, 625; Daw- 
 son V. Goodwin, 15 B. Mon. (Ky.) 439; Cosby «. 
 WiCklifFe, 12 B. Mon. (Ky.) 202; Glass v. Hurl- 
 bert, 102Mass,24; s. o.,3Am. Rep. 418. But see 
 contra, HItchins v. Pettingill, 58 N. H. 386, and 
 cases cited; Kostenbader v. Peters, 80 Pa. St. 
 438; Oakville Co. v. Double Pointed Tack Co., 
 105 N. Y. 658 ; Keepfers. Force, 86 Ind. 81 ; Brad- 
 well V. Phillips, 30 Ohio St. 255; Kilpatrlck v. 
 Strozier, 67 Ga. 247; Dwight v. Tyler, 49 Mich. 
 614; Wall v. Arrlngtoni 13 Ga. 88; Weston v. 
 Wilson, 31 N. J. Eq. , 51 ; Noel v. Gill, 84 Ky. 241 ; 
 Busby V. Littlefield, 31 N. H. 193. 
 
 229 
 
§ 196 EQUITY JURISPRUDENCE. [CH. XI. 
 
 affirmative relief in the case of mistakes in the execution of powers;^ 
 but in this connection it must be remembered that it is only in respect 
 to defective execution of powers that a court of equity will apply 
 relief,^ and that no relief will be granted in the case of the non-execu- 
 tion of the power, except when the execution of the power was a 
 mandatory duty of the donee and was not left to his discretion.' 
 
 Marriage settlements and family compromises, which have been 
 entered into through some mistake of fact, will be corrected whenever 
 there is a clear case of mistake, and the mistake was of such a strong 
 character as to support the claim of a surprise on the part of the 
 person entering into the settlement. But the relief will not be afforded 
 where the mistake relates to the anticipated consequences of the set- 
 tlement, instead of to the existing or past facts or circumstances of the 
 case.* Where a receipt has been given upon some mistake of fact as 
 to payment of money, the receipt may be corrected or cancelled by 
 decree of the court.' 
 
 A court of equity will also grant affirmative relief against mistakes 
 which have been made in judgments and decrees or orders of a court, 
 wherever the error is clerical or ministerial; but not where the 
 mistake was judicial. Against judicial mistakes there is no relief, 
 except by appeal to a higher court. Where a mistake is made in an 
 award, the court of equity has jurisdiction for the purpose of correct- 
 ing such a mistake; but the mistake must appear on the face of the 
 award itself, or upon some contemporaneous writing; or it must be 
 admitted by the arbitrator himself.' The court of equity will also 
 
 1 Oliver v. The Mutual, Ac. Ins. Co., 2 Curt. » Elliott v. Logan, Phill. (N. Car.) Eq. 163j 
 
 (TJ. S.)877j 8SugdenonPowers,94; Sinolairo. Wright v. Wright,2 McCord (S. Car.) Ch. 185; 
 
 Jackson, 8 Cow. (N. Y.) 544; Bare v. Hatch, 3 Aultman & Co. ». Graham, 29 111. App. 7T} 
 
 Ohio, 527; Johnson t>. Gushing, 15 N. H. 298; B. Collett v. Prazier, 3 Jones (N. Car.) Eq. 80. 
 
 c, 41 Am. Dec. 694; Lippincott v. Stokes, 6 N. « Palmer v. Bethard, 66 111. 529; Chapman V. 
 
 J. Eq. 22; Shannon v. Bradstreet, 1 S. & L. 63; Hurd, 67 M. 234; Stites v. Wiedmer, 35 Ohio St. 
 
 Love V. Sierra Nevada Min. Co., 32 Cal. 639 ; a. 555 ; Pool v. Docker, 92 111. 501 ; Young v. Mor- 
 
 c, 91 Am. Dec. 602; ToUett v. Toilet, 1 Lead. gan, 9 Neb. 169; but see Wardlaw t>. Wardlaw, 
 
 Cas. Eq. 371; Bakewell v. Ogden, 2 Bush, (Ky.) 60 Ga. 544; Colwell v. Warner, 36 Conn. 224; 
 
 265; Marshall 11. Stephens, 8 Humph. (Tenn.) 159; Loss », Obry, 82 N. J. Eq. 52; Wheeler v. Klrt- 
 
 B. c, 47 Am. Dec. 601 ; Ford v. Russell, 1 Free- land, 23 Id. 13, 15; Gump's App., 65 Pa. St. 476j 
 
 man (Miss.) Ch. 42; Slifer v. Beates, 9 S. & K. Byrne v. Edmonds, 23 Gratt. 200; Kearney V. 
 
 (Pa.) 166; Porter v. Turner, 3 S. & E. (Pa.) 108; Sacer, 37 Md. 264; BartheU v. Roderick, 34 
 
 Pepper's Will, 1 Parson's Eq. (Pa.) 436. Iowa, 517; Smith v. Butler, 11 Oreg. 46; see, 
 
 ^Barr v. Hatch, 3 Ohio, S27; Johnson v. also, Baker ». O'Rlordan, 65 Cal. 368; Bates t>. 
 
 Cushing, 15 N. H. 298; s. c, 41 Am. Dec. 694; Garrison, Harr. (Mich.) 221; Swaggerty », Neil- 
 
 Lipplncott i>. Stokes, 6 N. J. Eq. 22. son, 8 Baxt. (Tenn.) 32; Campbell County 
 
 SNorcum v. D'Oench, 17 Mo. 98; Beatty v. Court v. Coons, 6 B. Mon. (Ky.) 521; Senter v. 
 
 Clark, 20 Cal. 11, 12; Howard v. Carpenter, 11 Senter, 70 Cal. 619; Robins v. Swain, 68 111. 197; 
 
 Md. 259; Witklnson 17. Getty, 13 Iowa, 157; s. 0., Davis v. Young, 5 J. J. Marsh. (Ky.) 165; 
 
 81 Am. Deo. 428; Johnson v. Cushing, 16 N. H. Quivey ». Baker, 37 Cal. 465; Mastick v. Thorp, 
 
 298; 6. c, 41 Am. Dec. 694. 29 Cal. 444; see, also. Darling v. Baltimore, 51 
 
 * Love V. Graham, 25 Ala. 187; Gardner v. Md. 1 ; Alford v. Moore, 15 W. Va. 697; Atlantic 
 
 Gardner, 1 Desau. (S. Car.) Eq. 437; Breadal- P. & M. Ins. Co. v. Wilson, 5 R. I. 479; see, 
 
 bane v. Chandos, 2 My. & Cr. 711; Bold v. also, Rhode Island, &c. Bank ti. Hawkins, 6 R. 
 
 Hutchinson, 5 De G. M. & G. 558, 586; Hanley L 198; Sanders v. Wagner, 32 N. J. Eq. 506. 
 
 V. Pearson, L. R. 13 Ch. D. 545; Cogan t>. 'Roosevelt v. Thurman, 1 Johns. Ch. 220; 
 
 Duffield, L. R. 20 Eq. 789; In re De la Touche's Bouck v. Wilber, 4 J3, 405; Underbill v. Van 
 
 Settlement, L. R. 10 Eq. 699; Merryweather ». Cortland, 2 Id. 339, 361 ; 17 Johns. 405; Winshlp 
 
 Jones, 4Giff. 509. v. Jewett, 1 Barb. Ch. 173; Hartshorn v. Cutt- 
 
 230 
 
CH. XI.] RELIEF ON GROUND OF ACCIDENT AND MISTAKE. 
 
 § 196 
 
 afford affirmative relief in all cases of mistakes in the settlement of 
 accounts,' or where an instrument has been surrendered or satisfied 
 through mistake.' 
 
 Where the application, however, is for affirmative relief against a 
 mistake which has been made in the execution of a will, a different 
 rule is applied. In the examples and illustrations just enumerated, 
 where mistakes have been made in the execution of an instrument 
 operating inter vivos, the mistake may be shown by evidence out- 
 side of the instrument itself; and in fact the almost universal rule is, 
 that in such cases the mistake is shown by proof of extraneous 
 facts and circumstances. But the rule is laid down without exception 
 that no relief can be granted for the correction of an error in the exe- 
 cution of a will, where it is not certain, from the face of the will, 
 whether a mistake was made or what the testator had intended to have 
 inserted instead.* The statement here made must, however, not be 
 confounded with the rule of law, which admits testimony as to extra- 
 neous circumstances, for the purpose of explaining an ambiguity 
 which appears upon the will or which arises out of the circumstances 
 of the will. In such cases, the ambiguity is explained away by the 
 extraneous evidence; but it cannot be said that in such a case a 
 mistake in the will has been corrected.* A court of equity will, how- 
 ever, grant affirmative relief in cases where the will itself shows that 
 certain words have been omitted which are material to the under- 
 
 rell, 1 Green's Ch. 297; Eyan v. Blunt, 1 DeT. 
 Eq. 386; Barrows v. Sweet, 143 Mass. 316( 
 Morgan's Appeal, 110 Pa. St. 271; Bispham v. 
 Price, 15 How. (U. S.) 162; see, also, Valle v. 
 Nortli Missouri R. Co., 37 Mo. 445; McJimsey 
 V. Traverse, 1 Stew. (Ala.) 244; s. c, 18 Am. 
 Dec. 43; Mansfield, &c. Co. v. Veeder, 17 Ohio, 
 385; Whiteman o. New York, 21 Hun, (N. Y.) 
 117; Muldrow v. Norris, 3 Cal. 74; Baynard ». 
 Norris, 5 Gill, (Md.) 468; b. c. Am. Dec. 647; 
 Thurmond «. Clark, 47 Ga. 500; Williams v. 
 Warren, 21 111. 541; Tracy v. Herrick, 25 N. H. 
 381; Rand t>. Eedington, 13 N. H. 72; Herrlck 
 V. Blair, 1 Johns. (N. Y.) Ch. 101; Brown v. 
 Bellows, 4 Pick. (Mass.) 179; Howell v. Howell, 
 26 111. 460; Morris v. Eoss, 2 H. & M. (Va.) 408; 
 Spoflford V. SpofFord, 10 N. H. 254; Johnson v. 
 Noble, 13 N. H. 806; Kennedy v. New York, Ac. 
 E. Co. 3 Duer, (N. Y.) 69; Port Huron, <fec. R. 
 Co. V. Callaman, 61 Mich. 22 ; Muldrow v. Morris, 
 B6 Am. Dec. 313; Taylor v. Sayre, 24 N. J. L. 
 647; Crlssman v. Crissman, 5 Ired. (N. Car.) L. 
 498; Champneys v. Wilson, E. M. Charlt. (Ga.) 
 206; Greenough v. Eolfe, 4 N. H. 357; Johns 
 r. Stevens, 3 Vt. 308; State v. Williams, 9 
 Gill, (Md.) 128; Claypool v. Miller, 4 Blackf. 
 (Ind.) 163; Conger v. James, 2 twan, (Tenn.) 
 213; Smith v. Douglass, 16 111. 34; Merritt v. 
 Merritt, 11 111. 565; Eoss v. Watt, 16111. 99; Mc- 
 Donald V. Arnout, 14 111. 58; Root v. Eenwick, 
 16 111. 461; Moore v. Barnett, 17 Ind. 349; 
 Daniels v. Ripley, 10 Mich. 237. 
 > Stuart V. Sears, 119 Mass. 143; Eussell v. The 
 
 Church, 65 Pa. St. 9; MoCrae v. HoUis, 4 Desau 
 122; Mounin v. Beroujon, 51 Ala. 196; Barnett ». 
 Barnett, 6 J. J. Marsh. 499; Waggoner v. Min- 
 ter, 7 Id. 175. 
 
 2 Swaggerty v. Neilson, 8 Baxt. (Tenn.) 32; 
 Lemon v. Phoenix, &a. Ins. Co., 38 Conn. 294; 
 Scholefleld v. Templar, Johns. 155; East Ind. 
 Co. V. Donald, 9 Ves. 275; East Ind. Co. o. 
 Neave, 5 Id. 173. 
 
 8 Jackson ». Payne, 2 Mete. (Ky.) 567; Hunt 
 V. White, 24 Tex. 643; Sherwood B.Sherwood, 
 45 Wis. 357; s. c, 30 Am. Rep. 757; Goode b 
 Goode, 22 Mo. 518; s. c, 66 Am. Dec. 630; 
 Chambers v. Watson, 58 Iowa, 676; Williams v. 
 Allen, 17 Ga. 81 ; Machem v. Machem, 28 Ala. 
 374; Snyder v. Warbasse, 11 N. J. Eq. 463; Nutt 
 ■</. Nutt, 1 Freem. Ch. (Miss.) 128. 
 
 * Goode V. Goode, 22 Mo. 518; Trexler v. Mil- 
 ler, 6 Ired. Eq. 248; Johnson o. Hubbell, 2 
 Stockt. Eq. 332; Yates v. Cole, 1 Jones' Eq. 
 110; McAlister V. Butterfleld, 31 Ind. 25; Erwln 
 V. Hammer, 27 Ala. 296; Machem v, Machem, 28 
 /A 274; Alter's Appeal, 67 Pa. St. 341; Nutt V. 
 Nutt, 1 Freem. Eq. 128; Garland v. Beverley, L. 
 E. 9 Ch. D. 213; Parrer v. St. Catherine's Coll., 
 L. E. 16. Eq. 19; MoKechnie V. Vaughan, L. R. 
 15 Eq. 289; Harts. Tulk, 2 De G. M. &.G. 300;, 
 Campbell V. Bouskell, 27 Beav. 325; Snyder v. 
 Warbasse, 3 Stockt. 463; Wood v. White, 32 Me. 
 340; Jackson v. Pay e, 2 Mete. (Ky.) 567; In re- 
 Aird's Estate, L. R. 12 Ch. D. 291 ; Barber v. 
 Wood, L. R. 4 Ch. D. 885; Wilson v. Morley, Id^ 
 5 Id. 776; Traverse v. Blundell, Id. 6 Id. 436, 
 
 231 
 
§ 197 EQUITY JURISPRUDENCE. [CH. XI. 
 
 standing of the provisions of the will.* So, also, where words have 
 been inserted producing confusion or misunderstanding, and where 
 the context of the will shows that the testator had inserted, those 
 words by mistake; if the context will be intelligible without the con- 
 sideration of these words, the court will reject them.^ " Or " may be 
 changed into " and," and " and " to " or," where this construction is 
 necessary to an intelligent interpretation of the will.* So, also, may 
 there be a correction of any mistake which appears on the face of the 
 will to have been made in respect to the description of the property,* or 
 in the names of the beneficiaries. * But where a mistake has been made 
 in the name of the beneficiary or in the description of the property, 
 but there is property or a person answering to the erroneous descrip- 
 tion, the relief will not be granted, nor the mistake corrected.' 
 
 § 197. How mistakes may be proven. — When parol evidence is 
 admissible. — No difficulty will be experienced in answering the ques- 
 tion propounded at the head of this paragraph, where the contract 
 itself is parol; for a mistake in respect to a parol contract could be 
 established by the same kind of evidence which is employed in prov- 
 ing the contract itself. The question of importance in this connection 
 applies to the proof of mistakes in written contracts, and the necessity 
 in most cases, if not in all, of resorting to parol evidence to prove the 
 mistake. The general rule is, that parol evidence is inadmissible to 
 vary the terms of the written contract; and if parol evidence is admis- 
 sible at all for such a purpose, it must be in exceptional cases and on 
 exceptional grounds. The exceptions are generally confined by the 
 courts of equity to cases of variation of the written contract from the 
 real intentions of the parties, through some accident, mistake or fraud; 
 at any rate, it is held that a court of equity will admit parol evidence 
 for the purpose of proving, that a written contract through some 
 mistake, accident or fraud, failed to represent the real intention of the 
 parties.' In all suits for reformation and cancellation, the authorities 
 
 >Klrkpatrlck «. Klrkpatriok, 13 Ves. 476; 1 M. & S. 299; Slingsby t). Grainger, 7 H. L. Cas. 
 
 Badfoid V. Kadford, 1 Keen, 486 j Mellor V. 273, jier Lord Cran worth ; Poldens. Bastard, L. 
 
 Dalntiee, 33 Chan. Div. 198; see, also, Towns v. B. 1 Q. B. 156; Doe v. Martin, 4 B. & Ad. 771; 
 
 Wentworth, 11 Moo. P. C. 0.526; Sweeting v. Cleveland ». Spilman, 25 Ind. 95; Black «. Elch- 
 
 Prideaux, 2 Chan. D. 413. ards, 95 Ind. 184; Pocook v. Redlngei, 108 Ind. 
 
 ' Coryton v. Helyar, 2 Cox, 340; and see Chap- 573; s. c, 58 Am. Bep. 71. 
 
 man v. Gilbert, 4 De Q. M. <fe G. 366; Doe v. 'Adams ». Jones, 9 Hare, 485; Hodgson v. 
 
 Stenlake, 12 East, 515; Hugos. Williams, L. E. Clarke, 1 De G. P. & J. 394; Wood v. White, 32 
 
 14 Eq. 224. Me. 340; s. c. Am. Dec. 654; Smith v. Oeney, 6 
 
 ' Soulle V. Gerrard, Cro. Eliz. 525; Moore, 422; Ves. 42; Bradshaw v. Bradshaw, 2 Young & C. 
 
 Walsh t). Peterson, 3 Atk. 193; Pramllngham ». 72; Yates v. Cole, 1 Jones (N. Car.) Eq. 110; 
 
 Brand, Atk. 390; Greated v. Created, 26 Beav. Garth v. Meyrlck, 1 Bio. C. C. 30. 
 
 621; Miles*. Dyer, 5 Sim. 435; Grant ». Dyer, 2 'Webbers. Stanley, 16 C. B., u. s., 698; Ped- 
 
 Dow. 73; see In re Sanders' Trusts, L. B. 1 Eq. ley v. Dodds, L. E. 8Eq. 819; Lister«. Pickford, 
 
 675; In re Kirkbrlde's Trusts, L. R. 2Eq. 400; 34 Beav. 576; but see Harman v. Gumer, 35 
 
 Hetherington v. Oakman, 2 Y. <St 0. Ch. 299; Beav. 478; West v. Lawday, 11 H. L. Gas. 375; 
 
 Maynard v. Wright, 26 Beav. 285 Sampson v. Sampson, L. E. 8 Eq. 479; Bobbins 
 
 * Doe V. Bower, 3 B. & Ad. 453; Pullin v. Pul- v. Magee, 79 Ind. 381. 
 
 lin, 3 Bing. 47; Hastead v. Searle, 1 Ld. Eaym. ' Conover v. Wardell, 20 N. J. Eq. p C. E. 
 
 728; Blague «. Gold, Cro. Oar. 447; Stephens!). Green) 266; Chamness v. Crutchfleld, 8 Ired. 
 
 Fowys, 1 De G. & J. 24; Goodtitle v. Southern, Eq. 148; Harrison v. Howard, 1 Id. 407; Perry ». 
 
 232 
 
CH. XI.] RELIEF ON GROUND OF ACCIDENT AND MISTAKE. 
 
 § 197 
 
 are quite agreed that the parol evidence is admissible for the purpose 
 of establishing the mistake and of laying the foundation for the grant- 
 ing of the relief asked for.' But" the equitable relief will not be 
 granted, unless the mistake has been established by clear and con- 
 vincing evidence. If there is any reasonable doubt as to there having 
 been a mistake in the contract, the court will refuse to grant the relief. 
 This is especially the case, where the relief asked for is that of refor- 
 mation; the court will not reform a legal instrument except upon 
 certain proof of the mistake." 
 
 Pearson, 1 Humph. 431; Blanohani v. Moore, i 
 ■J. J. Marsh. 471; Chambers v. Livermore, 15 
 Mich. 381; Van Ness v. City of Washington, 4 
 Pet. 232; Canterbury Aq. Co. v. Ensworth, 82 
 Id. 608; Patterson v. Bloomer, 35 Id. 57; Mar- 
 graff V. Muir, 57 N. Y. 155; Best v. Stow, 2 
 Sandf. Ch. 298; White v. Williams, 48 Barb. S22; 
 Morganthau v. White, 1 Sweeney, 395; Eyno v. 
 Barby , 20 N. J. Eq. p C. E. Green) 231 ; Peterson 
 V. Grover, 20 Me. 363; Bradbury v. White, 4 
 tJreenL 391; Rogers v. Saunders, 16 Me. 92; 
 ■Goodell V. Field, 15 Vt. 448; Lawrence v. Staigg, 
 •8 E. I. 256; Quinn v. Koath, 37 Conn. 16; Murray 
 V. Parker, 19 Beav. 305, 308; see Lord Westbury, 
 in Mccormick v. Grogan, L. E. 4 H. L. 82, 97; 
 Osborne v. Phelps, 19 Conn. 63; a. c, 48 Am. 
 Dec. 133; Webster v. Webster, 33 N. H. 18; a. c, 
 •66 Am. Dee. 705; Gates v. Green, 4 Paige, (N. Y.) 
 ■355; B. c, 27 Am. Dec. 68; Lyman v. United 
 States Ins. Co., 3 Johns. (N. Y.) Ch. 630; Gil- 
 lespie V. Moon, 3 Johns. (N. Y.) Ch. 585; s. c, 
 7 Am. Dec. 559; Davenport v. Mason, 15 Mass. 
 -85; Wilkinson v. Scott, 17 Mass. 251; Le- 
 land V. Stone, 10 Mass. 459; Turpln v. Marks- 
 berry, 3 J. J. Marslu (Ky.) 622; Sohettiger 
 V. Hoople, 3 Grant, (Pa.) 54, Woodward, J.; 
 Stltes v. Weidner, 35 Ohio St. 555; Greer v. 
 Cadwell, 14 Ga. 207; s. c, 58 Am. Dec. 553; 
 Bond V. Dorsey, 65 Md. 310; Bushby v. Lit- 
 tlefleld, 31 N. H. 193; McKays. Simpson, 6 Ired. 
 KN. Car.) Eq, 452 Canedy v. Marcy, 13 Gray, 
 (Mass.) 373; Wall v. Arrington, 13 Ga. 88; 
 Louisrille, &o. Railroad Co. v. Power, 119 
 Jnd. 269; Smith v. Buttler, 11 Oreg. 46; Bel- 
 lows D.Stone, 14 N. H. 175; Prescott«. Hawkins, 
 12 N. H. 19; Bartle v. Vosbury, 3 Grant, (Pa.) 
 S77; Hunter v. Bilyeu, 30 111. 228; Wood v. 
 Price, 46 111. 439, 440; Emery v. Mohler, 69 111. 
 S21, 228: Gelpcke v. Blake, 15 Iowa, 387; a. c, 
 83 Am. Dec. 418; Jack v. Naber, 15 Iowa, 450j 
 Jones V. Sweet, 77 Ind. 187; Morris v. Stern, 80 
 Ind. 227. 
 
 1 McCloskey v. MoCormick, 44 111. 336; Mills 
 V. Lockwood, 42 Id. Ill ; Cleary v. Babcock, 41 
 Id. 371; Shively w. Welch, 3 Or. 288; Bradford 
 V. Union Bk., 13 How. (U. S.) 57,66; Lauderdale 
 r. Hallock, 7 Sm. & Mar. 622; Wurzburger I). 
 Merle, 20 La. An. 415; Mattingly v. Speak, 4 
 Bush, 316; Graves V. Mattiugly, 6 Id. 361; Me- 
 Cann v. Letcher, 8 B. Mon. 320; Baynard v. 
 Norris, 5 Gill, 468; Newcomerv. Kline, 11 Gill & 
 J. 457; Irlek ». Fulton, 3 Gratt. 193; Keytonu. 
 Biawford, 5 Id. 39; Larklns v, Biddle, 31 Ala. 
 
 853; Hale v. Stone, 14 Id. 803; Waldron v. Let- 
 son, 3 McCart. 126; Blair v. McDonnell, 1 
 Halst. Ch. 327; Gump's Appeal, 65 Pa. St. (15 
 P. P. Sm.) 476; Chew v. Gillespie, 56 Id. (6 Id.) 
 308; Lauchnem. Rex, 8 Harris, 464; Gower». 
 Sterner, 2 Whart. 75; Chamberlain v. Thomp- 
 son, 10 Conn. 343; Wooden v. Haviland, 18 Id. 
 101; Many v. Beekman Iron Co., 9 Paige, 188; 
 Firmstone v. De Camp, 17 N. J. Eq. (2 C. E. 
 Green) 317; Peterson v. Grover, 20 Me. 363; BeU 
 lows V. Stone, 14 N. H. 175; Langdon v. Keith, 
 9 Vt. 299. 
 
 2Burgin v. Giberson, 26 N. J. Eq. 72; Green v. 
 Morris, 1 Beasl. 165, 170; Durant v. Bacot, 2 Id. 
 301 ; 2 McCart. 411 ; Hall v Clagett, 2 Md. Ch. 151 ; 
 PhilpottB. ElUoH.ild. 273; Showman v. Mil- 
 ler, 6 Md. 479; Brantley v. West, 27 Ala. 542; 
 Mosby V. Wall, 23 Miss. 81 ; Tesson v. Atlantic 
 Ins. Co., 40 Mo. 33, 36; Beebe v. Young, 14 Mich. 
 136; Shay v. Pettes, 35 111. 360; Edmonds' App., 
 59 Pa. St. 280; Potter v. Potter, 27 Ohio St. 84; 
 Heavenridge ». Mondy, 49 Ind. 434; Mines ». 
 Hess, 47 lU. 170; Newton v. Holley, 6 Wis. 564; 
 State V. Frank, 51 Mo. 98; Lestrade v. Barth, 
 19 Cal. 660, 675; Hathaway v. iirady, 23 Id. 122; 
 Shively v. Welch, 2 Oreg. 388; U. S. v. Munroe, 
 5 Mason. 572; Andrews v. Essex Ins. Co., 
 S Id. 6; Tucker v. Madden, 44 Me. 206; 
 Farley v. Bryant, 32 Me. 474; Brown v. 
 Lamphear, 35 Vt. 252; Lyman v. Little, 15 Id. 
 576; Preston v. Whitcomb, 17 Id. 183; Sawyer v. 
 Hovey, 3 Allen, 331 ; Andrew v. Spurr, 8 /d. 412; 
 Canedy o. Marcy, 13 Gray, 373; Nevins v. Dun- 
 lap, 33 N. Y. 676; Mead v. Westchester Ins. Co., 
 64 Id. 453; White v. Williams, 48 Barb. 232; 
 Smith V. Maekln, 4 Lans. 41; Lyman v.V.S. 
 Ins. Co., 2 Johns. Ch. 630; 17 Johns. 373; Doug- 
 las «. Grant, 12111. App. 873; Lannlng v. Car- 
 penter, 48 N. Y. 478; Palmer ti. Hartford Fire 
 Ins. Co., 54 Conn. 488; Columbus, <Scc. E. Co. v. 
 Stelnfleld, 43 Ohio St. 449; Person v. Sanger, 1 
 W. & M. 138; Lockhart v. Cameron, 29 Ala. 213; 
 Brantley v. West, 37 Ala. 543; CuUlnane v. 
 District of Columbia, 18 Ct. of CI. 577; Dean v. 
 The Equitable Fire Ins. Co., 4 CUCf. (U. S.) 575; 
 Wall t>. Arrington, 13 Ga. 88; Broadwell v. 
 Broadwell, 6111. 599; Lyman v. United Ins. Co., 
 2 Johns. (N. Y.) Ch. 630; Gillespie v. Moon, 2 
 Johns. (N. Y.) Ch. 585; s. c, 7 Am. Dec. 559; 
 Keisselbrack v. Livingston, 4 Johns. (N. Y.) 
 Ch. 144; Kent v. Manchester, 29 Barb. (N. Y.) 
 595; Griswold v. Smith, 10 Vt. 452; GUI v. Clag- 
 gett, 4 Md. Ch. 470; Shattuck v. Gray, 45 
 
 233 
 
§ 198 
 
 EQUITT JTJKISPRUDENCE. 
 
 [CH. XI. 
 
 § 198. Parol eridence in suits for specific performance.— When 
 
 the question of the admissibility of parol evidence, for the purpose of 
 establishing a mistake in the execution of a contract, arises in suits 
 for specific performance, it is very difficult, if at all possible, to 
 furnish a common ground upon which the decisions of the court may 
 be reconciled. A remedy for specific performance is one which is 
 granted only in a court of equity. When and whether the remedy 
 should be afforded or not is completely governed by equitable con- 
 
 Vt. 87; Watkins i). Stookett, 6 Har. & J. 
 (Md.) 435; Stover ti. Poole, 67 Me. 217; Brock- 
 ing V. Straat, 17 Mo. App. 896; Griswold v. 
 Hazard, 26 Fed. Eep. 135; Brohammer ». 
 boss, 17 Mo. App. 1; Vreeland v. Bramhall, 
 28 N. J. Eq. 85; Bruce v. Bonney, 12 Gray, 
 (Mass.) Ill; s. c, 71 Am. Dec. 739; Hilemant?. 
 Wright, 9 Ind. 126; O'Neil v. Teague, 8 Ala. 
 345; Shlveley v. Welch, 2 Oreg. 288; Wemple V. 
 Stewart, 22 Barb. (N. Y.) 154; Beard v. Hubble, 
 9 Gill, (Md.) 420; Groff v. Eohrer, 35 Md. 327; 
 Mendenhall v. Steckel, 47 Md. 454; s. c, 28 Am. 
 Eep. 481 ; Sylvius v. Kosek, 117 Pa. St. 67; Mur- 
 ray V. N. Y., Ac. E. Co., 103 Pa. St. 37; First 
 Presbyterian Cliurob of Logan v. Logan, 77 
 Iowa, 326; Smith v. Jordan, 13 Minn. 864; s. i;., 
 97 Am. Dec. 232; Remillard v. Prescott, 8 Oreg. 
 37; Miner «». Hess, 47 111. 170; McCoys. Bailey, 
 8 Oreg. 196; Greer v. Cadwell, 14 Ga. 207; s. o., 
 58 Am. Dec. 653; EuflFner v. McCJonnell, 17 
 111. 212; Trapp v. Moore, 21 Ala. 693; Bai- 
 ley u. Bailey, 8 Humph. (Tenn.) 230; Mc- 
 Donnell V. MilhoUand, 48 Md. 540; Cummins 
 V. Bulgln, 37 N. J. Eq. 476; Yocum v. Pore- 
 man, 14 Bush, (Ey.) 494; Cox v. Woods, 67 Cal. 
 317; Smith v. Butler, 11 Oreg. 46; EUinger v. 
 Crowl, 17 Md. 361; McDonald v. Starkey, 42 111. 
 442; Cleary v. Babcock, 41 111. 271; Thompson 
 V. ruUinwider, 5 111. App. 551; Chapman v 
 Hurd, 67 111. 234 ; Davenport v. Sovil, 6 Ohio St. 
 459; Crockett©. Crockett, 73 Ga. 647; Hileman 
 V. Wright, 9 Ind. 128; Davidson v. Greer, 3 
 Sneed, (Tenn.) 384; Euffner v. McConnell, 17 
 III. 212, 217; s. c, 63 Am. Dec. 362; Hall v. 
 Clagnett, 2 Md. Ch. 148, 151; Leas v. Eidson, 9 
 Gratt. (Va.) 277; National Ins. Co. v. Crane, 16 
 Md. 280; B. c, 77 Am. Dec. 289; Adams t). Rob- 
 ertson, 27111. 45; Greer «. Badwell, 14 Ga. 207; 
 s. c, 58 Am. Dec. 553; Jackson v. Magbee, 21 
 Pla. 622; Cloptonu. Martin, 11 Ala. IST; Bond 
 V. Dorsey, 65 Md. 310; Kinney w. Con. Virginia 
 M. Co., 4 Sawyer, (U. S.) 382; Giles v. Hunter, 
 103 N. Car. 194; Bushby v. Littlefleld, 31 N. H. 
 193; Fritzler v. Eobinson, 70 Iowa, 500; Jones 
 o. Perkins, 1 Jones (N. Car.) Eq. 337; Wyche 
 V. Greene, 11 Ga. 159; Weiderbusch v. Harten- 
 stein, 12 W. Va. 760; Bunser v. Agee, 47 Mo. 
 270; Jarrel v. Jarrel, 27 W. Va. 743; Llgou v. 
 Eogers 12 Ga. 281 ; Hervey v. Saveiy, 48 Iowa, 
 313; Strayer ». Stone, 47 Iowa, 333; Sable v. Ma- 
 loney, 48 Wis. 331; Eowley v. Flannelly, 30 N. 
 J. Eq. 6J2; Ivlnson v. Hatton, 98 V. S. 79; Snell 
 V. Atlantic F. & M. Ins. Co., 98 U. S. 85; Mon- 
 roe V. Skelton , 36 Ind. 302 ; Stookbridge Iron Co 
 
 234 
 
 V. Hudson Iron Co., 102 Mass. 45; Linn v. Bar- 
 key, 7 Ind. 69; Hinton v. Citizens' Mut. Ins. Co., 
 
 63 Ala. 488; Muller v. Bhuman, 82 Ga. 332; 
 Goldensborough v. Einggold, 1 Md. Ch. 239^ 
 Mosby V. Wall, 23 Miss. 8l;>.c.,S6 Am. Dec. 71 ; 
 Andrews v. Andrews, 81 Me. 337; Fessenden v. 
 Ockington, 74 Me. 123; Bodwellr. Heaton, 40 
 Kans. 56; Syms v. Mayor of N. Y., 50 N. Y. 
 Super. Ct. 289; Mead v. Wesohester F. Ins. Co., 
 
 64 N. Y. 453; Albany City Savings Institution 
 V. Burdick, 87 N. Y. 40; Cox v. Woods, 67 CaL 
 317; Wittbicker ». Walters, 69 Tex. 470; Euhl- 
 ing V. Hackett, 1 Neb. 360; Eennard v. George, 
 44 N. H. 440; Sapp v. Phelps, 92 111. 588; Hamlou 
 ^^. SuUivant, 11 111. App. 423; Cummins v, Bul- 
 gin, 37 N. J. Eq. 476; Morris v. Penrose, 38 N. 
 J. Eq. 629; Bent v. Coleman, 89 III. 364; Kuch- 
 enbeiser v. Beckert, 41 IlL 172; McDonald v. 
 Starkey, 42 111. 442; Miner v. Hess, 47 III. ITOj 
 Goltra V. Sanasack, 53 111. 456; Sutherland v. 
 Sutherland, 69 III. 481; Eussell v. Eanson, 76 
 m. 167; Canedy «. Marcy, 13 Gray, (Mass.) 
 373; Sawyer v. Hovey, 3 Allen, (Mass.) 331; s. 
 0., 81 Am. Dec. 659; Franklin v. Jones, 22 Fla. 
 526; Jackson v. Magbee, 21 Fla. 622; Minot 
 V. Tllton, 84 N. H. 371; Adams v. Stevens, 4» 
 Me. 362; Firmstone V. De Camp, 17 N. J. 
 Eq. 309; Webster v. Harris, 16 Ohio, 490; 
 Foster v. Schmeer, 16 Oreg. 383; Goodell ». 
 Field, 15 Vt. 448; Harrlnson ». Howard, 1 Ired^ 
 (N. Car.) £q. 407; Guernsey i;. American Ins. 
 Co., 17 Minn. 104; Hunter v. Belyeu, 30 111. 228? 
 Mills V. Lookwood, 42 111. Ill; McCloskey v. 
 McCormick, 44 111. 336; Palmer v. Converse, 60 
 111. 313; Shepard v. Shepard, 36 Mich. 173; 
 Lucos V. Labertue, 88 Ind. 277; Eeese v^ 
 Wyman, 9 Ga. 430; Trout v. Goodman, 7 Ga. 
 383; Farley v. Bryant, 32 Me. 474; Nevlns v. 
 Dunlap, 33N. Y. 678; Beardsley v. Knight, 1» 
 Vt. 185; Tripp v. Hasceig, 20 Mich. 254; 4 Am. 
 Eep. 388; Case v. Peters, SO Mich. 298; Lud- 
 dington v. Ford, 33 Mich. 123; Vary v. Shea, 36- 
 Mich. 388; Eeese v. Wyman, 9 Ga. 430; Lock- 
 hart V. Cameron, 29 Ala. 355; Ligon t). Eogers» 
 12 Ga. 281; Linn v. Barkey, 7Ind. 69; Hall v. 
 Clagett, 2 Md. Ch. 148; Leitensdorferp. Delphy, 
 
 15 Mo. 160; s. c, 55 Am. Dec. 137; New York lea 
 Co. V. Northwestern Ins. Co., 31 Barb. (N. Y.) 
 72 ; Mansfield, Ac. City E. Co. T. Veeder, 17 Ohio, 
 385; Bailey v. Bailey, 8 Humph. (Tenn.) 230} 
 Laken. Meachan, 13 Wis. 355; Triplett®. Gill, 
 7 J. J. Marsh, (Ky.) 432; Watkins v. Storkett, 6 
 Har. & J. (Md.) 435; Nat. Fire Ins. Co. v. Cranes 
 
 16 Md. 360; s. c, 77 Am. Dec. 289. 
 
CH. XI.] RELIEF ON GROUND OF ACCIDENT AND MISTAKE. § 198 
 
 siderations; if the transaction is in any way inequitable, the court will 
 refuse the decree for specific performance, although the contract maj- 
 be enforceable in law. It is a well-settled rule, therefore, that in 
 actions for specific performance of the contract, parol evidence is 
 admissible to show that the contract which the plaintiff has attempted 
 to enforce does not represent the real intentions of the parties, in con- 
 sequence of some mistake.* And a court will refuse a decree for 
 specific performance, where the mistake was induced or made possible 
 by any act of the plaintiff; or where the mistake was not altogether that 
 • of the defendant, and for which the plaintiff could in nowise be made 
 responsible. If the fact is established that the contract which the 
 plaintiff seeks to enforce is not what the defendant intended to a^ree 
 to, it is sufficient to induce the court of equity to withhold its power to 
 enforce the contract.^ On the same general principle, it has been 
 held that where the terms of a contract or the description of its sub- 
 ject-matter are so ambiguous that a misunderstanding as to the obli- 
 gation of the contract may be readily presumed from the reading of 
 the contract, equity will refuse to enforce such an agreement, even 
 where it is not absolutely proven, that there was a distinct or special 
 mistake in the facts.' Where the defendant in the action for the 
 specific performance sets up a mistake as a defense, it will not merely 
 serve as a ground for defense, resulting in the dismissal of the suit; 
 but the court may provide in this decree for a specific performance of 
 a contract as thus modified by the proof of the mistake; that is, it will 
 give to the plaintiff the option of executing the decree for the enforce- 
 ment of the contract as modified by the mistake or submit to the dis- 
 missal of the suit.* Under the reformed procedure, the defendant 
 could insist upon a specific performance of the contract in his own 
 behalf as modified by the mistake. Where the mistake is set up in a 
 suit for specific performance by the plaintiff, and he asks for a specific 
 
 1 Bradbury «. White, 4 Greenl. 391 j Qulim». 337; see, however, Mortimer ». Pritchard, 1 
 
 Roath, 37 Conn. 16; Best s. Stow, 2 Sandf. Ch. Bailey Eq. 505; Denny v. Hancock, L. ft. 6 Ch. 
 
 298; Coles ti. Browne, 10 Paige, 536; Elyo.Per- 1 ; Doggett t). Emerson, 3 Story, 700; Eider ». 
 
 line, 1 Green's Ch. 396; Eyno r. Darby, 20 N. J. Powell, 28 N. T. 310; Matthews v. TerwilU- 
 
 Eq. (5 C. E. Green) 231; Towner v. Lucas, 13 ger, 3 Barb. 50. 
 
 Gratt. 705, 714; Chambers v. Livennore, 15 s Wycombe Hy. v. Docnington Hospital, L. 
 
 Mich. 381; Cathcart v. Robinson, 5 Pet. 263; R. 1 Ch. 268; Wood v. Scarth, 2 K. & J. 33; 
 
 Lord Gordon v. Marq. of Hetford, 2 Madd. 106; Manser v. Back, 6 Hare, 443; Clowes v. Hlggin- 
 
 Campbell v. Durham, 86 Ala. 399; Mansfield v. son, 1 V. & B. 524; Harnett v. Yielding, 2 Soh. 
 
 Sherman, 81 Me. 365; Caldwell v. Depew, 40 & Lef. 549; Watson v. Marston, 4 De G. M. & G. 
 
 Minn. 528; Fry v. Spec. Perf., § 733; Bowen v. 230; Parker V. Taswell, 2 De G. & J. 559, 
 
 Waters, 2 Paine, (U. S.) 1; Stoutenburgh v. * Bradford d. Union Bk., 13 How. (U. S.) 57; 
 
 Tompkins, 9 N. J. Eq. 333; Post ti.Leet, 8 Paige, Quinn v. Roath, 37 Conn. 16; Patterson ». 
 
 337; Ring v. Ashworth, 3 Iowa, 452; Wodworth Bloomer, 35 Id. 57; Wells v. Cruger, 5 Paige, 
 
 D.Cook 2Blatch. (U. S.) 151; Gillespie ». Moon, 164; Best!). Stow, 2 Sandf. Ch. 298; Perussacf. 
 
 2' Johns. (N. Y.) Ch. 685; s. c, 7 Am. Dec. 559; Thorn, 1 Barb. 42; Bradbury v. White, i 
 
 Osborne' v. Phelps, 19 Conn. 63; 48 Am. Dec. Green's Ch. 391; Eyno v. Darby, 20 N. J. Eq. (5 
 
 133 • Dennis ». Dennis , 4 Rich. (S. Car.) Eq. 307 ; C. E. Green) 231 ; MoComas V. Easley, 21 Gratt. 
 
 Berry v. Whitney, 40 Mich. 65; Chambers v. 83; Arnold ». Arnold, 2 Dev. Eq. 467; Hunting- 
 
 Livermore, 15 Mich. 389. ton v. Rogers, 9 Ohio St. 511, 516; Chambers v. 
 
 « Western R. R. »■ Babcock, 6 Mete. 346; Park Livennore, 15 Mich. 381 ; Murphy v. Eooney, 45 
 
 i Johnson, 4 Allen, 259, Post v. Leet, 8 Paige, Cal. 78. 
 
 235 
 
§ 198 
 
 EQUITY JURISPKUDENOE. 
 
 [CH. XI. 
 
 performance of the contract as modified by his proof of the mistake 
 in the terms of the contract, the authorities are at variance. All the 
 <50urts, both English and American, agree that where there has been 
 a part performance by the plaintiff of the parol provision, which has 
 been omitted by a mistake of the written contract, the decree for specific 
 perf ormailce, as provided for by this parol provision, will be given by 
 the court. ^ But where there has been no part performance of the 
 parol portion of the contract, the authorities are not agreed whether 
 parol evidence of this verbal modification of the contract will be 
 admissible in a suit for specific performance of the contract as thus 
 modified. The English cases hold that this cannot be done except 
 where there has been a part performance of the parol portion. * The 
 American courts, however, generally hold, that specific performance 
 of a contract will be granted, after it has been modified by parol evi- 
 dence of a mistake as tp its terms and provisions.' But in order that 
 the plaintiff may obtain* a decree for specific performance, he must 
 produce the most convincing evidence of the mistake in the contract. 
 The burden of proof is on him; and it will not be suflScient for him to 
 establish a mistake by evidence which will be sufficient to furnish the 
 ground for a rescission or cancellation; he must present the strict 
 evidence required in all cases for reformation.* 
 
 ' Anon.,5Vin. Abr, 522, pi. 38; Legal o. Miller, 
 
 2 Ves. Sen. 299; Pitcaim v. Ogbourne, 2 Id. 875; 
 Price V. Dyer, 17 Ves. 356; Gilroy v. AUis, 22 
 Iowa, 174. This relief will be afforded whether 
 the yerbal modification Is contemporaneous 
 with the written agreement or consists of 
 a subsequent alteration of the same. Glass 
 D. Hurlbert, 102 Mass. 84, 28, per Wells, J.; 
 Allen's Estate, 1 Watts & S. 383; Broiighton 
 fi. Coffer, 18 Gratt. 184; Deyllng v. Little, 2 
 Casey, 502; Moale V. Buchanan, 11 Gill & J. 
 314; Parkhurst v. Cortlandt, 1 Johns. Ch. 273; 
 14 Johns. 15; and see Tilton v. Tilton, 9 N. H. 
 385; Glass v. Hurlbert, 102 Mass. 24, 43. 
 
 2 Martin v. Pycroft, 2 De G. M. & G. 785; Pem- 
 beis ti. Mathers, 1 Bro. Ch. 52; LordBldon, in 
 Marquis Townshend v. Stangroom, 6 Ves. 328, 
 339; Clark D. Grant, 14 Ves. 519, 524, per Sir Wm. 
 Grant; Clifford V. Turrell, 1 T. & C. Ch. 138, 
 per V. C. Kuight-Bruce; London, &c. Ry. v. 
 Winter, Cr. &Ph. 57, 61; Emmet «. Dewhurat, 
 
 3 Maon. & G. 587; Atty.-Gen. v. Sitwell, 1 Y. <fc 
 C. Ex. 559; Davies V. Fltton, 2 Dr. & War. 225, 
 833. 
 
 » Keisselbrack v. Livingston, 4 Johns. Ch. 
 144, 148; Bellows v. Stone, 14 N. H. 175; Smith v. 
 Greeley, 14 Id. 378; Tilton v. Tilton, 9 Id. 
 385; Craig ». Klttredge, 23 N. H. 231; Beardsley 
 V. Knight, 10 Vt. 185; Grass ». Hurlbert, 102 
 Mass. 24, 41; Metoalf v. Putnam, 9 Allen, 97; 
 Quinn V. Roath, 37 Conn. 16; Wooden v. Havl- 
 land, 18 Id, 101; Chamberlain v. Thompson, 
 10 Id. 243; Gillespie «. Moon, 2 Johns. Ch. 685; 
 Lyman ». Un. Ins. Co., 17 Johns. 373; Roseveltu. 
 Pulton, 2 Cow. 129; Gouvemeur». Titus, 1 Edw. 
 Ch. 477; 6 Paige, 347; Hydei). Tanner, 1 Barb, 75; 
 
 236 
 
 Gooding v. McAlister, 9 How. Pr. 123; Smith v. 
 Allen, Saxt. (N. J.) 43; Hendrickson ». lylns, 
 Saxt. 562; Christ v. Diffenbach, 1 Serg. & R. 
 464; Susquehanna Ins. Co. v. Perrine, 7 W. & S. 
 348; Gowerti. Sterner, 2 Whart, 75; Bowman «. 
 Bittenbender, 4 Watts, 290; Clark «. Partridge, 
 2 Barr. 13; 4 Id. 166; Wesley v. Thomas, 6 Har. 
 & J. 24; Moale v. Buchanan, 11 Gill & J. 314, 
 325;Coutt». Craig, 2 Hen. Mun. 618; Newsom 
 V. Bufferlow, 1 Dev. Eq. 383; Brady «. Parker, 
 4 Ired. Eq. 430; Clopton v. Martin, 11 Ala. 187; 
 Harris v. Columbiana Ins. Co., 18 Ohio, 116; 
 Webster v. Harris, 16 Id. 490; Worley v. Tnggle, 
 4 Bush, 168, 173; Shelby v, Smith, 2 A. K. Marsh. 
 504; Bailey v. Bailey, 8 Humph. 230; Leltens- 
 dorfertj. Delphy, 15 Mo. 160; Murphy d. Rooney, 
 45 Cal. 78; Murray v. Dake, 46 Id. 644; Hall v. 
 Clagett, 2Md. Ch. 148; Ring v. Ashworth. 3 
 Iowa, 452; Mosby v. Wall, 23 Miss. 81; s. c, 55 
 Am. Dec. 71 ; Coale v. Barney, 11 G. <fc J., (Md.) 
 325; Depeyster v. Hasbrouok, 11 N. Y. 582; Rog- 
 ers V. Atkinson, 1 Ga. 12; Coles v. Brown, 10 
 Paige, (N. Y.) 525; Hallam v. Corlett, 71 Iowa, 
 446; Brugger v. State Investment Ins. Co., 5 
 Sawy. (IT. S.) 304; Kelley v. McKlnney, 5 Lea. 
 (Tenn.)164; ThompsonvlUe, Ac. Mfg. Co. v. 
 Osgood, 26 Conn. 16; Hunter v. Bilyeu, 30 IlL 
 228; Broad well ». Broad well. 6 III. 599. 
 
 •tDurant». Bacot, 2 MoCarter, 411; Beebe s. 
 Young, 14 Mich. 136; Tesson v. Atlantic M. las. 
 Co., 40 Mo. 33, 36; Fowler v. Fowler, 4 De Q. & 
 J. 250, 265; Keisselbrack v. Livingston, 4 Id. 
 144; Riders. Powell, 28 N. Y. 310; Matthews «! 
 Terwillinger, 3 Barb. 50; Nevlns v. Dunlap, 33 
 N. Y. 676; Lyman v. D. S. Ins. Co., 2 Johns. Ch. 
 630; Lyman v. Union Ins. Co., 17 Johns. 373 j 
 
CH. XI.] BELIEF ON GROUND OF ACCIDENT AND MISTAKE. § 199 
 
 The important power of uniting two remedies in the same action — 
 that is, a reformation and subsequently a decree for specific perform- 
 ance of the contract as reformed — is granted by the reformed proced- 
 ure in respect to all actions, whether legal or equitable in origin. It 
 is also possible, under the reformed procedure, for a plaintiff to have 
 a reformation of a contract, and the judgment for damages or debt on 
 the contract as thus reformed, or any other legal remedy suitable to 
 the facts of the case, such as the recovery of specific property.^ 
 
 § 199. Effect of the Statute of Frauds upon the admissibility of 
 parol evidence. — The general question of admissibility of parol evi- 
 dence to vary a written contract, as it has been explained in the pre- 
 ceding paragraph, does not depend upon any particular statute; but 
 it is itself a rule of evidence resting upon judicial authority, which 
 may be modified more or less by exceptions recognized by the court 
 without any enforcement of statutory rules. That is certainly the 
 case where the rule of evidence referred to, has not been embodied in 
 a statute. But the Statute of Frauds requires, in many cases, that 
 contracts shall be reduced to writing or shall be manifest or proved by 
 some instrument in writing in order to be valid. And it becomes a 
 question of considerable moment, how far parol evidence can be 
 resorted to; not only for the purpose of proving that the contract 
 as written does not represent the intention of the parties, but 
 also where the plaintiff asks that the contract shall be reformed, 
 and enforced as reformed. Where the court is only called upon 
 to cancel a written contract on the ground of mistake or of 
 fraud, it might be stated, in justification of the introduction of 
 parol evidence for that purpose, that there is no violation of the 
 Statute of Frauds, because the contract is not enforced but re- 
 scinded. But where a court of equity, upon a proof of the varia- 
 tion of the written contract from the intention of the parties, on 
 account of fraud, accident, or mistake, decrees a reformation of that 
 contract, and thus enables one of the parties to enforce a contract 
 which is not manifest or proved by an instrument in writing, there is 
 certainly an enforcement of a contract, in which it cannot be said that 
 the parties have complied with the Statute of Frauds. The practical 
 answer might be made that, if the Statute of Frauds were permitted 
 to so operate as to exclude parol evidence of proof of accident, fraud, 
 
 Harris v. Eeece, 5 Gilm. 212; Beard v. Linthi- Co. v. N. W. Ins. Co., 23 N. Y. 357, 359; Welles 
 
 cum, 1 Md. Ch. 345; Brady v. Parker, 4 Ired. v. Yates, 44 Id. 535; Caswell v. West, 3 T. .fc C. 
 
 Eq. 430; Harrison v. Howard, 1 M. 407; Hunter 383. So, also, may the defendant obtain against 
 
 v. Bilyeu, 30 111. 228, 246; Selby v. Geines, 12 Id. the plaintiflF such a joint relief in the same 
 69; Bailey ti. Bailey, 8 Humph. 230. ' case. Murphv t). Eooney, 45 Cal. 78; Guedici 
 
 iLattin v. McCarty, 41 N. Y. 107; Phillips V. «. Boots, 42 Id. 452, 456; Talbert ». Singleton, 
 
 Gorham, 17 Id. 270; Laub. v. Buckmiller, 17 Id. 43 Id. 390; Hoppough ■v. ^ truble, 60 N. Y. 430; 
 
 620' Henderson v. Dickey, 50 Mo. 161, 165; Gray Haire v. Baker, 5 Id. 357; Crary ». Goodman, 12 
 
 V. Dougherty, 25 Cal. 266; Walkers. Sedgwick, Id. 366, 268; Bartlett v. Judd, 21 Id. 300, 303; 
 
 8 Id. 398; Guernsey v. Am. Ins. Co., 17 Minn. Cavalll v. Allen, 57 Id. 508; Petty v. Malier, 15 
 
 104 108- Montgomery v. McEwen, 714 351; Bid- B. Mon. 591, 604; Ingles v. Patterson, 36 Wis. 
 
 well ». Astor Ins. Co., 16 N. Y. 263; Cone V. TSi- 373; Onsons. Cown, 33 Id. 339. 
 
 agara Ins. Co., 60/d. 619; 3 T. & C. 33; N. Y. Ice 
 
 237 
 
§ 199 EQUITY JUKISPKUDENCE. [OH. XI. 
 
 or mistake, in the maKing of the contract, instead of serving to prevent 
 fraud, it would be a ready instrument of committing fraud; and in 
 order to prevent that evil consequence of the enactment of the statute, 
 equity is justified in departing from the plain letter of the statute, 
 and permitting the variance of written contracts by the introduction 
 of parol evidence. This particular answer undoubtedly constitutes a 
 justification for the attitude of the courts in general on that subject; 
 but there is nevertheless a violation of the letter of the statute, in 
 securing what is undoubtedly a just end. But the courts in general 
 maintain that parol evidence is admissible for the purpose of securing 
 a reformation of the contract, and an enforcement of it as reformed, 
 even where the Statute of Frauds expressly requires the contract to 
 be written in order to be valid.' But in Massachusetts, and a few of 
 the other states, it has been held that the statute will permit the intro- 
 duction of parol evidence, where the mistake consists of an addition 
 of a provision to the contract which the parties had not provided for, 
 a court may reform the instrument by an excision of that provision; 
 for in that case, the contract as reformed will still have been reduced 
 to writing by the parties, in compliance with the Statute of Frauds. 
 But where the mistake consists of an omission of some clause or pro- 
 vision from the contract as written, the court could not reform the 
 contract by adding or inserting the omitted provision and then decree 
 the performance of the contract as thus reformed; because the court 
 would in so doing be enforcing a contract not reduced to writing, 
 which the Statute of Frauds required to be in writing.^ 
 
 1 Gower v. Sterner, 2 Whart. 75; Philpott v. writing, is, as we understand it, that in equity 
 Elliott, 4 Md. Ch. 273j Tilton v. Tilton, 9 N. H. the previous oral agreement is held to subsist 
 385; Murphy v. Rooney, 45 Cal. 78; Quinn v. as a binding contract, notwithstanding the 
 Boath, 37 Conn, 16; Monro t). Taylor, 3 Macn. & attempt to put it in writing; and upon clear 
 G. 713, 718; Leuty v. Hillas, 2 De G. & J. 110, proof of its terms, the court compels the in- 
 120; Beardsley v. Duntley, 69 N. Y. 577; Keis- corporation of the omitted clause, or the 
 selbrack v. Livingston, 4 Johns. Ch. 144 ; Gil- modification of that which Is inserted, so that 
 lespie V. Moon, 2 Id. 585; Phyfe v. Wardell, 2 the whole agreement as actually intended to 
 Edw. Ch. 47; Coles ». Brown, 10 Paige, 526, 535; be made shall be truly expressed and exe- 
 Hendriokson*. Ivins, Saxton,i(N. J.)562; Work- cuted. (Hunt ». Eousmaniere, 1 Pet. 1 ; Oliver 
 man B. Guthrie, 5 Casey, 495; EaflPensberger i». ». Mut. Ins. Co., 2 Curtis C. C. 277.) But when 
 Callison, 4 ia. 486; Tyson v. Passmore, 2 Barr. the omitted term or obligation is within the 
 122; Craig ^. Kittredge, 3 Frost. 231; Smith v. Statute of Frauds, there is no valid agreement 
 Greeley, 14 N. H. 378; Blodgett v. Hobartj 18 Vt. which the court is authorized to enforce out- 
 414; Chamberlain «. Thompson, 10 Conn. 243; side of the writing. In such a case, relief may 
 Gouverneur v. Titug, 1 Edw. Ch. 477; 6 Paige, be had against the enforcement of the contract 
 347; Wiswall v. Hall, 3 Paige, 313; De Peyster as written contrary to the purport and intent 
 V. Hasbrouck, 11 N. Y. 583; Flagler ». Pleiss, of the real agreement of the parties. Such 
 3 Rawle, 345; Moale v. Buchanan, 11 Gill & J. relief may be given as well upon the suit of a 
 3U; Worleyu.Tuggle, 4 Bush, 168, 182; Provost plaintiff seeking to have a written contract 
 V. Eebman, 21Iowa,419; Wright ii. McCormick, or some of its terms set aside, annulled, orre- 
 22 Id. 545; Hunter v. Bilyeu, 30 111. 228; Mur- stricted, as to a defendant resisting its spe- 
 ray ». Dake, 46 Cal. 644 ciflo performance. (Gillespie v. Moon; Kelssel- 
 
 2 " The principle on which courts of equity brack v. Livingston.) Belief in this form al- 
 rectify an instrument so as to enlarge its oper- though procured By parol evidence of an 
 ation, or to convey or to enforce rights not agreemeatdfffering from the written con tract 
 found in the writing Itself, and make it con- with proof that the difference was the result 
 form to the agreement as proved by parol evi- of accident or mistake, does not conflict with 
 dence, on the ground of an omission by mutual the provisious of the Statute of Frauds. That 
 mistake in the reduction of the agreement to statute forbids the enforcement of certain 
 
 238 
 
CH. XI.] BELIEF ON GEOUND OF ACCIDENT AND MISTAKE. 
 
 § 199 
 
 Mv. Pomeroy has, in his work upon equity jurisprudence, under- 
 taken a successful criticism of the opinion of the Massachusetts court, 
 a part of which is given in a quotation in the note below. ^ It cannot 
 be doubted that a recognition of the objections advanced by the Mas- 
 sachusetts courts, and by the English courts, in the case of affirmative 
 relief in the suit for specific performance, would involve the appli- 
 cation of the same objections to the admissibility of parol evidence to 
 all cases where the contract is required by the Statute of Frauds to be 
 in writing, and the parties have in reducing it to writing departed 
 from the intention of the parties, either through some accident, mistake, 
 or fraud. A simpler and more truthful attitude would be, to concede 
 that the letter of the statute is violated by the introduction of the 
 parol evidence in any case where the Statute of Frauds requires the con- 
 tract to be in writing; but whether the relief be by way of defense 
 or affirmative, or whether it be cancellation, reformation, or specific 
 performance, this departure from the letter of the statute is justified 
 by the inequitable consequences of following the statute. 
 
 Mnds of agreements without writing j but It 
 does not forbid the defeat or restriction of 
 written contracts; nor the use of parol evi- 
 dence for the purpose of establishing the 
 equitable grounds therefor. The parol evi- 
 dence is introduced, not to establish an oral 
 agreement independently of the writing, but 
 to show that the written instrument contains 
 something contrary to or In excess of the real 
 agreement of the parties, or does not properly 
 express that agreement. (Higginsou». Clowes, 
 15Ves. 516; IV. & B. 524; Squire v. Campbell, 
 1 My. & Cr. 459, 480.) But rectification by mak- 
 ing the contract include obligations of a sub- 
 ject-matter to which Its written terms will not 
 apply, is a direct enforcement of the oral 
 agreement,as much in conflict with the Statute 
 of Frauds as if there was no writing at all. 
 Such rectification, where the enlarged oper- 
 ation includes that which is within the Statute 
 of Frauds, must be accomplished, if at all, un- 
 der the other head of equity jurisdiction, 
 namely, fraud." Opinion of Justice Wells, In 
 Glass V. Hurlbert, 102 Mass. 24. See, to same 
 effect. Elder v. Elder, 10 Me. 80, per Weston, 
 J.J Osborne s. Phelps, 19 Conn. 63; Miller *. 
 Chetwood, 1 Green Ch. 99; Dennis v. Dennis, 4 
 Rich. Eq. 307; Westbrook v. Harbeson, 2 Mc- 
 Cord Eq. 112; Climer v. Hovey, 15 Mich. 18; 
 Whittaker v. Vanschoiack, 5 Oreg. 113 ; Best v. 
 Stow,2Sandf. Ch. 298. 
 
 1 "A fatal objection to the whole theory is 
 that It proves too much; if accepted as a true 
 principle of equity, it necessarily destroys 
 ■unoflatu several branches of the jurisdiction 
 which are among its most familiar and salu- 
 tary instance of relief. This theory is not in 
 its essence directed against the remedy of 
 specific performance, but against that of re- 
 formation ; the act which these courts find 
 to be so impossible in the construction of a 
 contract by parol evidence is not the enforce- 
 ment of a contract after it is constructed. 
 The theory, therefore, militates against the 
 
 remedy of reformation as such in all its 
 phases, and as distinct from the subsequent 
 remedy of enforcement. It also seems, not- 
 withstanding the ingenious and very refined 
 distinctions drawn by the Massachusetts court, 
 to militate no less againstithe remedy of rescis- 
 sion. In short, If this theory be accepted, it 
 must nullify the well-settled doctrine which 
 permits a plaintiff to reform a written con- 
 tract which, through fraud or mistake, does 
 not express the real intent of the parties as 
 shown by their prior parol agreement; and 
 which permits a defendant to vary an agree- 
 ment and enforce it as varied. It is well settled 
 that both of these proceedings may be had; 
 and neither the English nor the American 
 courts have suggested the limitation that they 
 can be resorted to where the written instru- 
 ment Includes too much, and the relief consists 
 in narrowing its operation. But each of these 
 proceedings is in appearance a violation of the 
 Statute of Frauds, and is certainly prohibited 
 by the principles of the theory which I am 
 examining. Each of them is, in fact, the es- 
 tablishing by parol a contract which the stat- 
 ute says can only be established by writing. 
 Nor can I see any essential distinction between 
 the remedy of reformation in these instances 
 and that of rescission when the party, in order 
 to lay the foundation for the rescission, is 
 obliged to show by parol evidence a departure 
 in the written instrument from the intent as 
 verbally agreed. The party proves by parol 
 evidence that there was a verbal contract 
 broader than the written one, and because the 
 written one thus varies from this agreement, 
 it is set aside. The gist of the proceeding lies 
 not in the nature of the remedy, whether it be 
 rescission or reformation, but in the establish- 
 ment by parol evidence of a contract which 
 embraces more than the written instrument 
 does, and in thus doing what it is said the 
 statute forbids." 2 Pomeroy Eq. Jur. 338, note 
 3, § 867. 
 
 239 
 
CHAPTER XII. 
 
 ACTUAL FEAUD. 
 
 Section 
 Definition and general statement.— Kinds 
 
 of fraud 203 
 
 Material misrepresentation of facts . . 203 
 
 Material misrepresentation by the seller 204 
 
 Special fraud in auction sales . . . 205 
 
 Fraudulent devices of buyers . 206 
 
 Comb nation of bidders .... 207 
 
 Fraud alent intent not to pay . , . 208 
 Seller's expression of opinion. — Dealer's 
 
 talk. — His statement as to value and 
 
 price 209 
 
 Expressions of opinion by buyer . . 210 
 
 When concealment is fraudulent . . 211 
 Seller's concealment or silence, when a 
 
 fraud 212 
 
 Concealment of material facts by the 
 
 buyer 213 
 
 Seotiok 
 Intention to Influence the conduct of 
 
 another 214 
 
 When and how far fraudulent intent is 
 
 necessary in actual fraud . . . 215 
 Misrepresentation or concealment as de- 
 fense in actions of speciic performance 216 
 Reliance upon representation. — Deceit 
 
 must be successful 217 
 
 Parties must be justified in relying upon 
 
 misrepresentations 218 
 
 Damage to parties deceived . . . 219 
 Liability of principals, partners, and joint 
 owners of agent's fraudulent misrepre- 
 sentations 220 
 
 Remedies in general for actual fraud . 221 
 Equity jurisdiction over fraud. — Cancel- 
 lation and reformation .... 222 
 
 § 202. Definition and general statement. — ^Einds of fraud. — 
 
 The \&XTQ.fr(mjbd is used by the authorities for the purpose of indicating 
 the cases in which courts of law and equity afford relief against the 
 enforcement of agreements of all sorts, on the ground that through 
 some misstatement or act of commission or omission of one party, 
 the other party has been misled, or induced to assume obligations to 
 his disadvantage,, which he would not otherwise have entered into. The 
 courts especially refrain from any minute or exact definition of fraud 
 in general; and have confined themselves to general explanations of 
 the character of the acts which would constitute fraud, in order, 
 possibly, to prevent any escape from liability for fraud by a reliance 
 upon the letter of some more or less defective definition. Fraud is 
 multiform, but it may be generally described by a reference to general 
 characteristics. Fraud is defined by Mr. Pomeroy to include "all 
 willful or intentional acts, omissions, and concealments, which involve 
 a breach of either legal or equitable duty, trust or confidence, and are 
 injurious to another, or by which an undue or unconscientious advan- 
 tage over another is obtained." ^ A fraud is to be distinguished from 
 cases of mistake, which have been explained in the preceding chapter, 
 in that while both proceed from a mental condition, in the case of 
 mistake this mental condition is the result of ignorance or misappre- 
 hension of the party who asks for relief from the mistake. This mental 
 condition may or may not be participated in by both parties to the 
 transaction. But in the case of fraud, the mental condition of both 
 
 13 Pomeroy Eq. Jur., § 87.3. 
 
 240 
 
CH. XII. J ACTUAL FKAUD, § 203 
 
 parties is necessarily concerned; in the case of one of the parties that 
 mental condition being an intention to do something, the consequence 
 of which is pronounced by a court to be inequitable on account of the 
 wrongful influence thus exercised over the mind and conduct of the 
 other party. Fraud is also willful or intentional; mistakes are neces- 
 sarily unintentional. 
 
 Fraud is defined, in the first instance, as either actual or constructiye. 
 Actual fraud, as its name implies, would include all sorts of acts 
 intentionally done for the purpose of influencing the actions of another, 
 and producing an impression upon the minds of the other parties, con- 
 cerning their interests in the transactions, which is false and to their 
 own detriment. The untruth of the impression produced upon the 
 mind of the party intended to be influenced is a necessary element in 
 the case of actual fraud. ^ On the other hand, constructive fraud is a 
 term which is employed by courts of equity for the purpose of including 
 all those transactions of multiform character, which equity pronounces 
 to be inequitable, and to which it ascribes consequences upon the 
 rights and interests of the parties to the transactions, similar to 
 those which follow the commission of the actual fraud. The moral 
 element may or may not be present in the case of constructive 
 fraud, and the proportion of vn-ongfulness will vary with each case.^ 
 The subject of constructive fraud will be discussed in the next suc- 
 ceeding chapter. 
 
 Actual fraud can be subdivided into two kinds, according to the 
 character of the acts which produce the wrongful impression upon the 
 mind of the other party, viz. : It may be an affirmative act, or act of 
 omission, as where it is a false representation or suggestio falsi; or 
 an act of omission, such as a fraudulent concealment, a swppressio veri. 
 These two classes of actual fraud, and their essential elements, will 
 now be explained in detail. 
 
 § 203. Material misrepresentation of facts. — In determining the 
 requisites of actual fraud, it must first be observed that there must be 
 a misrepresentation of fact.' Legal fraud cannot be predicated, as a 
 general rule, of a misrepresentation of the law. Ignorance of the law 
 excuses no one; and since everyone is presumed to know the law, it 
 
 '8 Pomeroy Eq. Jur., §§ 873, 875. App. Deo. 408; Morris Canal Go. v. Emmett, 9 
 
 2 See 3 Pomeroy, § 928. Paige, 168; Stebbins v. Eddy, 4 Mason, 414 j 
 
 » Suessenguth v. Bingenheimer, 40 Wis. 370; Winston v. Gwathmey, 8 B. Mon. 19; Rohr- 
 
 Giflford V. Carrill, 29 Cal. 589; Pike v. Fay, 101 Schneider v. Knickerboolcer Ins. Co., 76 N. Y. 
 
 Mass. 134, 137; Cooper v. Levering, 106 Id. 77, 216; Verplanckw. VanBuren, 76 Id. 847; Damb- 
 
 79; Taylor v. Fleet, 1 Barb. 471; Oberlander v. mann v. Schulting, 75 Id. 55, 61 ; Beardsley v. 
 
 Spless, 45 N. Y. 175; New Brunswick, &c. Ry. v. Duntley, 69 Id. 577; Perkins v. Partridge, 30 N. 
 
 Conybeare, 9H. L. Gas. 711; 1 De G. F. & J.578; J. Eq. 88; Leutz v. Earnhart, 12 Heisk. 711; 
 
 Soggett V. Emerson, 3 Story, 700; Hough v. Derrick t). Lamar Ins. Co., 74111. 404; McShane 
 
 Richardson, 3 Id. 659; Daniel v. Mitchell, 1 Id. v. Hazelhurst, 50 Md. 107; Cowles v. Watson, 
 
 172; Hammattu. Emeraori, 27Me. 308; Stone u. 14 Hun, 41; Slaughter's Adm'r. v. Gerson, 13 
 
 Denny, 4 Met. 151; Hazard ». Irwin, 18 Pick. 95; Wall. 379; MoAleer v. Horsey, 35 Md. 439;, 
 
 Bowman v. Caruthers, 40 Ind. 90; Babcock v. Printup v. Fort, 40 Ga. 276. 
 Ca.Be 61 Pa. St. 427; Thorn v. Helmer, 4 Abb. 
 
 16 
 
 241 
 
§ 203 
 
 EQUITY JUEI8PEUDENCE. 
 
 [cH. xn. 
 
 would be a contradiction to hold that the party, to whom the mis- 
 representation was made, was misled thereby.^ 
 
 In the great majority of cases of misrepresentation, it consists of 
 language written or spoken; but that is not necessary. For a mis- 
 representation may be produced by conduct alone, or by acts entered 
 into or done for the purpose of producing wrong impressions and 
 influencing another's conduct to his own detriment.^ In the next 
 place, the misrepresentation must be of a material fact, i. e., it must 
 have a material bearing upon the transaction in hand. If the repre- 
 sentations do not concern the parties to the transaction as such, or 
 only in an immaterial degree, they will not taint the transaction with 
 fraud. ^ But a distinction is made by the authorities between mere 
 expressions of opinion of the parties, concerning the value or qualifi- 
 cations of the subject of the sale, and positive representations con- 
 cerning them, holding that the former are common and well under- 
 stood attempts by appreciation and depreciation of the goods to make 
 a good bargain, and which do not mislead the more or less experienced 
 tradesmen, and hence do not constitute a legal fraud, . although the 
 other party should happen to be misled.* There is, however, no 
 logical distinction between the two, where the intention is to deceive; 
 
 1 Fish «. Cleland, 33 III. 238 ; Dailey v. Jassnp, 
 78 Mo. 144; Clem v. New Castle, Ac, 9 Ind. 488; 
 Eose V. Hurley, 39 Ind. 77, 82; Clodfelter v. 
 Hulett, 72 Ind. 137, 143; Upton v. Trelbilcook, 
 81 II. S. 45, 50; Eawson v. Harger, 48 Iowa, 269; 
 Dillman v. Nadlehoffer, 119 III. 567; Insurance 
 Co. V. Eeed, 33 Ohio St. 283; see Tabor v. Mich. 
 Mut. Ins. Co., 40 Mich. 331. But inasmuch as 
 one is not expected to know foreign laws and 
 private acts, any misrepresentation as to them 
 would be fraudulent. King v. Doollttle, 1 
 Head, (Tenn,) 17. 
 
 a Lovell v. Hicks, 2 Y. & C. Exch. 46; McCall 
 V. Davis, 56 Pa. St. (6 P. P. Sm.) 431 ; Kilmer v. 
 Smith, 77 N. Y. 226; Hay v. Star Ins. Co., 77 
 Id. 235; Eider ». Powell, 28 Id. 310. 
 
 'Nolan «. Cain, 3 Allen, 263; Brown v. Tut- 
 tle, 66 Barb. 169; Mason v. Eaplee, 66 Barb. 180; 
 Swikehard v. Eussell, 66 Barb. 660; Bower v. 
 Perm, 90 Pa. St. 359; Hall ». Johnson, 41 Mich. 
 286; First Nat. Bank v. Yocum, 11 Neb. 328; 
 Noel V. Horton, 50 Iowa, 687; Frenzel v. Mil- 
 ler, 37 Ind. 1, 17; Miller v. Young, 33 111. 355; 
 Hannav, Saybum, 84 111. 533; Higgins v. Bick- 
 nell, 82 111. 502; Eace «. Weston, 86 111. 91; 
 Melindy v. Keen, 89 111. 395; Smith v. Brltten- 
 ham, 98 111. 188; Bradley v. Luce, 99 111. 234; 
 Schwa^ acker v. Eiddle, 99 111. 343; Mather v. 
 Eoblnson, 47 Iowa, 403; Dawson v. Graham, 
 48 Iowa, 378; Meyers v. Funk, 56 Iowa, 62; 
 Winter v. Baudel, 30 Ark. 363 ; Cooper v. Mer- 
 rltt, 30 Ark. 586; .Lapp v. Firstbrook, 24 Up. 
 Can. C. P. 239; Sanders v. Lyon, 2 MoArthur, 
 462; Smith «. Eiehards, 13 Pet. 28; Gordon ». 
 Butler, 105 U. S. 553; Teague v. Irwin, 127 Mass. 
 217; Blair v. Laflin, 187 Mass. 518; Com. v. 
 Jackson. 132 Mass. 16; Smith v. Countryman, 
 
 242 
 
 30 N. Y. 655; Eioe v. Manley 66 N. Y. 82; Duf- 
 fany v. Ferguson, 66 N. Y. 482; Miller v. Barber, 
 66 N. Y. 558 ; Wilcox v. Henderson, 64 Ala. 535; 
 Welshbillig v. Dienhart, 65 Ind. 94; Jones v. 
 Hathaway, 77 Ind. 14; Elsasa v. Moore's Hill 
 Inst., 77 Ind. 72; Stevens ». Eainwater, 4 MOi 
 App. 292. 
 
 < Homer v. Perkins, 124 Mass. 431; Somers v. 
 Eiehards, 46 Vt. 170; Van Epps v. Harrison, 6 
 Hill, 63; Buschman v. Cold, 53 Md. 202, 207; 
 Sledge ®. Scott, 56 Ala. 202; Merwin v. Arbuckle, 
 81 111. 501; Schramm ». O'Conner, 98 111.539; 
 Dawson v. Graham, 48 Iowa, 378; Stevens v. 
 Eainwater, 4 Mo. App. 292; Samson v. Lord, 13 
 How. 198; Gordon v. Butler, 105 U. S. 553; First 
 Nat. Bank v. Yocum, 11 Neb. 328; People v. 
 Jacobs, 35 Mich. 36; Kennedy v. Eichardson, 
 70 Ind. 634; Cagney v. Cuson, 77 Ind. 49r; 
 Wilcox V. Henderson, 6 Ala. 635, 541; Sledge 
 V. Scott, 56 Ala. 802; State v. Phifer, 65 N. C. 
 381, 326; Uhler v. Semple, 20 N. J. Eq. 888; 
 Long V. Woodman, 68 Me. 49; Holbrook v. 
 Conner 60 Me. 678; Medbury v. Watson, 6 Met. 
 246,259; Vessey B.Dalton, 3 Allen,380; Mooney 
 ». Miller, 102 Mass. 280; Coopers. Lovering, 106 
 Mass. 79; Yeagin v. Irwin, 127 Mass. 217; Poland 
 ». Brownell, 131 Mass. 138. In Graffeustein » 
 Epstein, 23 Kans. 443, the court says: "A mis- 
 representation as to the market value of an 
 article of general commerce, made falsely and 
 fraudulently by one party to induce a sale 
 and rehed upon by the other, wiU not avoid a 
 contract, therefore, when there are no circum- 
 stances making it the special duty of the one 
 party to communicate the knowledge he pos- 
 sesses, and none giving him the peculiar 
 means of ascertaining such market price 
 
<;h. 
 
 XII.] ACTUAL FRAUD. § 204 
 
 and, if a distinction is at all possible, it must rest upon the variance 
 in the habits of society, the one species of deception being common 
 and more or less condoned by commercial custom, while the other is 
 less common and is stoutly condemned by public opinion.^ It has 
 also been held that a mere statement of one's intention cannot be a 
 misrepresentation sufficient to amount to a fraud, for the reason that 
 such a statement would be merely an expression of an opinion, instead 
 of a statement of fact.^ But it must not be understood, from this 
 statement, that a representation of a future intention will never con- 
 stitute fraud; for the authorities are clear and explicit in their opinion 
 that a statement of an intention may be a fraud, and must be treated 
 as a fraud, whenever it is absolute in form, and expressly made 
 for the purpose of influencing the conduct of another, and also so 
 made that it creates an affirmative obligation on the part of the one 
 who gives expression to the intention. It must also be remembered, 
 that the mere reference to a future event may be just as good and as 
 explicit a statement of fact as such a statement would be where the 
 reference is to a fact existing at the present time. These cases must 
 not be confounded with the statement of what the party intends to do 
 in the future.* In a subsequent paragraph, striking examples are 
 given of cases of intention which are held to be fraudulent. 
 
 § 204. Material misrepresentation by the seller. — ^Fraud is 
 multiform, and it would be both tedious and impossible to give ex- 
 haustive illustrations of it. It must suffice to present characteristic 
 examples, from which the reader may determine the practical appli- 
 cation of the general principles already set forth in the preceding 
 paragraphs. It has thus been held to be material misrepresentations, 
 establishing the charge of fraud in the sale of goods, where the vendor 
 sells a note, which he knows to have been paid; ' where he misrepre- 
 sents the amount of the previous sales of a patented article, which he 
 is offering to sell; ' where he misrepresents the profits of his business;' 
 where he states falsely that the property he was selling was free from 
 
 • See Tiedeman's " Unwritten ConBtitution of 455j Kimball v. ^tna Ins. Co. 9 Id. 640; Lang- 
 the United States," p. 10 don v. Doud, 10 Id. 433, 437; Andrews v. Lyons, 
 
 'Citizens' Bk. ti. First Nat. Bk. of N. O., L. 11 Id. 349; Turner v. Coffin, 12 Id. 401; Pall 
 
 H. e H. L. 352; Jordan e. Money,a5 H. L. Cas. Riv. Nat. Bk. v. Bufflngton, 97 Mass. 498; 
 
 185; Long v. Woodman, 58 Me. 49, 52; Grove v. Hawes v. Marchant, 1 Curtis, 136; Lobdell v. 
 
 Hodges, 55 Pa, St. (5 P. F. Sm.) 504,519; Gordon Baker, 3 Met. 469; Osgood v. Nlcliols, 5 Gray, 
 
 ■0. Parmlee, 2 Allen, 212; Peduck V. Porter, 5 420; Audenried v. Betteley, 5 Allen, 384; Vib- 
 
 Allen, 324; Mooney ». Miller, 102 Mass. 217. bard u. Roderick, 51 Barb. 616; Brookman v. 
 
 'Paynes. Mortimer, IGlfP. 118; 4 DeG. & J. Metcalf, 4 Rob. (N. T.) 568; Vanderpool v. 
 
 447; Skidmore t). Bradford, L. R. 8 Eq. 134; Brake, 28 Ind. 130; Ridgway v. Morrison, Id. 
 
 Caton V. Caton, L. R. 3 H. L. 127, 142; Ainslle 201; Davidson v. Young, 38 111. 145; Chouteau 
 
 s. Medlycott, 9 Ves. 13, 21, per Sir Wm. Grant; v. Goddin, 39 Mo. 229, and cases in last note. 
 
 Gale V. Lindo, 1 Vem. 475; Maunsell v. White, ' See post, § 208. 
 
 4 H. L. Cas. 1039, 1036, per Lord Cranworth ; IJo. « Neff v. Clute, 12 Barb. 468 ; Sibley V. Hul- 
 
 & Lat. 539, 557; Bold v. Hutchinson, 20 Beav. bert, 15 Gray, 509. 
 
 250; 5 De G. M. & G. 558; Loxley v. Heath, 87 ' Crossland v. Hail, 33 N. J. Eq. Ill; MllUrS). 
 
 Beav. 623; 1 De G. F. & J. 489; Saunders v. Barber, 66 N. T. 558; Somers v. Richards, 46 Vt. 
 
 Cramer, 3 Dr. & War. 87. 170. 
 
 * Piggott V. Stratton, 1 De G. F. & J. 33, 49,per » Taylor v. Saurman, 110 Pa. St. 3. 
 Lord Ch. Campbell; Plumer v. Lord, 9 Allen, 
 
 243 
 
§ 205 EQUITY JURISPKUDENCE. [CH. XU. 
 
 incumbrances;^ where the vendor of a note states that the makers 
 were " wealthy and responsible men," ' where the seller states that a 
 farm yielded a certain quantity of hay; ' where he sells property when 
 it does not really exist;* where he states that railroad bonds are 
 secured by first mortgage." 
 
 § 205. Special frands in auction sales. — ^The owner of goods, on 
 putting them up for sale at auction, may reserve the right to establish 
 in advance the minimum price at which the goods may be sold; ° or he 
 may announce to the by-standers or otherwise make public the fact 
 that he will employ an agent to bid on the property for him, in order 
 to prevent a sacrifice.' And some of the cases go the length of hold- 
 ing that the employment of one bidder in good faith for the purpose 
 of preventing a sacrifice, would not be a fraud on the other bidders, 
 although, seemingly, it is not announced or made public' The old 
 English chancery rule permitted the employment of one bidder; ' but 
 the matter is now regulated by statute in England, and the employ- 
 ment of even one bidder clandestinely is considered to be a fraud on 
 the buyer." And this seems now to be the generally accepted rule, 
 whether there is a statutory modification or not. " But it has always 
 been held to be a fraud, where two or more bidders are employed by 
 the vendor, for the purpose of creating an appearance of competition; ^ 
 or in any case where the emplojTuent of a bidder is done for the fraudu- 
 lent purpose of giving to the property a fictitious value, and this is 
 especially the rule where the sale was advertised to be made "without 
 reserve," etc. ^ The distinction between the employment of one bidder 
 
 1 Ward v. Weman, 17 Wend. 193: Haight v. Delaplaine, 3 E. D. Smith, 819; Staines V. 
 Hoyt, 19N. Y. 464j Masson B. Doyet, 1 Denio, 69. Shore, 16 Pa. St. 800; Paucett *. Currier, 115 
 
 2 Alexander J). Dennis, 9 Port. 174 Mass.20; Williams®. Bradley,7Heisk.54. Thia 
 ' Coon V. Atwell, 46 N; H. 510; Martin o. rule is approved by Chan. Kent, in 8 Com. 538, 
 
 Jordan, 60 Me. 531. 539 (5th ed.); Thornett v. Haines, 15 M. & W. 
 
 4 Wordell v. Posdick, 13 Johns. 335. 367, 372, per Parke, B. 
 
 'Clark J). Edgar, 84 Mo. 106. 12 Bahama. Bach, 13 La. 287; Jenkins v.Hogg^ 
 
 •Steele v. EUmaker, U S. & R. 86; Bush ». 8 Const. (S.C.) 821; Tomllnsoni). SaTage,6Ired. 
 
 Cole, 88 N. Y. 861 ; Warlow v. Harrison, 29 L. J. Eq. 430; Troughton v. Johnson, 2 Hayw. 28; Nat. 
 
 Q. B. 14; Wolfe«. Luyster, 1 Hall, 146. PireIns.Co.«.Loomi8,HPalge,431i Nat.Bk.of 
 
 ' Dlmmock v. Hallett, L. E. Oh. 21 ; Staines ». Metropolis «. Sprague, 20 N. J. Bq. 159; Davis 
 
 Shore, 16 Pa. St. 200; Mainprice v. Westley, 6 v. Petway, 3 Head, 667; Williams v. Bradley, 7 
 
 Best. & S. 420. Heisk. 54; Wicker »- Hoppock, 6 Wall. 94; 
 
 8 Phippen v. Strickney, 3 Met. 387; Steele v. Veazie v. Williams, 8 How. (U. S.) 134; 3 Story, 
 
 EUmaker, 11 S. & K. 86; Moncrieff v. Golds- 611, 622; Robinson v. Wall, 10 Beav. 61; 2 Phil, 
 
 borough, 4 Har. & McH. 282; Woods v. Hall, 1 378; Mortimer v. Bell, L. R. 1 Ch. 10; Dimmook 
 
 Dev. Eq. 411 ; Morehead V. Hunt, 1 Dev. Eq. 35; v. Hallett, L. R. 2 Ch. 21; Wood v. Hall, 1 Dev. 
 
 Latham®. Morrow, 6 B. Mon. 630; Lee «. Lee, Eq. 415; Morehead v. Hunt, 1 Dev. Bq. 35; 
 
 19 Mo. 420; Veazie v. Williams, 3 fctory, 622; s. Thornett v. Haines, 15 M. & W. 367, 372, per 
 
 c, 8 How. 134; Walsh v. Barton, 24 Ohio St. 28; Parke, B. 
 
 Reynolds v. Dechaumls, 24 Tex. 174; Pennook's " Curtis v. Aspinwall, 114 Mass. 187- More- 
 Appeal, 14 Pa. St. 446; Wolfe v. Luyster, 1 Hall, head v. Hunt, 1 Dev. Eq. 36; Woods*. Hall, I 
 146. Dev. Eq. 411 ; Baham v. Bach, 13 La. 287; Fisher 
 
 » Green ®. Banerstock, 14 C. B. 804; Flint ». ». Hersey. 17 Hun, 370; Tomlinson v. Savage, ft 
 
 Woodln, 9 Hare, 618. Ired. Eq. 430; Donaldson v. McRoy.l Browne, 
 
 i» Mortimer v. Bell, L. E. 1 Ch. 10; Heatley 346; Pecks. List, 83 W.Va. 338; Trust®. Dela- 
 
 ■I,. Newton, L. B. 19 Ch. D. 326. plaine, 3 E. D. Smith, 819; National Bank®. 
 
 " Smith V. Clarke, 18 Ves. 477; Woodward v. Sprague, 20 N. J. Eq. 159; Powle ». Leavitt 83 
 
 Miller, 3 Coll. 279; Woods v. Hall, 1 Dev. Eq. N. H. 360; Nat. Plre Ins. Co. v. Loomis ' 11 
 
 415; Towle®. Leavitt, 83 N. H. 360; Trusts ». Paige, 431; Wolfe ». Luyster 1 Hall 'l46' 
 
 244 ' " 
 
CH. XII.] ACTUAL FRAUD. § 206 
 
 for the purpose of preventing a sacrifice of the property, and the 
 employment of one for the purpose of giving the property a fictitious 
 and unreal value, is very fine, and must be ascertained, as it seems to 
 me, solely by the degree to which the fictitious bidder is employed, it 
 being fraudulent if the price of the goods is thereby pushed up above 
 their true market value. The same rule as to puffing applies to all 
 other kinds of sales, including sheriff's sales.' 
 
 But in order that the sale may be rescinded by the buyer, on account 
 of puffing or by-bidding, it is held that the buyer must have been 
 influenced by it to bid more than he had previously determined to do,^ 
 and the preceding bid must not have been genuine. ' 
 
 The auctioneer may also commit a fraud by having a private signal 
 with any bidder for communicating bids;* or by giving any other 
 advantage to one bidder over the others; ° or by advertising the goods to 
 belong to one party, when they were the property of someone else.* 
 
 But the auctioneer will be justified in l:ef using to accept bids from 
 a minor ; ' from irresponsible persons in general; * or from anyone else, 
 if done in good faith or on justifiable grounds. " 
 
 § 206. Fraudulent devices of buyers. — The fraudulent devices of 
 buyers may assume a variety of forms; but the more common consist 
 of misrepresentations of the credit and financial standing of the buyer '" 
 and of his identity or business connections with other men; '^ of forged 
 recommendations of others; '^ and the transfer, in the payment of the 
 price, of worthless securities,'^ counterfeit money," stolen goods," or 
 of checks, which will not be honored on account of the want of funds.'" 
 
 Pennock's Appeal, 14 Pa. St. 446; Staines ». Hill, 317; Van Neste ». Conover, 20 Barb. 547; 
 
 Shore, 16 Pa, St. 200; Yerkes «i. Wilson, 81 Pa. Hunter ». Hudson Eiver Iron Co., 20 Barb. 494; 
 
 St. 9; Moncrieff v. Goldsborough, 4 Har. & Eaten?). Avery, 83 N. T. 31; Naugatuok Cut- 
 
 McH. 883; McDowell v. Sims, 6 Ired. Eq. 278j lery Co. v. Babcock, 23 Hun, 481; Devoe v. 
 
 Latham v. Morrow, 6 B. Mon. 630; Darst v. Brandt, 53 N. Y. 462; Gregorys. Soboenell, 65 
 
 Thomas, 87 111. 232; Miller v. Baynard, 2 Houst. Ind. 101; Lyon v. Briggs, 14 E. I. 222; Cain v. 
 
 S59; Veazle v. Williams, 8 How. (U. S.) 134; 3 Dickinson, 60 N. H. 371; Genesee Co. Sav. Bank 
 
 Story, 611, 622; Thomett i). Haines, 15 M. & W. v. Mich. Barge Co., 52 Mich. 164; Cochran ». 
 
 367 and cases cited; Kobinson ». Wall, 3 Phil. Stewart, 21 Minn. 435; Williams ». Given, 6 
 
 373, 375 ; per Lord Cottenham. Gratt. 268. 
 
 ' Donaldson ». McRoy, 1 Browne, 346; Lee ». " Barker ». Dinsmore, 72 Pa. St. 427; Kings- 
 Lee, 19 Mo. 430; Dimmook v. Hallett, L. R. 2 Ch. ford V. Merry, 1 H. & N. 503; McCrillis v. Allen, 
 SI, 29. 57 Vt. 505; Abom v. Merchants' Dispatch Co., 
 
 2 Jennings ». Hart, 1 Euss. <fe Ches. 15; Vea- 135 Mass. 283; Eadllffe v. Dallinger, 141 Mass. 
 zie V. Williams, 3 Story, 611 ; Tomlinson v. Sav- 1 ; Alexander v. Swackhamer, 105 Ind. 81 ; Hard- 
 age, 6 Ired. Eq. 530. man ». Booth, ; 2 L. J. (N. S.) Ex. 105. 
 
 8 National Bank v. Sprague, 20 N. J. Eq. 159, i^ Mowrey v. Walsh, 8 Cow. 238. 
 
 165; Veazie v. Williams, 3 Story, 611; but see " Manslngi). Albee, 11 Allen, 520. 
 
 Curtis ». Aspinwall, 114 Mass. 187, 199. " Arnott v. Cloudas, 4 Dana, 300; Green ». 
 
 *Conoverj). Walling,15N. J. Eq. 173 Humphrey, 50 Pa. St. 212; Cochran d. Stewart, 
 
 « Thomas v. Kerr, 3 Bush, 619; Pattlson ». 21 Minn. 435; White v. Garden, 10 C. B. 919; 
 
 Josselyn,43 Miss. 373; Conover v. Walling, 15 Harner v. Fisher, 58 Pa. St. 453; Williams *. 
 
 N. J. Eq. 173. Given, 6 Gratt. 268. 
 
 « Thomas v. Kerr, 3 Bush, 619. '^ Titcomb v. Wood, 38 Me. 563 ; Arendale v. 
 
 'Kinney v. Showdy, 1 Hill, 544. Morgan, 5 Sueed, 703; Lee v. Portwood, 41 Miss. 
 
 « Hobbs V. Beaver, 2 Ind. 142; Den v. Zellers, 109. 
 
 2Halst. 153. i" Hawse o Crowe, Eyan & IW. 414; Hodgson 
 
 « Holder v. Jackson, 11 Up. Can. C. P. 543. v. Barrett, 33 Ohio St. 63, Bristol », Wllsmore, 
 
 lOLuckey v. Eoberts, 25 Conn. 486; Cary v. 1 B. i^: C. 514. 
 
 Hotailing, 1 Hill, 311; Olmstead u. Hotailing, 1 
 
 245 
 
§ 206 EQUITY JUKISPEUDENCE. [CH. XU. 
 
 The fraud may also consist of a misrepresentation as to the age of the 
 buyer, and a subsequent repudiation of the sale on the ground of the 
 buyer's infancy. ^ It would be a fraud to allow the seller to rely upon 
 the recommendations of third persons, which contain some false repre- 
 sentation concerning the buyer; ^ and so, also, to secure goods through 
 an insolvent buyer from the vendor of the goods by making false rep- 
 resentations of his credit and financial standing. ' 
 
 The fraudulent misrepresentations of the buyer may be made by him- 
 self directly to the seller, or indirectly to him through communications- 
 to the third persons in general, as well as through the mercantile agen- 
 cies, whose business it is to furnish to their regular subscribers infor- 
 mation concerning the financial standing of merchants. In every 
 such case, the fraud of the buyer is sufficient to avoid the sale. But it 
 is held that the misrepresentations must be shown to have been made 
 with the intention to commit a fraud upon the seller or some other 
 person.* But whether the misrepresentation is made directly or indi- 
 rectly to the seller, in order that it may constitute a fraud on him, it 
 must be made by the buyer with the intention of influencing the seller's 
 conduct, either in particular, or in general, in common with all other 
 potential sellers. ° 
 
 Fraud may, likewise, be committed on the seller by dissuading 
 others from bidding at an auction by false representations concerning 
 the conduct of the seller of the goods, or the condition of the goods. 
 This is as much a fraud on the seller, as if he had been influenced by 
 false representations to sell, when he would not otherwise have parted 
 with his goods. For example, it is a fraud where the buyer dissuades 
 others from bidding on the property by misstating the amount of the 
 incumbrance; " by paying them for withholding their bids; ' by request- 
 ing such non-participation as a personal favor to the buyer,' or because 
 the seller had wronged the buyer in withholding the property from 
 him.' Although the sale vsdll not be avoided, because the buyer dis- 
 suaded others from bidding at an execution sale, by truthfully tell- 
 ing them that he was bidding in the interest of the debtor;" yet it 
 
 'Badger v. Phlnney, 15 Mass. 359; Huge v. 3 Taunt. 274; Thomas?). Davenport, 3 Smith's 
 
 Gallans, 10 Phila. 618; Wallace v. Morse, 5 Hill, Lead. Cas. 347; Meyer ». Amldon, 23 Hun, 553; 
 
 391; Fltta v. Hall, 9N. H. 441; but see contra, see State*. Schulein, 45 Mo. 581; Phelan v. 
 
 Johnson v. Pie, 1 Keb. 913; 1 Lev. 169; Price v. Crosby, 3 Gill, 463. 
 
 Hewitt, 8 Exoh. 146; Liverpool Adelphi Loan * Deickerhoff v. Brown, 21 Md. Rep. 583; Lin- 
 Association «. Pairhurst, 9 Exoh. 423. And dauerr. Hay, 61 Iowa, 636; Victor v. Henlein. 
 see Studwell v. Sharpter, 54 N. Y. 449; Burley ®. 33 Hun, M9. 
 
 Eussell, 10 N. H 184; Conrad ». Lane, 26 Minn. 6HilI«. Curley, 8 Hun, 636; Van KleeohJi. 
 389; Merriam v. Cunningham, 11 Gush. 40, Leroy, 37 Barb. 544. 
 where it is held that if an Infant Is sued at « Jackson v. Morter, 82 Pa. St. 391. 
 common law on his contract, It is not a good ' Morris v. Woodward, 85 N. J. Eq. 33; Sling- 
 replication to the defense of infancy to allege luff v. Eckel, 34 Pa. St. 472; Gardiner ». Morse, 
 that the plaintiff was induced to make the 85 Me. 140. 
 
 contraotiby the infant's fraudulent misrepre- 8 Gardiner®. Tucker, 6 E. I. 551. 
 
 sentation of his age. » Fuller v. Abrahams, 3 B. & B. 116 ; People v. 
 
 a Pitzsimmons v. Josliu, 81 Vt. 129; Ladd v. Lord, 6 Hun, 390; Jackson v. Morter, 82 Pa. St. 
 
 Lord, 36 Vt. 194. 891; Raynes v. Crowder, 14 Up. Can. C. P. HI. 
 
 8 Biddle V. Levy, 1 Stark. 20 ; Hill ». Perrott, "> Dick «. Cooper, 84 Pa. St 217 
 
 246 
 
CH. XII.] ACTUAL FRAUD. § 208 
 
 would, of course, be a fraud if the representation of the interest in 
 the debtor was false. ^ And this leads us to the consideration of the 
 general subject of — 
 
 § 207. Combinations of bidders.— The general proposition is that, 
 whatever may be the mode of chilling or stifling competition among 
 bidders at a sale, any combination of bidders for that purpose would 
 be a fraud upon the seller, sufficient to avoid the sale at the latter' s 
 instance.^ On the other hand, it is held to be permissible for bidders 
 to combine for the purchase of the entire lot of goods offered for sale, 
 and a subsequent division among them of the goods so purchased by 
 their agent, where no one of them would want to purchase the whole 
 lot. The combination, in such a case, is not for the purpose of depress- 
 ing the price, but to enable a purchase to be made, which is impossible 
 except in combination.' And, in the case of sales on execution, par- 
 ticularly, the presumption of law is that a combination of bidders is 
 not for any fraudulent purpose of depressing the price, but rather for 
 the lawful purpose of securing a purchase that is otherwise beyond 
 their reach.* But if the bidders who enter iato the combination do not 
 share in the division of the goods which are purchased, then the com- 
 bination is presumed to have been made for the fraudulent purpose of 
 depressing the price to the injury of the seller, and the sale may be 
 avoided.^ 
 
 § 208. Frandnlent intent not to pay. — ^When one proposes to buy 
 goods, he makes an express or, afany rate, an implied promise to pay 
 the price. If, therefore, he has no intention whatever of paying for 
 
 1 Salter v. Maxwell, 6 Wall. 268; Cocka v. 159; Wolfe v. Luyster, 1 Hall, 146 Gardiner ». 
 Izard, 7 Wall. S69. Morse, 25 Me. 140. 
 
 2 Jonesr. Portsmoutli, &c. R. E. Co., 38 N. H. * Brisbane v. Adams, 3 N. Y. 189; Young o. 
 544; Edsall v. Hamburg M. Co., 1 Halst. Ch. Snyder, 3 Grant Gas. 151; Young u. Smith, 10 B. 
 658; Hamburg M. Co. v. Edsall, 1 Halst. Ch. 249; Mon. 293; Switzer v. Skiles, 8 Gilm. 589; Jen- 
 Pattisonr. Joselyn, 43 Miss. 3?3; Stockton v. kins r. Frink, 30 Cal. 586; Stewarts. Severance, 
 Owlings, Litt. Sel. Gas. 256; Seymour v. M. & G. 43 Mo. 322; Buokner v. Ghambliss, 30 Ga. 652j 
 T. Co., 10 Ohio, 476; Stewart v. Nelson, 25 Mo. Bradley v. Klngsley, 43 N. Y. 534. 
 
 309; Stewart ®. Severance, 43 Mo. 322; White ' Newman o. Meek, 1 Freem. Ch. 441; Gardi- 
 
 Crowc. White King, 3 Kans. 278; ForeIander«. ner v. Morse, 85 Me. 140; Phippen v, Strickney, 
 
 Hinks, 6 Ind. 448; Fleming v. Hutchinson, 36 3 Met. 387; Troup v. Wood, 4 Johns. Gh. 228; 
 
 Iowa, 519; Arnold v. Cord, 16 Ind. 177; Vantrees Wilbur v. Howe, 8 Johns. 444; Meech «. Ben- 
 
 ».Hyatt,5Ind.487;Grifathi>. Judge,49Mo.536; nett, Hill & D. 19S; Gulich «. Ward, 5 Halst. 87 j 
 
 Miltenbeiger «. Morrison, 39 Mo. 71; Wooton Slingluff v. Eckel, 24 Pa. St. 478; Martin v. 
 
 V. Hinkle, 20 Mo. 290; Martin ». Blight, 4 J. J. Eantell, 5 Elch. 541; Johnson ». La Motte, 6 
 
 Marsh. 491; Mills ». Rogers, 2 Litt. 217; Carson Rich. Eq. 347; Dudley w. Little, 2 Ohio, 505; 
 
 v. Law, 2 Eich. Eq. 296; Hamilton v. Hamilton, Hook v. Turner, 28 Mo. 333; Pratt v. Oliver, 1 
 
 2 Eich. Eq. 355. McLean, 295; Cooks v. Izard, 7 Wall. 559; Loyd 
 
 3 Smith V. Greenlee, 2 Dev. 126; Phippen v. ». Malone, 23111. 43; Wooton v. Hinkle, 20 Mo. 
 Strickney, 3 Met. 387; Dexter v. Shepherd, 117 290; Haynes v. Crutchfield, 7 Ala. 189; Hamil- 
 Mass. 480; Maire v. Garrison, 83 N, Y. 14; Small ton v. Hamilton, 2 Eich. Eq. 355; Woods v. 
 ». Jones, 1 Watts <fcS. 128j McMlnn. u. Phipps, Hudson, 5 Munf. 423; Dick v. Lindsay, 2 
 3Sneed, 196; Switzer v. Skiles, 3 Glim. 629; Grant Gas. 431; Trust v. Delaplaine, 3 E. D. 
 Kearney v. Taylor, 15 How. 519; Crooke v. Smith, 219; Thompson ». Davis, 13 Johns. 112; 
 Dairs, 5 Grant, (Out.) 317 j Brown v. Fisher, 9 Doolin v. Ward, 6 Johns. 194 ; Jones v. Caswell, 
 Grant, (Ont.) 423; Slater V. Maxwell, 6 Wall. 3 Johns. Gas. 29; Fenner v. Tucker, 6 R. I. 551j 
 268; Jenkins V. Frink, 30 Gal. 586; Allen v. Pike «. Balch, 38 Me. 202; Rodgess «. Eodgess, 
 Stephanes, 18 Tex. 658; Dick i>. Cooper, 24 Pa. 13 Grant, (Ont.) 143; James v. Fulerad, 6 Tex. 
 St. 217; National Bank v. Sprague, 20 N. J. Eq. 512; Farr v. Simms, Eich. Eq. 122. 
 
 247 
 
§ 208 
 
 EQUITY JURISPRUDENCE. 
 
 [cH. xn. 
 
 the goods, he has made in effect, if not in fact, a material misrepresen- 
 tation, in reliance upon the truth of which the seller has parted, or 
 has agreed to part, with his goods. But, whether it is considered a 
 material misrepresentation or not, the great preponderance of authority 
 in this country pronounces a sale fraudulent, in which the buyer had 
 formed a preconceived intention not to pay for the goods. The sale 
 may for this reason be avoided by the seller.* 
 
 But while the existence and knowledge, or the early anticipation, of 
 insolvency by the buyer, and the absence of any reasonable expectation 
 of ability to pay, are facts which tend to prove the fraudulent intent not 
 to pay for the goods — it may be the principal fact ^ — they are not suf- 
 ficient (alone) to prove this fraudulent intent' But if they are 
 accompanied by other facts, such as an immediate sale of the goods at 
 a greatly reduced price, or a transfer of them to some other creditor, 
 or the secretion of the property, as soon as it is received, and the like, 
 which tend to prove a preconcerted plan to accumulate some money 
 before a suspension of business, the jury can infer, from such a combi- 
 
 ' Donaldson v. Earwell, 93 U. S. 631 ; Carna- 
 han «. Bailey, 88 Fed. Eep. 519; Thompson v. 
 Taylor, 15 Phila. 250; Eedington v. Roberts, 25 
 Vt. 694; Rowleys. Blgelow, 12 Pick. 307; Dow 
 V. Sanborn, 3 Allen 182; Thompson v. Rose, 16 
 Conn. 81; MulUkent). Millar, 12 R. I. 296; Ash 
 V. Putnam, 1 Hill, 302; Carys. Hotailing, IHill, 
 311; Meaoham ». Collignor, 7 Daly, 402; Sohu- 
 feldt V. Sohnitzler, 21 Hun, 462; Buckley v. 
 Archer, 21 Barb. 585; Nichols v. Pinner, 18 N. 
 Y. '295; 33 N. Y. 265; Paddon V. Taylor, 44 N. Y. 
 371; Wright v. Brown, 67 N. Y. 1; Mears v. 
 Waples, 3 Houst. 581; ,4 Houst. 62; Peters ». 
 Hllles, 48 Md. 506; Loel ». Plash, 66 Ala. 586; 
 Des Farges v. Pugh, 93 N. C. 31 ; Lane v. Rob- 
 inson, 18 B. Mon. 623; Bidault V. Wales, 19 Mo. 
 36; 20 Mo. 546; Taylor «. Mississippi Mills, 
 (Ark.) 1 So. Rep. 883; Talcott v. Henderson, 31 
 Ohio St. 162; Shipman v. Seymour, 40 Mich. 283; 
 Klopenstein v. Mulcahy, 4 Nev. 896; Bell v. 
 Bllis, 33 Gal. 620; Seligipan ». Kalkman, 8 Cal. 
 207; Allen «. Hartfleld, 76 111. 358; Oswego 
 Starch Factory i>. Lendoum, 57 Iowa, 573; Rice 
 ». Cutter, 17 Wis. 362; Pox v. Webster, 46 Mo. 
 181; Baldwin v. Franklin, 8 Lea. 67; Woods. 
 Yeatman, 15 B. Mon. 271 ; Wilson ». White, 80 
 N. C. 280; Dellone ». Hull, 47 Md. 112; Powell 
 V. Bradlee, 9 Gill & J. 220; Stoutenborough v. 
 Kokle, 15 N. J. Eq. 33; Devoe v. Brant, 53 N. Y. 
 462; Hennequin-B. Naylor, 84 N. Y. 239; Hall v. 
 Naylor, 18 N. T. 588; Bernard v. Campbell, 65 
 Barb. 286; Mitchell v. Worden, 20 Barb. 853; 
 JByrd v. Hall, 2 Keyes, 646; Blgelow v. Heaton, 
 <6 Hill, 44j King v. Phillips, 8 Bosw. 603;. Ayres 
 V. French, 41 Conn. 148, 153; Kline v. Baker, 99 
 Mass. 853; Wlggin ». Day, 9 Gray, 97; Stewart 
 .». Emerson, 52 N. H. 301 ; Burrill «. Stevens, 73 
 Me. 395; Hanchett v. Mansfield, 16 111. App. 
 407; Catlin v. Warren, 16 111. App. 418; Lee w. 
 Simmons, 65 Wis. 683; Parker*. Byrnes, 1 Low. 
 C. C. 539; Davis », Stewart, 8 Fed. Rep. 803; 
 
 248 
 
 Ferguson v. Oarrington, 9 B. <fc C. 59; Davis v. 
 McWhlrter, 40 Up. Can. Q. B. 598; Biggs o. 
 Barry, 2 Curt.-(U. S.) 262. 
 
 ^Hennequins. Naylor, 84 N. Y. 139; Talcott 
 V. Henderson, 31 Ohio St. 168; Thompson v. 
 Rose, 16 Conn. 71. 
 
 across V. Peters, 1 Greenl. 378; Redlngton 
 s. Roberts, 85 Vt. 694; Morrill ». Blackman, 48 
 Conn. 384; Lloyd v, Brewster, 4 Paige, 537; 
 Johnson v. Monell, 2 Abb. App. 470; Byrdi). 
 Hall, 2 Keyes, 646; Hennequln v. Naylor, 24 N. 
 Y. 139; Biddle ». Black, 99 Pa. St. 380; Powell 
 V. Bradlee, 9 Gill & J. 220; Talcott v. Hender- 
 son, 31 Ohio St. 162; Garbutt v. Bank, 23 Wis. 
 384; Conyers V. Bnnis, 2 Mason, 236; Exparte 
 Whittaker, L. R. 10 Ch. 446; Burrill ». Stevens, 
 73 Me. 395; Sohufeldt v. Sohnitzler, 21 Hun, 462; 
 Wright V. Brown, 67 Hun, 4; Klopenstein s. 
 Muloahy, 4 Nev. 296; Beldingu. Prankland, 8 
 Lea. 67; JTichols ». Pinner, 18 N. Y. 295; Ontario 
 Copper Co. v. Lightning-rod Co.,89trp. Can. 
 C. P. 491; Briggs *.. Barry, 2 Curt. C. C. 259; 
 Shlpmen v. Seymour, 40 Mich. 274; Klein v. 
 Rector, 57 Miss. 538; Mears v. Waples, 3 Houst. 
 B81 ; 4 Houst. 68 ; Rodman ». Thalheimer, 75 Pa. 
 St. 232; Pish v. Payne, 14 N. T. 586; 7 Hun, 586; 
 Ellison V. Bernstein, 60 How. Pr. 145; Andrews. 
 Dieterlch, 14 Wend. 31 ; Rowley v. Bigelow, 13 
 Pick. 307; Hodgeden v. Hubbard, 18 Vt. 501; 
 Bell V. Ellis, 33 Cal. 620; Bidault v. Wales, 19 
 Mo. 36; 80 Mo. 547; Morris v. Talcott, 96 N. Y. 
 100; Morrison v. Shuster, 1 Mackey, 190; Dalton 
 V. Thurston, 3 N. E. Rep. 383; Kelsey v. Harri- 
 son, 29 Kans. 143. But see, contra, Davis ». 
 Stewart, 3 McCrary C. C. 174; 8 Fed. Rep. 803, 
 where it has been held under the bankruptcy 
 law that the purchaser of goods, when one 
 knows himself to be insolvent, and that he has 
 no reasonableexpectations of ability to pay, is 
 fraudulent, at least as between the sellsi and. 
 the buyer's assignee in bankruptcy. 
 
CH. XIi;] ACTUAL FRAUD. _ § 209 
 
 nation of facts, that the buyer had a preconceived design not to pay 
 for the goods, and hence the sale was fraudulent.* 
 
 The intention not to pay must be absolute, in order to taint the sale 
 with fraud. It is not fraudulent, if the buyer simply had the inten- 
 tion not to pay at the time agreed upon, and in accordance with the terms 
 of the contract, if he honestly intended to pay at some other time." 
 And the intention not to pay must be adopted prior to the sale, in 
 order to make the sale fraudulent. If it be not a predetermined inten- 
 tion not to pay, but one which was taken up after the sale had been 
 made; while it is fraudulent, it cannot have a retrospective effect and 
 thus taint the contract of sale. The title to the goods cannot, on 
 account of this subsequent determination not to pay, be recovered by 
 an avoidance of the contract of sale.^ But it has been held that this 
 fraudulent intention not to pay will avoid the sale, if it is made at any 
 time before the sale is completed by a delivery of the goods.* 
 
 In Pennsylvania, however, it is held that there must be some further 
 proof of an intention to deceive, in order to avoid the sale, than the 
 concealment of the buyer's insolvency and his intention not to pay. It 
 is required that there must be ' ' artifice intended and fitted to deceive. ' ' ^ 
 
 § 209. Seller's expression of opinion. — Dealer's talk. — His 
 statements as to value and price. — The general rule, heretofore 
 given, ^ that mere expressions of opinion do not constitute a material 
 misrepresentation, finds a special application to questions concerning 
 the seller's fraud. For vendors of goods are very generally in the 
 habit of indulging in more or less extravagant praise of their 
 goods, unduly extolling their merits, as to value and quality. 
 Where their statements are of a general nature, there cannot be much 
 doubt that their use will furnish no ground for the charge of fraud. ' 
 But when the vendor descends to exaggeration or misstatem ent^ of 
 s pecial facts or qualities, the authorities are divided. I'or example,"" 
 it IS held "By some of the authorities that a wiUf ul misstatement of the 
 
 1 Wiggins V. Day, 9 Gray, 97; DesFargesj). v. Robinson, 35 Ark, 483; Cross v. Peters, 1 
 
 Pagh, 93 N. C. 31; Parker v. Byrnes, 1 Low. C. Greenl. 376; Stewart v. Emerson, 52 N. H. 301; 
 
 C. 539, 542; Daris v. MoWhirter, 8 Up. Can. Q. Donaldson v. Farwell, 93 U. S. 631. 
 B. 598; Wilson v. White, 80 N. C. 280; Jordan v. * Beldingi). Frankland, 8 Lea. 67; 41 Am. Rep, 
 
 Osgood, 109 Mass. 462; Hennequin». Naylor, 24 630; Pike v. Wieting, 49 Barb. 314. But see, 
 
 N. T. 139; Talcott V. Henderson, 31 Oblo St. contra. Burrill 1). Stevens, 73 Me. 395. 
 162; Thompson u. Rose, 16 Conn. 71; Lee v. 6 Smiths. Smith, 21Pa. St. 367; BackentossB, 
 
 Simmons, 65 Wis. 523. Speicer, 31 Pa. St. 334 ; see Hamer v. Fisher, 58 
 
 "Bidault «." Woles, 20 Mo. 546; Mitchell v. Pa. St. 453; Rodman v. Thalheimer, 75 Pa. St. 
 
 Worden, 20 Barb. 253; Buckley v. Artcher, 21 233; Wilson V. White, 80 N. C. 280; Bell v. Ellis, 
 
 Barb. 585. 33 Gal. 620; Kline v. Baker, 99 Mass. 253. 
 
 8 Burrill v. Stevens, 73 Me. 395; Briggs v. « See ara<«, § 203. 
 
 Barry, 2 Curt. C. C. 259; Rowley B. Bigelow, 12 'Mowlan 1>. Cain, 3 Allen, 563; Miller ». 
 
 Pick. 307; Parker v. Byrnes, 1 How. 539; Cross Young, 36 111. 354; Chester i). Comstook, 6 Rob. 
 
 V. Peters, 1 Greenl. 378; see, also, Des Parges v. 1; Andersons. Hill, 12 Smed. A M. 679; Atwood 
 
 Pugh, 93 N. C. 31 ; Lee v. Simmons, 65 Wis. 523; v. Small, 6 Ct. & F. 232; Ormrod ». Huth, 14 M. 
 
 Taylor v. Mississippi Mills, 1 So. Rep. 283, cit- & W. 664; Vernon v. Keys, 13 East, 637; Com. 
 
 Ing Exparte Whittaker, L. R. 10 Ch. App. 446; v. Jackson, 132 Mass. 16; Bishop v. Small, 63 
 
 Biggs V. Barry, 2 Curt. C. C. 259; Hoffman ». Me. 14|'HemmerB. Cooper,8 AIlen,334; Cooper 
 
 Noble, 6 Met. 68; Nichols v. Pinner, 18 N. Y. v. Loverlng, 106 Mass. 79; Holbrooke. Connor, 
 
 895' Bridgeford v. Adams, 45 Ark. 136; Merritt 60 Me. 578; State v. Paul, 69 Me. 215. 
 
 249 
 
§ 209 EQUITT JUBISPEUDENCE. [CH. XH. 
 
 cost of the goods, or of the price that has been offered for them, for 
 the purpose of enhancing the value of the goods, is not a fraud. ^ 
 And it has been held to be no fraud for a seller to misstate the 
 appraised value of the goods which he is selling. ^ But on the other 
 hand, other courts have held such specific misrepresentation of value 
 of the goods to be a fraud on the buyer which would avoid the sales.* 
 It has been held to be a fraud,* and likewise not a fraud,* for the 
 vendor of commercial paper to state falsely that the parties to the 
 paper are financially responsible. It was held to be a fraud for the 
 vendor, in the sale of a business, to represent that it is profitable;* 
 whereas it was held to be no fraud for the statement to be made by 
 the seller that the subject-matter of the sale was good oil land.'' 
 Fraudulent promises of the vendor to do something in the future for 
 the vendee, as well as fraudulent representations as to what the vendee 
 could do with the property, are held not to constitute fraud.' On the 
 other hand, a representation that an old stock of goods was "fresh, 
 and new," was held to be fraudulent.* In another case, it was held 
 to be doubtful whether the statement that a horse was "sound and 
 kind" was a fraudulent affirmation of a fact or an irresponsible 
 expression of an opinion.^" 
 
 In all these cases of doubt, it is clearly a question of fact for the 
 jury to determine^ avowedly dependent on the intention and under- 
 standing of the parties,^' but, in my judgment, chiefly dependent upon 
 the practices and moral perception of the particular jury. 
 
 iHolbrook v. Connor, 60 Me. 578; Bishop v. McFadden «. Robinson, 35 Id. 84; Allin v. 
 Small, 63 Me. 12; Wlllard v. Eandall, 65 Me. 81 ; Millison, 78 111. 201 ; Neil v. Cummlngs, 75 Id. 
 Chrysler v. Canaday, 90 N. T. 272j Merrian «. 170; Faribault v. Sater, 13 Minn. 823; Gifford 
 Arbuekle, 81 111. 501; Righter v. Roller, 31 Ark. v. Carvill, 29 Cal. 589; Cruess v. Pessler, 39 Id. 
 170; Woloott V. Mount, 38 N. J. L. 196; Mooney 336; Jordan ■». Volkenning, 72 N. T. 300, 306; 
 V. Miller, 102 Mass. 217; Cooper v. Loverlng, Perkins «. Partridge, SON. J. Eq. 82; Leutz v. 
 106 Mass. 79; Brown v. Leach, 107 Mass. 364; Earnhart, 12 Heisk. 711; Derricks. Lamar Ins. 
 Comer v. Perkins, 124 Mass. 431; Veasey v. Co. 74 111.404; Foxworth v. Bullock, 41 Miss. 
 Dayton, 3 Allen, 381; Hemmer ». Cooper, 8 457; but see Suessenguth v. Bingenheimer, 40 
 Allen, 334; Gordon v. Parmlee, 12 Allen, 212; Wis. 370; Haygarth v. Wearing, L. R. 12 Eq. 
 Brown v. Castles, 11 Cush. 350; Medbury v. 320; Atwood v. Small, 6 01. & Fin. 832; Wake- 
 Watson, « Met. 259; Tuck v. Downing, 76 111. man v. Dalley, 51 N. T. 37; Shaeffer®. Sleade, 
 71; Noetllng i>. Wright, 72 Id. 390. 7 Blackf. 178; Schramm v. O'Connor, 98 111. 539. 
 
 " Bourr v. Davis, 76 Me. 883. * Alexander v. Dennis, 9 Porter, 174. 
 
 •Van Epps v. Harrison, 5 Hill, 63; Page v. «Belcher». Costello, 122 Mass. 188. 
 Parker, 43 N. H. 369; Weadner v. Phillips, 39 ecruesss. Pessler, 39 Cal. 336; Somer«. Rich- 
 Hun, 1; Sandford o. Handy, 23 Wend. 269, ards, 46 Vt. 170; Miller e. Barber, 66 N. Y. 558; 
 where the misrepresentations were of the Crossland v. Hall, 33 N. J. Eq. 111. 
 price which third persons had paid or offered > Watts v. Cummings, 59 Pa. St. 84^ 
 for the goods. Medbury v. Watson. 6 Met. 246; s Long v. Woodman, 58 Me. 52; Gordon v. 
 Manning ». Albee, 11 Allen, 322; Ives v. Car- Parmlee, 8 Allen, 212; Peduok v. Porter, 5 
 ter, 24 Conn. 403; Simar v. Canaday, 53 N. Y. Allen, 384; Mooney v. Miller, 102 Mass. 817. 
 306; Kenner v. Harding, 85 111. 264j McClel- » Jackson v. Collins, 39 Mich. 557. 
 land II. Scott, 24 Wis. 81 ; Miller v. Barber, 66 N. lo Commonwealth v. Jackson, 132 Mass. 16. 
 Y. 558; Cowles v. Watson, 14 Hun, 41; Somer "MorBeB.Shaw,]24Mass.59; Commonwealth 
 V. Richards, 46 Vt. 170; Martin v. Jordan, 60 v. Jackson, 132 Mass. 16; State v. Tomlin, 29 N. 
 Me. 531; Coon v. AtweU, 46 N. H. 510; Mc- J. L. 13; Bradley v. Luce, 99 111. 834; Sharp v. 
 Aleer v. Horsey, 36 Md. 439; Reid o. Flip- Ponce, 74 Me. 470; State v. HefEner, 84 N. C, 
 pen, 47 Ga. 273; Morehead v. Eades, 3 Bush, 751; Bigler t». Pliokinger, 55 Pa. St.279; Sledge 
 121; Slevekings. Litzler, 31 Ind. 17; Harvey ». v. Scott, 56 Ala. 208; Homer v. Perkins, 124 
 Smith, 17 Id. 272; Davis v. Jackson, 28 7A 233; Mass 431 
 
 250 
 
CH. XII.J ACTUAL FKAUD. § 211 
 
 § 210. Expressions of opinion by buyer. — The buyer's state- 
 ments of fact are also divided into irresponsible expressions of opinion 
 and fraudulent misrepresentations of facts. It is not always possible 
 to draw the line very clearly between the two, but it may be stated, 
 generally, that when the statement is very general in its terms, and in 
 no way specific, or is so common that no one of ordinary prudence is 
 misled thereby, it is called a mere expression of opinion; and 
 although it may be false, it does not avoid the sale which ensues.' 
 
 211. Wlien concealment is frandulent. — As a general rule, the 
 law does not require the parties to a contract to supply each other 
 with information concerning the subject-matter of the contract. 
 CoKeat emptor is the cardinal rule of the law of sales. The vendor 
 and vendee are said to treat with each other at arm's length; and 
 unless the parties have mutually agreed to a modification of the 
 ordinary relation existing between them, and placed themselves under 
 obligation to give information, it is no fraud for one of the parties to 
 conceal any material fact from the other, provided he does nothing 
 to mislead the other party, or to prevent or render more difficult his 
 acquisition of the knowledge." It is only when the one party merely 
 keeps silent, that he does not commit any legal fraud upon the other. 
 If th e silence amou nts to a positi ve con cealment of a material fact, as 
 where there are attempts to draw the attenfibn of the omer^arty 
 from that fact, or to cover it up from view, then the silence becomes 
 equivalent to a misrepresentation, and gives the taint of fraud to the 
 transaction.^ It would also be a fraud, where one, in response to an 
 inquiry, voluntarily made a statement, which was true, as far as it 
 went, but which would be placed in a different light, if a suppressed 
 fact had been stated. In such cases, the fact stated is made to pro- 
 duce a false impression, in consequence of the concealment of another 
 material fact. * 
 
 It is likewise a fraud for one to suppress a fact, if he is under an 
 obligation to disclose it, on account of being in a fiduciary relation 
 to the other party." 
 
 1 See Belcher v. Costello, 122 Mass. 189; Van ' Matthews v. Bliss, 22 Pick. 48,52; Smith t>. 
 
 Epps V. Harrison, 5 Hill, 63; Ellis v. Andrews, Countryman, 30 N. T. 655, 681; Eoseman «. 
 
 66 N. T. 83; Watts v. Cummlngs, 59 Pa. St. 84, Conovan, 43 Gal. 118; Jackson V. Collins, 39 
 
 in which false expressions of the buyer's flnan- Mich. 557, 661 ; Savage v. Stevens, 126 Mass. 207; 
 
 cial standing were considered not fraudulent. but see Graffensteiu ». Epstein, 23 Kans. 443. 
 
 On the other hand, see McClelland v. Scott, 24 *Peck v. Gumey, L. E. 6 H. L. 403; Smith ». 
 
 Wis. 81 ; Simar », Canaday, 53 N. Y. 298; Morse Chadwick,,L. R. 20 Ch. U. 58; Phillips v. Pox- 
 
 v. Shaw, 124 Mass. 59; Homer v. Perkins, 124 all, L.R.7 Q.B.679; Lee?;. Jones,17C. B., n. s., 
 
 431; Stubbs S.Johnson, 127 Mass. 219; so, also, 506; Arkwright V. Newbold, L. R. 17 Ch. D. 
 
 to be a fraud for one falsely to say, "that is all 817; Devoe v. Brandt,53 N. Y. 462; see, also, 
 
 Iwillgive," and the like. Humphrey ». Has- Brown t),Montgomery, SON. Y.287; Armstrong 
 
 kell 7 Allen, 498; Vernon u.Keyes, 12 East, 638; s. Huflfstuttler, 19 Ala. 51 ; Turner ». Huggins, 
 
 4 Taunt 488. 1* ^''^ 2^' P«ase v. McClelland, 2 Bond, 42; 
 
 SLaidiowB. Organ, 2 Wheat. 178; Kintzingti. Marsh v. Webber, 13 Minn. 109 j Stevens «. 
 
 McElrath, 5 Pa. St. 467; Butler's Appeal, 26 Pa. Orman, 10 Fla. 9; Hanson ». Edgerly, 29 N. H. 
 
 St. 63,66; Blydenburgh v. Welch, Baldw. (TJ. S.) 343. 
 
 ssi- Perry s. Johnston, 59 Ala. 648; People's 'Hanson v. Edgerly, 29 N. H. 343; Fitzsim- 
 
 Bank V Bogert, 81 N. T. 101, 108. mons v. Joslin, 21 Vt. 129; Howard ». Gould, 88 
 
 251 
 
EQUITY JUEISPEUDENCE. 
 
 [cH. xn. 
 
 § 212. Seller's concealment or silence, when a frand. — The 
 
 general rule is that the seller's silence, when he knows that the buyer 
 is exaggerating the value or qualities of the goods, is not a fraud. 
 And this is certainly the general rule where the buyer has equal f acili- 
 ties with the seller, for discovering the defects in the goods. ' The 
 seller is not obliged to point out the defects, if they can be discovered 
 by the buyer with reasonable diligence. The rule caveat emptor is 
 applied here vnth all its force. ^ And it is held to be no fraud for the 
 vendor to omit, jmiBJe nEiona Hy, to disclose defects which would not be 
 discovered so readily by the^buyer; the intention to deceive being a 
 necessary element of fraud. ^ But if he intentionally withholds infor- 
 mation of the existence of defects, which are not equally within the 
 ken of the buyer, as where poison has been spilled upon fodder,' or 
 wEere animals are sold for breeding purposes, when the vendor knows 
 they are impotent; * it is undoubtedly a fraud. 
 
 In order that the seller's silence may not constitute a fraud, he must 
 do nothing to conceal these defects from the buyer, or to induce him to 
 be less vigilant in his examination of the goods." It will also be a 
 fraud to fail to point out defects in cases in which the usage of trade 
 requires the seller to disclose them,' or where the vendor tacitly agrees 
 to make them known, by permitting the buyer to repose confidence in 
 the vendor's supposed intention to disclose such defects.' 
 
 Id. 523; Paddock o. Strobridge, 89 Jd. 470; 
 Bank of Republic ». Baxter, 31 Id. 101 ; Brown 
 «. Montgomery, 20 N. T. 287; Schlffer v. Dietz, 
 83 Id. 300; Hadley v. Clinton,&c. Co., 13 Ohio 
 St. 502; Livingston v. Peru Iron Co., 2 Paige, 
 390; Bunch v. Sheldon, 14 Barb. 66; Nichols «. 
 Pinner, 18 N. Y. 295; 23 Id. 264; Hennequln r. 
 Naylor, 24 Id. 139; Hall v. Naylor, 18 Id. 588; 
 Allen V. Addington, 7 Wend. 9, 20; People's 
 Bk. V. Bogart, 81 N. Y. 101 ; Koseman «. Cano- 
 van, 43 Cal. 110, 117; Drake ». Collins, 5 How. 
 (Miss.) 253; Bowman v. Bates, 2 Bibb, 47; Raw- 
 don V. Blatohford, 1 Sandf. 344; Holmes' 
 Appeal, 77 Pa. St. (27 P. F. Sm.) 50; Swimm v. 
 Bush, S3 Mich. 99; Snelson v. Franklin, 6 Munf. 
 210; McNeil v. Balrd, 6 Munf. 316; Emmons «. 
 Moore, 85 111. 304; Damerson «. Jamison, 4 Mo. 
 App. 299; Connelly «. Fisher, 3 Tenn. Ch. 382; 
 Young ». Hughes, 32 N. J. Bq. 372; McMiohael 
 V. Kilmer, 76 Id. 36, 44; Dambmann v. Schult- 
 ing, 75 Id. 55, 61 ; Goninan v. Steplienson, 24 
 Wis. 75; Hastings «. O'Donnell, 40 Cal. 148. 
 
 1 Hart V. Holcombe, 32 N. H. 185; Teasey v. 
 Dalton, 3 Allen, 380; Lytle v. Bird, 3 Jones, (N. 
 C.) 2S2; Port v. Williams, 6 Ind. 219; Hough v. 
 Richardson, 3 Story, 659; Brown v. Leach, 107 
 Mass. 364; Stephens ». Orman, 10 Pla. 9; Rooohi 
 ■e. Sohwabacker, 33 La. An. 1364; Brown v! 
 Castles, 11 Cush. 350; Dickinson v. Lee, 102 
 Mass. 559; Homer v. Perkins, 124 Mass. 431; 
 People's Bk. v. Bogart, 81 N. Y. 101 ; Smith v. 
 Countryman, 30 M 655; Hansons. Edgeriy, 29 
 N. H. 343; Fisher v. Budlong, 10 R. J. 525; 
 Kintzing v. McElrath, 5 Barr. 467; Hadley v 
 
 252 
 
 Clinton, &o. Co., 13 Ohio St. 502; Frenzel ». 
 Miller, 37 Ind. 1 ; Williams v. Spurr, 24 Mich. 
 335; Mitchell v. McDougall, 63 111. 498; Law v. 
 Grant, 37 Wis. 548; Laidlow v. Organ, 2 Wheat. 
 178; Hastings v. O'Donnell, 40 Cal. 148; Wilde 
 V. Gibson, 1 H. L. Cas. 605. 
 
 2 Stevens v. Fuller, 8 N. H. 463; Hanson v. 
 Bdgerly, 29 N. H. 343; Kintzing v. McElrath, 5 
 Pa. St. 467; Harris v. Tyson, 24 Pa. St. 347; 
 Laidlow v. Organ, 2 Wheat. 178; Howard v. 
 Gould, 28 Vt. 523 ; Fisher v. Budlong, 10 R. 1. 527. 
 
 ' French v. Vining, 102 Mass. 135; see, also, 
 to same effect, Paddock v. Strobridge, 39 Vt. 
 471; McAdamsc. Gates, 24 Mo. 223; Barron ». 
 Alexander, 27 Mo. 530; Duvall v. Medtart, 4 H. 
 & J. 14; Beninger v. Corwin, 24 N. J. L. 257; 
 Dowing V. Dearborn, 77 Me. 457; Hough v. 
 Evans, 4 McCord, 169; Cardwell v. McClellen, 
 
 3 Sneed, 150; Stevens v. Fuller, 8 N. H. 463; 
 Prentiss v. Russ, 16 Me. 30; Milliken v. Chaj)- 
 man, 75 Me. 323; Cornelius v. Molloy, 1 Pa. St. 
 293; Hadley ». Clinton, &.O. Co., 13 Ohio St. 503; 
 Cecil V. Spurger, 32 Mo. 462. 
 
 * Maynard v. Maynard, 49 Vt. 297. 
 
 6 Paddock a. Strobridge, 29 Vt. 420; May- 
 nard V. Maynard, 49 Vt. 297; Croyie i>. Moses, 
 90 Pa. St. 450; Beninger ». Corwin, 84 N. J. L. 
 257; Cassell v. Herron, 5 Clarke, 250. 
 
 s Benjamin on Sales, § 430. 
 
 ' Horsfall v. Thomas, 1 Hurt. & C. 90; Smith 
 V. Hughes, L. R. 9 Q. B. 597; Jones v. Bowden, 
 
 4 Taunt. 847. 
 
 » Snelson v. Franklin, 6 Munf. 310; McNeil v. 
 Balrd, Id. 316; Halls ». Thompson, 1 Sm. & 
 
CH. XII. J 
 
 ACTUAL FRAUD. 
 
 § 214 
 
 But it is not a f raua, not to disclose defects, in any case where the 
 buyer positively relies upon his own judgment after his examination 
 of the goods, and does not evince any desire to refer to the seller's 
 opinion or statements.' It is also not a fraud on the buyer, to conceal 
 facts, where the goods are expressly sold " with all their faults." ' 
 
 § 213. Concealment of material facts by the buyer. — The buyer 
 is no more required, than is the seller, to disclose facts within his 
 knowledge, which would materially affect the negotiations of the sale 
 of the goods; such as those which would enhance the price of the goods, * 
 or which relate to the solvency of the buyer, * and the like. The buyer is 
 not obliged to disclose facts within his knowledge, unless he assumes 
 an obligation to furnish information. ° 
 
 But the buyer must scrupulously abstain from any statements or 
 actions, which are calculated to disarm suspicions, and to mislead on 
 account of being half-truths. In any such case, the combination of 
 silence and misleading action or word is equivalent to an actual mis-, 
 representation of a material fact, and will taint the sale with fraud. ° 
 
 § 214. Intention to influence the conduct of another. — It is an 
 essential requisite of actual fraud, in law and in equity, that whatever 
 may be the form of the representation — that is, whether an affirma- 
 
 Mar. 443; Boseman v. Conovau, 43 Cal. llOj 
 Schlfler v. Deltz, 83 N. Y. 300; Howell v. iBid- 
 dlecom, 62 Barb. 131 ; Clark v. Bamei, 2 Lans. 
 67; Bank of Republic v. Baxter, 31 Vt. 101; 
 Howard v. Gould, 28 Id. 523; Fitzsimmons v. 
 Joslin, 21 Id. 129; Hanson v. Edgerly, 29 N. H. 
 343; Wilde v. Gibson, 1 H. L. Cas. 605; Brown 
 V, Montgomery, 20 N. Y. 287; People's Bk. v. 
 Bogart, 81 Id. 101; Eawdon v. Blatchford, 1 
 Sandf. Ch. 344; Paddock v. Stockbridge, 29 Vt. 
 470, 477; Holmes' Appeal, 77 Pa. St. 60. 
 
 1 Pattison v. Jenks, 33 Ind. 87; Stephens v. 
 Orman, 10 Fla. 9; Howell v. Rlddleoom, 62 
 Barb. 131. 
 
 2 Pearce v. Blackwell, 12 Ired. 49; Plckenlng 
 V. Dawson, 4 Taunt. 779; Freeman v. Baker, 1 
 Ad. & E. 508; Hanson v. Edgerly, 29 N. H. 343; 
 Ward V. Hobbs, h. R. 2 Q. B. D. 331; s. c, L. E. 
 3 Q. B. D. 150; Gosslert). Eagle Sugar Kef., 103 
 Mass. 331; Smith v. Andrews, 3 Ired. 6; Hen- 
 Bhaw V. Robins, 9 Met. 83, 90; Taylor v. Fleet, 4 
 Barb. 102; Whitney v. Boardman, 118 Mass. 247, 
 248; Baywater v. Richardson, 1 Ad. & E. 508s 
 Baylehole v. Walters, 3 Camp. 154. 
 
 3 Laidlow v. Organ, 2 Wheat. 178; Harris v. 
 Tyson, 24 Pa. St. 347; Kentzing v. McElrath, 5 
 Pa. St. 467; Matthews «. Bliss, 22 Pick. 48; Smith 
 V. Beatty, 2 Ired. Eq. 456 ; Butler's Appeal, 26 Pa. 
 St. 63; Foxti. Mackreth,2Bro.Ch.420; Gonlnan 
 ». Stephenson, 24 Wis. 75; Clelands. Fish, 43 111. 
 282; Wright v. Brown, 67 N. Y. 1 ; Anonymous, 
 S! id. 698; Livingstons. Peru Iron Co., 2Paige, 
 390; Harris v. Tyson, 12 Harris, (24 Pa. St.) 347; 
 Drakes. CoUins, 5How. (Miss.) 253; Williams 
 V. Spurr, 24 Mich. 355; Law «. Grant, 37 Wis. 
 548; Bee,however,percort^ra, Bowman v. Bates, 2 
 Bibb, 47; Williams «. Beazley, 3 J.J. Marsh. 578. 
 
 * Cross 7). Peters, 1 Greenl. 378; Redingtons. 
 
 Roberts, 25 Vt. 694; Morrill v. Blackman, 42 
 Conn. 324; Lloyd u. Brewster, 4 Paige, 537; 
 Johnson v. Monell, 2 Abb. App. 470; Byrd v. 
 Hall, 2 Keyes, 646; Hennequin v. Tfaylor, 24 N. 
 Y. 139; Biddle s. Black, 99 Pa. St. 380; Powell 
 V. Bradlee, 9 Gill & J. 220; Talpott i>. Hender- 
 son, 31 Ohio St. 162; Garbutt v. Bank, 22 Wis. 
 384; Conyiss t). Ennis. 2 Mason, 236; Mx parte 
 Whittaker, L. R. 10 Ch. 446; Burrill v. Stevens, 
 73 Me. 395; Sohufeldt v. Schnltzler, 21 Hun, 
 462; Wrights. Brown. 67 Hun, 4; Klopenstein 
 ». Mulcahy, 4Nev. 298;Beldings. Frankland, 
 8 Lea. 67; Nichols v. Pinner, 18 N. Y. 295; On- 
 tario Copper Co. v: Lightning-rod Co., 29 Up. 
 Can. C. P. 491; Biggs v. Barry, 2 Curt. C. C. 
 259; Shipman v. Seymour, 40 Mich. 274; Klein 
 V. Rector, 57 Miss. 538; Mears ji. Waples, 3 
 Houst. 581; 4 Houst. 62; Rodman v. Thalheimer, 
 75 Pa. St. 232; Fish o. Payne, 7 Hun, 586; s. a, 
 14 N. Y. 586; Ellison v. Bernstein, 60 How. Pr. 
 145; Andrews. Dieterioh, 14 Wend. 31; Rowley 
 V. Bigelow, 12 Pick. 307; Hodgeden v. Hubbard, 
 18 Vt. 504 
 
 * Dambmann V. Schultlng, 75 N. Y. 55, 62; see 
 Carpenters. Danforth, 52 Barb. 581; Fishers. 
 Bodlong, lOR. I. 535; Board of Tippecanoe Co. 
 V. Reynolds, 44 Iijd. 509. 
 
 » Turner s . Harvey, Jacob, 178; Bench s. 
 Shelden, 14 Barb. 66; Prescott s. Wright, 4 
 Gray, 461 ; Paul v. Hadley , 23 Barb. 521 ; Damb- 
 mann s. Schulting, 75 N. Y. 62; Smith s. Coun- 
 tryman, 39 N. Y. 655, 681 ; Howard s. Gould, 
 28 Vt. 523; Hadley V. Clinton Co., 13 Ohio St. 
 502; but see Vernon s. Keys, 12 East, 632; 4 
 Taunt. 488. 
 
 253 
 
§ 215 
 
 "KQUITT JURISPRUDENCE. 
 
 [cH. xn. 
 
 tive misrepresentation or concealment of a material fact — it must have -^ 
 been inade or 3on5"\rith the intention' of inducmgahotK^ to enter into / 
 a contract or to assume some obligation, which he probably otherwise / 
 -would not have assented to.' The misrepresentation must, therefore, | 
 precede or be contemporaneous with any actions for the conclusion of a ) 
 bargain." -^ 
 
 It is not always necessary, however, to show affirmatively that the 
 parties intended to influence the conduct of another. That intention ^ 
 will b e pre smned, whenever a representation is made either prior to or 
 in connection^Wlth the given transaction, and is of such a nature and 
 has such a connection with the transaction in question, as reasonably / 
 to si^^ort the presumption, that iEBe^her party w ould^e influenced 
 thereby, and was in faclTBo influe nced. In such a case, me courts will 
 pr esuBte thanEe"i arse repr^en taSon ^r i mpression w as ma^ or pro- 
 duced, with the intention of influencing the cond uct of the othe r party. 
 TheHe^JOT or intention will be infSrted from the consequences of the / 
 act of misrepresentation.' But it is not necessary that the party mak- 
 ing the misrepresentation should be proven or presumed to have the 
 intention of influencing the conduct of amy particvlar person. He may 
 ©r may not have intended to influence some one particular person; 
 that is not necessary to the charge of fraud. If the party makes the 
 misrepresentation to the world in general, and expects it to influence 
 some one or more of those who read the announcement, and the fact is 
 established that the ultimate party to the transaction was in fact 
 influenced by the misrepresentation so announced, the intention to 
 influence his conduct is sufficiently made out to support the charge 
 of fraud. Thus, for example, all misrepresentations or conceal- 
 ments of material facts in circulars and prospectus and other general 
 announcements, which are so frequently advertised and distrib- 
 uted, and are made with the intention of influencing anyone who 
 may be induced to read them and to act upon them, this general inten- 
 tion to influence anyone who proves himself to be susceptible to the 
 influence is all that the law requires to support the charge of fraud.* 
 
 § 215. When and how far fraudalent intent is necessary in 
 a£taal fraud. — Another important question is, how far the intention to 
 
 1 Smith V. Eobertson, 23 Ala. 318 i Oswald u. 
 HcGehee, 28 Miss. 340; Slaughtei's Adm'r v. 
 Gerson, 13 Wall. 379 j Bowman v. Caruthers, 40 
 Ind. 90; Tyler v. Black, 13 How, (U. S.) 230; 
 Hough V. Bichardson, 3 Stoiy, 659; Smith v. 
 Babcock, 2 Wood. & Min. 246; Pratt v. Phil- 
 brook, 33 Me. 17; Harding ».• Randall, 15 Me. 
 332; Huntr. Moore,2Barr. 105; Joioe». Taylor, 
 6 Gill &. J. 54; McAleer v. Horsey, 35 Md. 439; 
 Taymon v. Mitchell, 1 Md. Ch. 496; Lanier ». 
 Hill, ^ Ala. 554; Eaton C. & B. Co. v. Avery, 83 
 U. Y. 31 ; Rohrschneider v. Knickerbocker Ins. 
 Co., 76 Id. 216; Verplank v. Van Buren, Id. 247; 
 Smith V. Richards, 13 Pet. 26. 
 
 2 Harris v. Kemble, 1 Sim. HI, 122, per Sir 
 John Leach. 
 
 254 
 
 ' Conybeare v. New Brunswick, &o. Co., 1 De 
 G. P. & J. 578; 9 H. L. Cas. 711; Attwoodo. 
 Small, 6 CI. & Pin. 233; Aberaman Iron Works*. 
 Wiokens, L. R. 4 Ch. 101; 5 Eq. 485; Western 
 Bk. of Scotland v. Addie, L. E. 1 H. L. Sc. App. 
 145; Traill «. Baring, 4 De G. J. & S. 318, 326, 
 328; Rawlins v. Wiokham, 3 De G. &.. J. 304. 
 
 * Paddock v. Fletcher, 42 Vt. 389; Rohr- 
 schneider «. Knickerbocker Ins. Co., 76 N. Y. 
 216; Phelps ». Walt,30N. T.78; Bruff t). Mali, 36 
 N. Y. 200 ; McClelland v. Scott, S4 Wis. 81 ; Kiseh 
 V. Cent. Ry. of Venezuela, 3 De G. J. & S. 122; L. 
 E. 2 H. L. 99; Reese River Mln. Co. v. Smith, 
 L. R. 4 H. L. 64; New Brunswick, &c. Ry. v. 
 Muggeridge, 1 Dr. & Sm. 363; Peek v. Gumey, 
 L. R. 6H. L. 377. 
 
CH. XII.] 
 
 ACTUAL FEAUD. 
 
 § 215 
 
 ■deceive is necessary to the definition of fraud. It is a well-established 
 rule that an innocent misrep resentat ion, to which no moral_bIame is 
 attached, is not a fraud, however much damage it may have caused,* 
 althdugh such aTmisrepresentation might constitute a mistake of fact, 
 or a failure of consideration, and thus avoid a contract; ^ or it might 
 constitute a breach of a warranty.' Yet it would npt b e right to go to ( 
 the opposite extreme and hold that the positive intention to deceive 
 another is a necessary element of actual fraud. There can be no ques-v 
 Hon, of course, that where the intention to deceive is present, the fraud . 
 has been committed.* But there are many cas es in which there is no \ 
 positive intention to deceive, and yet the false statement is so made 
 that tSe party mlMng it c^not claim to be without blame. — ~™y 
 
 But it is to be observed thatTEhere is~no ground for the charge of 
 iraud, only when the false statement is made innocently and without 
 blame. The reckless statement of what one doesnot know to be true, 
 
 "^or the purpose of influencmg the actions of others, is repr ehe^bl e 
 imder tiie law, a nd is actual fraud; for the moral wrong of making 
 false statemen'ts negligently, is a kin_ to an ac tual i nten tion to de ceive. 
 
 " Under those circxmistaSces, the law concl usive ly presumes that the 
 utterCT of false statemrats i ntended to deceive. If, however, one has 
 reasonable grounds for believing his stat ements to be tru e, although 
 they are false, he has made an innocent mistake, for which he cannot 
 l)e held responsible. It is only when he makes statements, which he 
 
 1 Cowley V. Smith, 46 N. J. L. 380j Weeks v. 
 Burton, 7 Vt. 67; Salem India Rubber Co. v. 
 Adams, 23 Pick. 256; Brown «. Castles, 11 Cush. 
 348-351; King V. Eagle Mills, 10 Allen, 548j 
 French v. Vinlng, 102 Mass. 132; Fishers. Mel- 
 len, 103 Mass. 503; Cooper v. Lovering, 106 
 Mass. 78; Beach v. Bemis, 107 Mass. 498; Boyd 
 -B. Browne, 6 Baix. 310; Kimball v. Moreland, 
 559 a. 164; Josselyn V. Edwards, 57 Ind. 212; 
 Sellers. Clelland, 2 Col. 532; French ». Skead, 
 Zi Grant's Ch. (Ont.) 179; Seller v. Clark, 7 
 Cranch, 69; Elghter v. EoUer, 31 Ark. 170; Tone 
 ■v. Wilson, 62 111. 529; Merwin V. Arbuckle, 81 
 111. 501; St. Loais, &c. R. Co. v. Rice, 85 111. 406; 
 Wharf V. Roberts, 88 111. 426; Dilworth V. Brad- 
 ner, 85 Pa. St. 490; Frisbie v. Fitzsimmons, 3 
 Hun, 674; Marshall v. Fowler, 7 Hun, 237; Wet- 
 aeott V. Ainsworth, 9 Hun, 53; Morehouse v. 
 Teager, 9 Jones & S. 135; Barrett v. Barrett, 66 
 Barb. 205; Babcock ». Libbey, 53 How. Pr. 255; 
 Young 17. Covell, 8 Johns, 25; Stilt v. Little, 63 
 N. T. 427; Tryon V. Whitmarsh, 1 Met. 1; Page 
 v. Bent, 2 Met. 371 ; Stone v. Denny, 4 Met. 151, 
 155; Pittigrew v. Chellis, 4 N. H. 95; Hanson v. 
 Bdgerly, 29 N. H. 343; Page v. Parker, 40 N. H. 
 47, 69; McDonald v. Trafton, 15 Me. 235. 
 
 'Crump V. U. S. Mining Co., 7 Gratt. 352; 
 Grim V. Byrd, 32 Gratt. 293, 300; Pendarvis v. 
 Gray, 41 Tex. 326; Lopes ». Robinson, 54 Tex. 
 510; Allen D. Hart, 72 111. 106; Thome v. Pren- 
 tis, 83 111. 99; Rupp V. Jarrett, 94 111. 475, 479; 
 Smith V. Richards, 13 Pet. 26. 
 
 STiedeman on Sales, § 193. 
 
 *Wampler v. Wampler, 30 Gratt. 454; Laid- 
 low ®. Organ, 3 Wheat. 178, 195; Smith v. Rich- 
 ards, 13 Pet. 26, 36; Frenzel v. Miller, 37 Ind. 1; 
 Bankhead v. AUoway, 6 Coldw. 58, 75; Cowley 
 V. Smith, 46 N. J. L. 380; Weeks «. Burton, 7 
 Vt. 67; Salem India Rubber Co. v. Adams, 23 
 Pick. 256; Brown v. Castles, 11 Cush. 348-351 ; 
 Kingti. Eagle Mills, 10 Allen, 548; French ». Vin- 
 lng, 102 Mass. 132; Fishery. Mellen; 103 Mass. 
 503; Cooper «. Loyerlng, 106 Mass. 78; Beach v. 
 Bemis, 107 Mass. 498; Boyd v. Browne, 6 Barr. 
 310; Josselyn v. Edwards, 57 Ind. 212; Sellers. 
 Clelland,2 Col. 533; French v. Skead, 24 Grant's 
 Ch. (Ont.) 179; Russell ». Clark, 7 Cranch, 69; 
 Rlghter«. Roller, 31 Ark. 170; Tone v. Wilson, 
 62 111. 529; Merwin v. Arbuckle, 81 HI. 501; St. 
 Louis, Ac. R. Co. v. Rice, 85 111. 406; Wharf v. 
 Roberts, 88 111. 426; Dilworth v. Bradner,85 Pa. 
 St. 238; Duff v. Williams, 85 Pa. St. 490; Frisbie 
 V. Fitzsimmons, 3 Hun, 674; Marshall v. Fow- 
 ler, 7 Hun, 237; Wetscott V. Ainsworth, 9 Hun, 
 53; Morehouse v. Teager, 9 Jones & S. 135; 
 Barrett v. Barrett, 66 Barb. 205; Babcock v. 
 Llbbey, 53 Row. Pr. 255; Young v. Covell, 8 
 Johns. 35; Stilt v. Little, 63 N. Y. 427; Tryon v. 
 Whitmarsh, 1 Met. 1 ; Page v. Bent, 2 Met. 371 ; 
 Stone V. Denny, 4 Met. 151, 155; Pettigrew v. 
 Chellis, 4 N. H. 95; Hanson v. Edgerly, 29 N. H. 
 343; Page v. Parker, 40 N. H. 47, 69; McDonald 
 u. Trafton, 15 Me. 325. 
 
 255 
 
§215 
 
 BQinrr jurisprudence. 
 
 [CH. XII. 
 
 knows to be false/ or h as no reasonable grounds for b elievin g to be 
 ^rue," that he is ^ilty of f raugT "^ " [ 
 
 Some of the cases, as in the preceding note, hold the party making 
 the false statement liable, where there has been no intention to deceive, 
 whenever it is shown that he had no reasonable ground for believing it 
 to be true. But in many of the equity cases, the rule is said to be 
 settled upon broader lines, from which is omitted entirely the qualifica- 
 tion "that there are no reasonable grounds for the persons believing a 
 statement to be true." These cases are said to lay down the rule that 
 fraud will be proven to have been committed, whenever there has been 
 a definite statement of what is untrue by one who has no knowledge at 
 all concerning the truth of the untrue statement. It is held in all 
 such cases, that the effects are the same as where the assertion is mad© 
 by one who knows it to be untrue.' It is difficult to see any special 
 ground for distinction between the cases where one makes a statement 
 without having any knowledge as to its truth or falsity, and those in 
 which the statements are made without any reasonable ground for 
 believing them to be true. Whatever distinction can be made between 
 the two cases, it would seem that the practical results would be the 
 same in all of them. To these cases may be added two others, in 
 which the charge of fraud may be considered as sustained, although. 
 the original intention to deceive may not be present: First, where the 
 false statement of fact is made by one who believes it be true, but 
 under circumstances which impose upon him the duty of knowing the 
 truth; such a misrepresentation would be fraudulent, although he may 
 be able to show some reasonable ground for believing the truth of his. 
 statement. He is charged with a positive duty of knowing the truth 
 and he is estopped from claiming exemption from liability on the 
 
 1 Daniel v, Mitchell, 1 Story, 172; Warner j>. 
 Daniels, 1 Wood & M. 90j Hammatt «. Emer- 
 son, 27 Me. 308j Stone v. Denny, 4 Met. ISlj 
 Hazard v. Irwin, 18 Pick. 95j Twitchell v. 
 Bridge, 42 Vt. 68; Cabot v. Christie, Vt. 121; 
 Fisher v. Mellen, 103 Mass. 503j Jennings o. 
 Broughton, 5 De G. M. & G. 126, 130 j Haight ». 
 Hayt, 19 N. Y. 464; White v. Merritt, 7 Id. 352j 
 Doggett V. Emerson, 3 Story, 700 j Hough v. 
 Richardson, Id. 659. 
 
 2 Hammatt «. Emerson, 27 Me. 308 j Page v. 
 Bent, 2 Met. 371; Stone v. Denny, 4 Met. 451; 
 Burgess v. Wilkinson, 13 E. I. 646; Grim v. 
 Byrd, 32 Gratt. 293; Mitchell ». Zimmerman, 4 
 Tex. 75; Graham v. Mowlin, 54 Ind. 389; Hough 
 V. Richardson, 3 Stoiy, 691; Doggett «. Emer- 
 son, 3 Story, 733; Hammond v. Pennock, 61 N. 
 Y. 145; Blackman v. Johnson, 35 Ala. 252 
 Sledge «. Scott, 56 Ala. 202; Einstein «. Mar- 
 shall, 58 Ala. 153; Allen ». Hart, 72 IlL 104 
 Bower v. Penn, 90 Pa. St. 359; Rawson v. Hai^ 
 ger, 48 Iowa, 269; Clark «. Rolls, 58 Iowa, 201 
 Parmlee v. Adolph, 28 Ohio St. 10; ..Etna Ins. 
 Co. B. Reed, 33 Ohio St. 283; Foard v. McComb, 
 12 Bush, 723; Gunby «. Sluter, 44 Md. 237 
 
 256 
 
 Fisher o. Mellen, 103 Mass. 506; Sayftge v. Stev- 
 ens, 12 Mass. 2W; Hazard ». Irwin, 18 Pick. 95. 
 » Sharp V. Mayor, 40 Barb. 256; Twitchell ». 
 Bridge, 42 Vt. 68; Beebe v. Knapp, 28 Mich. 63; 
 Stone V. Covell, 29 Id. 359; Frenzel d. Miller, 37 
 Ind. 1; Graves v. Lebanon Bk., 10 Bush, 23; 
 Bankhead ». AUoway, 6 Coldw. 56; Thompson 
 V. Lee, 31 Ala. 292; Elder v. Allison, 45 Ga. 13;. 
 Glasscock v. Minor, 11 Mo. 655; Converse «.. 
 Blumrich, 14 Mich. 109, 123; Allen «. Hart, 7a 
 111. 104; Wilcox v. Iowa W. Univ., 32 Iowa, 367; 
 Hammond ®. Pennock, 61 N. Y. 145, 151, 152; 
 Hawkins v. Palmer, 57 Id. 664; Smith v. Rich- 
 ards, 13 Pet. 26; Hough «. Richardson, 3 Story, 
 659; Hammatt ». Emerson, 27 Me. 308, 326i 
 Smith ». Mitchell, 6 Ga. 458; Reese v. Wyman, 
 9 Ga. 430, 439; Thompson V. Lee, 31 Ala, 292i 
 Oswald V. McGehee, 28 Miss. 340; Mitchell ». 
 Zimmerman, 4 Tex. 75; York « Giegg, 9 /d. 85 j 
 BufordD. Caldwell, 3 Mo. 477; Harding*, Ran- 
 dall, 15 Me. 332; Hazard v. Irwin, 18 Pick. 95; 
 Stone V. Denny, 4 Met. 151; Marsh B, Falker, 40 
 N. Y. 562; Bennett «. Judson, 21 7d. 288; Craig 
 ». Ward, 36 Barb. 377; Taymon «. Mitchell, 1 
 Md. Oh. 496. 
 
CH. Xn.] ACTUAL FRAUD. § 217 
 
 ground of the honesty of his purpose.' Secondly, where one makes 
 an untrue statement, under the honest mistake of believing in its truth, 
 and he should afterwards discover the falsity of the statement, and 
 then permit the other party to continue in error, while he retains the 
 benefit of the false statement, and it is possible for the party to be 
 restored to their original condition, he is charged in equity with the 
 liability of a fraud, in consequence of his subsequent misconduct, 
 although the original misrepresentation would not of itself support the 
 charge of fraud." 
 
 § 216. Misrepresentation or concealment as a defense in 
 action of specific performances. — It has been very generally held, 
 that in all actions for the specific performance of a contract, the 
 court will deny its extraordinary relief to the plaintiff, where the 
 defendant shows that a misrepresentation has been made by the plaintiff 
 or his agent in respect to material facts, and that he, the defendant, 
 has been thereby influenced to his damage. The proof of the fact 
 that the defendant has been misled wiU itself, and without any proof 
 of a fraudulent intent to deceive or moral blame in making the mis- 
 representation, constitute a sufficient defense to the action for specific 
 performance.' But these cases come so near to the cases of mistakes 
 that it is very difficult to distinguish between the two, except that in 
 these cases, as in the cases of actual fraud, there i-s an intention to 
 influence the conduct of another. The ground for this extreme view, 
 in respect to the effect of misrepresentations in Ae case of actions for 
 specific performance, is to be found in the fact, that the equitable 
 remedy of specific performance will only be granted in cases where 
 every suspicion of ineiquitableness is absent. So, also, is it unneces- 
 sary, in order to establish a good defense to the action for specific 
 performance on the ground of the concealment of a material fact, to 
 show that the concealment was made intentionally and fraudulently. 
 If the fact is established that there has been a concealment of a 
 material fact, although it may not have been the result of a fraudu- 
 lent intent, yet a court of equity will refuse to enforce the contract 
 against the defendant who has been misled by such concealment.* 
 
 § 217. Reliance upon representation. — Deceit must be suc- 
 cessful. — ^It is also necessary, to constitute ground for the charge of 
 fraud, that the deceit should be successful, in that the party intended 
 
 1 Smith v. Eeese Eiver M. Co., L. R. 2 Eq. Bacon «. Broneon, 7 Johns. Oh. 194s Harnett v. 
 
 264, 269; Price v. Macaulay, 2 De G. M. & G. 339, Balier, L. E. 20 Eq. 60; Whlttemore ». Whitte- 
 
 345; Ayre's Case, 25 Beav. 513, 522; Rawlins v. more, L. R. 8 Eq. 603; Leyland ». IlUngsworth, 
 
 Wickham, 3 De G. & J. 304, 313, 316; Pulsfords. 2 De G. F. & J. 348, 252, 254; Swlmm v. Bush, 
 
 Richards, 17 Beav. 87, 94; Swan v. North Br. 23 Mich. 99; Holmes' Appeal, 77 Pa. St. (27 P. 
 
 Ac. Co., 2H. <fc C. 175, 183; Babcock v. Case, 61 P. Sm.) 60; In, re Banister, L. E. 12 Oh. D. 131, 
 
 Pa. St. (11 P. P. Sm.) 427, 430. 142; Dyer D. Hargrave, 10 Ves. 506. 
 
 "Eeynell v. Sprye, 1 De G. M. &G. 660, 709, *DrysdaIe ». Mace, 5 De G. M. & Q. 103; 
 
 per JjorA Cranworth; Traill ». Baring, 4 De G. Lucas ». James, 7 Hare, 410; Shirley v. Strat- 
 
 J. & S. 318, 329, 330, per Turner, L. J.; Underhili ton, 1 Bro. Ch. A); Ellard v. Lord Llandaff, 1 
 
 V. Horwood, 10 Ves. 209, 225. Ball & B. 241 : Meddef ord v. Austwlck, 1 Sim. 89. 
 
 3 Price V. Macaulay, 2 De G. M. & G. 339; 
 
 17 
 
 257 
 
§ 218 EQUITY JUBISPEUDENCE. [CH. XII. 
 
 to be influenced actually relied upon the misrepresentation. If the 
 other party did not rely upon the misrepresentation, but was induced 
 by other considerations to make the contract, then he was deceived; 
 and he could not afterwards secure a release from the contract on the 
 ground of fraud in the negotiation, for he was not defrauded. It 
 would, at the most, be only an attempt to defraud, which might be 
 made punishable as a criminal oflfense, but could not be made 
 the subject of a civil action.^ But it seems to be the presump- 
 tion of law that if a material misrepresentation is made, the other 
 party relied upon it in the execution of the contract; and this pre- 
 sumption must be rebutted, in order that the party making the 
 representation may be relieved from liability for fraud.'' It is, how- 
 ever, not necessary for the fraudulent misrepresentation or conceal- 
 ment to constitute the sole inducement to the transaction. If th^ 
 other party was in part influenced by the fraud, and in part by other 
 misrepresentations, that would be sufficient to support the charge of 
 a successful fraud.' 
 
 § 218. Parties must be justified in relying upon misrepreseu- 
 tations. — In connection with the proof of actual reliance upon the 
 fraud of the party who is intended to be influenced, it is necessary to 
 show that such a party is justified in relying upon the misrepresenta- 
 tion. The general rule is that, where one has made a misrepresenta- 
 tion as to a material fact with the intention of influencing the conduct of 
 another; and the fact was one which was within the knowledge of the 
 party making the misrepresentation, or it was within his power to 
 acquire the information concerning such a fact; and the representation 
 is made to one who does not in fact know of the falsity of the state- 
 ment: the party to whom the representation is made has a right to 
 rely upon such statement; he is not bound to make any inquiry or 
 examination into the circumstances on his own behalf. It is not per- 
 mitted of one making such a misstatement, with the intention of influ- 
 encing the conduct of another, to claim exemption from liability from 
 
 1 Gregory «. Schoenell, 55 Ind. 101; Roseman 83 Minn. Sli; Jackson v. Collins, 39 Mich. 557; 
 «. Canovan, 43 Gal. 110; Long ». Warren, 68 N. Sims ». Eiland, 57 Miss. 607; Watts v. Cum- 
 T. 486; Cliester ». Comstock, 40 N.T.575n; mings. Pa. St. 84; Brandon ». Forest Co., Pa. St. 
 Taylor ».Guest,58N.T.863; Laidlow v. Organ, 187 j Spalding v. Hedges, 2 Bair. 240 ; Morehead 
 a Wheat. 178, 195; Bryan v. Hitchcock, 43 Mo. v. Bades, 3 Bush, 181; Drake v. Latham, 50 Ul. 
 ,«87; Klopenstein v. Mulcahy, 4 Ney. 296; 270; Fish ». Cleland,337(i.838; Banta«. Palmer] 
 Slaughter's Adm'r v. Gerson, 13 Wall. 379; 47/d. 99; David D.Park, 103 Mass. 501; Brad- 
 Wampler v. Wampler, 30 Gratt. 454; McShane bury v. Bardin, 35 Conn. 577 ; Batdorf ». Albert 
 ■«. Hazlehurst, 60 Md. 107; McBoan v. Fox, 1 50 Pa. St. 59; Holmes' Appeal, 77 Pa. St. (27 P. 
 111. App. 177; Taylor v. Fleet, 1 Barb. 471, 475; F. Sm.) 50; Swimm v. Bush, 23 Mich. 99; 
 Morris Canal Co. v. Emmett, 9 Paige, 168; Beardsley «. Duntley, 69 N. Y. 577; Wilkin v. 
 Masterton«. Beers, 1 Sweeney, 406; 6 Eobert. Barnard, 61 Id. 638; McShane v. Hazlehurst 50 
 
 .368; Levick v. Brotherline, 74 Pa. St. (84 P. F. Md. 107; Slaughter's Adm'rs. Gerson, 13 Wall. 
 
 ,Sm.) 149, 157; Percival v. Harger, 40 Iowa, 286; 379; Farebrother v. Gibson, 1 De G. ic J. 602 j 
 
 Hough V. Hichardson, 3 Story, 669; Daniel v. Cook v. Waugh, 2 Giff. 201 ; Johnsons. Smart] 
 
 Mitchell, 1 Id. 172; Presoott v. Wright, 4 Gray, Id. 151; Boynton v. Hazelboom, 14 Allen, lOT; 
 
 •461. Best V. Stow, 2 Sand. Ch. 298. 
 
 2 Holbrook ». Bust, 22 Pick. 546; Fishbacks. 'Eeynell v. Sprye, 1 De G. M. & G. 660,708 
 Miller, 15 Nev. 428; but see Taylor i;. Guest, 58 709; Addington ». Allen, 11 Wend. 374. 
 
 TS. Y. 262; Merriam v. Pine City Lumber Co., 
 
 258 
 
CH. XII. J ACTUAL FRAUD. § 318 
 
 his misrepresentation, by objecting to the reliance placed by the other 
 party upon the truth of his statement. The other party had a right 
 to rely upon the statements made to him; and the party making them 
 ■can only secure exemption from liability by showing that the party , 
 who was intended to be influenced did not actually rely upon the mis- 
 representation.^ But this is a case only where the representations are 
 in respect to facts, as contrasted with representations as to opinions 
 and commendations and the like, which have already been explained 
 to be insufficient to support the charge of fraud.'' It is also held that 
 the representation must be more or less reasonable in character, in 
 order that one may be justified in relying upon it. If the statement 
 w^as not reasonable in character, or was so vague and general in its 
 terms as not to convey any certain meaning, it would be impossible to 
 support the charge of fraud. ^ But where one, instead of relying upon ■ 
 the information given him, proceeds to make an inquiry for himself, 
 and either actually acquires information to the contrary; or he has 
 started upon an investigation for himself, which if diligently pursued 
 would have brought him to an acquaintance with the truth; he is then 
 charged with constructive notice of all the facts or information which 
 he might have obtained, had he pursued the inquiry to the end; he * 
 cannot, after having started his own investigation, claim that he did ^ 
 not learn the truth.* For the same reason, it was held that where ' 
 one has made a personal examination of the subject-matter of a sale, 
 or even where he has simply seen the subject-matter concerning 
 
 1 Watts V. Ctunmings, Pa. St. 84 j Brandon v. Dawson v. Graham, 48 Iowa, 378; Stevens v. 
 J'oiest Co. Id. 187; Spalding v. Hedges, 2 Barr. Rainwater, 4 Mo. App. 292; Samson v. Lord, 13 
 S40; Morehead v. Bades, 3 Bush, 121; Drake v. How. 198; Gordon v. Butler, 105 D. S. 553; First, 
 Latham, 50 111. 270; Fish v. Cleland, 33 /d. 238; Nat. Bank v. Tocum, 11 Neb. 328; People v 
 Bantas. Palmer, 47 Id. 99; David v. Park, 103 Jacobs, 32 Mich. 36; Kennedy D. Eiohardson, 70 
 Haas. SOI; Bradbury v. Bardin, 35 Conn. 577; Ind. 534; Cagney ». Cuson, 67 Ind. 497; Wilcox 
 Batdorf ». Albert, 59 Pa. St. 59; Holmes' Ap- «. Henderson, 6 Ala. 535, 541 ; State «. Phlfer, 65 
 peal 77 Pa. St. (27 P. F. Sm.) 50; Swimm ». N. C. 321, 326; Uhlers). Semple, 20 N. J. Eq. 288; 
 Bush 23 Mich. 99; Beardsley v. Duntley, 69 N. Long v. Woodman, 58 Me. 49; Holbrooke. Con- 
 T. 577- Wilkin ». Barnard, 61 Id. 628; McShane ner, 60 Me. 578; Medbury v. Watson, 6 Met. 246, 
 t). Haz'lehurst, 50 Md. 107; Slaughter's Adm'r v. -259; Veeey v. Dalton, 3 Allen, 380; Mooney v. 
 Gerson 13 Wall. 379; Farebrother v. Gibson, 1 Miller, 102 Mass. 220; Cooper v. Levering, 106 
 De G. & J. 602; Cook v. Waugh, 2 Giff. 201; Mass. 79; Yeagins. Irwin, 127 Mass. 217; Poland 
 Johnson v. Smart. Id. 151 ; Boynton v. Hazel- v. Brownell, 131 Mass. 138; Graffenstein v. Ep- 
 boom, 14 Allen 107; Best v. Stow, 2 Sand. Ch. stein, 23 Kans. 443. 
 
 298- HolbrookD. Bust, 22 Pick. 546; FishbackD. 'Trover t;. Newcome, 3 Merlv. 704, per Sir 
 
 Miller 15 Nev. 438; but see Taylor v. Guest, 58 Wm. Grant; Irving v. Thomas, 18 Me. 418, 424, 
 
 N T. 262- Merriam®. Pine City Lumber Co., 23 per Shipley, J.; Savage v. Jackson, 19 Ga. 306; 
 
 Minn. 314; Jackson s. Collins, 39 Mich. 557; Halls ». Thompson, 1 Sm. & Mar. 443. 
 
 Slmsi. Eiland, 57 Miss. 607. * David v. Park, 103 Mass. 601; Spalding v. 
 
 2 Brown v. Leach, 107 Mass. 364; Clark v. Hedges, 2 Barr. 240; Batdorf s. Albert, 59 Pa. 
 Everhart, 63 Pa. St. (13 P. F. Sm.) 347; Winters' St. 59; Watts«. Cummings, 59 Id. 84; Brandon v. 
 Appeal, 61 Id. (11 Id.) 307; Tlndall v. Harkin- Forest Co., 59 Id. 187; Fish v. Cleland, 33111. 
 son 19'Ga.448; Glasscock ii. Minor, 11 Mo. 655; • 238; Bantam. Palmer, 47 Id. 99; Browns. Leach, 
 Wright D.Gully, 28 Id. 475; Hough v. Eichard- 107 Mass. 364; Eockafellow V. Baker, 41 Pa. St. 
 son 3 Story, 659; Pratt v. Philbrook, 33 Me. 319; Clark v. Everhart, 63 Pa. St. (13 P. F. Sm.) 
 17 ■ Homer v. Perkins, 124 Mass. 431 ; Somers v. 347 ; Wright t). Gully, 28 Ind. 475 ; Glasscock v . 
 Richards 46 Vt. 170; Van Epps v. Harrison, 5 Minor, 11 Mo. 635; Tlndall v. Harkinson, 19 Ga. 
 Hill 63- Buschman v. Cold, 52 Md. 202, 207; 448; Wilkin «. Barnard, 61 N. T. 628; Morehead 
 Sled'ge«'.Scott,56Ala.202;Merwin». Arbuckle, D. Eades, 3 Bush, 121; Pratt v. Philbrook, 33 
 81 111. 501; Scramm «. O'Conner, 98 111. 538; Me. 17. 
 
 259 
 
§ 219 EQUITY JUKISPKUDENCE. [CH. XII.. 
 
 which the false statements are made, and the false statements are in. 
 respect to a patent defect which will be plainly observed by anyone 
 who has seen the subject-matter of the contract, the presumption of 
 law becomes conclusive that he did become acquainted with the falsity 
 of the vendor's statement, and he is not permitted to deny that he did 
 become so informed; for he is not in that case permitted to rely upon 
 the falsity of the statement of the other party. ^ But in the general 
 cases of misrepresentation of a material fact, it is unquestionable that 
 the party who is intended to be influenced is entitled to rely upon such 
 false statement, without making any examination for himself, even 
 though the party making the false statement advises the other party 
 to make an examination for himself. Such a word of caution or ad- 
 vice cannot control or limit the liability of the party who makes the 
 false statement, with the intention of influencing the conduct of an- 
 other.^ One's liability on his positive misrepresentations is not at all 
 affected by the agreement that the sale of the thing should be made 
 "with all its faults; " while the sale of goods "with all their faults " 
 will prevent the claim of fraud where the buyer simply conceals the 
 defects.' If the vendor makes a positive misrepresentation of a fact, 
 in the course of such a sale, he is liable for fraud.* 
 
 § 219. Damage to party deceived. — ^The gist of the charge of 
 fraud is, that the plaintiff has been deceived to his own damage by the 
 misrepresentation of the defendant. It is not simply deception, but 
 deception ^fes consequential damage. Hence, if the party deceived has 
 suffered no damage, he has no cause of action against the other party. ^ 
 
 1 Hough ®. Richardson, 3 story, 659; Veasey < Schneider ». Heath, 3 Camp. 506 j Early ». 
 1). Dalton, 3 Allen, 380; Winter's Appeal, 61 Pa. Garrett, 9 B. & C. 938 ; Harris v. Kemble, 1 Sim.. 
 St. (11 P. V. Sm.) 307; Slaughter's Adm'r«. Ger- 111, 120; 5 Bllgh, n. s., 730. 
 son, 13 Wall. 379; Mooney v. Miller, 102 Mass. « Weaver v. Wallace, 9 N. J. L. 851 j Sledge v. 
 220; Crooks?). Davis, 6 Grant, (Ont.) 317; McEae Scott, 56 Ala. 206; Neidefer b. Chastain, Tllnd. 
 e.Vroom, 17 Grant, (Ont.) 357; Coatess. Bacon, 363; Morrison ». Lods, 39 Cal. 385; Phipps ». 
 21 Grant, (Ont.) 21; Newell v. Horn, 49 N. H. Buckman, 80 Pa. St. 402; Castlemann s. Griffin^ 
 422; Turman v. Tufts, 8 Jones & S. 284; Spar- 13 Wis. 535; Fisher v. Mellen, 103 Mass. 505j 
 man v. Keim, 12 Jones & S. 163; Long v. War- page v. Bent, 2 Met. 374; Stiles v. White, 11 
 ren, 68 N. T. 426; Hess v. Young, 59 Ind. 379; Met. 356; Milliken v. Thomdike, 103 Mass. 385; 
 Hustin V. MoCloskey, 76 Ind. 38; Bank of Hanson D. Edgerly, 29 N. H. 357; Hart t). Tall- 
 Woodland V. Hiatt, 58 Gal. 234; Crown ii. Gun- madge, 8 Day, (Conn.) 382; Young v. Hall, 4 Ga. 
 Inger, 66 Ala. 590; Brown v. Oastides, 11 Gush. 95; Bartlett v. Blaine, 83 111. 25; Hughes v. 
 348; Prescott D. Wright, 4 Gray, 481; Cooper*. Sloan, 2 Ark. 146; McMaster «. Geddes, 19 Up. 
 Lovering, 106 Mass. 76, 79; Dickinson «. Lee, Can. Q. B.216; Hageei). Grossman, 31 Ind. WS-, 
 106 Mass. 557; Poland v. Brownell, 131 Mass. Ifeatherford v. Fishback, 3 Scam. (III.) 170; 
 138; Chamberlain v. Rankin, 49 Vt. 133; Ran- White v. Wheaton, 3 Sedden, 353; Newell «. 
 dall o. Famum, 58 Vt. 639. Horn, 45 N. H. 422; Randall v. Hazleton, IS 
 
 sRusseUw. Branham, SBlackf. 277; Presoott Allen, 414; Medbury ». Watson, 6 Met. 846; 
 
 V. Wright, 4 Gray, 461 j Reynell v. Sprye, 1 De Adams v. Paige, 7 Pick. 542; First Nat. Bank «. 
 
 G. M. &. G. 660, 709, 710, i)«r Lord Crauworth. Yocum, 14 Neb. 328; Wiley ». Howard, 15 Ind. 
 
 spearcer. Blackwell, 12 Ired. 49; Freeman 169; Weist v. Grant, 71 Pa. St. 95; Fuller v. 
 
 B.Baker, 1 Ad. & E..508; Hanson v. Edgerly, 29 Hodgden, 25 Me. 248; Marr's Appeal, 78 Pa. St. 
 
 N. H. 343; Ward v. Hobbs, L. R. 2 Q. B. D. 331; (28 P. F. Sm.) 66; Abbeys. Dewey, 1 Casey, 413j 
 
 B. u., L. E. 3 Q. B. D. 150; Gossler v. Eagle Lindsey ». Lindsey, 34 Miss. 432; Branhams. 
 
 SugarRef., 130 Mass. 331; Smith u. Andrews, 3 Record, 43 Ind. 181; Rogers «. Higglns, 57 111. 
 
 Ired. 6; Henshaw v. Robins, 9 Met. 83, 90; 844; Wells v. Millet, 23 Wis. 64; Bartlett v. 
 
 Taylor V. Fleet, 4 Barb. 102; Whitney t>. Board- Blaine, 83 111. 25; McShane e. Hazlehurst, 60 
 
 man, 118 Mass. 247, 248. Md. 107; Bennetts. Judson, 21 N. T. 238i Clarke 
 
 260 
 
■CH. XII.] 
 
 ACTUAL FRAUD. 
 
 220 
 
 Thus, it is held to be no fraud to induce a debtor, by false represen- 
 tation, to pay his just debt.^ 
 
 § 220. Liability of principals, partners, and joint-owners for 
 agent's fraudulent misrepresentations. — The principal and agent 
 are properly considered, in respect to the rights of third persons who 
 have dealings with them, as one person, and it does not matter which 
 of them commits a fraud in maldng the contract; the principal will at 
 least be liable so far as to be compelled to make restitution of every thing 
 which he has derived from and under the contract, or pay for the value 
 of the same.^ And inasmuch as the agent is the diter ego of the princi- 
 pal in relation to all that he doefe within the scope of his authority, it 
 would follow logically that the principal would be responsible civilly, 
 in an action of deceit, for all the damages which the other party has suf- 
 fered from the fraud of the agent. This rule applies equally to joint- 
 owners and partners of the property which is bought or sold, and 
 the cases cited apply the principle generally.' But it has been held, 
 in several recent cases, that the action of deceit will not lie against the 
 innocent principal for the fraud of the agent, unless after learning of 
 the fraud he distinctly approves of and affirms the fraud. * But the 
 weight of American authority is to the effect that the principal is liable 
 for the fraud of the agent, if committed within the agent's apparent 
 authority, even though the fraud is not affirmed and the principal 
 derives no benefit.^ 
 
 ■V. White, 12 Pet. 178; WeUs v. Waterhouse, 22 
 Me. 131; Taylor v. Guest, 58 N. Y. 262; Wuest- 
 iofE V. Seymour, 23 N. J. Eq. (7 C. E. Green) 66. 
 
 1 Brown v. Blunt, 72 Me. 415, 431; Marsh ». 
 Cook, 33 N. J. Eq. 362; see Clark v. Tennant, 
 5 Neb. 549; Mo. Valley Land Co. v. Bushnell, 11 
 Neb. 192; First Nat. Bank v. Yoomn, 11 Neb. 
 -328; Bartlett v. Blaine, 83 111. 25. 
 
 2 Veazie v. Williams, 8 How. 134; Jewett v. 
 Carter, 132 Mass. 335; Lamm v. Port Deposit 
 Ass'n, 49 Md. 333; Chester v. Dickerson, 53 
 Barb. 350; Graves v. Spier, 58 Barb. 349; Presby 
 D. Parker, 56 N. H. 409; Sharp v. Mayor of N. Y., 
 40 Barb. 356; Hunters. Hudson Elver Co., 30 
 Barb. 493; Concord Bank «.■ Gregg, 14 N. H. 
 331 ; Fogg ». Griffin, 3 Allen, 1 ; Fitzsimmons v. 
 Joslin, 21 Vt. 129; Mundorff v. Wickersham, 63 
 Pa. St. 87; McClelland v. Scott, 34 Wis. 81; 
 Crump V. tr. S. Mining Co., 7 Gratt. 353, New 
 York, Ac. R. B. Co. v. Shuyler, 34 N. Y. 30; 
 Durst V. Burton, 47 N. Y. 107. 
 
 3 Locke ». Steams, 1 Met. 560; Fitzsimmons 
 •0. Joslin, 21 Vt. 139; Bennett v. Judson, 31 N. 
 Y. 239; Indianapolis, Ac. R. B. Co. v. Tyng, 
 63 N. Y. 653; Durant v. Rogers, 87 111. 511; 
 Elwell V. Chamberlain, 31 N. Y. 619; Taggti. 
 Tennessee Nat. Bank, 9 Heisk. 479; Reynolds 
 V. Witte, 13 S. C. 5; Wolfe v. Pugh, 101 Ind. 
 294; Law». Grant, 37 Wis. 548; Reed ». Peter- 
 son, 91 111.297; Craig v. Ward, 3 Keyes, 387; 
 Durst V. Burton, 2 Lans. 137; 47 N. Y. 174; Gris- 
 ■wold V. Haven, 35 N. Y. 695; Jeffreys. Bigelow, 
 13 Wend. 518; White v. Sawyer, 16 Gray, 586. 
 
 ■* Kennedy v. McKay, 43 N. J. L. 288; Western 
 Bankti. Addie, L. E. 1 H. L. C. 146; Udell v. 
 Atherton, 7 H. & N. 173; see Kmmm v. Beach, 
 25 Hun, 393; 86 N. Y. 311; but see Barrlck v. 
 Eng., &c. Bank, L. E. 2 Ex. 259; Cakes i^. Tur- 
 quand, L. R. 2 H. L. 335. 
 
 s North River Bk. v. Aymal, 3 Hill, 262; 
 Farmers and Mech. Bk. v. Butchers, &c. Bk., 16 
 N. Y. 125; 14 Id. 633; Griswold v. Haven, 35 Id. 
 595; Exchange Bk. ». Monteath, 36 Id. 505; N. 
 Y. &, N. H. R. E. V. Schuyler, 34 /(«. 30; Cutting 
 V. Marlor,78/d. 454; Armour ». Mich. Cent. E. 
 E., 65 Id. Ill, 121-124; but see Mechanics 
 Bk. V. N. Y. & N. H. R. R., 13 Id. 599; see fur- 
 ther. In support of text. Root ■o. Bancroft, 8 
 Gray, 619; Lepper v. Nuttman, 35 Ind. 384; 
 Wright V. Finn, 33 Iowa, 159; Cummings v. 
 Thompson, 18 Minn. 246; Fisher v. Boody, 1 
 Curtis C. C. 206; Hesters. Memphis, Ac. R. R., 
 33 /(i. 378; Mitchell ». Mims, 8Tex. 6; Hender- 
 son V. Railroad Co., 17 M. 560; Morton «. Scull, 
 23 Ark. 389; East Tenn. R. R. v. Gammon, B 
 Sneed, 567; Negey v. Lindsay, 67 Pa. St. 317; 
 Mendenhall v. Treadway, 44 Ind. 131 ; Boland 
 V. Whitman, 33 Id. 64; Shawmut, Ac. Co. v. 
 Stevens, 9 Allen, 333; Foggs. Griffin, 2 /d. 1; 
 Mundorff o. Wickersham, 63 Pa. St. 87; Custar 
 s. Titusville, &c. Co., 63 M. 381; Grossman v. 
 Penrose Bdg. Co., 2 Casey, 69; Crumps. U.S. 
 Mining Co., 7 Gratt. 352; River ». Plankroad 
 Co., 30 Ala. 92; Bowers s. Johnson, 10 Sm. & 
 M. 169; Lawrence s. Hand, 23 Miss. 103; Titus 
 V. Great West T. Co., 61 N. Y. 337; Davis ti. 
 
 261 
 
§ 221 
 
 EQUITY JURISPEUDENCE. 
 
 [CH. XIL 
 
 Where the principal directs an agent to make use of a representation 
 which the principal knows to be false, but which the agent supposes to 
 be true, the innocence of the agent will not shield the principal from 
 responsibility for his own fraud.' 
 
 § 221. Remedies in general for actual fraud. — The principal 
 remedy for fraud is the rescission of the contract. The party defrauded 
 has a right, on discovery of the fraud, to rescind the contract and 
 obtain relief from all liability. But the rescission must extend to the 
 whole contract. The contract cannot be rescinded in part and 
 affirmed in part. The rescission must be entire.* It matters not at 
 what stage of the execution of the contract the fraud was discovered, 
 the contract can be rescinded, provided the parties can be put in static 
 quo J The right must be exercised within a reasonable time after the 
 discovery of the fraud. If there is any unreasonable delay the right 
 of rescission is lost.* But no delay, however long, will aflfect the 
 
 Bemls, 40 Id. 455 n; Indianapolis, &e. R. B. v. 
 Tyng, 63 Id. 653; Hathaway v. Johnson, 55 Id. 
 93: DuTst V. Buiton, 2 Lans. 137; Oraves v. 
 Spier, 58 Barb. 349; Young v, Hughes, 32 N. J. 
 Eq. 372; Van Wyck v. Walters, 81N. Y. 352; 
 Flshkill Sav. Inst. v. Nat. Bk. of FishklU, 80 Jd. 
 162; Bennett v. Judson, 21 Id. 238; Dlwell v. 
 Chamberlain, 31 Id. 611; Condit v. Baldwin, 21 
 Id. 219; Bell v. Day, 32 Id. 165; Smith v. Tracy, 
 36 Id. 79; Estevez v. Purdy, 66 Id. 446; Durst v. 
 Burton, 47 Id. 167; Allerton v. Allerton, 50 Jd. 
 670; Veazie v. Williams, 8 How. (IT. S.) 134; 
 Fitzslmmons v. Joslin, 21 Vt. 129 ; Concord Bk, 
 V. Gjegg, 14 N. H. 331 ; Coddington v. Goddard, 
 16 Gray, 436; Litchfield Bk. v. Peck, 29 Conn. 
 384. 
 
 1 Ludgater v. Love, 44 L. T., H. B. 694. 
 
 » Miner v. Bradley, 22 Pick. 457; Voorhees v. 
 Earl, 2 Hill, 292; Coolidge v. Brigham, 1 Met. 
 550; Allen «. Webb, 24 N. H. 278; Luey o. Bundy, 
 9N. H. 298; Fullage v. Keville, 3 Hun, 600; 
 Higham v. Harris, 108 Ind. 246; Preston v. 
 Travelers Ins. Co., 58 N. H. 76; Potter v. Tit- 
 C'omb, 22 Me. 300; Farmers Bk. V. Groves, 12 
 How. (U. S.) 61; Smith v. Brittenham, 98 111. 
 188; Coleman v. Columbia Oil Co., 51 Pa. St. 74, 
 77; Bruce v. Kelly, 5 Hun, 229, 232. 
 
 * Prentiss u. Buss, 16 Me. 30; Faris v. Ware, 
 60 Me. 482; Downer v. Smith, 32 Vt, 1; Matte- 
 sons. Holt, 45 Vt. 336; Butler i?. Northumber- 
 land, 50 N. H. 39; Coolidge v. Brigham. 1 Met. 
 547; Kimball v. Cunningham, 4 Mass. 502; 
 Waters Pat. Heater Co. v. Smith, 120 Mass. 444; 
 Voorhees v. Earl, 2 Hill, 292; Farrell v. Corbett, 
 4 Hun, 128; Van Lieuw v. Johnson, 4Han, 415; 
 Dows t>. Griswold, 4 Hun, 550; Baker ». Lever, 
 
 67 N. Y. 304; CrOyle v. Moses, 90 Pa. St. 250; 
 Jemison v. Woodruff, 34 Ala, 143; Merritt v. 
 Bobinson, 35 Ark. 483; Fouloh v. Eckert, 61 
 111. 448; Warren v. Tyler, 81 111. 15; Shaw«. 
 Barkart, 17 Ind. 183; Bleu v. Bear Elver, Ac. 
 Co.,20Cal. 602; Cruess v. Fessler, 39 Cal. 336; 
 Morrison v. Logh,39 Cal. 381 ; Collins u. Town- 
 send, 58 Cal. 608; Bank v. Woodland v. Hiatt, 
 
 68 Cal. 235; Daggett v. Emerson, 3 Story, 700; 
 
 262 
 
 Pence «. Langdon, 99 TJ. S. 578; Cushma ». 
 Forest, 4 Cranch, 37; Chengivo v. Jones, S. 
 Wash. C. C. 359; Gifford v. Carvllle, 29 Cal. 
 589; First Nat. Bank v. Yooum, 11 Neb. 328^ 
 Gutling V. Newell, 9 Ind. 572; Hall v. Fullerton. 
 69 III. 448; Buchanan v. Harvey, 12 111. 536; 
 Pierce v. Wilson, 34 Ala. 596; Hooper v. Stras- 
 burger, 37 Md. 390; Lowry v. McLane, 3 Grant, 
 (Pa.) 333; Anthony v. Day, 52 How. Pr. 35; 
 Wheaton v. Baker, 14 Barb. 494; Kinner 9. 
 Kiernan, 2 Lans. 492; Perkins v. Bailey, 99i 
 Mass. 61 ; King v. Eagle Mills, 10 Allen, 551 ; 
 Manahauti. Noyes, 52 N. H. 232; Getohell v. 
 Chase, 37 N. H. 110; Gates v. Bliss, 43 Vt. 299^ 
 Poor V. Woodbum, 25. Vt. 234; Garland ti.. 
 Spencer, 46 Me. 528. 
 
 * Bough ton «. Standish, 48 Vt. 594; Weeks o. 
 Eobie, 42 N. H. 316; Ross v. Titterton, 6 Han» 
 280; Davis v. Betz, 66 Ala. 206; Hall v. Tuller- 
 ton, 69 111. 448; Bose v. Hurley, 39 Ind. 77i 
 Collins V. Townsend, 58 Cal. 608; Pence ti. 
 Langdon, 99 U. S.578; Belle. Keepers, 39 Kans.. 
 105; St. John v. Kendriokson, 81 111. 350; Gat- 
 ling V. Newell, 9 Ind. 672; Parmlee v. Adolph^ 
 28 Ohio St. 10; Hammond v. Peunock, 61 N. Y. 
 145; Willoughby v. Moulton, 47 N. H. 205j. 
 Whitoomb v. Denio, 62 Vt. 382; Matteson v. 
 Holt, 45 Vt. 336; see Kane v. Bloodgood, 7 
 Johns. Oh. 90; Lansing v. Starr, 2 Id. 150; 
 Briggs V. Rice, 130 Mass. 50; Hathaway v. 
 Noble, 55 N. H. 508; Lyme v. Allen, 51 Id. 242; 
 Willoughby v. Moulton, 47 Id. 205, 208; Weeks. 
 V. Eobie, 42 Id. 316 ; Badger v. Badger, 2 Wall. 
 ^7, 94; Allore v. Jewell, 94 U. S. 506, 512; Sulli- 
 van V. Portland E. E., 94 Id. 806, 811; Maxwell 
 V. Kennedy, 8 How. (U. S.) 210; Campau v. Van. 
 Dyke, 15 Mich. 371 ; Wilbur v. Flood, 16 Id. 40; 
 Weaver v. Carpenter, 42 Iowa, 343; Akerlyc^ 
 Vilas, 21 Wis. 88; Jones v. Smith, 33 Miss. 315;. 
 Shaver i;. Eadley, 4 Johns. Ch. 310; Phillips «. 
 Belden, 2 Edw. Ch. 1; Ward v. Van Bokelen, 1 
 Paige, 100; Bank of U. S. v. Biddle, 2 Pars. Eq. 
 31; McDowell v. Goldsmith, 3 Md. Ch. 370; 
 Anderson v. Burwell, 6 Gratt. 405; Field ». 
 Wilson, 6 B. Mon. 479. 
 
CH. XII. J 
 
 ACTUAL FRAUD. 
 
 § 221 
 
 defrauded party's right to his remedy, as long as he remains ignorant 
 of the fraud. ^ There must also be a prompt and complete restoration 
 of everything of value which the party defrauded had received under 
 the contract.' If it is of any value to the other party, it must be 
 returned.' But things which have no value to anyone need not be 
 returned; as for example, worthless securities or counterfeit money.* 
 Nor is a return required of what was necessarily destroyed in the . 
 attempt to discover tiie fraud, as in chemical and other tests of the 
 quality of the goods.' 
 
 If the parties cannot be restored to the condition in which they 
 were before the execution of the contract, in consequence of the 
 destruction or change in the condition of the property which formed 
 the consideration of the contract, the party defrauded cannot rescind . 
 the contract." 
 
 It is also necessary that the defrauded parties should do nothing 
 after the discovery of the fraud which would in any way admit the 
 existence and validity of the c ontra ct. Such an admission, if clear, 
 mil operate as a bar to his right of rescission for fraud. ' For example, ' 
 
 /' 
 
 1 Sherwood v. Sutton, 5 Mason, 143; Dogget 
 V. Emerson, 3 Story, 700; Michoud «. Girod, 4 
 How. (U. S.) 503, 561 ; Cota v. Jones, 8 Pao. Law 
 J., 1044; Dodge v. Essex Ins. Co., 12 Gray, 65; 
 Phalen ». Clark, 19 Conn. 421; Stocks ». Van 
 Leonard, 8 Ga. 511; Martin v. Martin, 35 Ala. 
 560; Smith ». Fly, 24 Tex. 345; Gibson ». Pifer, 
 21 Jd. 260; Eelf v. Eberly, 83 Iowa, 467; Cocki). 
 Van Etten, 12 Minn. 522; Meaderu. Norton, 11 
 Wall. 442; Township of Boomer v. French, 40 
 Iowa, 601 ; Humphreys v. Mattoon, 43 Id. 556; 
 Reed v. Minell, 30 Ala. 61 ; Wilson v. Ivy, 32 
 Miss. 233; Buckncr v. Caloote, 28 Id. 432; Hud- 
 son V. Wheeler, 34 Tex. 256; Munson v. Hallo- 
 well, 26 Id. 475; Peck v. Bullard, 8 Humph. 41. 
 
 s Norton v. Young, 3 Greenl. 30; Sumner v. 
 Parker, 36 N. H. 449; Willoughby v. Moulton, 
 47 N. H. 205; Perley v. Balch, 23 Pick. 286; 
 Jennings v. Gage, 13 111. 610; Coolidge v. Brig- 
 ham, 1 Met. 560; Miner ». Bradley, 22 Pick. 457; 
 Weeks v. Eobie, 42 N. H. 316; Cushman v. Mar- 
 shall, 21 Me. 122; Thompson v. Peck, 115 Ind. 
 512; Burton v. Stewart, 3 Wend. 239; Collins i>. 
 Townsend, 58 Cal. 615; Kimball v. Cunning- 
 ham, 4 Mass. 503; Getchell v. Chase, 37 N. H. 
 110; Sanborn v. Batchelder, 51 N. H. 434; Gif- 
 fordB. Carvllle, 29 Cal. 592; SchiflFers. Dietz, 83 
 N. Y. 300; Monahan V. Noyes, 62 N. H. 232j 
 Belli;. Keepers, 39 Kans. 105; Downer «. Smith, 
 38 Vt. 7; Jemison v. WoodruflF, 34 Ala. 143; 
 Strong V. Strong, 102 N..Y. 69; Shepherd ®. 
 Temple, 3 N. H. 457; Bacon v. Brown, 4 Bibb, 
 91 ; Christy v. Cummins, 2 McLean, 386; Carter 
 V. Walker, 8 Eich. 40; Conner v. Henderson , 5 
 Mass. 314; Shaws. Bamhart, 17 Ind. 183; Haase 
 V. Mitchell, 58 Ind. 213; Smith v. Bitterham, 
 98111. 188; Morrison «. Lods, 39 Cal. 381;Fitz 
 V. Bynum, 55Cal. 459; Merritt v. Robinson, 35 
 Ark. 483; Rose v. Hurley, 39 Ind. 77; Dowes v. 
 GrlBWOld, 4 Hun, 556; Farrell v. Corbett, 4 
 
 Hun, 128; Van LieuwK. Johnson, 4 Hun, 415. 
 
 » Perley v. Balch, 23 Pick. 283; Thayer v. 
 Turner, 8 Met. 552. 
 
 4 Brewster v. Burnett, 125 Mass. 68; Pence V. 
 Langdon, 99 U. S. 578j Smilh v. Smith, 30 Vt. 
 139; Royce v. Watrous, 7Daly, 87; 73 N. Y. 597; 
 Hess V. Young, 59 Ind. 379; Dickinson v. Hall, 
 14 Pick. 217; Conner®. Henderson, 15 Mass. 822; 
 Becker v. Vroman, 13 Johns. 302; Taft». Wild- 
 man, 16 Ohio, 123; Donelson«. Young, 1 Meige, 
 155; Shepherd v. Temple, 3 N. H. 455; Knapp v. 
 Lee, 3 Pick. 457 ; Perley v. Balch, 23 Pick. 283. 
 
 6 Smith V. Love, 64 N. C. 439; Pacific Guano 
 Co. V. Mullen, 66 Ala. 582. 
 
 • Am. Wine Co. v. Brasher, 13 Fed. Eep. 603; 
 Smiths. Butterham, 98111. 188; Weeks ». Roble, 
 48 N. H. 316; Butler v. Northumberland, 50 N. 
 H. 39; Sanborn v. Batchelder, 51 N. H. 426; 
 Monahan o. Noyes, 62 N. H. 232. But it is held 
 that this distinction or change in the condi- 
 tion of property will not prevent the rescission 
 of the contract, if it is done by the defrauding 
 party, and the defrauded party is willing to 
 accept a partial restoration. Hammond v. 
 Pennock, 61 N. Y. 145. 
 
 ' Brinley v. Tibbets, 7 Greenl. 70; Woodcock 
 V. Bennet, 1 Cow. 711; Voorhees v. De Meyer, 2 
 Barb. 37; MasBon's Appeal, 70 Pa. St. (20 P. F. 
 Sm.) 26, 29; Anthony v. Leftwich, 3 Rand. 258; 
 McCorkle v. Brown, 9 Sm. & Mar. 167; Glbbs v. 
 Champion, 3 Ohio, 335; Pratt v. Carroll, 8 
 Cranch, 471 ; McMichael v. Kilmer, 76 N. Y. 36, 
 46; Schlfifer®. Dietz. 83 M. 300; Vernol ». Vei^ 
 nol, 63 Id. 45 ; Van L euw ». Johnson, 4 Hun, 
 415; Parsons v. Hughes, 9 Paige, 591; Bassett 
 V. Brown, 105 Mass. 551; Northrop ti.Bushnell, 
 38 Conn. 498; Bobb v. Woodward, 50 Mo. 95; 
 Vigers 1!. Pike, 8 Cl. & Fin. 562, 630, Jier Lord 
 Cottenham ; Whitney v. Allaire, 4 Denio, 554. 
 
 263 
 
§ 223 EQUITY JUEISPRUDENCE. [CH. XII. 
 
 it would be fatal to his right to rescind, where he had mingled the 
 property with his own or offered it for sale/ or in. any other way 
 exercised any rights of ownership over the goods. ^ 
 
 Provided the existence of fraud is ultimately established by compe-^ 
 tent evidence, the right to rescind the contract will not depend upon 
 the defrauded party's absolute knowledge of the fraud. A party 
 may rescind a contract on suspicion of fraud, if these suspicions are 
 subsequently verified.' 
 
 The defrauded party may, however, instead of rescinding the con- 
 tract, aflSrm it, and then recover for the damages which he has suf- 
 fered in consequence of the fraud in an action of deceit.* In the case 
 of the buyer's suit for fraud, the difference between the actual and 
 represented value is the usual measure of damages;^ but he may 
 recover other consequential damages if such has been sustained.' 
 But the party defrauded cannot employ both remedies; he has only 
 his right of election between them.' 
 
 § 222. Equitable jurisdiction over fraud. — It will be remembered 
 that there are two grounds for the assumption of jurisdiction of the 
 courts of equity over causes of action: one, where a substantive right 
 is itself of equitable origin; and secondly, where the right is legal, but 
 the legal remedies are inadequate for the protection of the right. This 
 statement furnishes the answer to every inquiry in respect to equitable 
 jurisdiction. Hence, in ascertaining in what cases equity has juris- 
 diction over actual fraud, it will be found that it will assert this 
 jurisdiction, whenever the particular case of fraud is equitable and not 
 legal, or where the remedy at law is inadequate. The court of law 
 recognizes the right of the defrauded party to rescind the agreement 
 or contract which he has been induced by fraud to enter into; but 
 rescission is not so much an affirmative remedy as an act of repudia- 
 tion, serving as a defense to any attempted enforcement of the fraudu- 
 lent contract. The courts of law which do not have equity powers 
 could not go further, and furnish to the defrauded party the protec- 
 tion of a cancellation or surrender of the written instrument which is 
 based upon the fraud; or furnish to him the affirmative remedy of 
 reformation of such a contract, and a subsequent enforcement of the 
 contract as reformed and purged of the fraud. "Where the interest of 
 the defrauded party requires either of these two remedies, resort must 
 be had to the courts of equity. Cancellation and reformation are dis- 
 
 1 Campbell v. Fleming, 1 Ad . & E. 40. « Durst v. Burton, 2 Lans. 137; Stiles v. White, 
 
 2 Thurston v. Blanchard, 22 Pick. 20; Boor- 11 Met. 356. 
 
 man 21. Johnson, 18 Wend. 506; Hoadley v. ° Walker ». Moore, 10 Bam. & C. 421; Clunez 
 
 House, 38 Vt. 129; Sands !i. Taylor, 5 Johns. 395; v. Pezzy, 1 Camp. 8; Page v. Parker, 40 N. H. 
 
 Kimball v. Cunningham, 4 Mass. 502. 47; Jeffrey v. Bigelow, 13 Wend. 518; Dimmiok 
 
 ' Peterson v. Chicago, &o. E. E. Co., 38 Minn. v. Lockwood, 10 Wend. 142; Pox ti. McBeth, 2 
 
 511. Cox, 322. 
 
 4Lindsley t). Ferguson, 49 N. Y. 623, 625; Liy- 'Junkins v. Simpson, 14 Me. 364; Weeks v. 
 
 ingston v. Hubbs, 2 Johns. Ch. 512; County of Eobie, 42 N. H. 316. 
 Schuylkill v. Copley, 67 Pa. St. 386; McHugh v. 
 County of Schuylkill, 67 Id. 391, 396. 
 
 264 
 
■CH. XII. J 
 
 ACTUAL FRAUD. 
 
 § 222 
 
 tinctively and exclusively equitable remedies.' It is also a ground for 
 equitable jurisdiction to secure the cancellation of judgments and other 
 judicial proceedings and injunctions against the prosecution of actions 
 and the endorsement of judgments at law, where they are based upon 
 fraud.^ It has also been held that there is concurrent jurisdiction for 
 the purpose of recovering money which has been paid under the influ- 
 •ence of a fraud; * but this is not a general rule, rather an exception; for 
 in some cases the legal remedy for the recovery of money would prove 
 adequate.* It is also a reason for the assumption of jurisdiction by a 
 <;ourt of equity, that the interest of the party defrauded cannot be pro- 
 tected except by imposing a constructive trust upon the property 
 "which has been acquired by fraud. ° Other cases may be added which 
 ■describe in general the scope and limitation of equitable jurisdiction 
 over cases of fraud. ° 
 
 These general statements must be taken with the understanding, 
 that in very many of the American states, there is no separate equity 
 
 1 Wampler v. Wampler, 30 Gratt. 454; Girard 
 Ins. Co. V. Guerard, 3 Woods C. C. 427; Basse tt 
 ■V. Brown, 100 Mass. 355; Suter». Matthews, 115 
 Id. 253; Hubbell v. Currier, 10 Allen,333; Miller 
 V. Soammon, 52 N. H. 609; Woodman v. Free- 
 man, 25 Me. 531 ; Piscataqua Ins. Co. v. Hill, 60 
 Id. 178, 183; Clark v. Robinson, 58 Id. 133, 137; 
 Williams v. Mitchell, 30 Ala. 299; Learned v. 
 Holmes, 49 Miss. 290; Boardman v. Jackson, 
 119 Mass. 161; Grand Chute ». Wlnegar, 15 
 Wall. 373; Insurance Co. v. Bailey, 13 Id. 616; 
 Jones D. BoUes, 9 Id. 364; Bank of Bellows 
 Falls V. Rutland, &c. R. R., 28 Vt. 470; Crane v. 
 Bunnell, 10 Paige, 333 ; Russell v. Clark's Ex'rs, 
 7 Cranoh. 69, 89; Hardwick v. Forbes' Adm'r, 1 
 Bibb, 812; Waters®. Mattingly, l/d.244; Black- 
 well V. 01dham,4Dana, 195; Warner w. Daniels, 
 1 Wood. & M.90, 112; Fersons. Sanger, Davies. 
 ^52, 259; Field v. Herrick, 5 111. App. 54; Tracy 
 V. Colby, 55 CaL 67; Moore V. Moore, 56 Cal. 
 -89; Emigrant Co. v. County of Wright, 97 
 U. S. 339; Fuller v. Percival, 126 Mass. 381; 
 Globe Life Ins. Co. v. Reals, 50 How. Pr. 
 237; Glastenburry v. McDonald, 44 Vt. 450; 
 Willemin v. Dunn, 93 111. 511; Smith v. Grls- 
 wold, 6 Oreg. 440; Bruce v. Kelly, 5 Hun, 229, 
 232;Hackley v. Draper, 60 Id. 88; Remington, 
 <fec. Co. V. O'Dougherty, 81 N. Y. 474; Ham- 
 monds. Pennock, 61 Id. 145; Fisher o. Hersey, 
 n Id. 387; Derrick v. Lamar Ins. Co., 74 111. 404; 
 ■Globe, &c. Ins. Co. v. Reals, 79 N. Y. 203; Wil- 
 lis V. Sweet, 49 Wis. 505; Free v. Buckingham, 
 W N. H. 95; Ladd i/. Rice, 57 Id. 374; Som- 
 merville v. Donaldson, 26 Minn. 75; Poaton 
 V. Balch, 69 Mo. 115; Huxley v. King, 40 
 Mich. 73; Thompson v. Heywood, 129 Mass. 
 -401; Noble v. Hines, 72 Ind. 12; Bruker v. 
 Kelsey, 72 Id. 51; Pfeifer v. Snyder, 72 Id. 78; 
 U. S. Ins. Co. V. Central Nat. Bk., 7 III. App. 426; 
 Huff V. Ripley, 58 Ga. 11 ; Ins. Co. v. Bailey, 13 
 Wall. 616, 621, 623; Rawson v. Harger, 48 Iowa, 
 269; Moore v. Holt, 3 Tenn. Ch. 248; Tuttle v. 
 Tuttle, 41 Mich. 211; Johnson v. Murphy, 60 
 
 Ala. 288; Noel v. Horton, 50 Iowa, 687; Duna- 
 way V. Robertson, 95 111. 419; Compton v. 
 Bunker Hill Bk., 98 Id. 301; Briggs ». Johnson, 
 71 Me. 235; Lavassar v. Washburne, 50 Wis. 200. 
 
 ^Dedererr. Voorhies, 81 N. Y. 153; Hunt v. 
 Hunt, 72 Id. 217; Jordan v. Volkenning, Id. 300; 
 Rossu. Wood, 70 Id. 8; Harbaugh v. Hohn, 52 
 Ind. 243;.Harris v. Cornell, 80 111. 54; Doughty 
 V. Doughty, 27 N. J. Eq. (12 C. E. Green) 315; 
 Craft V. Thompson, 51 N. H. 536; Holland v. 
 Trotter, 22 Gratt. 136; Babcook v. McCamant, 
 53 111. 214; Graham o. Roberts, 1 Head, 56, 59; 
 Sayles v. Mann, 4 111. App. 516; District, &c. of 
 Algona V. District, &c. of Lott's Creek, 54 Iowa, 
 286; Huxley v. King, 40 Mich. 73; but see V. 
 S. V. Throckmorton, 98 XJ. S. 61; Kelly v. 
 Christal, 81 N. Y. 619; Robinson v. Wheeler, 51 
 N. H. 384; Cairo, &0. R. R. v. Titus, 27N. J. Bq. 
 102; Barkers. Rukeyser, 39Wis.590;Thomason 
 V. Fannin, 54 Ga. 361; Grubb v. Kolb, 55 Id. 630; 
 Cairo, &c. R. R. v. Holbrook, 92 111. 297; and 
 Stilwell V. Carpenter, 2 Abb. N. C. 238; Shepard 
 V. Akers, 3 Tenn. Ch. 215. 
 
 8 Getty i;. Devlin, 70 N. Y. 504; Erie E. R. v. 
 Varderbilt, 5 Hun, 123; Marlow v. Marlow,77 
 HI. 633; Scott v. Scott, 33 Ga. 102, 104; Harper v. 
 Whitehead, 33 Id. 138; Ellis t>. Kelly, 8 Bush, 
 681,631. 
 
 *Huff V. Ripley, 58 Ga. 11; Frue v. Loring, 120 
 Mass. 507; Ferson v. Sanger, Davies, 852, 859, 
 261 ; Woodman v. Saltonstall, 7 Gush. 181 ; Bas. 
 sett V. Brown, 100 Mass. 355; Sutem. Matthews, 
 115 Id. 253; Girard Ins. Co. v. Guerard, 3 Woods 
 C. C. 427; Jewett v. Bowman, 29 N. J. Eq. 174. 
 
 SBennettii. Austin, 81 N. Y. 308; Stephens*. 
 Bd. of Education, 79 N. Y. 183; People v. 
 Houghtaling, 7 Cal. 348, 351; Watson v. Erb, 
 33 Ohio St. 35; McVey v. McQuality, 97 111. 93. 
 
 eDurantt). Davis, 10 Heisk. 522; Struve v. 
 Childs 63 Ala. 473; Leupold u. Krause, 95 111. 
 440; Dickenson v. Seaver, 44 Mich. 624; Grubb's 
 Appeal, 90 Pa. St. 328; Williamson v. Carskad- 
 den, 38 Ohio St. 664. 
 
 265 
 
§ 222 BQUirr JCEispBtrDENCB. [ch. xn. 
 
 court or equity juriBdiction; and under the reformed procedure^ 
 instituted by the State of New York, and adopted by very many of the 
 American states, all distinctions as to legal and equitable actions haT» 
 been abolished; and in these states legal and equitable remedies can be 
 obtained in the one civil action. The questions of jurisdiction under 
 such a procedure have lost their practical importance. 
 266 
 
CHAPTER XIII. 
 
 CONSTKUCTIVE FRAUD. 
 
 Shotion Sbotion 
 
 Definition, eesentlal elements, and olassl- Construotive fraud, how affected by 
 
 ficatlon . . 836 acquiescence and lapse of time . . 234 
 
 eonstructive fraud arising out of illegal Gifts made between parties in conflden- 
 
 eontracts.— Equitable Jurisdiction for tial relation to each other . . . 235 
 
 relief in cases of illegal contracts . . 227 Frauds on creditors.— Transfers without 
 
 •onstructive fraud in cases of sales for consideration.— Voluntary conveyances, 
 
 an unlawful purpose 228 — Transfers for the purpose of hindering 
 
 Constructive fraud arising out of inade- or delaying creditors .... 236 
 
 quacy of consideration .... 229 Preferences by insolvents in transfer of 
 
 Constructive fraud inferred from the con- property in payment of debts, when 
 
 dition and the relation of the imme- fraudulent. — "Voluntary assignments for 
 
 diate parties to the contract . . . 230 benefit of creditors 237 
 
 Constructive fraud arising from the men- Delivery, how far essential to transfer of 
 
 tal incapacity of the party to the trans- title as against creditors and subsequent 
 
 action 231 purchasers 238 
 
 Duress and undue influence . . . 232 What delivery is sufficient as against 
 
 Constructive fraud implied from confi- creditors and subsequent purchasers . 23£^ 
 
 dential and fiduciary relations between Conflicting claims of vendor and vendee's 
 
 parties 233 creditors 240 
 
 § 226. Definition, essential elements, and classification. — As 
 
 has already been explained in the preceding chapter, the one essential 
 element of actual framLSs, false statement or misrepresentation, inten- 
 tionally employed for the purpose of obtaining some wrongful advan- 
 tage over another. Consi/ruclAve framd, on the other hand, is a term 
 employed to include all those cases of wrongful advantage obtained by 
 one person over another, under circumstances which do not prove that 
 the party obtaining the advantage has been guilty of any willful 
 misrepresentation or untruth ; but in consequence of a wrongful 
 advantage obtained, a court of equity considers it inequitable, and 
 affords relief from such undue advantage by the employment of appro- 
 priate remedies. These cases are denominated ccmstructive fraud, 
 because the particular remedies are the same as if there had been 
 actual fraud. The cases are very numerous, and of a great variety of 
 character, which are thus classified together under the head of con- 
 structive fraud. In the English case of Chesterfield v. Janssen,^ Lord 
 Hardwick defined constructive fraud as being divisible into three 
 classes, viz. : First, that apparent from the intrinsic nature and sub- 
 ject of the bargain itself; second, that presumed from the circumstances 
 and condition of the immediate parties to the transaction; third, that 
 which is an imposition on third persons not parties to the transaction. 
 The writers upon equity jurisprudence very generally adopt this clas- 
 ps ves. Sen. 125; 1 Atk. 301; 1 Eq. Lead. Cas. 773 (4th Am. ed.). 
 
 267 
 
§ 227 EQUITY JUEISPEUDENCE. [CH. XIII. 
 
 sification and discuss the subject of constructive fraud in the way just 
 given. The same policy will be pursued in the present instance. 
 
 § 227. Constructive fraud arising out of illegal contracts. — 
 Equitable jurisdiction for relief in cases of illegal contracts.— 
 
 What is and what is not an illegal contract is a question which is 
 answered alike in law and in equity; whenever a contract is pronounced 
 to be illegal by statute or at common law, because such contracts are 
 against public policy or against good morals, the rule is the same in 
 law and in equity that such a contract cannot support any action what- 
 ever, whether the action be for the enforcement of the contract or a 
 return or recovery of property or money, which has been transferred 
 in the execution of such a contract.* Where the contract has been 
 voluntarily executed or performed, there is no exception to the rule 
 that a court of equity will refuse to grant its aid to either of the par- 
 ties for a recovery of the money paid or property delivered; and only 
 in exceptional cases would a court of equity order the cancellation of 
 the conveyance or transfer of such property.^ Where the contract is 
 executory in character, the court will, as a general rule, studiously 
 refuse to execute or secure a performance of the contract.^ But a 
 eourt of equity will render aid in the case of contracts still executory, 
 for the purpose of securing a cancellation of the instrument of indebt- 
 edness or memorandum of the contract, whenever the employment of 
 such a remedy will serve the ends of public policy, and prevent a 
 possible enforcement of the illegal contract in consequence of such 
 contract finding its way into the hands of a ionafide holder. Thus, a 
 court will very readily decree a cancellation of negotiable instruments, 
 which are based upon illegal considerations, for the reason just 
 explained. The remedy of cancellation is not a recognition of any 
 validity in the contract; it is, rather, the remedy for the prevention of 
 the acquisition of any rights under such contract, and hence serves the 
 purpose of providing more definitely for the avoidance of the illegal 
 contract.* 
 
 IHarvey v, Vamey, 98 Mass. 118j Harrington " Tenant v, Elliott, IB. <fc P. 3j Parmer v 
 V. Bigelow, 11 Paige, 349; Sweet v. Tinslar, 52 Eussell, 1 B. <fc P. 396 j Sharp v. Taylor, 2 Phil- 
 Barb. 271; Solingero. Earle, 82 N. Y.303; Mar- 801; Joy v. Campbell, 1 Sch. & Lef. 328, 339; 
 latt V. Warwick, 19 N. J. Eq. 439; Cutler v. McBlair v. Glbbes, 17 How. (U. S ) 232', 237' 
 Tuttle, N. J. Bq. 549, 562; Ownes v. Ownes, 23 Brooks v. Martin, 2 Wall. 70, 81; Tracy 1;. Tal- 
 Jd. 60; Roman v. Mall, 42 Md. 513; Jones v. mage, 14 N. Y. 162. See, also, cases in preced- 
 Gorman, 7 Ired. Eq. 21; Logan v. Gigley, 11 Ga. ing note. 
 
 243; Gait r. Jackson, 9 /d. 151 ; Adams ». Bar- *Batty». Chester, 6 Bear. 103; W ». B— 32 
 
 rett, 5 /d. 404; D'Wolf v. Pratt, 42 111. 198; Bos- Beav. 574; Haigh v. Kaye, L. E. 7 Ch. 469; Lin- 
 
 anquett v. Dashwood, Cas. temp. Talb. 38j coin v. Wright, 4 De G. <& J. 18; Symes v. 
 
 Neyille v. Wilkinson, 1 Bro. Ch. 543, 547; cited Hughes, L. R. 9 Eq. 475, 479; Davies v. Otty 35 
 
 Jao. 67; Smiths. White, L.R. 1 Eq. 626; Newby Bear. 208. This is particularly the case where 
 
 ■». Sharpe, L. E. 8Ch. D. 39; Sykes o. Beadon, usurious loans in contracts nave Deen settled 
 
 L. E. 11 Id. 170; York «. Merritt, 77 N. C. <il3; for by the issue of promissory notes or bills of 
 
 Shaw V. Carlisle, 9 Helsk. 594; Inhabitants of exchange. Peters v. Mortimer 4 Edw. Ch, 
 
 Worcester v. Eaton, 11 Mass. 368, 375-379; Wells 279; Cowles v. Eaguot, 14 Ohio 38, 55- Thomas 
 
 r. Smith, 13 Gray, 207. « . Crouise, 16 i(i. 54 ; see, also, Chapi n v Drake, 
 
 2Solingeri7. Earle, 82N.Y.393,397,399; Shaw 57 111, 295; Skipwith v. Strother, SEand, 214' 
 
 r. Carlisle, 9 Heisk. 594; York ». Merritt, 77 N. Wynne v. Callander, 1 Euss 293, 296. 
 
 c. 21a 
 
 268 
 
CH. Xin.J COKSTKUCTIVE FEAUD. § 227" 
 
 The refusal of a court of equity to interfere with its remedies, for 
 the protection or aid of either of the parties to the illegal contract, as 
 just set forth, is undoubtedly the general rule wherever the parties are 
 in pari delicto. Where, however, they are not in pari delicto, and 
 the guilt or offense of one of the parties against the law is greater than 
 that of the other; in such cases a court of equity, taking countenance 
 of the inequality of the responsibility of the parties for the violation 
 of the law, will furnish to the less guilty party whatever remedy he 
 may need of an affirmative character to recover of the other what he 
 has paid out or has transferred to him in the performance of the 
 contract. There are two distinct classes of cases in which equity will 
 furnish this extraordinary aid, on the ground of an existing inequality 
 of guilt of the parties to the contract: First, where the inequahty is 
 found in the nature of the contract itself; as for example, in the case of 
 usurious contracts, where the usury is very often and presumptively 
 effected through the impecunious condition of the borrower and his 
 want of financial credit, which forces him to borrow money at a usu- 
 rious rate of interest. In such cases, a court of equity will not only 
 refuse to enforce the usurious contract,^ and secure the surrender and 
 redemption of the securities which he gave for the usurious loan, where 
 the contract still continues to be executory;^ but a court of equity will 
 also aid the borrower to recover back the usurious money paid by him 
 in excess of the sum, which he actually borrowed and the lawful inter- 
 est thereon.' In granting this affirmative relief, a court of equity will, 
 however, compel a borrower to do what is considered equitable, viz. : 
 the payment of the actual amount of the debt and legal interest; and in 
 the absence of statutes varying the rights of the parties in the case 
 of usurious contracts, this affirmative equitable remedy can only be 
 obtained by the borrower, when he accompanies his prayer for relief 
 with the offer to pay the actual debt contracted and lawful interest. 
 The failure to make such an offer is a ground for refusing relief.* 
 Other cases of inequality of guilt of parties to illegal contracts, in which 
 affirmative remedies are employed by courts of equity in behalf of the 
 less guilty, are found in the note below.' 
 
 'Spain V. Hamilton, 1 Wall. 604; O'Neil v. logg, 60 Barb. 617; and see Cooper ». Tappen, 4 
 
 Cleveland, 30 N. J. Eq. 273; Powers r. Chap- Wis. 376; Whitehead v. Peck, 1 Kelly, 140; ■ 
 
 lain, 30 N. J. Eq. 17; Mason ». Gardiner, 4 Bro. Noble o. Walker, 32 Ala. 456; Euddell v. 
 
 Ch. 436; Fanning v. Dunham, 5 Johns. Ch. 122; Ambler, 18 Ark. 369; Sporrer v. Eifler, 1 Heisk. 
 
 Harto. Goldsmith, 1 Allen, 145; Smith v. Eob- 633, 636; Alden v. Diossy, 16 Hun, 311; PurneU 
 
 inson, 10 Id. 130; Union Bk. v. Bell, 14 Ohio St. i>. Vaughn, 82 N. C. 134; Campbell v. Murray, 
 
 200; Sporrer ii. Eifler, 1 Heisk. 633, 636; Kukner 62 Ga. 86; Pickett v. Meroh. Nat. Bk., 32 Ark, 
 
 V. Butler, 11 Iowa, 419. 346; Morrison v. Miller, 46 Iowa, 84; Mason v. 
 
 2 Peters -o. Mortimer, 4 Edw. Ch. 279. Gardiner, 4 Bro. Ch. 436; Panning v. Dunham, 
 
 •Waller v. Dalt, 1 Ch. Cas. 276; 1 Dick. 8; 5 Johns. Ch. 122, 142, 143, 144; Rogers v. Eath- 
 Bamy v. Beak, 2 Id. 136; Baker v. Vansommer, buu, 1 Id. 367; Williams v. Fitzhugh, 37 N. Y. 
 IBro.Ch. 149; Bosanquett i>. Dashwood, Cas. 444; Ballingerw. Edwards,4Ired. Eq.449; Ware 
 temp. Talb. 38, 41; Eawden v. Shadwell, Ambl. v. Thompson. 2 Beasley, 66. 
 269; Fanning!). Dunham, 5 Johns. Ch. 122, 142, 6 white v. Franklin Bk., 22 Pick. 181, 186; 
 143, 144; Davis v. Demmlng, 12 W. Va. 246; Lowells. Boston, &0. E. E. 23 7d. 24, 32; Bel- 
 Morrison «. Miller, 46 Iowa, 84; Ganttu. Grin- lamy v. Bellamy, 6 Plor, 62, 103; Poston v. 
 dall, 49 Md. 310. Balch, 69 Mo. 115; Tracy v. Talmage, 14 N. Y. 
 
 * Corby r. Bean, 44 Mo. 379; Bissell v. Kel- 162, 167, per Selden, J.; 210, p«r Comstock, J.; 
 
 269 
 
§ 228 EQUITT JUKISPEUDENCE. [CH. XIH. 
 
 In the second class of cases, the contract does not essentially and 
 necessarily involve the element of inequality of guilt; but such 
 inequality is shown to exist in the particular transaction in conse- 
 quence of the influence of collateral and incidental circumstances 
 which attend the transaction and aflfect the relations of the parties. 
 Such circumstances are shown by the various forms of undue influence 
 or imposition.* 
 
 § 228. ConstrnetiTe fraad in the case of sales for an nnlaTrfnl 
 purpose. — Where a thing may be put to a lawful, as weU as to an 
 unlawful use, it is only illegal to buy or sell the goods for the unlaw- 
 ful purpose. The seller had a right to seU, and the buyer the right 
 to buy them, if they are not intended to be put to the unlawful use. 
 But if they are bought for the purpose of violating the law in the use 
 or further sale of them, the contract of sale is clearly illegal, so far as 
 the buyer is concerned; and he would be denied aU right of action on 
 the contract, should the seller refuse to execute the sale.^ But the 
 contract may be binding on the buyer, if the goods could have been put 
 to a lawful use, and the seller could not be considered, under the cir- 
 cumstances of the particular case, as a pa/rticeps orvm/mis. It is very 
 clear that the seller cannot recover on the contract of sale, if he, in 
 any way, participated in the unlawful act of the buyer, by packing 
 and marking the goods in such a way as to enable the buyer more 
 successfully to put the goods to an unlawful use. For example, 
 where the vendor of intoxicating liquors, in a sale of them to one 
 who lives in a state where such sale is illegal, and who intends to sell 
 them in the latter state in violation of the law, disguises by packing 
 and marking the character of the goods so that the buyer can the 
 Ijetter succeed in selling them without detection, the sale is illegal, 
 and the vendor cannot recover the price.' And the same conclusion 
 was reached, when American sardines were put up in boxes with 
 French labels, in order to enable the retail dealer to sell them as 
 French sardines.* The slightest aid or participation in the unlawful 
 use of the goods by the buyer will incriminate the seller.' And some 
 of the authorities hold that the sale wiU be illegal as to the seller, if it 
 is made by him "with the express purpose," or "with the intent," 
 
 Curtis V. Leavitt, 15 N. Y. 9; Osborne v. WU- . Lord, 63 N. H. 5W; Hull ». Euggles, 56 N. Y. 
 
 liams, 18 Vea. 379; W— v. B— , 32 Beav. 574; 435; Feineman v. Sachs, S3 Kans. 261; Hill ». 
 
 Prescott V. Norris. 32 N. H. 101. Speer, SO M. H. 253; Holman v. Johnson, Cowp.' 
 
 iSolinger v. Earle, 82 N. Y. 393, 397, 399; 348. 
 
 Phalen v. Clark, 19 Conn. 421; Plnckston ». *Mateme ». Horwltz, 18 Jones & Sp. 41; s. o. 
 
 Brown, 3 Jones Eq. 494; see Erie B. Co. ». 101 N. Y. 469; see Honnegera. Wettstein, 15 J. 
 
 Vanderbilt, 5 Hun, 133 ; Davles v. Otty, 35 Bear. & S. 125. 
 
 208; Smith v. Bromley, 2 Dougl. 696; Browning liHubbeU v. Flint, 13 Gray, 277; Gaylord v. 
 
 V. Morris, Cowp. 790; Smith v. Cuflf, 6 M. & S. Soragen, 33 Vt. 110; Molntire v. Parks, 3 Met. 
 
 160; Atkinson v. Denby, 7 H. & N. 934, Bosan- 207; Smith v. Godfrey, 28 N. H. 379; Aiken «.' 
 
 quett V. Dashwood, Gas. temp. Talb. 38, 40, 41 ; Blaisdell, 41 Vt. 656 ; Amot ». Plttston Coal Co.', 
 
 Bayley». Wmiams,4Giff.638. 68 N. Y. 558; Banohor v. ManseU, 47 Me. 58; 
 
 '2 Schouler's Personal Prop., §617; seePrin- Orcutt ■». Nelson, 67 Mass. 536; Tracy ». Tal- 
 
 gle ». Corporation of Napanee, 43 Up. Can. Q. mage, 14 N. Y. 162; President, Ac. of Mer- 
 
 B. 285; Cowan v. Melbourne, L. E. 2 Ex. 230. chants' Bant v. Spaulding, 12 Barb. 303; Kott- 
 
 8 Shiff V. Johnson, 57 N. H. 475; Fisher v. witz v. Alexander, U Gush 222 
 
 2Y0 
 
OH. Xm.] CONSTRUCTIVE FRAUD. § 229 
 
 to enable the vendee to sell or use them in violation of the law, although 
 the seller does not aid the buyer in his violation of the law, except 
 by furnishing him with goods.' But the purpose or intent to enable 
 the buyer to violate the law cannot be established except by the fact 
 that the goods sold cannot be reasonably used for any other but an 
 unlawful purpose, as where one manufactures and sells furniture 
 which is suitable only for use in a bar-room or gambling house; ' or 
 where he actively aids the buyer in the accomplishment of the 
 unlawful purpose. In the absence of such facts from the case, it is 
 difficult to xmderstand how the seller's purpose or intent to assist the 
 buyer in his violation of the law can be established. This would cer- 
 tainly operate against the presumption to which the seller is entitled, 
 that he intended to sell the goods for the lawful purpose, and not for 
 the unlawful purpose. 
 
 There is also a tendency on the part of some of the courts to hold 
 that if the seller sells when he knows that the buyer intends to com- 
 mit some felony or heinous crime with it, as in the purchase of 
 poisonous drugs for the purpose of killing someone with it,' or 
 the purchase of horses to be used in the service of rebels against 
 the government,* and the like, he cannot recover the price. ^ But, 
 notwithstanding these apparent and actual exceptions, the general 
 rule is accepted throughout the United States that mere knowledge of 
 the seller, that the buyer intends to put the goods to an unlawful use, 
 will not make the sale iUegal, and consequently prevent the recovery 
 of the price of the goods. The sale will be illegal, as to the buyer, 
 but legal as to the seller. ° 
 
 § 229. Constractive frand arising out of inadequacy of consid- 
 eration. — It is a well-known rule of the law of contracts, that a 
 simple inadequacy of consideration, as long as the consideration 
 remains substantial, will not invalidate the contract either in law or 
 in equity. It is a common law rule, as well as a rule in equity, that 
 a nominal consideration is not sufficient to support an executory con- 
 
 1 White T>. Buss, 3 Cush. 448 ; Galllgan ». Fan- Currau v. Downs, 3 Mo. App. 468; Hedges*, 
 
 nan, 7 Allen, 255; Bnokmanji. Bryan, 3 Denlo, Wallace, 2 Bush, 442; Bicknelly v. Sheets, 24 
 
 310; Webster v. Manger, 8 Gray, 584; Davis V. Ind. 1; Jameson ©.Gregory, 4 Met. (Ky.) 363; 
 
 Brownson, 6 Iowa, 410; Distilling Co. ». Nutt, Tedder v. Odom, 2 Heisk. 68; 4 Heisk. 668; 
 34 Kans. 724; Territt v. Bartlett, 21 Vt. 184; ^ Michaels. Bacon, 49 Mo. 474; Hill v. Spear, 50 
 
 McComike v. McMann, 27 Vt. 95. N. H. 253; McGayock v. Puryear, 6 Coldw. 34; 
 
 sSee Tatum v. Kelly, 25 Ark. 201, for gen- Sortwell v. Hughes, 1 Curtis, 245; Kreiss v. 
 
 eral discussion of the question. Sellgman, 8 Barb. 439 ; Mahood v. Tealza, 26 La. 
 
 *Langston v. Hughes, 1 Maule & S. 593. Ann. 108; Hubbard v. Moore, 34 La. Ann. 591 ; 
 
 * Martin v. McMillan, 65 N. C. 199; Hanauer Feineman v. Sacks, 33 Kans. 651; Holman v. 
 
 ■B. Doane, 12 Wall, 342, 347; see McGavook v. Johnson, 1 Cowp. 341; Gaylord v. Soragen, 32 
 
 Puryear, 6 Coldw. 34. Vt. 110; but see Terrett v. Bartlett. 21 Vt. 184; 
 
 ' Pearce v. Brooks, L. R. 1 Ex. 212. Eoquemore v. AUoway, 33 Tex. 461 ; Milner v. 
 
 'Bishop D. Honey, 34 Tex. 245; Cheney*. Patton,49 Ala. 433; State o. Blakeman, 49 Mo. 
 
 Duke, 10 G. & J. 11; Green v. Collins, 3 Cliff. 604; Alexanders. Lewis, 47 Tex. 481; Eailey«. 
 
 494; Mclntlre v. Parks, 3 Met. 207; Smith v. Gay 20, La. Ann. 158; McMurtry «. Ramsey, 25 
 
 Godfrey, 28 N. H. 379 ; Wallace v. Lark, 13 S. C. Ark. 238, 349, 376 ; Lewis v. Latham, 74 N. 0. 283 ; 
 
 578; Tracy*. Talmage, 14 N. Y. 162; Tuttle Steele *. Curie, 4 Dana, 385; McConlhe .(. 
 
 •D. Holland, 43 Vt. 542; Webber *. Donnelly, 33 McManny, 27 Vt. 95. 
 Mich. 469; McKlnney v. Andrews, 41 Tex. 363; 
 
 271 
 
§ 229 
 
 EQUITY JURISPRUDENCE. 
 
 [CH. XIII.. 
 
 tract; but where the consideration is substantial, the inadequacy is not 
 any ground for invalidating the contract, at least in actions at law. ' All 
 of the earlier cases showed a manifest disposition to hold, that mere in- 
 adequacy of consideration would be a justifiable ground for refusing 
 the decree for specific performance of a contract, on the ground that 
 it was ah inequitable contract, although such a defense would fail in a 
 request for other remedies in equity. " But these earlier cases have since 
 been repudiated by the courts of equity; and mere inadequacy of 
 consideration is now, in equity as in law, no ground for defense to an 
 existing cause of action, whether the remedy be aflirmative or negative.* 
 But while the mere inadequacy of the consideration is never in 
 itself a ground for avoiding the contract, where that circumstance is 
 not accompanied by other circumstances co-operating to arouse sus- 
 picion of a fraud or imposition ; yet where such co-operating cir- 
 cumstances are present in the transaction, or where the price paid 
 for the goods or other property is so grossly inadequate that one 
 involuntarily suspects fraudulent imposition as the sole explanation of 
 the comphance with the contract by the party imposed upon; in such 
 cases, a court of equity will cancel the contract, and place the parties 
 in statu quo, whether the contracts have been executed or are still 
 executory.* It hardly needs to be stated that, whenever the inadequacy 
 of consideration is sufficient to se cure the cancellation of a contract, 
 it will be a good defense in an action for specific performance.* 
 
 1 Cummings' Appeal, 67 Pa. St. 404; Shepherd 
 V. Bevin, 9 Gill, 32; Mayo v. Carrlngton, 19 
 Gratt. 74; Cribbins v. Markwood, 13 Id. 495; 
 Butler V. Haskell, 4 Desau. 661; Juzan v. 
 Toulmin, 9 Ala. 662; Delafield v. Anderson, 7 
 Sm. & Mar, 630; Steele i>. Worthington, 8 Ohio, 
 182; Weld v. Bees, 48 111. 428; Soovill v. Barney, 
 4 Oreg. 288; Osgood v. Franklin, 2 Johns. Ch. 
 1,23; Seymour r. Delanoy, 3 Cow. 445; Worth 
 V. Case, 42 N. Y. 362; Shaddle v. Disborough, 30 
 N. J. Eq. 370; Ready v. Noakes, S9 Id. 497; 
 Wintermute v. Snyder, 2 Green Ch. 489; Weber 
 V. Weitling, 18 N. J. Bq. 441; Harris v. Tyson, 
 12 Harris, 347, 360; Dayidson v. Little, 10 Id. 
 245, 847; Byre o. Potter, 15 Id. 42; Barribeau v. 
 Brant, 17 Id. 43; Slater v. Maxwell, 6 Wall. 268, 
 273; Warner v. Daniels, 1 Wood. & M. 90, 110; 
 Howard v. Bdgell, 17 Vt. 9; Kidder v. Chamber- 
 lin, 41 Id. 62; Bedel ». Loomis, 11 N. H. 74; 
 Lee V. Klrby, 104 Mass. 420, 428; Park o. John- 
 son, 4 Allen, 259; Harrison v. Guest, 6 De G. 
 M. & G. 424; 8 H. L. Cas. 481; Merediths v. 
 Saunders, 8 Dow. 514; Murrayo. Palmer, 8 Sch. 
 A Lef. 474, 488; Erwin v. Parham, 12 How. 
 (U. S.) 197. 
 
 SQhan. Kent's views, S. C, 3 Cow. 445; see, 
 also, ClitherallB. Ogilvie, 1 Desau. 257; Gasque 
 V. Small, 8 Strobh. Eq. 72; Clement v. Eeid, 9 
 S. & Mar. S35; Tilly v. Peers, cited 10 Ves. 301, 
 per Ch. B. Byre; Day v. Newman, 8 Cox, 77, 
 and cited 10 Ves. 300, per Lord Alvanley. 
 
 sCurlin V. Hendricks, 35 Tex. 225; Harrison 
 o. Town, 17 Mo. 837; Cathcart ». Robinson, 5 
 Pet. 263; Soovill v. Barney, 4 Oreg. 288; Ready 
 
 272 
 
 V. Noakes, 29 Id. 497; Rodman ». Zilley, Saxton,. 
 320; Lee v. Kirby, 104 Mass. 420; Western R. 
 R. V. Babcock, 6 Met. 346; Westeryelt v. Mathe- 
 son, 1 HofF. Ch. 37; Viele v. Troy & B. R. R., 
 21 Barb. 381 ; Black v. Cord, 2 Harr. & G. 100; 
 White V. Thompson, 1 Dev. & Bat. Eq. 493; 
 Bower v. Cooper, 2 Hare, 408; Borell v. Dann,. 
 2 H. 440; Seymours. Delancy, 3 Cow. 445; Hale 
 V. Wilkinson, 21 Gratt. 75; Booten v. Scheffer^ 
 21 Id. 474; Shaddle v. Disborough, 30 N. J. Bq. 
 370 
 
 4Morriso v. Philliber, 30 Mo. 145; Mitchell v. 
 Jones, 50 Id. 438; Kelly v. McGuire, 15 Ark. 555;. 
 Deadrick v. Watkins, 8 Humph. 520; Coflfee v^ 
 EuflSn, 4 Coldw. 487; Tally o. Smith, 1 Id. 890; 
 MoCormick v. Malin, 5 Blackf. 509; Knobb v^ 
 Lindsay, 5 Ohio, 468; Macoupin Co. v. People,. 
 58 III. 191; Madison Co. v. People, 58 Id. 456; 
 Case V. Case, 26 Mich. 484; Byers v. Surget, 19 
 How. (U. S.) 303; Eyre v. Potter, 15 Id. 42, 60;. 
 Veazle v. Williams, 8 Id. 134 ; Howard t>. Bdgell,. 
 17 Vt. 9; Kidder v. Chamberlin, 41 Vt. 62; 
 Osgood V. Franklin, 2 Johns. Ch. 1, 23; 14 
 Johns. 52?; Dunn v. Chambers, 4 Barb. 376; 
 Worth V. Case, 48 N. Y. 362; Hodgson v. Par- 
 lell, 2 McCart. 88; Glfford v. Thorn, 1 Stockt. 
 Ch. 702; Davidson v. Little, 10 Harris, 245; 
 Hamet v. Dundass, 4 Barr, 178; Sime v. Norris, 
 8 Phila. 84; Green v. Thompson, 8 Ired. Eq. 365; 
 Barnett v. Spratt, 4 Id. 171 ; Butler v. Haskell, 
 4 Desau. 651 ; Juzan v. Toulmin, 9 Ala. 662. 
 
 5 Eastman v. Plumer, 46 N. H. 464; Graham v. 
 Pancoast, 6 Casey, 89, 97; Powers o. Mayo, 97- 
 Mass. 180, and cases cited in preceding note. 
 
CH. XIII. J CONSTEUCTIVE FRAUD. § 231 
 
 The inadequacy must be existent when the contract was concluded: 
 subsequent diminution in the value of the consideration, through a 
 change of circumstances, would be no ground for avoidance of the 
 contract.* But there are cases, however, particularly in the case of 
 actions for specific performance, where the subsequently occurring 
 failure of the value of the consideration is deemed to be a good defense 
 to the enforcement of the contract.^ A court will grant the relief on 
 the ground of constructive fraud, whenever such charge can be inferred 
 from the consideration of all the suspicious circumstances; and wiU 
 not refuse the relief if, standing alone, any one of these suspicious 
 circumstances is not sufficient to support tiie charge of constructive 
 fraud.' 
 
 § 230. Constructive fraud inferred from the condition and the 
 relation of the immediate parties to the contract. — This division of 
 cases of constructive fraud includes two distinct and separate classes 
 of cases: one, in which the constructive fraud is inferred from the 
 mental condition of one or more of the parties to the transaction; and 
 the second includes all those cases, where constructive fraud is pre- 
 sumed, in consequence of the confidential relation existing between the 
 parta'es. These two classes will be explained presently in succeeding 
 paragraphs. 
 
 § 231. Constructive fraud arising from the mental incapacity of 
 the party to the transaction. — The invalidity of a contract, where 
 one of the parties is insane or an infant, is based upon two distinct 
 considerations: one of them being the absence of all mental ability to 
 give the intelligent consent to the contract which is necessary to its 
 validity; as where the party is positively insane and does not know 
 what he is doing, or where the infant is of such a tender age that it is 
 impossible for such child to have any conception whatever of the legal 
 character of his act. In such cases, there is no consent of the party to 
 ' the contract, no aggregatio mentiimi, and hence no contract. But there 
 are caSes, certainly of contracts by infants, where the party cannot be 
 shown to be void of sufficient mental capability to understand the 
 nature of the contract he is making, and yet the law conclusively pre- 
 
 1 Mortimers. Capper, 1 Bro. Ch. 156; Batty «. Ind. 66; Modisett v. Johnson, 2 Blackf. 431; 
 
 Lloyd, 1 Vem. 141; Hale v. Wilkinson, 21 Gratt. McCormlek v. Malin, 5 W. 509; Fish v. Leser, 
 
 75; Lee v. Kirby, 104 Mass. 420. 69 III, 394; Cathcart v. Robinson, 5 Pet. 263; 
 
 s Savile v. Savile, 1 P. Wms. 746; Willard «. Byers v. Burget, 19 How. (U. S.) 303; Harrison 
 
 Tayloe, 8 Wall. 557; Booten i/. Schaffer, 21 «. Town, 17 Mo. 237; Holmes ». Fresh, 9 Mo. 200; 
 
 Gratt. 474; Whltaker v. Bond, 63 N. C. 290; Cadwallader v. West, 48 Id. 483; Mitchell v. 
 
 Hudson V. King, 2 Heisk. 560; MoCarty V. Kyle, Jones, 50 Id. 438; Graham v. Pancoast, 6 Casey, 
 
 4 Coldw. 348. 89; Henderson v. Hays, 2 Watts, 148, 151; Camp- 
 
 8 Summers v. Griffiths, 35 IS. 27; Longmate ». bell v. Spencer, 2 Binn. 133; Todd v. Grove, 33 
 
 Ledger, 2 GrlfE. 167; Powers v. Hale, 5 Fost. Md. 188; Brooke v. Berry, 2 Gill, 83; MoKinney 
 
 (N. H.) 145; Howard v. Edgell, 17 Vt. 9; Mann v. Pinckhard, 2 Leigh, 149; Clitherall v. Ogil- 
 
 ». Betterly, 21 Id. 326; Osgood v. Franklin, 2 Tie, 1 Desau. 267; Neeleyi). Anderson, 2 Strobh.. 
 
 Johns. Ch. 1,24; Hall B. Perkins, 3 Wend. 686; Eq. 262; Gasque v. Small, Id. 72; Bunch «. 
 
 Kloepping v. Seellmaoher, 21 N. J. Eq. 328; Hurst, 3 Desau. 273; Maddox «. Simmons, 31 
 
 Clarkson v. Hanway, 2 P. Wms. 203; Newland Ga. 512; Wormack v. Rogers, 9 Id, 60; Blaok- 
 
 V. Gaines, 1 Heisk. 720; Benton i/. Shreeve, 4 wilder i7. Loveless, 21 Ala. 371. 
 
 18 
 
 273 
 
§ 231 EQUITY JUKISPEUDENCE. [CH. XIII. 
 
 sumes the contract to be voidable at the instance of the infant. In all 
 such cases, the fundamental thought underlying the invalidation of the 
 contract, is the possibility of such a person being imposed upon by 
 others with more experience in life; and in order that such infant may 
 have ample protection against the great dangers of imposition, which 
 the courts consider them to be exposed to, all such contracts are con- 
 clusively presumed to be fraudulent and may be avoided by the infant 
 on the ground of constructive fraud. This is the rule of law, both in 
 law and in equity; and so well known that cases need not be cited in 
 support of the general doctrine. 
 
 Insanity is not a fixed and stable condition of the mind: it ia 
 changeable and varied in character and extent. And in determining 
 the question of the validity of a contract made by one who is bereft 
 of his reason, the great and difficult question to be determined is, 
 whether the party so afflicted was so far bereft of his mental faculties 
 as that he could not understand the nature of the transaction or hold 
 in his mind the circumstances involved in such transaction long enough 
 to enable him to understand the consequence of his act. In other 
 words, it is a question of fact whether he had sufficient mind to make 
 a contract 'or not. When that question is answered in the affirmative, 
 a court of law terminates the inquiry, and the contract is declared to be 
 valid and binding; although the party may be shown to have been suffer- 
 ing from a weakness of mind, it matters not what may be the cause or 
 origin of such mental weakness, as long as it is not so serious as to 
 amount to idiocy or lunacy, as just defined. ^ But where this mental weak- 
 ness is accompanied by inequitable circumstances; as, for example, the 
 inadequacy of consideration; and from the consideration of all the facts 
 of the case the presumption arises, that the party suffering from a mental 
 weakness has been unduly imposed upon, equity will afford equitable 
 relief on the charge of constructive fraud. The constructive fraud is 
 drawn from the consideration of the mental weakness and the inequi- 
 table character of the transaction.^ And where such mental weakness 
 is combined with inequitable circumstances in the transaction, the 
 
 1 Thomas v. Sheppard, S MoCord Eq. 36; Old- Howe v. Howe, 99 Mass. 88; Pratt v. Barker, 1 
 
 ham c. Oldham, S Jones Eq. 89; Graham v. Sim. 1; 4 Buss. S07; Prideaux v. Lonsdale, 1 
 
 Little, 3 Id. 158; Long v. Long, 9 Md. 348; De G. J. & S. 433; Harrison v. Guest, 6 De G. 
 
 Prewett v. Coopwood, 30 Miss. 369 ; Killiau «. M. &. G. 424 ; 8 H. L. Cas. 481 ; Stone v. Wllbem, 
 
 Badgett, 37 Ark. 166 ; Darnell v. Rowland, 30 Ind. 83 111. 105. 
 
 342; Wrayo.Wray, 38 /(«. 126; Gratz ». Cohen, 2 Brady's Appeal, 66 Pa. St. 277; Hunt t>. 
 
 11 Ho w. (U. S.) 1,19; Harding «. Handy, 11 Wheat. Moore, 2 Barr. 105; Hlghberger v. Stiffler, 21 
 
 103; Hx parte Allen, 15 Mass. 58; Stlner ®. Stl- Md. 338j Erogden v. Walker, 2 Har. & J. 285; 
 
 ner, 58 Barb. 643; Hyer v. Little, 20 N. J. Eq. Maddox v. Simmons, 31 Ga. 512; Kumphu. 
 
 443;Lozear v. Shields, 23 Id. 509; Alman v. Abereromble, 12 Ala. 64; Hills;. McLaurin, 28 
 
 Stout, 42 Pa. St. 114; Dean «. Puller,40 J<i. 474; Miss. 288; Tracey v. Sacket, 1 Ohio St. 54; 
 
 Graham».Paneoast,6Casey, 89;Nace». Boyer, Harding j;. Handy, 11 Wheat. 103; Waddell ti. 
 
 /d.99;Greer». Greer, 9 Gratt. 330,332; Eippy I). Lanier, 62 Ala. 347; Allore v. Jewell, 94 U. S. 
 
 Gant, 4Ired. Eq. 443;Pickerell v. Mores, 97/d. 506; Bogle v. Bogie, 41 Wis. 209; Bainter v. 
 
 220;GrahamB. Castor, 55 Ind. 559; Mulloy v. Pults, 15 Kans. 323; Harris v. Wamsley 41 
 
 Ingalls, 4 Neb. 115; Cowee v. Camell, 75 N. Y. Iowa, 671; Mead v. Coombs, 26 N. J. Eq. 173; 
 
 91,99, 100; PaIne».EobertB,82N. 0.451; Welle- Lavette v. Sage, 29 Conn. 577; Whelan v. 
 
 mlnv. Dunn, 93 111. 511; Beverley ». Walden, Whelan, 3 Cow. 537; Hutchinson ». Tlndall, 2 
 
 20 Gratt. 147; Mann v. Betterly, 21 Vt. 326; Green's Ch. 357; Hetriok's Appeal, 58 Pa St 
 
 2Y4 
 
CH. XIII.] OONSTEUCTIVE FRAUD. § 232 
 
 burden of proof is also thrown upon the party claiming the right to 
 enforce the contract.' The same rule applies, in respect to cases of 
 intoxication of a party to the contract, where such intoxication is not 
 sufficiently serious to deprive the individual of his mental faculties or 
 to produce a condition of insanity, but sufficient to enable others to 
 obtain an advantage which could not have been obtained but for the 
 influence of the liquor.^ And where the other party to the transaction 
 has been instrumental in securing or producing the intoxication, the 
 court will very readily grant affirmative relief, if not on the ground of 
 actual fraud, at least of constructive fraud.' 
 
 § 232. Dnress and nndne influence. — Duress is a ground for avoid- 
 ing contracts, both at law and in equity, and it may be defined to be 
 the procurement of an act which does not flow from the free exercise 
 of will of the party to the contract. Courts of equity will grant relief 
 in all cases of duress, where the court of law would declare the con- 
 tract void. But a court of equity will go further than a court of law, 
 in determining under what circumstances the will-power of the party 
 to a contract has been interfered with; and will afford relief from the 
 enforcement of a contract whenever, from the facts of the particular 
 case, the conclusion is reached that the party signing the contract did 
 not do so of his own free will, but was forced to do so through the 
 exercise over him of the superior and controlling will of another. 
 This exercise of a controlling will over the actions of another, to the 
 extent of depriving such other person of all voluntary action, is called 
 undue influence, and is declared to exist whenever the circumstances 
 show the absence of the will-power of the party acting or executing a 
 legal instrument. The fact being established, that the act is not the 
 voluntary act of the party to the transaction, a case of undue influence 
 is made out, and a court of equity will grant relief for the purpose of 
 preventing the enforcement of tixe contract.* Undue influence must 
 
 477; Hnguenin v. Baseley, 14 Ves. 273; Boyse v. Selah, 23 N. J. Eq. 185; Clifton v. Davis, 1 Pars. 
 HoBBborough, 6 H. L. Gas. 2; Nottidge v. Prince, Bq. 31 ; Fetrill v. Fetrlll, 5 Jones Eq. 61 ; Mor- 
 2 Gift. 246; Baker v. Monk, 33 Beav. 419; Har- rison v. McLeod, 2 Dev. & Bat. Eq. 221; Har- 
 rison V. Guest, 6De G. M. <fc G. 434; 8 H. L. Cas. bison v. Lemon, 3 Blackf. 51 ; Dunn v. Amos, 14 
 481 ; Moore i>. Moore, 56 Gal. 89 ; Poston ». Balch, Wis. 106 ; Johnson ». Medlicott, 3 P. Wms. 131 ; 
 €9 Mo. 115; White v. White, 89 111. 460. Cory v. Cory, 1 Ves. Sen. 19; Gooke v. Clay- 
 iHuguenins. Baseley, 2Eq. Lead. Cas. 1156, worth, 18 Ves. 12; Says.Barwick, 1 V.&B. 195; 
 1174, 1192, 1243 (4th Am. ed.); Bogie v. Bogle, 41 Shaokelton v. Sebree, 88 111. 616; Schramm v. 
 Wis. 209; Golpinj®. Wilson, 40 Iowa, 90; War- O'Connor, 98I1I. 539. 
 
 temberg v. Spiegel, 31 Mich. 400; Whelan v. ' O'Connor v. Eempt, 29 N. J. Bq. 156; Crane 
 
 Whelan, 3Cow. 537; Brlce «. Brlce, 5 Barb. 633, ». GonWin, Saxton, 346 ; Prentice ». A chorn, 2 
 
 S49; Highberger». Stiffler, 21 Md. 338; Marshall Paige, 30; Lavette v. Sage, 29 Conn. 577; Gallo- 
 
 «. Billingsly, 7 Ind. 250; Martin v. Martin, 1 way «. Witherspoon, 5 Ired. Eq. 128; Freeman 
 
 Heisk. 644, 653; Allore v. Jewell, 4 Otto, 506; v. Dwlggins,2 Jones Eq. 163; Griffith v. Fred. 
 
 Longmate ». Ledger, 2 Gi£F. 157, 164; Kempson Co. Bk., 6 GUI & J. 424; Phillips ». Moore, 11 
 
 ». Ashbee, L.E. lOCh. 15; Harrison ». Guest, 6 Mo. 600; Pittenger v. Plttenger, 2 Green Gh. 
 
 De G. M. & G.424; 8 H. L. Cas. 481; Shakes- 156; Schramm u. O'Connor, 98 IlL 539; Cooke «. 
 
 peare v. Markham, 73 N. Y. 400; Gowee v. Cor- Clayworth, 18 Ves. 12; Say v. Barwiek, 1 V. & 
 
 nel], 75 Id. 91, 99, 100; Gravest). White, 4 Baxt. B. 195; LIghtfoot v. Heron, 3 Y. & C. 586; Shaw 
 
 <Tenn.)38. *■ Thackray, 1 Sm. <& GifP. 537; Martin®. Py- 
 
 2 Johnson v. Phlf er, 6 Neb. 401 ; Bates v. Ball, orgft, 2 De G. M. A G. 785, 800. 
 
 72 111. 108; Lavette*. Sage, 29 Conn. 577; Max- «Nimmo V. Davis, 7 Tex. 26; Needles V. 
 
 well V. Pittenger, 3 Green's Ch. 156; Selah ti. Needles, 7 Ohio St. 432; Lowry®. Spear, 7Bush, 
 
 275 
 
§ 232 EQUITY JURISPRUDENCE. [CH. XIH. 
 
 either be shown to exist in the particular case, as an inference from 
 the circumstances of the case; or it must be implied by law from the 
 relations of the parties to the transaction. In regard to this impli- 
 cation of undue influence, a full discussion will be found in subse- 
 quent paragraphs. 
 Among the circumstances, from which the fact of undue influence 
 
 ' may be inferred, is the impecunious condition of the party to the 
 .% transaction; i. e., whenever one person is shown to be under pecuniary 
 
 ' obligations to the other to so serious a degree, that the financial con- 
 trol of the one over the other will deprive the latter of a free exercise 
 of his judgment. Any inadequacy of consideration or inequitable 
 advantage, taken by such a party under such circumstances, will 
 support the charge of constructive fraud and furnish a ground for 
 equitable relief.' On the same principle, the courts of law and of 
 equity have pronounced absolutely void all agreements made by a 
 mortgagor, contemporaneously with the execution of the mortgage, 
 for the release of the mortgagor's equity of redemption.'' And even 
 in the case of subsequent agreements for the release of such equity of 
 redemption, a court of equity will scrutinize such agreements very 
 closely; and if there is any improper advantage taken of his financial 
 embarrassment, or the transaction is in the slightest degree a hard 
 bargain, tiie agreement will be annulled and the mortgagor permitted 
 to redeem.* The illiteracy or dense ignorance of one of the parties is 
 also, in conjunction with the question of inadequacy of the considera- 
 
 451; Meri weather «. Herran, 8 B. Mon. 162 i «. Condlt, 18 N. J. Eq. 358; Batty v. Snook, 5 
 
 Fitch ». Pitch, 8 Pick. 480; Vailck «. Edwards, Mich. 831; Thompson v. DaTsnport, 1 Wash. 
 
 IHoflf. Oh. 382; Power's Appeal, 63 Pa. St. 443; (Va.) 125; Eaton «. Whiting, 3 Pick. 484; Davis 
 
 Davidson v. Little, 22 Id. 245, 258; Mastin v, v. Stonestreet, 4Ind. 101; Wynkoop v. Cowing, 
 
 Marlow, 65 N. C. 695; Butler v. Haskell, 4 21 111. 570; Robinson v. Farrelly, 16 Ala. 472; 
 
 Desau. 651; Eoberts V. Tunstall, 4 Hare, 257; Cherry ». Bowen, 4Sneea, 415; Lee ». Evans, S 
 
 Bromley ». Smith, 26 Beav. 644; Jenkins «. Oal. 424; Pierce «. Eobinson, 13 CaJ. 125; Kogan 
 
 Pye, 12 Pet. 241; Larrabee v. Larrabee, 34 Me. v. Walker, 1 Wis. 527; Plate v. Roe, 14 Wis. 453; 
 
 477; Poom. Hazleton, 15 N. H. 564; Boynton Willetts». Buigess, 34 111. 494; Seton u. Slade, 
 
 V. Hubbard, 7 Mass. 112; Trull ». Eastman, 3 7Ves. 265; Newcomb v. Bonham, 1 Vem. 7; 
 
 Met. 121; Davis V. Marlborough, 3 Sw. 108, 154; Co. Lit 205 a. n. 96; 1 Spence Kq. Jur. 693; 
 
 Edwards v. Browne, S Coll. 100; King v. Miami Ex. Co. V. V. S. Bank, Wright, (Ohio) 
 
 Hamlet, 4 Sim. 223; 8 My. & K. 456; 3 Cl. & Fin. 253; Toule v. Richards, 1 N. J. Eq. 534; MoClui- 
 
 218; Millers. Cook, L. R. 10 Eq. 641; Perfects. kan». Thompson, 69 Pa. St. 305. 
 
 Lane, 3DeG. F. & J. 369; Edwards V. Burt, 2 * Russell v. Southard, 13 How. (U. S.) 139; 
 
 De G. M. & G. 55; Savery v. King, 5 H. L. Gas. Trull v. Skinner, 17 Pick. 213; Palis v. Conway 
 
 627;Earl of Aylesford®. Morris, L. R. 8 Oh. 484. Ins. Co., 7 Allen, 49; Harrison ». Trustees, 1* 
 
 1 Blackwllder ». Loveless, 21 Ala. 371;Neilson Mass. 456; Rice v. Bird, 4 Pick. 350; Patterson 
 ». McDonald, 6 Johns. Ch. 201 ; French ». Shoe- ». Teaton, 47 Me. 308; Villa v, Rodriguez iZ 
 maker, 14 Wall. 314; and see 2 Eq. Lead. Cas. Wall. 383; Lawrence v. Stratton, 6 Gush. 163, 
 1230 (4th Am. ed.) ; Johnson v. Nott, 1 Vem. 271 ; Hyndman v. Hyndman, 19 Vt. 9 ; Holdridge v. 
 Williams v. Bayley, L. R. 1 H. L. 200, 818; Gillespie, 2 Johns. Ch. 30; Masons. Grant, 21 
 Farmer ®. Farmer, 1 H. L. Cas. 784; Hetrlck's Me. 160; Maxfield v. Patchen, 29 111. 42; Car- 
 Appeal, 59 Pa. St. 477. penter v. Carpenter, 70 111. 457; SheokeU » 
 
 2 Wing V. Cooper, 37 Vt. 181 ; Clark v. Henry, Hopkins, 2 Md. Ch. 89; Marshall v. Stewart, IT 
 2 Cow. 324; Henry v. Davis, 7 Johns. Ch. 40; Ohio, 356; Wynkoop v. Cowing, 21 HI. 570; 
 Waters v. Randall, 6 Meto. 479; Bailey v. Baugher v. Merryman, 32 Md. 185; Locke v. 
 Bailey, 5 Gray, 505; Vanderhaize v. Haques, 13 Palmer, 86 Ala. 312; ShubeiJ; v. Stanley, 52 1-nd' 
 
 ^ N. J. 244; Oldenbaugh v. Bradford, 67 Pa. St. 46; Waters v. Randall, 6 Mete. 479; Vennum v. 
 
 104; Rankin v. Mortimere, 7 Watts, 372; Baxter Baboook, 13 Iowa, 194; Green*. Butler, 26 Gal! 
 
 V. Child, 39 Me. 110; Johnston v. Gray, 16 Serg. 602; Henry v. Davis, 7 Johns. Ch. 40; Mills v 
 
 & R. 361; Murphy v. Galley, 1 Allen, 107; Clerk Mills, 26 Conn. 213; Wright v. Bates, 13 Vt S4l" 
 
 276 ■ " 
 
CH. XrU.] CONSTEUCirVE FEAUD. § 232 
 
 tion, or unfairness of the transaction, considered a just ground for the 
 intervention of equity for setting aside and cancelling such a contract. ' 
 Sailors have also been considered as a class peculiarly incapable of 
 taking care of themselves, and peculiarly liable to imposition. The 
 fact that a contract of an inequitable character has been made vrith a 
 saUor will always be a ground for the intervention of a court of equity. 
 The cases cited in support of this doctrine are altogether from the 
 English courts.^ And while the absence of American cases may sup- 
 port the suspicion that the rule is otherwise in America, yet probably 
 the real explanation is, that the necessity for equitable intervention 
 for the protection of sailors has been removed by the stringent regula- 
 tions of Congress for their protection. 
 
 Expectant heirs and reversioners are considered as being peculiarly 
 susceptible to imposition, fraud, and undue influence; and particu- 
 larly in regard to contracts made by them for the purpose of securing 
 the cash value of such expectant interests. Courts of equity scruti- 
 nize all such agreements very closely, and will afford affirmative relief 
 in the way of cancellation of such contract or lease, whenever it is 
 shown to be unfair and the result of taking an undue advantage of the 
 mental condition and pecuniary distress and needs of the expectant 
 heir. The courts rest the claim for relief upon different grounds: 
 some on the ground of undue influence exercised over the expectant 
 heir or reversioner; while in other cases, equity will consider the 
 transaction to be a constructive fraud upon the ancestor or tenant in 
 possession. But whatever may be the correct explanation of the prin- 
 ciple underlying these cases, the rule is very well settled, that where an 
 inequitable bargain is the result of the transaction, a court will avoid it 
 by an order for cancellation of the contract.' In some of the cases, 
 this doctrine of relief to an impecunious expectant heir or reversioner is 
 either rejected altogether or adopted with stricter hmitations.* B ut in 
 all cases of contracts with expectant heirs and reversioners, where a 
 court of equity will grant relief on the ground of undue influence or 
 constructive fraud, it will be granted only upon the condition, that the 
 money actually paid to such heir or reversioner shall first be refunded. ° 
 
 1 Harrison v. Guest, 6De G. M. A G. 424; 8 H. wards, 1 HofF. Ch. 383; Power's Appeal, 63 Pa. 
 L. Gas. 481 ; Curson v. Belworthy , 3 H. L. Cas. St. 443 j Davidson v. Little, 23 Id. 245, 852 ; Mastin 
 742; Pratt v. Barker, 1 Sim. 1; Hovenden v. V. Mariow, 85 N. C. 695; Butler v. Haskell, 4 
 Lord Annesley, 2 Sch. & Lef. 607, 639; Cooke v. Desau. 651; Roberts «. Tunstall, 4 Hare, 357; 
 Lamotte, 15 Beav. 234; Covreev. Cornell, 75 N. Bromley ». Smith, 86 Beav. 644; Jenkins ». Pye, 
 T. 91, 99, 100; Lightfootu. Heron, 3 T. & C. 586; 25 Pet. 241; Larrabee v. Larrabee, 34 Me. 477; 
 Harrison v. Guest, 6 De G. M. &, G. 424j 8 H. L. Poor v. Hazleton, 15 N. H. 564; Boynton ». Hub- 
 Cas. 481; Lyons v. Van Riper, 26 N. J. Eq. 337; bard, 7 Mass. 112; Trull •». Eastman, 3 Met. 121; 
 Connelly v. Fisher, 3 Tenn. Ch. 382; Hawkins Nlmmo v. Davis, 7 Tex. 26; Needles v. Needles, 
 ^.Hawkins, 50 Cal. 558; Fisher®. Leser, 69 111. 7 Ohio St. 432; Lowry v. Spear, 7 Bush. 451; 
 394; Gasque v. Small, 2 Strobh. Eq. 72; Baker v. Meriweather v. Herran, 8 B. Mon. 162. 
 
 Monk, 4 De G. J. & S. 388; Clark v. Malpas, 4 * Mayo v. Carrington, 19 Gratt. 74; Cribbins v. 
 
 De G. F. & J-. 401 . Markwood, 13 Id. 495 ; Parmelee V. Cameron, 41 
 
 2 How V. Weldon, 2 Ves. Sen. 516, 518 ; Taylour N. Y. 392. 
 
 ti. Rochfort, Id. 281; Baldwin ». Rochford, 1 'Croft ». Graham, 2 De G. J. & S. 155; Boyn- 
 
 WIls. 229. ton v. Hubbard, 7 Mass. 112; Boyd ». Dunlap, 1 
 
 8 Fitch V. Fitch, 8 Pick, 480; Varick v. Ed- Johns. Ch. 478; Williams v. Savage Man. Co 
 
 277 
 
§ 233 EQUITY JURISPKUDENCE. [CH. XHI. 
 
 § 233. Constmctire fraud implied from confidential and fiduci- 
 ary relations between parties. — In the examples of undue influence, 
 given in the. preceding paragraph, the undue influence or advantage 
 has been obtained from the actual exercise of some superior influence 
 which is shown to exist as a fact, and from which constructive fraud 
 is inferred, if actual fraud is not established. In the present case, the 
 undue influence is itself presumed to exist on account of the fiduciary 
 and confidential relation existing between the parties affected by the 
 transaction, and the consequent relative inequality of the parties in 
 respect to the possession of an independent will and judgment. That 
 is, the fiduciary relation itself furnishes to the party, in whom the con- 
 fidence is reposed, an opportunity to obtain an undue advantage and 
 influence over the other in transactions involving the repose of confi- 
 dence, and producing results disadvantageous to the beneficiary, or the 
 party reposing confidence, similar to those which follow actual fraud. 
 In consequence of the great opportunity in such cases to practice actual 
 fraud, the court applies to sijch cases the doctrine of constructive fraud, 
 and throws upon the party confided in, the burden of proving good 
 faith and the absence of fraud. The cases of constructive fraud aris- 
 ing by implication, may be divided into two classes: The first class 
 includes aU, those cases in which the party confided in, in his fiduciary 
 capacity, and while performing the duties of a fiduciary, obtains some 
 profit or benefit, or deals with himself to his own benefit, without 
 any knowledge of the fact being communicated to the beneficiary or 
 party reposing confidence. The second class of cases includes all simi- 
 lar transactions or dealings of such fiduciary with the beneficiary and 
 the subject-matter of their agreement or contract, with the knowledge 
 of such beneficiary and his presumed consent. Whether the presump- 
 tion of constructive fraud exists in any particular case, depends upoa 
 its falling within one or the other of these classes. 
 
 A trustee or other fiduciary is not permitted, in the perform- 
 ance of his confidential duties and the administration of property 
 placed in his charge, ever to buy such property, where he is 
 charged with its sale, or to sell his own property to himself as trustee, 
 where he is charged with the duty of buying property for the trust 
 estate. Such purchases and sales, when made without the consent or 
 intervention of the beneficiary, will be voidable at the instance of such 
 beneficiary; the trustee in such cases is charged with constructiv& 
 fraud. This rule is not only applied to cases of ordinary and formal 
 trusts,' but it is likewise applied to similar transactions between prin- 
 
 Md. Ch. 306; 3 Id. 418j but see Small V. Johnes, Mo. 607; Tracy v. Colby, S5 Cal. 67; Tracy v. 
 
 6 Watts & S. 122; Seylart). Carson, 69 Pa. St. 81; Craig, Id. 91; Fox v. Mackreth, 1 Eq. Lead.' 
 
 Tyler v. Yates, L. R. 11 Eq. 265; 6 Ch. 665. ' Oas. 188, 212, 237 (4th Am. ed.) ; Lewis' v. Hill- 
 
 » Jewett ti. Miller, 10 N. Y. 402; Vau Epps v. man, 3 H. L. Gas. 607; Wakeman v. Doddj 27 N. 
 
 Van Epps, 9 Paige, 237; Fisk v. Sarber, 6 Watts J. Eq. 564; McGinn v. Shaeflfer, 7 Watts', 412| 
 
 & S. 18; Michoud v. Girod, 4 How. (U. S.) 503; Mason v. Martin, 4 Md. 124; Waason v. English' 
 
 Davoue v. Panning, 2 Johns. Ch. 252; Bellamy 13 Mo. 176; Ringgold v. Ringgold, 1 Har. & G. 11 - 
 
 V. Bellamy, 6 Plor. 62; Roberts v. Moscley, 64 Brotherso. Brothers, Tired. Eq. 150; MoCantss' 
 
 278 
 
CH. XIII.] 
 
 CONSTEUCTIVE FRAUD. 
 
 § 233 
 
 cipal and agent/ attorneys and clients/ guardians and wards. ^ Where 
 trust property is sold to and bought by the beneficiary, the sale is 
 equally voidable, whether it be made privately or at auction.* The 
 sale is also clearly invalid whether the purchase or sale be made by 
 
 Bee, 1 MoCord Eq. 383; James ii. James, 65 Ala. 
 oS5; Naroissa v. Wathan, 2 B. Mon. 241 j Higglns 
 V. Curtiss, 88111. 28; Bush v. Sherman, 80Id. 160; 
 Munu V. Buigess, 70 Id. 604; Schwartz v. Wen- 
 dell, Walker Ch. 267; Fulton v. Whitney, 66 
 N. Y. 548; Star Fire Ins. Co. ». Palmer, 41 N. 
 Y. Supr. Ct. 267; Woodruff v. Boyden, 3Abb. 
 N. C. 29; De Caters v. Le Bay de Chaumont, 3 
 Paige, 178; Child v. Brace, 4 Id. 309; Campbell 
 V. Johnston, ISandf. Ch. 148; Cram». Mitchell, 
 Id. 251 ; Cumberland Coal Co. v. Sherman, 30 
 Barb. 553; Johnson v. Bennett, 39 Id. 237; 
 Romaine v. Hendricksou, 27 N. J. Eq. 162; 
 Tracy v. Colby, 56 CaL 67; Tracy ». Craig. Id. 
 91; Scott V. Umbarger, 41 Id. 410; Union Slate 
 Co. V. Til ton, 69 Me. 244; Connolly v. Ham- 
 mond, 51 Tex. 635; Paine v. Irwin, 16 Hun, 390; 
 Mlchoud V. Girod, 4 How. (U. S.) 503 ; Steven v. 
 Beall, 32 Wall. 329; Wormley v. Wormley, 8 
 Wheat. 421; Caldwell v. Taggart, 4 Pet. 190; 
 Freeman v. Harwood, 44 Me. 195; Dyert). Shnrt- 
 leff, 113 Mass. 165; Brown v. Cowell, 116 Id. 
 461; Smith v. Frost, 79 N. Y. 65. 
 
 ' Rogers ». Lookett, 28 Ark. 290; Gmmley«. 
 Webb, 44 Mo. 444; Bakers. Whiting, 1 Story, 
 818, 341; Caldwell i>. Sigoumey, 19 Conn. 37; 
 Banks?). Judah, 8 Id. 145; Marshall v. Joy, 17 
 Vt. 546; Ingle v. Hartman, 37 Iowa, 274; Scott 
 V. Freeland, 7 Sm. & Mar. 409; Rubidoex v. 
 Parks, 48 Id. 215; Hardenbergh v. Bacon, 33 Id. 
 356, 377; Hunsacker v. Sturgls, 89 Id. 142, 145; 
 Armstrong v. Elliott, 29 Mich. 485; Ruckman 
 V. Bergholz, 37 N. J. L. 437; Tynes v. Grimstead, 
 1 Tenn. Ch. 508; Barzizas. Story, 39 Tex. 354; 
 Dobson V. Eaoey, 8 N. Y. 216; Bank of Orleans 
 V. Torrey, 7 Hill, 260; 9 Paige, 649, 662; Briden- 
 backers, Lowell, 32 Barb. 9; Davoue ». Fan- 
 ning, 2 Johns. Ch. 252; Van Epps v. Van Epps, 
 9 Paige, 337; Hughes ». Washington, 72 111. 84; 
 TewksburyD. Spmanoe, 75 /<2. 187; Eldridget). 
 Walkers, 60 Id. 230; Jeffries v. Wiester, 2 Sawy. 
 135; Wilbur tJ. Lynde, 49Cal.290; Neuendorff ». 
 World, Ac. Ins. Co., 69 N. Y. 389; Bain v. Brown, 
 56 Jd. 285; Taussig v. Hart, 49 Id. 301 ; Bennett v. 
 Austin, 81 Id. 308; 34 Barb. 276; Gardner v. 
 Ogden, 28 Id. 327; Moore v. Moore, 5 Id. 256; 
 Conkey v. Bond, 36 N. Y.427; Taussig v. Hart, 
 58 N. Y. 425; Ely v. Hanford, 65 111. 267; Beal 
 V. McKieman, 6 La. (O. S.) 407; Keighler v. 
 Sayage Mfg. Co., 13 Md. 383; s. i;., 71 Am. 
 Dec. 600; Bischoffsheim v. Baltzer, 20 Fed. 
 Rep. 890; Ruckman u. Bergholz, 37 N. J. 
 L. 437; Parker e. Vose, 45 Me. 54; White v. 
 Ward, 26 Ark. 445; Clute v. Barron, 2 Mich. 
 193; Ames v. Port Huron, Ac. Co., 11 Mich. 146; 
 Scott V. Mann, 36 Tex. 157; Ingle v. Hartmann, 
 37Iowa, 274; Marsh r. Whltmore, 21 Wall. (U. 
 S.) 178; Kerfoot v. Hyman, 52 111. 512; Copeland 
 V. Mercantile Ins. Co., 6 Pick. (Mass.) 198; 
 Remick v. Butterfleld, 31 N. H. 70; Martin v. 
 Moulton, 8 N. H. 504 ; Bank v. Farmers' L. &, T. 
 
 Co., 16 Wis. 609; Cook 11. Berlin Woolen Mills 
 Co., 43 Wis. 433; Stewart ». Mather, 32 Wis. 844; 
 Taussig t). Hart, 58 N. Y. 425; Bain v. Brown, 
 56 N. Y. 885; Cumberland Coal Co. v. Sherman, 
 30 Barb. (N. Y.) 553. 
 
 "In re Holmes' Estate, 3 Giff. 337, 345; Wood 
 ». Downes, 18 Ves. 120; Greenfield's Estate, 2 
 Harris, 489, 506; and see Berrien v. McLane, 1 
 Hoff. Ch. 421 ; Brock v. Barnes, 40 Barb. 521 ; 
 Nesbit V. Lockman, 34 N. Y. 167; see, also, 
 Broun «. Kennedy, 4 De G. J. & S. 217; Lady 
 Ormond v. Hutchinson, 13 Ves. 47; Wells v. 
 Middleton, 1 Cox, 112; Montesquieu v. Sandys, 
 1 Bach. & B. 312; Harris v. Tremenhere, 15 
 Ves. 40. 
 
 ' Gallatian i!. Brwin, 1 Hopk. 48; White v. 
 Parker, 8 Barb. 48; Henrioid w. Neusbaumer, 
 69 Mo. 96; Scott u. Freeland, 7 Sm. & Mar. 409; 
 Sullivan v. Blackwell, 28 Miss. 737; Meek v. 
 Perry, 36 Id. 190: Wright v. Arnold, 14 B. Mon. 
 513; Hanna v. Spotts, 5 Id. 362; Blackmore v. 
 Shelby 8 Humph. 439; Williams v. Powell, 1 
 Ired. Eq. 460; Love v. Lea, 2 Ired. Eq. 687; 
 Waller i;. Armistead 2 Leigh, 11 ; and see Smith. 
 V. Davis, 49 Md. 470; Walker v. Walker, 101 
 Mass. 169; Gallatin v. Cunningham, 8 Cow.. 
 361; Case of Hampton, 17 S. & E. (Pa.) 144 1 
 Asher v. State, 88 Ind. 215; Bourne v. Maybin, 3: 
 Woods. (C. C.) 724; Spelman v. Terry, 74 N. Y.. 
 448; Lane v. Taylor, 40 Ind. 495; Hardy v.. 
 Citizens' Bank, 61 N. H. 34; Villalonga v. Hicks, 
 13 S. Car. 163; Hunter v. Lawrence, 11 Qratt. 
 (Va.) Ill; Burwell v. Burwell. 78 Va. 574;, 
 Wohlscheld v. Bergrath, 46 Mich. 46. 
 
 * Trustees! Adams v. Sworder, 2 De G. J. & S. 
 44; Sandei30n v. Walker, 13 Ves. 601 ; Jewett v- 
 Miller, 10 N. Y. 492; Van Epps v. Van Epps, 9 
 Paige, 237; Fisk ». Sarber, 6 Watts <fe S. 18; Ex 
 parte Bennett, 10 Ves. 381, 393; Roberts^. Mose- 
 ley, 64 Mo. 507; Tracy v. Colby, 55 Cal. 67; 
 Tracy u. Craig, Id. 91; Michoud v. Girod, 4 
 How. (D. S.) 503; Davoue v. Fanning, 2 Johns. 
 Ch. 252; Bellamy v. Bellamy, 6 Fla. 62. Guar- 
 dians; Redd V. Jones, 30 Gratt. 123; Sanders v. 
 Forgasson, 59 Tenn. 249; Green v. Green, 14 
 N. Y. Sup. Ct. 492; Walker u. Walker, 101 Mass. 
 169; Bland v. Lloyd, 24 La. An. 603; but see Doe 
 ». Hassell, 68 N. C. 213; Lee v. Howell, 69 Td. 
 800; Small v. Small, 74 N. Car. 16; Blackmore 
 V. Shelby, 8 Humph. (Tenn.) 439; Wyman v. 
 Hooper, 2 Gray, (Mass.) 141; Patton ». Thomp- 
 son, 2 Jones Eq. (N. Car.) 285; Bostwick v. At- 
 kins, 3 N. Y. 53; Beal v. Harmon, 38 Mo. 
 435; Brockett v. Richardson, 61 Miss. 766; 
 Lefever v. Laraway, 22 Barb. (N. Y.) 168; Chor- 
 penning'B Appeal, 32 Pa. St. 315; Hoskins v. 
 Wilson, 4 Dev. & B. (N. Car.) 245. Attorneys! 
 Phillips V. Belding, 2 Edw. Ch. 15; Reed v. 
 Warner, 5 Paige, 650; Casey v. Casey, 14 111. 412; 
 Sypher v. McHenry, 18 Iowa, 232; Church v. 
 Mar. Ins. Co., 1 Mason, 341, 344; Baker v. Whit- 
 
 279 
 
§ 233 
 
 EQUITY JUEISPRUDENCE. 
 
 [CH. XUI. 
 
 such trustee, either directly or indirectly through other parties.' The 
 trustee, agent, attorney, and guardian are also prohibited from making 
 any profits out of transactions conducted by them in their fiduciary 
 capacity, without the consent of the persons for whom they are acting. 
 Any attempt on their part to make an unauthorized profit out of the 
 transaction, will support the presumption of constructive fraud, and 
 the beneficiary can compel a surrender of such ill-gotten gains. ^ In 
 all of these cases, actual fraud or undue influence need not be proven 
 as a ground for avoiding the prohibited transaction. The constructive 
 fraud, which furnishes the justification for the avoidance of the sale, 
 or purchase, or the recovery of the profits, is a conclusive presumption, 
 and does not rest upon any intentional or actual fraud. ' And the right 
 of the beneficiary, in the several cases mentioned, to avoid such sale or 
 purchase, on the ground of constructive fraud, can only be defeated by 
 the confirmation or acquiescence in such transaction of the beneficiary.* 
 Where transactions of this sort, resulting in benefits to the fiduciary, 
 are entered into by him with the knowledge and consent of the bene- 
 ficiary, the transaction is still not free from suspicion; for the existence 
 
 Ing, 3 Sumn. 475; Pacific E. E. v. Eetchum, 
 101 U. S. S89j Page v. Stubbs, 39 Iowa, 537; 
 Barrett ii. Bamber, 9 Phila. 302; In re Taylor 
 Orphan Asylum, 38 Wis. 534; Taylor v. Board- 
 man, 24 Mich. S87; Warren v, HawJiins, 49 
 Mo. 137; Banks v. Judah, 8 Conn. 145, 146, 
 147; Manning V. Hayden, 5 Sawy. 360; Bowers 
 -». Virden, 56 Miss. 595; Baker ». Humphreys, 
 101 U. S. 494; Henry v. Eaiman, 35 Pa. St. 384; 
 Zeiglem. Hughes, 55 111. 888; Harper v. Perry, 
 28 Iowa, 57; Wheeler v. Willard, 44 Vt. 640; 
 <3ase V. Carroll, 35 N. T. 385. 
 
 1 Adams v. Sworder, 3 De G. J. &,. S. 44; 
 ■Grover v. Hugell, 3 Euss. 428; Sanderson v. 
 Wanker, 13 Ves. 601; Sx parte Bennett, 10 Id. 
 381, 393; Campbell v. Walker, bid. 678. 
 
 2 Trustees: Clarke v. Devaux, 1 S. C. ITS, 184; 
 Smith V. Townshend, 27 Md. 368; Spencer & 
 Newbold's Appeal, 80 Pa. St. 317, 332; Parshall's 
 Appeal, 65 Id. 824 ; Wistar's Appeal, 54 7(«. 60 ; Dil- 
 ler». Brubacker, 52 Id. 498; Lloyd v. Attwood, 3 
 De G. & J. 614; Hamilton u. Wright, 901. & Pin. 
 11, 133-185; Tatum v. McLellan, 50 Miss. 1. 
 Agents: Gillenwaters v. Miller, 49 Miss. 150; 
 Taussig V. Hart, 49 N. Y. 301; Grumley v. 
 Webb, 44 Mo. 444; Leake v. Sutherland, 35 
 Ark. 319; Bunkers. Miles, 30 Me. 431; Church 
 ■V. sterling, 16 Conn. 388; Eeed v. Warner, 5 
 Paige, 650; Bruce v. Davenport, 36 Barb. 349; 
 Gardner v. Ogden, 32 N. Y. 337; Myer's Appeal, 
 ■2 Barr. 463; Keighler v. Savage Man. Co., 12 Md. 
 383; Kanadaji. North, 14M0.615; Knabe v. Ter- 
 not, 16 La. An. 13; Dodd v. Wakeman, 26 N. J. 
 Eq. 484 ; Coursin's Appeal, 79 Pa. St. 220; Wilson 
 V. Wilson, 4 Abb. App. Dee. 621 ; Clark v. Ander- 
 son, 10 Bush, (Ky.) 99; Krutz v. Fisher, 8 Kans. 
 ■90; Moinett v. Days, 57 Tenn. 431; Kent v. 
 Priest, 86 Mo. 476; Northern Pac. E. Co. u. 
 Kindred, 14 Fed. Eep. 77; Leake v. Suther- 
 land, 25 Ark. 219; Ehea v. Puryear, 36 Ark. 344; 
 
 White V. Ward, 26 Ark. 445; Greenfield Sayings 
 Bank v. Simons, 133 Mass. 415; Whelan v. Mc- 
 Creary, 64 Ala, 319; Mason v. Bauman, 68 111. 
 76; Byrd v. Hughes, 84 111. 174; Ely v. Hanford, 
 65 111. 367; Judevine v. Hardwiok, 49 Vt. 180; 
 Campbell v. Penna. Life Ins. Co. , 2 Whart. (Pa.) 
 53; Bartholomew v. Leach, 7 Watts, (Pa.) 472; 
 Morris' Appeal, 71 Pa.' St. 106; Jeffries v. 
 Wiester, 8 Sawy. (U. S.) 135; Stone v. Weiser, 
 24 Iowa, 434; Smith », Stephenson, 45 Iowa, 
 645; Bell v. Bell, 3 W. Va. 183; Moore v. Man- 
 dlebaum, 8 Mich. 433; Segar v. Edwards, 11 
 Leigh, (Va.) 313; Kerfoot v. Hyman, 53 111. 513; 
 Barton v. Moss, 32111. 50; Nat. Bank v. Seward, 
 106 Ind. 261; Lafferty v. Jelly, 22 Ind. 471; 
 Ackenburgh v. McCool, 36 Ind. 473; Love v. 
 Hoss, 62 Ind. 255; Dutton v. Willner, 53 N. Y. 
 313; Wilson v. Wilson, 4 Abb. App. Dec. (N. Y.) 
 681; Bain v. Brown, 56 N. Y. 385; Porter v. 
 Woodruff, 36 N. J. Eq. 174; Dodd v. Wakeman, 
 36 N. J. Eq. 484; Oliver v. Piatt, 3 How. (U. S.) 
 333. Attorneys: Smith v. Brotherliue, 63 Pa. 
 St. 461; Wheelers. Willard, 44 Vt. 640; Porter 
 V. Peokham, 44 Cal. 204; In re Taylor Orphan- 
 Asylum, 38 Wis. 534; Bowers v. Virden, 56 
 Miss. 595; Wright v. Walker, 30 Ark. 44. 
 
 sEuckman v. Bergholz. 37 N. J. L. 437; 
 Porters. Woodruff, 36 N. J. Eq. 174; Peokham 
 Iron Co. V. Harper, 41 Ohio St. 100; Scott v. Free- 
 land, 15 Miss, 409; s. o., 45 Am. Deo. 310; Brothers 
 V. Brothera, 7 Ired. Eq. (N. Car.) 150; Patton v. 
 Thompson, 2 Jones Eq. (N. Car.) 285; Mason v. 
 Martin, 4 Md. 124; Martin v. Martin, 12 Ind. 
 366; Newoomb v. Brooks, 16 W. Va, 38. 
 
 4 Adams ». Sayre, 76 Ala. B09j Eastern Bank 
 V. Taylor, 41 Ala. 93; Basaett v. Brown, 105 
 Mass. 651; Wadsworth v. Gay, 118 Mass. 44; 
 Uhlich V. Muhlike, 61 111. 499; Leach v. Fowler, 
 82 Ark. 143; Greenwood v. Spring, 54 Barb. (N. 
 Y.) 375j Marsh v. Whltmore,81 Wall, (U. S.) 178. 
 
 280 
 
CH. Xin.] CONSTRUCTIVE FRAUD. § 233 
 
 of a confidential relation between the two parties gives rise to the pre- 
 sumption of the existence of an undue influence of the fiduciary over 
 the beneficiary, which is more or less difficult to overcome. The 
 existence of this presumption makes it impossible, as long as it con- 
 tinues, for such transaction to be treated as valid and binding upon 
 the beneficiary; in other words, the confidential relation and the pre- 
 sumption of undue influence arising therefrom forces upon the fiduciary 
 the burden of proving that the transaction was not only made with the 
 consent of the beneficiary, but that he himself acted in the utmost 
 good faith and made disclosures to the beneficiary of all information 
 that was necessary or material to the exercise of an intelligent and 
 independent judgment in the transaction; and that he concealed nothing 
 from such beneficiary which would disclose to him anything of the 
 subject-matter of the transaction which he otherwise would not know 
 of. Where the court is satisfied, from the full presentation of the 
 facts of the particular case, that good faith and honest dealings have 
 been scrupulously observed, and that as a fact no advantage was taken 
 of the beneficiary, then the contract will be held good. But where 
 any suspicion of undue advantage still lingers about the transaction, the 
 court wiU avoid it at the instance of the beneficiary. The strength of 
 this presumption of undue influence and constructive fraud, in cases of 
 this kind, will vary according to the character of the relation existing 
 between the two parties, and their relative inequality as to independ- 
 ence of judgment, and the existence of similar opportunities for 
 the exercise of undue influence over the beneficiary. Thus, in the 
 case of transactions of this sort between guardians and their wards, 
 made while the confidential relation exists, the transaction is almost 
 absolutely void on account of the comparative mental helplessness of 
 the ward, and the ordinarily extraordinary influence which the 
 guardian has over his ward. And in these cases, it is hardly likely 
 that a transaction, made between such guardian and ward, would ever 
 be considered valid and binding upon the ward, unless it was plainly 
 to the advantage of such ward to confirm the transaction, or third 
 parties were requested to intervene, and did so.^ In the case of 
 trustees and attorneys, the transactions are open to an inquiry into 
 the fact of good or bad faith, and the strength of the presumption of 
 constructive fraud will also vary with the personality of the individuals 
 in the particular case.^ In the case of agents, the exercise of undue 
 
 iGallatianB.Erwm,lHopk.Ch. 48; White o. Cow. 361; Mann „. McDonald, 10 Humph. 
 
 Parker, 8 Barb. 48, Hennoid ». Neusbaumet, (Yenn.)275. 
 
 69 Mo, 96; Scott v. Freeland, 7 Sm. &. Mar. 409, ^ Trustees: Spencer & Newbold's Appeal, 80 
 
 Sullivan v. Blackwell, 28 Miss. 737; Meek v. Pa. St. 817; Vlllines ». Norfleet,2 Dev.Eq. 167; 
 
 Perry, 36 Id. 190; Wright v. Arnold, 14 B. Mon. Bryan v. Duncan, 11 Ga. 67; Kennedy v. Ken- 
 
 513, Hannaj;. Spotts, 5 Id. 362, Blackwell v. nedy, 2 Ala. 571; Richardson v. Spencer, 18 B. 
 
 She'lby, 8 Humph. 439, Williams v. Powell, 1 Mon. 450; Marshall v. Stephens, 8 Humph. 
 
 Ired. Eq. 460, Love v. Lea, 2 Ired. Eq. 627; 159, Sallee v. Chandler, 26 Mo. 124; Downes 
 
 Waller v. Armistead, 2 Leigh, 11 j and see v. Grazebrook, 3 Meriv. 200, 208; Knight v. 
 
 Smith B. Davis, 49 Md. 470; Walker ». Walker, Majoribanks, 2 Macn. & G. 10; Denton v. 
 
 101 Mass 169; Gallatain ». Cunningham, 8 Donner, 23 Beav. 285, Aylifife v. Murray, 2 
 
 281. 
 
§ 233 
 
 EQUITY JUKISPRUDENCE. 
 
 [CH. XIII. 
 
 influence over the principal is comparatively a rare occurrence, where 
 such agent does not take the character of a trustee or guardian, or 
 where he is not an attorney at law; and hence, in the case of ordinary 
 agencies, it is not difficult for the agent to show good faith and a full 
 disclosure to <the principal of all information which is material to the 
 exercise of an independent judgment in the transaction.' 
 
 The 'validity of transactions made by the fiduciary in respect to the 
 subject-matter of the trust or agency, applies not only when the 
 single agent or trustee buys or sells to himself, but likewise where 
 one of two agents or trustees buys from or sells to the other any part 
 of the trust property.'' 
 
 The fiduciary relation need not be a formal one or recognized by 
 law, as involving or creating binding obligations between the parties, 
 in order that the doctrine of constructive fraud may be applied to 
 transactions between the two parties. If, as a matter of fact, a confi- 
 dential relation exists between the two parties, it is sufficient; as, for 
 example, where one stands in loco jpwrentis to another: * or as a 
 guardian, although not recognized by law as such; as where one lives 
 with a family who took care of him and performed the ordinary duties 
 of a guardian to him.* 
 
 Atk. 58. Mtorneys! Porter v. Parmly, 39 N. Y. 
 Supr. Ct. 219; Marsii v. Whitmore, 21 Wall, 
 178; Jenkins ». Einstein, 3 Bias. 128; Brock v. 
 Bames, 40 Barb. 5S1; Smith v. Brother! ine, 62 
 Pa. St. 461; Miles v. Ervin, 1 MoCord Bq. 524; 
 Brown e). Bulkley, 1 McCarter, 451 ; White d. 
 Whaley, 3 Lans. 227; 40 How. Pr. 353; Mott v. 
 Harrington, 12 Vt. 199; Merritt o. Lambert, 10 
 Paige, 352; 2 Denio, 607; Howell v. Ransom, 11 
 Paige, 538; Wendell v. Van Rensselaer, 1 
 Johns. Ch. 344; Haight «. Moore, 37 N. Y. Supr. 
 Ct. 161; McMahan v. Smith, 6 Heisk. 167; Trot- 
 ter v. Smith, 59 111. 240; Mason v. Ring, 3 Abb. 
 App. Dec. 210; Zeigler v. Hughes, 55 111. 288; 
 Payne v. Avery, 21 Mich. 524; Ryan v. Ashton, 
 43 Iowa, 365; Broyles ». Arnold, U Heisk. 484; 
 Baker v. Humphrey, 11 Otto, 494; Poison v. 
 Young, 37 Iowa, 196; Dunn o. Record, 63 Me. 
 17; Roman D.Mali, 42 Md. 513; Kisling i>. Shaw, 
 33 Cal. 425; Yeamans v. James, 27 Kans. 195; 
 Rogers v. Marshall, 3 McOrary, (U. S.) 76; Rog- 
 ers V. Lee Mining Co., 9 Fed. Rep. 721; Lane v. 
 Black, 21 W. Va. 617. 
 
 » Cleyeland Ins. Co. ». Reed, 1 Biss. 180; Mc- 
 Mahon v. McGraw, 26 Wis. 614; White ». Ward, 
 26 Ark. 445; Gillenwaters Ji. Miller, 49 Miss. 150; 
 Weeks ». Downing, 30 Mich. 4; Uhllch v. Mnh- 
 Ike, 61 111. 499; Wilson ». Wilson, 4 Abb. App. 
 Dec. 621; Young v. Hughes, 32 N. J. Eq. 372; 
 Condlt V. Blackwell, 22 Id. 481; Comstock ». 
 Comstock, 57 Barb. 453; Norris ». Tayloe, 49 111. 
 17; Green «. Winter, 1 Johns. Ch. 26,60; Brown 
 V. Post, 1 Hun, 303; Byrd ». Hughes, 84 III. 174; 
 Jeffries v. Wiester, 2 Sawy. 135; Wilbur v. 
 Lynde, 49 Cal. 290; Ingle v. Hartman, 37 Iowa, 
 274;Rubidoex B. Parks, 48 Cal. 215; Walker ». 
 Carrington, 74 111. 446 1 Young v. Hughes, 32 N. 
 
 282 
 
 J. Eq. 372; Lewis v. Hillman, 3 H. L. Cas. 607 f 
 Wilson V. Wilson, 4 Abb. App. Deo. 621; Par- 
 nam v. Brooks, 9 Pick. 212; Marshall v. Joy, 17 
 Vt. 546; Moore v. Mandlebaum, 8 Mich. 433; 
 Fisher's Appeal, 34 Pa. St. 29; Leake v. Suther- 
 land, 25 Ark. 219; White v. Ward, 26 Ark. 445; 
 Grumley v. Webb, 44 Mo. 444; Gaines v. Al- 
 len, 58 Mo. 537; Provost «. Gratz, 6 Wheat. 
 (U. S.) 481; Baker ». Whiting, 3 Sumner, 
 (U. S.) 475; Comstock «. Ames, 1 Abb. App. 
 Deo. (N. Y.) 411 ; Mott v. Harrington, 12 Vt. 
 199; Smith ». Townsend, 109 Mass. 500; Mills v. 
 Mills, 26 Conn. 213; Armstrong v. Elliott, 29 
 Mich. 485; Lafferty v. Jelly, 22 Ind. 471 ; Acken- 
 burgh B. McCool, 36 Ind. 473; Condit v. Black- 
 well, 22 N. J. Eq. 481; Cook v. Berlin Woolen 
 Mill Co., 43 Wis. 433; Collins v. Case, 23 Wis. 
 230; Stewart v. Mather, 32 Wis. 344; Ingle v. 
 Hartman, 37 Iowa, 274; Perschw Qulggle, 57 Pa. 
 St. 247; Beesou v. Beeson, 9 Pa. St. 279; Bar. 
 tholomew v. Leach, 7 Watts, (Pa.) 472; Brock v. 
 Bames, 40 Barb. (N. Y.) 521; Brown ». Post, 1 
 Hun, {N. Y.) 304; Nesbitt v. Lockman, 34 N. Y. 
 167; Holdrldgeo. Gillespie, 2 Johns. Ch. (N. Y.) 
 
 30, Reed V. Warner, 5 Paige, (N. Y.) 650; Law- 
 rences. Maxwell, 6 Lans. (N. Y.) 469; Taussig v 
 Hart, 49 N. Y. 301. 
 
 ^Whiohcote v. Lawrence, 3 Ves 740; Cum- 
 berland Coal Co. V. Sherman, 30 Barb. 653; 
 Ringgold V. Ringgold, 1 Har. & G. n. 
 
 8 Archer ». Hudson, 7 Beav. 560; Kempson ». 
 Ashbee, L. R. 10 Ch. 15; Graham v. Little, 3 
 Jones Eq. (N. Car.) 152. 
 
 * Revett V. Harvey, 1 S. & S. 503; AUfrey v. 
 Allfrey, 1 Macn. & G. 87, 98; Espey v. Lake, 10 
 Hare, 260, 262; Beasley v. Magrath, 2 Sch. & Lef. 
 
 31, Mulhallen v. Marnm, 3 Dr. & War. 317 » 
 
 J^ 
 
CH. XIII.] CONSTKUCTIVE FRAUD. § 233 
 
 The suspicion of undue influence also attaches to transactions made 
 between the parties immediately after the termination of the confiden- 
 tial relation. The length of time afterwards, within which the suspicion 
 will continue, will vary according to the personal elements of the 
 individual case; but as long as the facts of the particular case support 
 the presumption of the continued existence of undue influence of the 
 fiduciary over his beneficiary, so long will any transaction made 
 between them be tainted with the charge of constructive fraud; and 
 such ex-fiduciary must prove aflarmatively that no such undue influ- 
 ence existed, and no advantage was taken of the former repose of 
 confidence in him. One common ground for avoiding transactions, 
 made after the termination of the confidential relation, is where such 
 (fiduciary enters into a transaction with the beneficiary in respect to 
 the subject-matter of the former trust, and obtains an advantage in 
 such transaction by concealing during the continuance of the confiden- 
 tial relation information then obtained concerning the property and 
 interest of the beneficiary, and subsequently making use of such infor- 
 mation to the disadvantage of his former beneficiary. Where that 
 element of concealment is present, the transaction is avoided; but 
 where good faith is shown to exist, the transaction will be valid and 
 be enforced.^ 
 
 Parties acting in a fiduciary capacity are also prohibited from 
 assuming duties and obligations to different parties, where such duties 
 are antagonistic to each other and call for the advancement of antago- 
 nistic interests. For example, agents cannot act for both vendor and 
 vendee,^ except with the consent of the principals;' with the single 
 
 WUtman'B Appeal, 28 Pa. St. 376j Hauna ». Miss. 737; Tucke v. Bucholz, 43 Iowa, 415; 
 Spotts, 5 B. Mon. 362. Ranken v. Patton, 65 Mo. 378; Somes v. Skin- 
 ^ Agents: Ringo V. Binns, 10 Pet. 269; Rogers ner, 16 Mass. 348; Rapalje v. Norsworthy, 1 
 V. Lookett,23Ark.290;Krutzo. Fisher. 8 Kans. Sandf. Ch. 399; Gale v. Wells, 12 Barb. 84; 
 90; Fisher v. Krutz, 9 Id. 501; Mahon v. Mc- Eberts v. Eberts, 55 Pa. St. 110; Hawkins' Ap- 
 Graw, 26 Wis 614; MoGar v. Adams. 65 Ala. 106; peal, 32 7d. 263; Will's Appeal, 10 Harris, 325, 
 Fonntain Coal Co. v. Phelps, 95 Ind. 271; 332; Wickiser ». Cook, 85 111. 68. 
 Bncher v. Bucher, 86 111. 377; Walker v. Car- " N. Y. Cent. Ins. Co. v. Nat. Protect. Ins. Co., 
 rington, 74 111. 446; Walker ». Derby, 5 Biss. (U. 14 N. Y. 85; Greenwood v. Spring, 54 Barb. 375; 
 S.) 134; First Banks. Bissell, 3 McCrary, (U. Draughon o. Quillen, 83La. An. 237; Soribner 
 S.) 73; Bartholomew ». Leach, 7 Watts, 472; o. Collar, 40 Mich. 375; N. Y. Cent. Ins. Co. i>. 
 Ellsworth V. Cordrey, 63 Iowa, 675; Bowman v. Nat. Prot. Ins. Co., 20 Barb. (N. Y.) 468; Wat- 
 Offlcer, 53 Iowa, 640; Franks v. Morris, 9 W. kins v. Cousall, 1 B. D. Smith, (N. Y.) 65; Price 
 Va. 664; Barton v. Moss, 32 111. 50; Matthews v. v. Keyes, 62 N. Y. 378; Pugsley v. Murray, 4 E. 
 Light, 32 Me. 305; Huzzard V. Trego, 35 Pa. St. D. Smith, (N. Y.) 245; Levy v. Loeb, 85 N. Y. 
 9; Curts ». Cisnna, 7 Miss. (U. S.) 260. ffuard- 365; Bennett v. Kidder, 5 Daly, (N. Y.) 512; 
 tans; Klrby ». Taylor, 6 Johns. Ch. 242,248; Raisin «. Clark, 41 Md. 158; s. c, 20 Am. Rep. 
 Kirby ». Turner, 1 Hopk. 309; Hawkins' Ap- 66; Hinckley v. Arey, 27 Me. 362; Meyers. 
 peal, 32 Pa. St. 263, 265; Cowan's Appeal, 74 7d. Hanchett, 39 Wis. 419 ; s. c.,43Wis. 246; Wal- 
 329; Mayer D. Rives, 11 Ala. 760; Meek ». Perry, worth v. Farmers' Co., 16 Wis. 629; BaUston 
 36 Miss. 190; Sherry v. Sansberry, 3 Ind. 320; Spa. Bank r. Marine Bank, 16 Wis. 120; Ever- 
 Fish V. Miller,l Hoff. Ch, 267 ; In re Van Home, hart v. Searle, 71 Pa. St. 256 ; Lloyd v. Colston, 
 7 Paige, 46; Stanlee's Appeal, 8Barr. 431; Say 5 Bush, (Ky.) 587; Farnsworth v. Heimmer, 1 
 ». Barnes, 4 Serg. & R. 112; Waller ». Armi Allen,(Mass.) 494; s. c, 79Am. Dec. 756; Walker 
 stead, 3 Leigh, 11; Garvin v. Williams, 44 Mo. v. Osgood, 98 Mass. 348; Rice v. Wood, 113 Mass. 
 465; Williams ». Powell, 1 Ired Eq. 460; Wo. 133; Lynch «. Fallon, 11 R. I. 311; Summer V. 
 mack II. Austin, 1 S. C. 4i31 ; Andrews v. Jones, Charlotte, &c. R. Co. 78 N. Car. 289 ; Mercan- 
 10 Ala. 400; Johnson v. Johnson, 5 Ala. 90; tile Ins. Co. v. Hope Ins. Co., 8Mo. App. 408. 
 Richardson v. Linney, 7 B. Mon. 571 ; Wright v. ' Stewart v. Mather, 32 Wis. 344; Colwell v. 
 Arnold, 14 /(i. 513; Sullivan v. Blackwell, 28 Keystone. Iron Co.. 36 Mich, 51; Adams M. Co. 
 
 283 
 
§ 234: EQUITY JURISPRUDENCE. [CH. XIII. 
 
 exception, that auctioneers and brokers have the authority of law to 
 represent both parties to the sale, for the purpose of executing and 
 signing the memorandum of such sale, which is required by the 
 Statute of Frauds.' Trustees are prohibited in the same way from 
 representing other parties than their beneficiaries in transactions in 
 which they have antagonistic interests.^ Attorneys at law are 
 required by the law to scrupulously avoid entering into engagements 
 which require them to represent and urge conflicting interests; an 
 attorney cannot represent and act as counsel for both parties to a 
 controversy.' 
 
 § 234. Constructive fraud, how affected by acquiescence and 
 lapse of time. — The right to avoid a contract, on account of construct- 
 ive fraud, is conditional upon vigilance in the maintenance of the» 
 remedial actions, and absence of all acquiescence in the rights acquired 
 by the other party under the contract or in the transaction. The two 
 grounds for refusal of all equitable relief against constructive fraud 
 are delay and acquiescence. The two grounds are entirely distinct 
 and separate, although either will be sufficient in many cases to bar 
 the right to relief. Delay involves simply the lapse of time after the 
 discovery of the constructive fraud, without resorting to the courts for 
 relief. Although the lapse of time or delay in bringing the action is 
 very often taken as strong evidence of an acquiescence, yet it alone 
 will not always bar the claim of relief. If, however, the delay is 
 unreasonable under the circumstances of the case, the court of equity 
 vsdll refuse to grant the desired relief, in conformity with the equitable 
 maxim ' ' mgulamtiTms non dormientihus equitas subvenit. ' ' * Acquies- 
 cence consists of a recognition, by word or deed, of a right of the other 
 party to an enforcement of the contract. Where the party, who 
 otherwise would be entitled to equitable relief, on the ground of con- 
 structive fraud, after having full knowledge of the existence of these 
 
 u. Senter, 86 Mich. 73; Heimer ®. Krolick, 36 Gregory, Coop. 201; North Bait., &c. Ass'ii». 
 
 Mloh. 371; Fltzsimmons ji. Soathem Ex. Co., Caldwell, 25 Md. 4S0. 
 
 40 Ga. 330; White v. Ward, 20 Ark. 445; Smith "Hesse v. Briant, 6 De G. M. & G. 623; Lee v. 
 
 V. Townsend, 109 Mass. 500; Capiner v. Hogan, Angas, L. E. 7 Ch. 79 n; Baker v. Humphrey, 
 
 40 Ohio St. 203; Rolling Stock Co. v. Railroad, U Otto, 494; Wallace v. Furber, 62 Ind. 103; De 
 
 34 Ohio St. 450; Alexander v. Northwestern, Cells v. Brunson, 53 Cal. 372; Orr v. Tanner, 12 
 
 Ac. University, 57 Ind. 466; Barry v. Schmidt, R. I. 94; McDonald v. Wagner, 5 Mo. App. 56. 
 57 Wis. 172; s. c, 46 Am. Rep. 35; Meyer v. * Wedderhurn r. Wedderbum, 4 My. <& Cr. 41 ; 
 
 Hanchett, 39 Wis. 419; s. a, 43 Am. Rep. 246; 2 Keen, 728; Bowles v. Stewart, 1 Sch. & i,ei. 
 
 Pugsley V. Murray, 4 E. D. Smith, (N. Y.) 209; Skilbeckc. HUton, L. B. 2 Eq. 587; Musey 
 
 245; Rowe V. Stevens, 53 N. Y. 621; Joslin v. v. Desbouvrie, 3 P. Wms. 315; Salkeld v 
 
 Cowee, 52 N. Y. 90; Bell v. MoConnell, 37 Ohio Vernon, 1 Eden, 64; Bradley v. Chase, 22 Me! 
 
 S'- ^^- 511; Parsons D. Hughes, 9 Paige, 591; Michoud 
 
 1 Johnson V. Buck, 35 N. J. L. 338; Morton v. «. Girod, 4 How. (U. S.) 503; Cumberland Coal 
 
 Dean, 13 Meto. (Mass.) 385; Pike a. Baloh, 38 Co. v. Sherman, 30 Barb. 553; a. c, 20 Md. 117; 
 
 Me. 308; s. c, 61 Am. Dec. 248; Scott v. Mann, HofiFman, &o. Co. v. Cumberland C. Co., 16 Id 
 
 36 Tex. 157; Schlesinger v. Texas, Ac. R. Co., 458; Boyd v. Hawkins, 2 Dev. Eq. 195; Butler 
 
 87 Mo. 146; Strongji. Dodds, 47 Vt. 348; O'Don- v. Haskell, 4 Desau. Eq. 651; MeCormiok v 
 
 nell ». Leeman, 43 Me. 158; s. c, 69 Am. Dec. Malin, 5 Blaokf. 509; Williams t). Reed 3 
 
 54; McComb II. Wright, 4 Johns. Ch. (N.Y.)659; Mason, 405; Eyre v. Burnester, 10 H. L. c'as 
 
 Pugh V. Chisseldine, 11 Ohio, 109; s. c, 37 Am. 90, 106; Mulhallen v. Marum, 3 Dr. & War. 317^ 
 
 D««- *!*• Dobson V. Racey, 8 N. Y. 816; Comstook v 
 
 ^ Ex parte Bennett, 10 Ves. 381; Gregory ». Ames, 3Keyes 357 
 
 284 
 
CH. Xni.] CONSTRUCTIVE FKAUD. § 235 
 
 grounds for relief, acts with the other party in respect to the subject- 
 matter of the transaction as if the contract was valid and binding, or 
 delays to proceed with his remedy, when he knows that the other party 
 in reliance upon the validity of the contract is assuming obligations, 
 from which he cannot extricate himself without loss. In all such 
 cases there is evidence of an acquiescence by such party in the enforce- 
 ment of the contract, which would operate as a bar to his subsequent 
 appeal for relief.^ Where there is acquiescence, as 'distinguished from 
 mere delay, the length of time lapsing after the discovery of the grant 
 for relief is not very material; and the relief will be denied where 
 there is a positive case of acquiescence, even though there may not be 
 any very long delay. On the other hand, where there is no acquiescence, 
 the right to bar the remedy depends upon the unreasonableness of the 
 delay. ^ What is an unreasonable delay, is a question depending for 
 its answer upon the facts of the particular case; and there are cases in 
 which relief has been granted, notwithstanding a considerable lapse of 
 time, because under the peculiar circumstances of this case, the delay 
 was not considered unreasonable.' 
 
 235. Gifts made between parties in confidential relation to 
 each other. — Where a gift is made inter vimos by a beneficiary to the 
 fiduciary, the transaction is subject to the severest suspicion of undue 
 influence, wherever the confidential relation is that of an ordinary 
 trust,* or of attorney and client,^ and of guardian and ward.° Where 
 these gifts are made while the confidential relation continues, they are 
 
 lAshurst's Appeal, 60 Pa. St. S90j Watt's t). Bradley, 7 De G. M. & G. 596; Miohoud n. 
 
 Appeal, 78 Id. 371; Evans' Appeal, 81 Id. 278; Girod, 4 How. (U. S.) 503, 561. 
 Burden B. Stein, 27 Ala. 104; Pillow ». Thomp- * Clarke ». Swaile, 2 Eden, 134; Spencer v. 
 
 son, 20 Tex. 206; Edwards ». Roberts, 5 Sm. & Newbold's Appeal, 80 Pa. St. 317; Villines v. 
 
 Mar. 544; Ayers v. Mitchell, 3 Id. 683; Mc- Norfleet, 2 Dev. Eq. 167; Bryan v. Duncan, 11 
 
 Naughton v. Partridge, 11 Ohio, S32; Borland Ga. 67; Kennedy «. Kennedy, 2 Ala. 571 ; Kich- 
 
 V. Thornton, 12 Cal. 440; Phelps v. Peabody, 7 ardson v. Spencer, 18 B. Mon. 450; Marshall v. 
 
 Id. 50; Marsh v. Whitmore, 21 Wall, 178; Odlin Stephens, 8 Humph. 159; Sallee v. Chandler, 26 
 
 ». Gove, 41 N. H. 465; Bassett v. Salisbury, &c. Mo. 124; Downes ii. Grazebrook, 3 Meriv. 200, 
 
 Co., 47N. H.426, 439; Peabody«.Flint,6 Allen, 808; Knight i). Majoribanks, 2 Macn. & G. 10; 
 
 52; Fuller v. Melrose, 1 Id. 166; Tash v. Adams, Denton v. Donner 23 Beav. 285; Coles v. Treco- 
 
 10 Gush. 252; Briggs v. Smith, 5 K. I. 213; thick, 9 Ves. 234, 246; Lloyd d. Attwood, 3 De 
 
 Schiffer v. Dietz, 83N. Y. 300,307,308; Cobbn. G. & J. 614. 
 
 Hatfield, 46 Jd. 533; Tompkins V. Hyatt, 28 Id. 6 In re Holmes' Estate, 3 GiflF. 337, 345; God- 
 
 347; Lawrence v. Dale, 3 Johns. Ch. 23; More dard v. Carlisle, 9 Price, 169; Greenfield's 
 
 V. Smedburg, 8 Paige, 600; Massou v. Bovet, 1 Estate, 2 Harris, 489, 506; and see Berrien v. 
 
 Denio, 69; Gale v. Nixon, 6 Cow. 444; Crosier McLane, 1 Hofif. Ch. 421; Brock v. Barnes, 4a 
 
 «. Acer, 7 Paige, 137; Moffat v. Winslow, 7 M. Barb. 521 ; Nesbit ii. Lockman, 34 N. T. 167; see, 
 
 124; Saratoga, &c. E. R. Co. v. Bowe, 24 Wend. also. Hatch v. Hatch, 9 Ves. 292; Lady Ormond 
 
 74; Bruce v. Davenport, 3 Keyes, 472; Doughty ». Hutchinson, 13 Ves. 47; Wolmsey v. Booth, 
 
 ■0. Doughty, SHalat. Ch. 227; Gray v. Ohio, Ac. 2 Atk. 40; Harris v. Tremenhere, 15 Ves. 40; 
 
 E. R., 1 Grant Cas. 412; Little v. Price, 1 Md. Wells v. Middleton; 1 Cox, 118; Montesquieu 
 
 Ch. 182; Moore v. Reed, 2 Ired. Eq. 580. „. Sandys, 1 Bach & B. 312. 
 
 2 Saratoga, &c. E. R. v. Rowe, 24 Wend. 74; « Hawkins' Appeal, 33 Pa. St. 263, 265; Cow- 
 Brown V. Co. of Buena Vista, 5 Otto, 157, 160; an's Appeal, 74 Id. 329; Myer v. Eives, 11 Ala. 
 Sullivan «. Portland, <&o. R. E., 4 Id. 806; 760; Meek ». Perry, 36 Miss. 190; Sherry v. 
 Grymes v. Sanders, 3 Id. 55,62; Diman v. Provi- Sansberry, 3 Ind. 320; Hylton v. Hylton, 2 Ves. 
 dence, <Ssc. R. R., 5 R. I. 130; Lloyd ». Brewster, Sen. 548; Hatch o. Hatch, 9 Ves. 292, 297; Kirby 
 4 Paige, 537; Thomas v. Bartow, 48 N. Y. 193, v. Taylor, 6 Johns. Ch. 242, 248; Kirby v. Tur- 
 200. ner, 1 Hopk. 309. 
 
 3 Gresley v. Mousley, 4 De G. A J. 78 ; Baker 
 
 285 
 
§ 235 EQUITY JURISPRUDENCE. [CH. XIII. 
 
 void unless some third person intervenes, or the case is so extraordi- 
 narily free from suspicious circumstances, that the legal presumption 
 of undue influence, upon an examination of the facts in the case, com- 
 pletely falls to the ground. And, even when the confidential rela- 
 tion has terminated, if only a short time has elapsed since the ter- 
 mination of such confidential relation, the suspicion of undue influence 
 ■wUl still attach, and proof positive of good faith and square dealing 
 must be present in order to secure a recognition of its validity by the 
 courts.^ Where a gift is made to an ordinary agent, the strongest 
 evidence of undue influence will alone suffice. It requires very 
 slight evidence of good faith and voluntary action by a principal in 
 order to make such a gift valid. ^ Where the question is of the 
 validity of a gift made by a child to a parent, or the transaction, in 
 respect to the strength of the suspicion of undue influence, stands 
 midway between the cases of parents and guardians and those of 
 agents, ordinary evidence of good faith and absence of undue influ- 
 ence will be sufficient to validate the gift.' The suspicion of undue 
 influence is naturally stronger where the gift is made immediately 
 after the child has arrived at majority, than where it occurs some 
 time afterwards.* Gifts made by aged parents to children are some- 
 what like gifts to agents, in respect to the strength of the suspicion of 
 undue influence. It is, however, so natural for parents to make gifts of 
 •value to their children, that it requires the existence of extraordinary 
 circumstances, in order to support the presumption of undue influence 
 on the part of the child. ^ The suspicion of undue influence may also 
 arise under peculiar circumstances in the case of gifts made by 
 brothers and sisters to each other." It has, however, been held that 
 there is no confidential relation ipso facto between a son-in-law and 
 his mother-in-law.' 
 
 Such is the law in respect to the invalidity of gifts witer vivos made 
 
 >See ante,%'2Sa. I. 170; Van Donge v. Van Donge, 23 Mich. 321; 
 
 2 Hunter v. Atkins, 3 My. St. K. 113; Nlcol v. Rider i>. Kelso, 53 Iowa, 367; Miller i>. Simonds, 
 
 Vaughan, 1 CI. & Pin. 495j Hobday v. Peters, 72 Mo. 669; Jacox v. Jacobs, 40 Mich. 473. 
 
 28 Beav. 349. ' Simpler v. Lord, 28 Ga. 52; White v. Smith, 
 
 SDalton, v. Dalton, 14 Ney. 419; Mulook v. 61 Ala. 405; Gore jj.Sumersall, 5T. B. Mon. (Ky.) 
 
 Mulock, 31 N. J. Bq. 694; Martin v. Martin 504; Griffiths v. Robins, 3 Madd. 191; compare 
 
 1 Heisk. 644; Miller v. Simonds, 6 Mo. /pp. Cowee ». Cornell, 75 N. Y. 91 ; Whelan i>. Whe- 
 
 33; Davis ». Dunne, 46 Iowa, 684; Bailey ». Ian, 3 Cow. (N. Y.) 537; Beauland ». Bradley, 3 
 
 Woodbury, 50 Vt. 166; Boss v. Ross, 6 Hun, Sm. & G. 339; Millican o. Millican, 24 Tex.426; 
 
 80; Bergen v. Udall, 31 Barb. 9; Slocum o. compare State b. True, 20 Mo. App. 176; Dalton 
 
 Marshall, 2 Wash. C. C. 397; Jenkins ». Pye, v. Dalton, 14 Nev. 419; Mulock v. MuloQk, 31 N. 
 
 12 Pet. 241, 253; Taylor v. Taylor, 8 How. (U. S.) J. Eq. 694; Martin ». Martin, 1 Heisk. 644; High- 
 
 183, 801 ; Casbome ». Barsham, 2 Id. 76; Hogh- berger ii. Stiffler, 21 Md. 338; Todd v. Grove, 33 
 
 ton 11. Hoghton, 15 Id. 878; Hartopp v. Har- Id. 188; Comstock v. Comstock, 57 Barb. 453; 
 
 topp, 21 Id. 259; Bury v. Openheim, 28 Id. 694; Whelan o. Whelan, 3 Cow. 637; Deem v. Phll- 
 
 Berdoe v. Dawson, 34 Id. 603; Chambers v. lips, 5 W. Va. 188; Liddel's Ex'r v. Starr, 20 N. 
 
 ^rabbe, 34 Id. 457; Potts v. Surr, Id. 543. J. Eq. 874. 
 
 *Bergen v. Udall, 31 Barb. (N. Y,) 9; Haw- « Thornton v. Ogden, 32 N. J. Eq. 783; Hewitt 
 
 kins' Appeal, 38 Pa. St. 263; Berkmeyer v. Kel- V. Crane, 8 Halst. Ch. 169, 631 ; Sears ii, Shafter, 
 
 lerman, 32 Ohio St. 239; Archei v. Hudson, 7 6 N. Y. 268; Boney ti. HoUingsworth, 23Ala. 690. 
 
 Beav. 660; Taylor v. Taylor, 8 How. (U. S.) 'FishB. Cleland, 33 111. 238; Cleland v. Fish, 
 
 183; Baldock v. Johnson, 14 Oregon, 546; Savery 43 Id. 288. 
 t!. King, 5 H. L, C. 626; Taylor v. Staples, 8 E. 
 
 286 
 
CH. xm.J 
 
 CONSTRUCTIVE FBAUD. 
 
 § 235 
 
 l^- 
 
 between parties in confidential relation to each other on the ground of 
 constructive fraud. A different rule prevails in respect to testament- 
 ary gifts between the same parties; and in many cases a testamentary 
 gift will be declared valid and binding on a statement of facts, which 
 would make the transaction void if it occurred in a gift intev vivos. 
 /^ In cases of gifts made by will, in order that the charge of undue influ- /,, 
 ence may prove to exist, such conduct must be shown on the part of 
 the beneficiary as would prove the fact that the testator's agency in 
 the execution of his will was destroyed and the legatee's will substituted l^ 
 for his own.* Importunity wiU not in itself be sufficient to invalidate 
 the gift; it must amount to a destruction of the testator's free agency.* 
 The existence of a confidential relation between the two parties does not 
 in itself create any legal presumption of undue influence, but is only a 
 circumstance tending to support the fact that such undue influence ex- "" 
 ists." Constructive fraud will, in the case of testamentary gifts, be pre- 
 sumed from the existence of confidential relations between the following 
 persons, similar to that which has just been explained in respect to gifts 
 inter vivos, viz. : between a physician and patient, * a spiritual adviser and 
 penitent,* vendor and vendee of lands,* husbands and wives, and per- 
 sons occupying their position, ' partners, ' executors and administrators,* 
 and, indeed, all persons who occupy a position of trust and confidence, 
 of influence and dependence in fact, although not, perhaps, in law." 
 
 1 McDaniel v. Crosby, 19 Ark. 533; Whitman 
 «. Goodhand, 26 Md. 95; Layman v. Conrey, 60 
 Md. 286; Haydock v. Hay dock, 33 N. J. Eq. 494; 
 Blakey «. Blakey, 33 Ala. 611; Turners. Chees- 
 man, 15 N. J. Eq. 243; Mountain v. Bennett, 1 
 Cox, 355; Kinleslde v. Harrison, 2 Phillim. 551 ; 
 Gardner v. Gardner, 23 Wend. 526; Marx v. Mc- 
 Glynn, 88 N. Y. 357; Eckert v. Flowry, 43 Penn. 
 St. 46; Roe v. Taylor. 45 111. 485; Morris ». 
 stokes, 21 Ga. 552; Sutton v. Sutton, 5 Barring. 
 459; Duffield o. Morris, 3 Barring. 375. 
 
 ' See Kinleslde v. Harrison, [2 Phillim. 551, 
 S52, by Sii John NiehoU; Clark v. Elsher, 1 
 Paige, 171; Dayis v. Calvert, 5 Gill <fe J. 269; 
 Baldwins. Parker, 99 Mass. 84; RoUwagen, 63 
 N. Y. 504; Colt v. Patchen, 77 N. Y. 394; Taw- 
 ney v. Long, 76 Penn. St. 106. 
 
 * Harvey «. SuUens, 46 Mo. 147; Tyler ». Gar- 
 •diner, 35 N. Y. 559; Meek v. Perry, 36 Miss. 190; 
 Breed v. Pratt, 18 Pick. 115; Bristed v. Weeks, 5 
 Redf. 529;' Marx v. McGlynn, 88 N. Y. 357; 4 
 Eedf. 455, lb. ; 5 Mo. App. 390; Welsh In Be, 1 
 Bedf. 238; Drake's Appeal, 45 Conn. 9; Thomp- 
 son V. Hawks, 14 Fed. Hep. 902; 7 Oreg. 7; 
 Brooks' Estate, 54 Cal. 471. 
 
 *Crispell«. Dubois, 4 Barb. 393; IngersoU v. 
 Roe, 65 Jd. 346; Cadwallader v. West, 48 Mo. 
 ■483; Billage v. Southee, 9 Hare, 594; Dents. 
 Bennett, 4 My. & Cr. 289; Aherne v. Hogan, 1 
 Drury; 310. 
 
 « Nachtrieb v. Harmony Settlement, 3 Wall. 
 Jr. 66; Lyon v. Home, L. B. 6 Eq. 655; Not- 
 tlge V. Prince, 2 Giff. 246; Leighton v. Orr, 44 
 Iowa, 679; Greenfield's Estate, 24 Pa. St. 332. 
 
 6 Baker v. Monk, 4 De G. J. <fe S. 388; Clark v. 
 Malpa, 4 De G. F. & J. 401. 
 
 ' Turner v. Turner, 44 Mo. 535; Coulson v. 
 Allison, 9 De G. F. & J. 521; Corley v. Lord 
 Stafford, 1 De G. & J. 238; Nelson v. Stooker, 
 4DeG. & J. 458. 
 
 8 Maddeford v. Austwick, 2 My. <fc K. 279; 1 
 Sim. 89; Short v. Stevenson, 63 Pa. St. 95; Sim- 
 ons V. Vulcan, Oil Co., 61 Pa. St. 202; Flagg v. 
 Mann, 2 Sumn. 487; Wheeler v. Sage, 1 Wall. 
 518; Clements v. Hall, 2 De G. & J. 178; Blisset 
 1). Daniel, 10 Hare, 493, 538; Bayne v. Ferguson, 
 5 Dow. 151; Eawlingss. Wickham, 3 De G. <& J. 
 304; Clegg v. Bdmondson, 8 De G. M. & G. 787, 
 807. 
 
 «Massie v. Watts, 6Cranch, (U. S.) 148; Baker 
 V. Whiting, 3 Sumner, {U. S.) 475; Bradley v. 
 Tarwell, 1 Holmes, (U. S.) 433; Miohoud ii. 
 Girod, 4 How. (U. S.) 503; Marsh v. Whltmore, 
 21 Wall. (U. S.) 178; Gardners. Ogden, 22 N. Y. 
 327; s. c, 78 Am. Dec. 192; People v. Open 
 Board of S. B. B. Co., 92 N. Y. 98; Ives v. Ash- 
 ley, 97 Mass. 198; Greene s. Haskell, 5 B. L 447; 
 Kruse s. Steffens, 47 111. 112; Walkers. Palmer, 
 24 Ala. 358; Shannon s. Marmaduke, 14 Tex. 
 247; Staats v. Bergen, 19 N. J. Eq. 297, 554; 
 Piatt s. Longsworth, 27 Ohio St. 159; Marshall 
 V. Carson, 38 N. J. Eq. 250; s. o., 48 Am. Eep. 
 319; see Lytle v. Beveridge, 58 N. Y. 592; Ful- 
 ton V. Whitney, 66 N. Y. 548; Parkhurst ». 
 Alexander, 1 Johns. Ch. (N. Y.) 394; Davoue v. 
 Fanning, 2 Johns. Ch. (N. Y.) 252; Moore ». 
 Moore, 5 N. Y. 256. 
 10 Walters s. Bailey, 2 Y .& C. Ch. 219; Wake- 
 
 287 
 
§ 236 KQUITT JUKISPBUDENCE. [CH. XIII. 
 
 § 236. Frands on creditors.— Transfers without consideration. — 
 Voluntary couTeyances.^ — Transfers for the purpose of hindering or 
 delaying creditors. — The cases, to which the subject of this paragraph 
 refers, cover all sorts of transfers which are made for defrauding the 
 vendor's creditors. They are to be distinguished from the frauds 
 upon the vendor or vendee by the fact that the fraud upon creditors 
 never affects the validity of the sale as between the parties to the con- 
 tract. If either of the parties is bound by the contract of sale, both 
 are.* And, if there is a valuable consideration to the contract, both 
 parties are liable to each other for a breach of the contract. The exist- 
 ence of this fraud upon the vendor's creditors does not enable the 
 vendor to rescind the sale and recover his property,^ which has so far 
 become the property of the vendee as that he may insure it against 
 fii'e and other risks, and, in case of loss, hold the insurance money 
 against the vendor.' Nor can the vendee avoid the payment of the 
 consideration of the sale on account of the fraud upon the grantor's 
 creditors,* although if the sale should be avoided by the vendor's cred- 
 itors, there would be a failure of consideration, which would enable 
 the vendee to recover back the price paid for the goods, or to defend 
 an action by the vendor for the breach of the, contract, if he has not 
 paid it.' 
 
 Questions concerning the frauds upon creditors arise under the stat- 
 utes 13 Eliz., ch. 5, and 27 Eliz., ch. 4, which have been substantially 
 re-enacted in all the states of this country. The statutes are said to 
 be affirmatory of the common law, at the most only enforcing its prin- 
 ciples more stringently.' Whether this be so, is a matter of very little 
 importance, since these statutes are uniform in their terms and have 
 been enacted very generally. The original statute, as well as all copies 
 of it, declare to be void aU conveyances of property, both real and 
 
 mani». Dodd, S7N.J. Eq. 564;andBee Giddings Saulter, 87 HI. 519; Stephens v. Harrow, 26 
 
 V. Giddings, 3 Euss. 241 ; James v. Eumsey, L. Iowa, 458. 
 
 E. 11 Ch. D. 398; Tate v. Williamson, L. E. 2 s Lerow v. Wilmarth, 9 Allen, 385. And the 
 
 Ch.65; lEq. 528; Taylor «. Obee, 3 Price, 83. vendee's creditors may also .claim the insur- 
 
 1 Harvey v. Varney, 98 Mass. 118; Hill v. Pine ance money as against the grantor. Maher o. 
 Eiyer Bank, 45 N. H. 300; Barrows o. Barrows, Swift, 14 Nev. 324. 
 
 9 N. E. Eep. 371 ; Williams v. Lowe, 4 Humph. 4 Butler v. Moore, 73 Me. 151 ; Davey v. Kelley, 
 62; Burgett v. Burgett, 1 Ohio, 469; Springer 66 Wis. 457; Carpenter v. MoClure, 39 Vt. 9;' 
 V. DrOBCh, 32 Ind. 486; Douglass v. Dunlop, 10 Findley v. Cooley, 1 Blackf. 262; Garyc. Jacob- 
 Ohio, 162; Walton v. Bonham, 24 Ala. 513; son, 55 Miss. 204; Bryant v. Mansfield,' 22 Me. 
 Chapin v. Pease, 10 Conn. 69; Neely v. Wood, 360; Dyeri;. Homer, 22 Picii. 253; but see Church 
 
 10 Yerg. 486; Sherk v. Endres, 3 W. & S. 255; v. Muir, 33 N. J. L. 320; Niver v. Best, 10 Barb. 
 Ybarra «. Lorenzana, 53 Cal. 197. 369; Neelisc. Clark, 4 Hill 424. 
 
 2 Osborne v. Morse, 7 Johns. 161; Murphy v, « Dyer v. Homer, 22 Pick. 253. 
 
 Hubert, 16 Pa. St. 50; Telford v. Adams, 6 ^cadogan v. Kennett, Cowp. 432; 2 Kent 
 
 Watts, 429; Broughton v. Broughton, 4 Eioh. Com. 515; Whittlesey v. McMahon,' 10 Conn. 
 
 491; Jackson v. Garnsay, 16 Johns. 189. The 141; Avery v. Street, 6 Watts, 248; Hudnal 
 
 contract of sale may also be enforced against v. Wilder, 4 MoCord, 297; Doyle v. Sleeper 
 
 the vendor's heirs and representatives. Drink- 1 Dana, 533; Hamilton v. Russell 1 Cranch* 
 
 water v. Drinkwater, 4 Mass. 354; Dearman 316; Meeker v. Wilson, 1 Gall. 419; Adams 
 
 V. Eadcliffe, 5 Ala. 192; Clapp t). Tirrell, 20 v. Broughton, 13 Ala. 739; O'Daniel v. Craw- 
 
 Piok. 247; Garner v. Graves, 54 Ind. 188; ford, 4 Dev. 203; Wilt v. Franklin, 1 Blnn 
 
 Eeichart v. Castator, 5 Binn. 109; Beebe v. 514, 523; Whitmore v. Woodward 28 Me 392 
 
 288 
 
CH. Xin.J CONSTEUCTIVE FRAUD. § 236 
 
 personal, which are not made in good faith and upon a valuable con- 
 sideration, but upon trust for the benefit of the grantor,^ or made in 
 any other way for the purpose of hindering, delaying, or defrauding 
 creditors. 
 
 The first point to be observed, in determining under the Statute of 
 Elizabeth when a sale is fraudulent as to creditors, is that the law will 
 not imply a sale or transfer of property to be fraudulent if it be based 
 upon a valuable consideration. Such transfers of property are pre- 
 sumed to be iona fide. But this presumption is not conclusive. The 
 presence of a valuable consideration in the sale is not at all inconsistent 
 with the fraudulent intent to defraud creditors.^ If the sale was actu- 
 ally made with fraudulent intent to defeat the claims of creditors, it 
 may be avoided by them, notwithstanding it is supported by a valua- 
 ble consideration, if the purchaser was cognizant of the seller's fraud- 
 ulent intent, and bought the property for the purpose of aiding the 
 seller in his fraudulent design. This would, however, be a case of 
 actual, instead of constructive, fraud.' But if the purchaser does not 
 participate in the seller's fraud, and pays a valuable consideration for 
 the goods, the sale will not be voidable by the creditors because it was. 
 made by the seller for the purpose of defeating the execution of a 
 creditor.* In order that the sale may be avoided, notwithstanding the= 
 payment of a valuable consideration, the purchaser must actually knovr 
 of the fraudulent intent. It is held that it is not sufficient, if he only has. 
 reasonable cause to suspect or believe that the seller has such a fraud- 
 ulent intent.^ The vendor's fraudulent intent may be established by 
 any competent testimony. Each case stands upon its own footing, and' 
 
 1 Any trust for the benefit of the grantor is a Conner v. Miller, 1 Kerr, (N. B.) 303 ; Ingraham 
 
 fraud upon the grantor's creditors. Twyne's i>. Wheeler, 6 Conn. 277; Staceyi). Dershaw, 7 
 
 Case, 3 Coke, 80; 1 Smith Lead. Cas. 1 ; Franklin Hun, 449 ; Ford ». Johnston, 7 Hun, 563 ; Archer 
 
 V. Claflin, 49 Md, 24; Jones v. King, 86 111. 225; v. O'Brien, 7 Hun, 591; Bostwiok v. Burnett, 74 
 
 Edwards c. Stinson, 69 Ga. 443; Young ». Heer- N. Y. 317; Francis v. Rankin, 84 111. 169$ 
 
 manus, 66 N. Y. 374. Matthews v. Jordan, 88 111. 602; Gray v. McAl- 
 
 "Nugent V. Jacobs, 103 N. Y. 126; Eoeber v. lister, 60 Iowa, 497; Story v. Agnew, 2 Bradw. 
 
 Howe, 26 Hun, 554; Johnston v. Dick, 27 Miss. 353; Mimmo ». Kuykendall, 85 111. 476; Morrisv. 
 
 277; Peck v. Land, 2 Kelley, 1 ; Billings v. Eus- Tllson, 81 111.607; Dudley v. Danforth, 61 N. Y. 
 
 seU, 101 N. Y. 226; Singer v. Jacobs, 3 McCrary, 626; Hauselt v. Vilmar, 2 Abb. N. C. 222; Kin- 
 
 638; Ayers v. Moore, 2 Stew. 336; Wadsworth near v. White, 2 Kerr, (N. B.) 235; Hayward v. 
 
 ». Williams, 100 Mass, 126; Howe v. Ward, 4 White, 2 Kerr, 319; Doaku. Johnson, 2 Kerr, 
 
 Greenl. 195. 319; Dalglish v. McCarthy, 19 Grant, (Out.) 
 
 8 Kimball v. Thompson, 4 Gush. 447; Dalg- 578; Clark v. Morrell, 21 Up. Can. Q. B. 596; 
 lish V. McCarthy, 19 Grant's Ch. 578; Spring Oriental Bank v. Haskins, 3 Met. 340; Wads- 
 Lake Iron Co. «. Waters, 80 Mich. 13; Hesslng worth i>. Williams, 100 Mass. 131; Clapp ». 
 V. McCloskey, 37II1. 341; Anderson v. Warner, Tlrrell, 20 Pick. 247; Verplanck v. Sterry, 12 
 5 Bradw. 416; Green v. Tanner, 8 Met. 411; Johns. 652; Wright i>. Brandis, 1 Ind. 336; Ruf- 
 Foster v. Hall, 12 Pick. 89; Bridge v. Eggleston, flng v. Tilton, 12 Ind. 260; Hughes v. Monty, 24 
 14 Mass. 245. Iowa, 499; Chapel v. Clapp, 29 Iowa, 194; 
 
 * Wood B. Dixie, 7 Q. B. 892; Riches v. Evans, Wright v. Howell, 35 Iowa, 292; Carpenter v. 
 
 9 C. <& P. 940; Alton v. Harrison, L. R. 4 Ch. Murin, 42 Barb. 300; Jackson v. Henry, 10 
 
 622; Boldero v. London Loan &, Discount Co., Johns. 185; Somes v. Brewer, 2 Pick. 184: 
 
 5 Ex. D. 47; Spencer v. Slater, L. R. 4 Q. B. D. ^Carroll v. Hayward, 124 Mass. 121 ; State v. 
 
 13; Hale v. Metr. Omnibus Co., 28 L. J. Ch. 777; Merritt, 70 Mo. 275; Kyle v. Ward, 1 So. Rep. 
 
 Parish ». McKay, 5 tJp. Can, Q. B. 461 ; Hooker 468; but see, apparently contra, Lyons v. Ham- 
 
 V. Jarvis, 6 Up. Can. Q. B., o. s., 439; Arm- llton, 69 Iowa, 47; Bartles v. Gibson, 17 Fed. 
 
 strong V. Moodie, 6 Up. Can. Q. B., o. s., 538; Rep. 293. 
 
 19 
 
 289 
 
§ 236 EQUITY JUEISPEUDENCE. [CH. XIII. 
 
 the court and jury must examine into the circumstances of the partic- 
 ular case, and determine from them whether the sale was made in good 
 faith or for the purpose of defeating the creditors.^ 
 
 Under the term valudble consideration is included every thing pos- 
 sessing a pecuniary value, and likewise a promise to marry, as well as 
 actual marriage. Conveyances possessing any one of these considera- 
 tions are not voluntary.^ But, although the valuable consideration 
 must be substantial, in order to protect the purchaser against the claims 
 of the seller^s creditors, it need not be adequate.' 
 
 If a transfer of property is made without a substantial valuable con- 
 sideration, while the grantor is in debt, existing creditors can, under 
 certain circumstances at least, avoid the conveyance, and satisfy their 
 demands by proceeding against the property. If the conveyance is to 
 anyone except a child or wife; or, in other words, where there is not 
 even a good consideration passing between the parties, the conveyance 
 is presumptively void as against the existing creditors, i. e. , those who 
 were already creditors at the time of the conveyance.* But if the vol- 
 untary conveyance is made to a wife and child, and at the time of the 
 conveyance sufficient property was left in the hands of the grantor to 
 amply secure existing creditors, the conveyance will, nevertheless, be 
 presumptively good against the creditors. But if the grantor is insolv- 
 ent at the time of conveyance, it may be avoided by the existing 
 creditors.* But this presumption, which is properly called construct- 
 ive fraud, because no actual fraud is required to be established," is not 
 a conclusive presumption of fraud or bad faith, and it may be rebutted 
 by positive evidence to the contrary.' The existence of a fraudulent 
 intent is a question for the jury, to be determined upon a considera- 
 tion of all the facts of each case,' and the burden of proof is on the 
 party alleging the fraudulent intent.' 
 
 Although it is doubtful, according to the authorities, whether sub- 
 
 iHale V. Metr. Omnibus Co., 88 L. J. Ch. 777; 29 Iowa, 557; BuUItt v. Taylor, 34 Miss. 708, 
 
 Lang V. Stoofewell, 55 N. H. 561; Solomon v. « Lerow v. Wilmarth, 9 Allen, 386; Pomeroy 
 
 Moral, 53 How. Pr. 343; Cutting V. Jackson, 56 v. Bailey, 45N. H. 118; Van Wyok v. Seward, 6 
 
 N. H. 253; Jones v. Nevers, 2 Pugs. & Bur. 627. Paige, 62; Baker v. Bliss, 39 N. Y. 70; Posten v. 
 
 ' Eodgers v. Langham, 1 Sid, 133; Washband Posten, 4 Whart. 42; Miller v. Pearce. 6 Watts 
 
 V. Washband, 27Conn. 424; Huston v. Cantril, & S. 101; Grldley v. Watson, 53 UL 193; Brldg- 
 
 11 Leigh, 176; Eookhill .,. Spraggs, 9 Ind. 32. ford v. Eiddel, 55 111. 261; Pratt o. Meyers, 66 
 
 So taking the goods for a pre-existing debt Is 111. 84; Stewart u. Eogers, 25 Iowa, 395; Bald- 
 
 a sale for a valuable consideration. Dudley v. win v. Tuttle, 23 Iowa, 74. 
 
 J)anf orth, 61 N. Y. 626. e Eeade v. Llyingston, 3 Johns. Ch. 481 ; 
 
 ' Washband v. Washband, 27 Conn. 424; Sal- Wadsworth v. Havens, 3 Wend. 412; Early v. 
 
 mon V. Bennett, 1 Conn. 525; Eeade v. Living- Owens, 68 Ala. 171. 
 
 -ston, 3 Johns. Ch. 500; Mercer .». Mercer, 29 ' Lerow J). Wilmarth, 9 Allen, 386; HInde v. 
 
 Iowa, 557; Doe o. Hurd, 1 Blackf. 610; Bullitt Longworth, 11 Wheat. 199; Genesee Elver Bank 
 
 ■V. Taylor, 34 Miss. 708; Lerow V. Wilmarth, 9 v. Mead, 92 N. Y, 637. 
 
 Allen, 380; Sexton v. Wheaton, 8 Wheat. 229; « Jackson v. Mather, 7 Cow. 301; Jamison v. 
 
 Hinde's Lessee v. Longworth, 11 Wheat. 199. King. 60 Cal, 132; Harris v. Bums, 50 CaL 140; 
 
 4 Sexton V. Wheaton, 8 Wheat. 229; Hinde's Clark ». Morrill, 21 Up. Can. Q. B. 600; Up. Can. 
 
 Lessee v. Longworth, 11 Wheat. 199; Lerow i>. Q. B. 561. 
 
 Wilmarth, 9 Allen, 386; Eeade ». Livingston,3 "Elliott v. Stoddard, 98 Mass. 145; Erb v. 
 
 Johns. Oh. 500; Salmon v. Bennett, 1 Conn, Cole, 31 Ark. 554; Morgan v. Olvey, 63 Ind. 6; 
 
 i625; Washband v. Washband, 87 Conn. 424; Jewett ». Cook, 81 111.260; Tompkins v. Nioh- 
 
 JJoe V. Hurd, 7 Blackf. 510; Mercer v. Mercer, ols, 53 Ala. 197. 
 
 290 
 
CH. XIII.] CONSTRUCTIVE FRAUD. § 237 
 
 sequent creditors can claim any benefit from the avoidance of a trans- 
 ier of property on account of constructive fraud upon creditors, where 
 the action for avoidance is brought by a contemporaneous creditor, 
 there being authority in support of both the affirmative * and the nega- 
 tive " sides of the proposition, yet it is settled that the subsequent cred- 
 itor cannot take the initiative in avoidance of the transfer, unless it has 
 been made with an actual fraudulent intent; " and the intent must be 
 shown to defraud the subsequent creditors.* When an intent to 
 defraud subsequent creditors is established, the transfer may be avoided 
 by subsequent as well as by existing creditors." It would thus be a 
 fraud against subsequent creditors for one to transfer property to 
 another without consideration, in anticipation of incurring greater 
 liabilities, or of embarking in an unusually hazardous business or specu- 
 lation, whereby the available assets of the debtor are appreciably 
 diminished.^ 
 
 In order that, in any case, a sale may be avoided by creditors, it is 
 Leld that the thing sold must be subjected to levy and sale under exe- 
 cution. The conveyance of property which is exempted from levy 
 under the homestead and exemption law cannot be avoided by credit- 
 ors for beiag voluntary, at least according to most of the authorities.' 
 But there are cases which hold to the contrary, viz. : that the voluntary 
 tjonveyance of a third person without consideration is an act of aban- 
 donment, a fraud upon creditors, and the creditors may attach the 
 property in the hands of the grantee.' 
 
 § 237. Preferences by insolvents in transfer of property in pay- 
 ment of debts, when fraudulent. — Voluntary assignments for benefit 
 of creditors. — In pursuance of the general rule, already explained in 
 the precediQg paragraph, viz.: that the transfer of goods by an 
 
 ' Spirett «. Willow, 3 De G. J. & 8.293; Bona- Herschfeldt v. George, 6 Mich. 466; Bullitt 
 
 zinap. Leed, 3 Low. Can. 446; Carter ». Grim- v. Taylor, 34 Mies. 740; Pyatt v. Myers, 56 IlL 
 
 Shaw, 49 N. H. 100; McLane o. Johnson, 43 Vt. 24. 
 
 48; Bank of Eattensberg, 7 Grant, (Ont.) 383. « Thacher v. Phlnney, 7 Allen, 146; Wads- 
 
 ^SeeShandti. Hanley, 71N. Y.319J Snydem. worth o. Williams, 100 Mass. 136; Dood ». 
 
 Christ, 39 Pa. St. 499; Monroe v. Smith, 79 Pa. Adams, 125 Mass. 398; Klrksey v. Snedeoor, 60 
 
 St. 459; Dorley v. McKIernan, 62 Ala. 34; Lloyd Ala. 192; Mattingly o. Nye, 8 Wall. 370; Graham 
 
 V. Bruce, 41 Iowa, 660; Sanders «. Chandler, 28 v. Railroad Co., 102 U. S. 153; Smith ». Hodges, 
 
 Minn. 273; Lehmberg v. Bibersteln, 51 Tex . 457 j 92 U. S. 183 ; Sexton v. Wheaton, 8 Wheat. 229 ; 
 
 Harlin». Maglaughlan,90Pa. St. 293; Mullen ». Carpenter*. Carpenter,25 N.J. Eq. 194; Dayo. 
 
 Wilson, 44 Pa. St. 413; Arrowsmlth v. O'SuUl- Cooley, 118 Mass. 524; Winchester v. Charter, 
 
 van, 44 N. T. Snpr. Ct. 573. 12 Allen, 606; Beal v. Warren, 2 Gray, 447 Pel- 
 
 SThacher ». Phinney, 7 Allen, 150; Beal «. ham o. Aldrich, SGray, 515; Carpenter o. Eoe, 
 
 Warren, 2 Gray, 447; Trafton v. Hawes, 102 10 N. Y. 227; Babcocki). Eckler, 24 N. Y. 623; 
 
 Mass. 541; Lormore »). Campbell, 60 Barb. 62; Dygert v. Eemerschnlder, 32 N. Y. 648. 
 
 Stonee. Myers, 9 Minn. 311j Sextons. Wheaton, 'Gassetts. Grant, 4 Met. 490; Danforth v. 
 
 S Wheat. 229; Howe v. Ward, 4 Greenl. 195. Beattie, 43 Vt. 138; Wood v. Chambers, 20 Tex. 
 
 1 Winchester ». Charter, 12 Allen, 606; 97 254; Dreutzer ». Bell, 11 Wis. 114; see, also, 
 
 Mass. 106.. Winebrenner». Weislnger, 3 B. Mon. 23; Dear- 
 
 « Marston *. Marston, 54 Me. 476 ; Parkmau v. man v. Dearman, 4 Ala. 521 ; Planters' Bank v. 
 
 Welch, 19 Pick. 231; Coolidge v. Melvln, 42 N. Henderson, 4 Humph. 75; Legro V. Lord, 10 
 
 H.521; Eedfleld®. Buck, 35 Conn. 329; Paulk v. Me. 161 ; Vaughan ». Thompson, 17 111. 78; Fos- 
 
 Cooke, 39 Conn. 566; Van Wyck v. Seward, 6 ter v. McGregor, 11 Vt. 596; Garrison v. Mona- 
 
 Paige, 62 ; Savage v. Murphy, 34 N. Y. 508 ; Case ghan, 33 Pa. St-. 232. 
 
 V. Phelps, 39 N. Y. 164; Williams v. Davis, 69 « Currier v. Sutherland, 54 N. H. 475 (20 Am. 
 
 Pa. St. 21; Bridgeford v. Riddle, 55 III. 261; Eep. 143). 
 
§ 237 EQtJITT JUKISPKUDENCE. [CH. Xm. 
 
 insolvent is never presumed to be fraudulent, where it is supported by 
 a valuable and substantial consideration, it is very generally held that 
 there is no implied fraud, where a debtor makes a transfer of his. 
 property, or a part of it, to one or more creditors, in payment of their 
 claims, to the exclusion of other creditors, who, on account of the want 
 of sufficient assets of the debtor, are thereby left without an equiva- 
 lent remedy. At common law, this is not only the rule, where the 
 goods are transferred directly to a particular creditor or number of 
 creditors,* but also, where the transfer is made to a trustee, in trust 
 for the benefit of a number of creditors, and in satisfaction of their 
 claims, to the exclusion of others.^ And, although there are many 
 cases to the contrary, holding that the assignment must be free from 
 conditions, in order to escape being fraudulent,' it has been held to be 
 laTvful for a debtor to stipulate, that the acceptance of a benefit under 
 the assignment by a creditor must be conditional upon his release of the 
 creditor's claim for the remainder of the debt, which is left unpaid, 
 after a pro rata division of the property in the hands of the assignee.* 
 It would, however, be a fraud, which would vitiate the whole transac- 
 tion, if some of the creditors are induced to sign a release under the 
 assignment, in consideration of receiving a secret payment for a part 
 or the whole of the balance, left unpaid by the distribution under the 
 assignment. ° It would, also, be fraudulent, in a deed requiring a 
 release of the balance of the debt as a condition precedent to sharing 
 in the benefits of the assignment, to provide for the return of the sur- 
 plus to the grantor; ° whereas, such a provision is unobjectionable in a 
 
 JKlngi;.Watson,3Price,6;BufFum». Green, strong v. Byrne, 1 Edw. Ch. 79; Atkinson v. 
 BN.H.71; Wall!). Lakin, 13Met. 167; Deforest Jordan, 5 Ohio, 178: Johnson v. Famam, 58- 
 1). Bacon, 3 Conn. 683 J Hendricks r. Robinson, Ga, 144; Robins v. Embry, 1 Sm. & M. 808; 
 SJohns. Ch.308; Grover ». Wakeman, 11 Wend. Wilde t7. Rawlins, 1 Head, 34j Brown v. Knoz, 
 194; Wilt V. Franklin, 1 Binn. 508; Bruce v. 6 Mo. 302; Hafnerv. Irwin, 1 Ired. L. 490; Mil- 
 Smith, 3 Harr. & J. 499 ; Moffat v. McDowell, 1 ler v. Conklin, 17 Ga. 430 ; Mills « . Levy, 2 Edw. 
 McCord Eq. 434; United States v. Bank, 8 Rob. Ch. 183; Austin 0. Bell, 20 Johns. 412. 
 (La.) 262; Fasset v. Traber, 80 Ohio, 540; Mar- <Hatch«. Smith, B Mass. 42; Hewlett V. Cut- 
 bury II. Brooks, 7 Wheat. 556; Brashear v. ler, 137 Mass. 285; Kings). Watson, 3 Price, 6; 
 West, 7 Pet. 608; Brown v. Minturn, 2 Gall. (IT. Sklpwlth v. Cunningham, 8 Leigh, 271 ; Small 
 S.)557; Ford J). Williams, 3 B. Mon. 550; Stover ». Marwood, 9 B. & C. 300 ; Dockrays. Dockray, 
 ». Herrington, 7 Ala. 142; King d. Trice, 3 Ired. 2 E. L 547; Porter v. Williams, 5 Seld. 142; 
 Eq. 567; Waters ». Comely, 3 Harr. 117; Leitch Allen v. Gardner, 7 B. L 28; Hindman V. Dill, 
 r. Halllster, 4 N. Y. 211; Nioollj). Mumford, 2 11 Ala. 689; Pfeifer V. Dargan, 14 S. C. 44; 
 Johns. Ch. 529j Bates «. Coe, 10 Conn. 280; Gordon v. Cannon, 18 Gratt. 387; Austin ». 
 Stevens i>. Bell, 6 Mass. 339; Johnson v. White- Johnson, 7 Humph. 191 ; Robinson ®. Eapelye, 
 well, 7 Pick. 74; Piokstock v. Lyster, 3 Maule 2 Stew. 86; Stewart v. Spencer, 1 Curt. C. 0. 
 <St S. 371. 157; Keatingc. Vaughan,61Tex.518; Ramsdale 
 
 iiHolbird v. Anderson, 5 T. E. 235; Haven ». v. Sigerson, 2 Gill, 78; Ely v. Hair, 16 B. Mon. 
 Richardson, 5 N. H. 113; Ingraham », Wheeler, 203; Grimshaw v. Walker, 12 Ala. 101 ; D'lve- 
 6Conn. 277; Halsey ». Whitney , 4 Mason, 211 ; mols ». Leavitt, 23Barb. 63; Barney ». Grlfln, 
 Clark ». Peter, 12 Pet. 178; Tompkins v. 4 Sandf. 552; Goss ». Neale, 5 Moore, 29; Hal- 
 Wheeler, 16 Pet. 106; Burd !). Smith, 4 Dall. 85; sey «. Whitney, 4 Mason, 230. 
 Murray r. Riggs, 15 Johns. 571; Stevens®. Bell, 'Story Eq. Jur., §378, and cases there cited ; 
 6 Mass. 342; Piokstock v. Lyster, 3 Maule & S. Spurritt v. Spiller, 1 Atk. 105; Chesterfield «. 
 gri. Janssen, 1 Atk. 352; Smith «. Bromley, DougL 
 
 • Searing v. Brinkerhoff, 5 Johns. Ch. 329; 696. 
 
 Hyslop D. Clarke, 14 Johns. 459; Ingraham v. « Grimshaw i). Walker, 12 Ala. 101; Rankin o. 
 
 Geyer, 13 Mass. 146; Harris v. Sumner, 2 Pick. Lodor, 21 Ala. 380; West v. Snodgrass, 17 Ala. 
 
 129; Wakeman ®. Orover, 4 Paige Ch. 23; Arm- 549; Clayton ». Johnson,36 Ark. 406; McCall o. 
 
 292 
 
CH. Xm.] CONSTEUCTIVE FRAUD. § 237 
 
 general and absolute assignment for the equal benefit of all creditors, 
 and one which will be implied by the law, if it is not expressly made. ' 
 But this is only permissible where the assignment is for the benefit of 
 all the creditors^? it being required, wherever such assignment is valid, 
 that the rest of the property must go to the creditors not provided for 
 under the provisions of the assignment.' 
 
 But the United States bankrupt laws, whenever they have been in 
 force, subject the whole matter of preferential settlements with cred- 
 itors to statutory regulations, which are designed to secure an equitable 
 distribution among the creditors; and some of the state insolvent laws * 
 go the length of prohibiting all preferential assignments and transfers 
 of property to creditors, whether they are made indirectly through an 
 assignee, or directly to the creditor in payment of his claim. ^ In 
 some of the states, the statutes simply nullify the preferential pro- 
 vision, instead of invalidating the whole assignment. ° It is, however, 
 the general rule in this country that a debtor in failing circumstances 
 may, by transfers of property, at least in any other mode than by 
 assignments in trust, settle the claims of one or more creditors to the 
 exclusion of others, wherever there is an honest intention to pay a 
 h(ma fide debf And such transfer was held to be valid under the late 
 national bankrupt law, as well as under many of the state insolvent 
 laws, as long as it was not made when both seller and buyer contem- 
 plated a speedy assignment in bankruptcy.' But in every case where 
 the transfer is ostensibly for the purpose of paying an honest debt, 
 but actually to hinder and defraud creditors, while the goods continue 
 
 Hinckley, 4 Gill, 128j Whedbee v. Stewart, 40 head v. Woodruflf, 11 Bash, 209; Hill ii. Bow- 
 
 Md.414j Maughlin B. Tyler, 47 Md. 545. man, 35 Mich. 191; Fleischer v. Dignon, 53 
 
 iHalseyr. Whitney, 4 Mason, 828; Van Ros- Iowa, 288; Butler v. White, 25 Minn. 432; 
 
 snm B. Walker, 11 Barb. 837; Curtis v. Leavitt, Blennerhassett v. Sherman, 105 U. S. 117; Gage 
 
 15 N. Y. 120; Potter v. Paige, 54 Pa. St. 465; v. Cheesbro, 49 Wis. 494; Beurman v. Van 
 
 Hall V. Denison, 17 Vt. 310. Buren, 44 Mich. 496; Eldridge v. PhlUipson, 
 
 SBamey v. Griffin, 8 N. T. 365; Leitch v. Hoi- 68 Miss. 270; Dudley v. Danforth, 61 N. T. 626; 
 
 lister 4N. T. 211. Smith u. Skeary, 47 Conn. 47, 54; Brigham v. 
 
 3 Ely V. Hair, 16 B. Mon. 230; Miller ». Stetson, Faweett, 42 Mich. 542; GaUB v. Renshaw, 2 Pa. 
 
 32 Ala. 161 ; Bank ». Gorman, 8 W. & S. 304 ; N. A. St. 36. 
 
 & S. B. ■». Huff, 19 Ind. 444; Burgin v. Burgin, 8 Lincoln v. Wilbur, 125 Mass. 249; Hauselt V. 
 
 1 Ired. L. 453. Vllmar, 76 N. Y. 630; Getman v. Oswego Bank, 
 
 *See Berry v. Cutts, 48 Me. 455; Vamum v. 23 Hun, 498; Bentz v. Rockey, 69 Pa. St. 76i 
 
 ■Camp, 1 GreenL 326; Brown v. Lee, 7 Ga. 267; Jones ». Sayer, 52 Md. 211; Sife v. Barman, 26 
 
 Bryan v. Burbin, 26 Mo. 483: Gari v. Hill, 1 Gratt. 566; Eraser ». Thatcher, 49 Tex. 26; 
 
 Stock. Ch. 210; Brown v. Holcomb, 1 Stock. 297. Gardner v. Commercial Bank, 95 111. 298 ; Grant 
 
 'There are statutes to that effect in Ala- v. National Bank, 97 V. S. 80; Barbour v. 
 
 bama, California, Colorado, Louisiana, Maine, Priest, 103 U. S.293; Gottwallsti. MulhoUand, 15 
 
 Massachusetts, Michigan, Minnesota, Missouri, Up. Can. C. P. 62 ; Rish v. Sherman, 21 Grant Ch. 
 
 Nebraska, New Hampshire, New Jersey, Ohio, (Ont.) 250; Blennerhassett v. Sherman, 105 U. S. 
 
 Oregon, Pennsylvania, Rhode Island, Tennes- 100; Rogers*. Palmer, 102 U. S.863; Aufflnordt 
 
 see, Vermont, and Wisconsin. ■». Raisin, 103 U. S. 620; Van Patten v. Burr, 52 
 
 • Henderson v. Pierce, 9 N. E. Rep. 449; Iowa, 518; Scott D. Alford, 53 Tex. 82; Eldridge 
 
 Kerbs v. Ewing, 22 Fed. Rep. 693; Nelson v. v. Phillipson, 58 Miss. 276; Dance v. Searman, 
 
 Garey,15 Neb. 531; Smith ». Bowen, 61 Wis. 11 Gratt. 778; Zahn«. Pry, lOPhila. 217; Frazier 
 
 258^ ' V. Fredericks, 24 N. J. L. 162; Guernsey w. Mll- 
 
 5 York Co. Bank v. Carter, 38 Pa. St. 446, 453; ler, 80 N. Y. 181; James v. Mechanics' Bank, 
 
 Covanhovan v. Hart, 21 Pa. St. 495; Tompkins 12 R. I. 460; Parwell u. Jones, 63 Iowa, 316; 
 
 •». Wheeler, 16 Pet. 118; Marbury ». Brooks, 7 Perry ». Vezina, 63 Iowa, 85j Nelson v. Garey, 
 
 Wheat. 556- 11 Wheat. 178; Ferguson v. Spear, 15 Neb. 531 ; Gallagher's App., 7 Atl. Rep. 237j 
 
 «5 Me ?77; Clajlie v. White, al Pel. 17»i Wnite- Jivana v. Winston, 74 Ala. 349. 
 
 293 
 
§ 238 EQUITY JUKISPKUDENCE. [CH. XIH^ 
 
 secretly to be the property of the debtor, the transfer is, of course, 
 fraudulent, and the creditors may avoid it and proceed against the 
 property.^ 
 
 § 238. Delivery, how far essential to transfer of title as against 
 creditors and subsequent pnrcliasers. — While, as between the par- 
 ties to the sale of personal property, the delivery of possessioa 
 is not essential to the transfer of the title, except when the con- 
 tract calls for an actual delivery by the vendor; yet, as against 
 creditors and subsequent purchasers, the retention of the posses- 
 sion by the vendor is held by the English and American authori- 
 ties to be a badge of fraud upon creditors and subsequent purchasers, 
 and as against them the title of the buyer is not absolute. In 
 many of the states, including New York, Maryland, Delaware, Mis- 
 souri, Indiana, Iowa, Minnesota, Wisconsin, Nebraska and CaJif ornia, 
 as well as in England, there are statutory regulations of the effect of 
 retention of possession by the vendor; but, with or without statutory 
 regulations, the same question is raised everywhere under the commoa 
 law, and independently of the English statute. Partly affected by the 
 phraseology of the statutory regulations, the authorities are divided as. 
 to the effect on the rights of creditors of the vendor's retention of pos- 
 session. The general prevailing rule is, that the retention of posses- 
 sion by the vendor is oviij prima facie evidence of fraud on creditors 
 and subsequent purchasers, which only becomes conclusive upon the 
 failure to rebut the presumption of fraud. Such is the rule in England,^ 
 in United States courts,' in Alabama,* Arkansas, ° Georgia, ° Indiana, '^ 
 Kansas,' Louisiana,' Maine," Massachusetts," Michigan, ^^ Minnesota,'* 
 
 1 Boberts s. Eadcliffe, 35 Kans. 508 Eeitz, 16 Kans. 396; Denny v. Faulkner, 22 
 
 "Martindale v. Booth, 3 Barn. & Ad. 498; Kaus. 89; Frankhouser v. EUett, 28 Kans. 127. 
 
 Lady Arundel v. Phipps, 10 Ves. Jr. 145; Pen- » Miltenberger v. Parker, 17 La. An. ^4; KeU 
 
 nell V. Davidson, 18 C. B. 355; Edwards v. Har- ler v. Blanchard. 19 La. An. 53; Elchardson ». 
 
 ben, 2 T. E. 587; Hazellngton v. Gill, 3 T. E. 620, Cramer, 28 La. An. 357; Spiney v. Wilson, 31 
 
 note (a) ; Lindon v. Sharp, 6 M. & 6. 895-898. La. An. 653; Devonshire v. Gathreaux, 32 La. 
 
 a Warner v. Norton, 20 How. 448; but see. An. 1138. 
 
 contra^ until recently, Hamilton v. Russell, 1 ^^C\iX\jQtv. Copeland, 18 Me. 127; Vlnnlng »., 
 
 Cranch, 309; United States v. Howe, 3 Cranoh, Gilbreth, 39 Me. 496; Sawyer v. Nichols, 40 Me. 
 
 73; Meeker v. Wilson, 8 Gall. 419; Prettiplace 818; McKee v. Garcelou, 60 Me. 165; Fairfield, 
 
 v. Sayles, 4 Mason, 321, 322; United States v. Bridge Co. v. Ny^, 50 Me. 372; Farrar v. Smith, 
 
 Conyngham, 4 Dall. 858. 64 Me. 74 ; Eeed v. Reed, 70 Me. 604. 
 
 ^Hobbs V. Bibb, 2 Stew. 54; Millard v. Hall, 24 "Brooks v. Powers, 15 Mass. 244; Bartlett v. 
 
 Ala. 809; Wyatt v. Steward, 34 Ala. 716; Mayer Williams, 1 Pick. 888; Shumway v, Eutter, 7 
 
 V. Clark, 40 Ala. 259, 269; Maggs». Benedicks, Pick. 56; Carter v. Willard, 19 Pick. 1, 11; 
 
 49 Ala. 512; Crawford v. Kirksey, 50 Ala. 590; Packard v. Wood, 4 Gray, 307; Eourke v. Bui- 
 
 65 Ala. 282, 285. lens, 8 Gray, 549; Veazie v. Somerby, 5 Allen. 
 
 6 Field V. Simeo, 2Eng. 269; Hempstead v. 280; Burger ». Cone, 6 Allen, 412; Lanf ear ». 
 
 Johnson, 18 Ark. 123, 124; George v. Norrls, 25 Sumner, 17 Mass. 110; Ingalls v. Henlck, 108- 
 
 Ark. 121. Mass. 351; Dempseyu. Gardner, 127 Mass. 381; 
 
 « Peck V. Land, 2 Kelly, 1 ; Fleming v. Town- Harlow v. Hall, 132 Mass. 838. 
 
 Bend,6Ga. 103,104; Carter v. Staufleld, 8 6a. i^ jackson ». Dean.l Dougl. (Mich.) 519 ; Bagg 
 
 49; Goodwynu. Goodwyn,20Ga. 600; CollinsK. v. Jerome, 7 Mich. 145; Natch v. Fowler, 2& 
 
 Taggart, 57 Ga. 355. Mich. 805; Molitor v. Eobinson, 40 Mich. 200; 
 
 ' Watson V. Williams, 4 Blackf . 26; Case v. Webster v. Bailey, 40 Mich. 641 ; McLaughlin v. 
 
 Winship, 4 Blackf. 425; Mitter v. Harris, 9 Ind. Lange, 42 Mich. 81; Carpenter v. Graham, 43 
 
 88 ; Kane v. Drake, «7 Ind. 29 ; Rose ». Colter, 76 Mich. 191. 
 
 Ind. 590. isBlackman v. Wheaton, 13 Minn. 326; Vosa 
 
 ' Wolfley V. Rising, 8 Kans. 297; Phillips ti. ii. Stiokney, 19 Minn. 367. 
 
 294 
 
CH. xin.] 
 
 CONSTRUCTIVE FKAUD. 
 
 § 238 
 
 Mississippi/ Nebraska,' New Hampshire,' New Jersey,* New York," 
 North Carolina," Ohio,' Oregon,' Rhode Island,' South Carolina," 
 Tennessee," Texas," Virginia," Wisconsin." On the other hand, the 
 old English doctrine, as laid down in Edwards v. Harber,'* in very 
 guarded terms, is adopted in many of the states, without any material 
 qualification, and the rule established, that the retention of possession 
 is conclusive evidence of fraud on creditors and subsequent purchasers. 
 This rule has been adopted and followed in California," Colorado," 
 Connecticut," Delaware," Florida,^" Illinois," lowa,^* Kentucky,^' 
 
 1 Carter v. Graves, 6 How. (Miss.) 9j Rankin 
 V. HoUoway, 3 Smed. & M. 614; Colstock v. 
 Bayford, 12 Smed & M. 369; Sumner v. Eoas, 43 
 Miss. 749; Hilliard v. Cagle, 46 Miss. 300; 
 Ketcliuni v. Brennan, 53 Miss. 596. 
 
 » Robinson v. TJM, 6 Keb. 388; Morgan v. 
 Bogue, 7 Neb. 429; Densmorer. Tomer, 11 Neb. 
 118; Miller r. Morgan, 11 Neb. 121. 
 
 "Cobum V. Pickering, 3 N. H. 415; Trasks. 
 Bowers, 4 N. H. 309; Paul i;. Crooker, 8 N. H. 
 288; French v. Hall, 9 N. H. Ite; Clarke ii. 
 Morse, 10 N. H. 236; Kendall ii. Fltts, 22 N. H. 
 1, 7; Putnam v. Osgood, 32 N. H. 148; Clapp v. 
 Bogers, 38 N. H. 435; Sumner i>. Dalton, 38 N. 
 H. 295; Stow v. Taft, 38 N. H. 445; Coolidge v. 
 Melvin, 42 N. H. 510; Cutting v. Jackson, 56 N. 
 H. 252; Crawford v. Forristall, 57 N. H. 102; 58 
 N. H. 114; Plaisted v. Holmes, 58 N. H. 293. 
 
 <HaU V. Snowbill, 14 N. J. L. 8; Miller v. 
 Pancoast, 29 N. J. L. 250; Runyon v. Groshen, 
 12 N. J. Eq. 86; Parro. Brady, 37 N. J. L. 201. 
 Contra, Cliumar v. Wood, 1 Halst. 155. 
 
 SHanford v. Artcher, 4 Hill, 271; Thompson 
 V. Blanchard, 4 N. Y . 303 ; Ball v. Loomis, 29 N. 
 Y. 412, 415; Mitchell v. West, fx> N. Y. 107; May 
 t>. Walter, 56 N. Y. 8; Tilson v. TerwlUiger, 56N. 
 T. 2r3; Blant v. Gabler, 77 N. Y. 461; Steele v. 
 Benham, 84 N. Y. 634. 
 
 • Rea V. Alexander, 5 Ired. 644; Boone v. 
 Hardie, 83 N. C. 470. 
 
 'Rogers v. Dare, Wright, 136; Burbridge ». 
 Seeley, Wright, 359; Barr«. Hatch, 3 Ohio, 327; 
 Hombeck v. Van Metre, 9 Ohio, 153; Collins v. 
 Meyers, 16 Ohio, 547, 552. 
 
 8 Moore v. Floyd, 4 Oreg. 101; MeCuUy o. 
 Swaclihamer, 6 Oreg. 438. 
 
 'Anthony v. Wheatons, 7 R. I. 490, 498; Sarle 
 V. Arnold, 7 R. I. 582; Meade v. Gardiner, 13 R. 
 1.257. 
 
 lopregnall v. Miller, 31 S. C. 385 (53 Am. Rep. 
 684); see Terry v. Belcher, 1 Bail. (S. C.) 568; 
 Smith u. Henry, 2 Bail. 118; Fulmore v. Bur- 
 rows, 2 Rich. Eq. 96; Garrett v. Ehame, 9 Rich. 
 407; Qulznard v. Aldrich, 10 Rich. Eq. 353; 
 Jones V. Blake, 3 Hill. Ch. 636; Pringle -o. 
 Bbame, 10 Rich. 74. 
 
 31 Grubbs ». Greer, 5 Coldw. 160; Darwin ». 
 Handley, 3 Yerg. 502; Callen v. Thompson, 3 
 Terg. 475; Young ». Pate, 4 Yerg. 164; Maney 
 V. Killough, 7 Yerg. 443; Gait v. Dibrell, 10 
 Yerg. 146; Maney ». Ebbert, 9 Heisk. 153; 
 Carney v. Camey, 7 Baxt. 204; Wiley ». Lashlee. 
 8 Humph. 717. 
 
 "Bryant v. Kelton, 1 Tex. 415, 431; Gibson v. 
 Hill, 31 Tex. 385; Green v. Banks, 34 Tex. 608; 
 Thornton t>. Tandy, 39 Tex. 544; Kerr v. Hutoh- 
 1ns, 46 Tex. 384; Scott v. Alford, 63 Tex. 82, 98; 
 Edwards v. Dickson, 66 Tex. (1886) 2613; 8 S. W. 
 Rep. 718. 
 
 "Davis V. Turner, 4 Gratt. 432; Forkner v. 
 Stewart, 6 Gratt. 197; Dance v. Seaman, U 
 Gratt. 778; Lipe v. Earman, 26 Gratt. 563; Bait., 
 &c. R. E. Co. o. Glenn, 38 Md; 287, discussing 
 Virginia law. 
 
 "Sterling w. Ripley, 3 Chand. (Wis.) 166; 
 Whitney v. Brunette, 3 Wis. 621; Smith v. 
 Welch, 10 Wis. 91 ; Grant v. Lewis, 14 Wis. 487; 
 BuUis V. Borden, 21 Wis. 135; Williams v. Por- 
 ter, 41 Wis. 423. 
 
 15 2T. R.687. 
 
 16 Wood II. Bugby, 29 Cal. 466; O'Brien v. 
 Chamberlain, 60 Cal. 285; Watson ». Rodgers, 
 53 Cal. 401 ; Grum v. Bainey, 55 Cal. 354. 
 
 " MoCraw v. Welch, 2 Col. 284; Basslnger v. 
 Spangler, 9 Col. 175. 
 
 18 Patten v. Smith, 5 Conn. 196; Swift v. 
 Thompson, 9 Conn. 63, 69 ; Osborne v. TuUer, 
 14 Conn. 529; Kirtland v. Snow, 30 Conn. 23; 
 Lake V. Morris, 30 Conn. 550; Halstat v. 
 Blakeslee, 41 Conn. 301; Mead v. Noyes, 44 
 Conn. 487. 
 
 i» Perry v. Foster, 3 Harr. 293; Burman ii.Hei^ 
 ring, 4 Herring, 458; Taylor v. Richardson, 4 
 Houst. 300. 
 
 !» Gibson v. Love, 4 Fla. 217, 238; Wilson «J. 
 Lott, 5 Fla. 305, 325; Smith v. Hines, 10 Fla. 285, 
 295. 
 
 21 Thornton v. Davenport, 1 Scam. 296; Mc- 
 Cann v. Meyer, 4 Bradw. 376; Davis v. Ran- 
 som, 18 111. 396; Thompson v. Yeck, 21 III. 73; 
 Ketchum v. Watson, 24 111. 591; Walker v. Col- 
 lier, 37 111. 362; Yoiing v. Bradley, 68 111. 553; 
 Broadwell v. Howard, 77 111. 305; Strauss v. 
 Minzesheimer, 78 111. 492; Thompson v. Wil- 
 hlte, 81 111. 456; Lefever v. Mires, 81 111. 456; 
 Ticknor v. McClelland, 84 111. 471 ; Allen v. Carr, 
 85111.388; Rogierw. Williams; 92 111. 187; Dun- 
 ning V. Mead, 90 111. 376. 
 
 22 Prattler v. Parker, 24 Iowa, 26; Hesser v. 
 Wilson, 36 Iowa, 153; Boothby v. Brown, 49- 
 Iowa, 104; Sutton v. Barlow, 46 Iowa, 577; Mc- 
 Kay V. Clapp, 47 Iowa, 318 ; Smith v. Champney,. 
 60 Iowa, 174; Hickok v. Buell, 51 Iowa, 655. 
 
 28 Bobbins®. Oldham, 1 Duv. 38; Hundley ». 
 Webb, 3 J. J. Marsh. 643; Allen v. Johnson, 4 
 J. J. Marsh, 335; Brummel v. Stockton, 3 Dana, 
 
 295 
 
§ 238 
 
 EQUITr JUBISPKUDENCE. 
 
 [CH. xni. 
 
 Maryland,' Missouri,' Nevada,' Pennsylvania,* Vermont.^ The rule 
 that the vendor's retention of possession operates as a fraud on the 
 creditors and subsequent purchasers, has been held not to apply to 
 judicial and other forced sales; if for no other reason, because the pub- 
 licity of the sale gives sufficient notoriety to prevent any presumption 
 of fraud." It is also unnecessary, as against creditors, to deliver the 
 possession of goods, in order to transfer the title, where the goods are 
 exempt from attachment and execution. It is held that there is no 
 fraud on creditors to retain the possession of such goods, because the 
 creditors cannot levy on them, and, therefore, have no interest in 
 them.' 
 
 In the states, in which the retention of possession is held to heprvma 
 facie evidence of fraud, the authorities are divided on the question, 
 whether the good or bad faith of the buyer, as against the vendor's 
 creditors or subsequent purchasers, is a question of law for the court, 
 or of fact for the jury. Some of the courts hold it to be a question of 
 law for the court,' whereas others maintain that it is a question of fact 
 for the jury." Probably the best rule is, that it is a mixed question 
 
 135; Anthony v. Wade, 4 Bush, 110; Morton v. 
 Eagan, 5 Bush, 334; Woodrow v. Davis, 2 B. 
 Men. 898; Kendall v. Hughes, 7 B. Mon. 368; 
 but see Daniel </. Morrison, 6 Dana, 185; 
 Bnders v. Williams, 1 Met. (Ky.) 252; Cum- 
 mingSB. Griggs, 2DuT. 87; Vanmeter v. Estill, 
 78 Ky. 456. 
 
 1 Gough V. Edelen, 5 Gill, 101; Green v. Trel- 
 ber, a Md, 28; Bruce v. Smith, 3 H. & J. 499. 
 
 2 Claflns). Rosenberg, 42 Mo. 439; 43 Mo. 593; 
 Lesem v. Nerriford, 44 Mo. 23; Bishop ». O'Con- 
 nell, 56 Mo. 158; Burgerts. Borchart, 59 Mo. 80; 
 Wright e. Cormick, 67 Mo. 426; Stern ». Henley, 
 68 Mo. 262; Cator v. Collins, 2 Mo. App. 225; 
 Basse v. Thomas, 3 Mo. App. 472; Franklin ii. 
 Gnmmersell, 11 Mo. App. 306, 311; Allen ». Mas- 
 sey, 17 Wall. 351. 
 
 • Carpenter v. Clark, 2 Nev. 243; Lawrence v. 
 Burnham, 4 Nev. 361; Gray v, Sullivan, 10 Nev. 
 416. 
 
 * Dames v. Cope, 4 Binn. 258; Clow v. Woods, 
 5 S. & R. 275; Babb v. Cle mson, 10 S. & R. 428; 
 Shaw V. Levy, 17 S. & R. 99; McKibben v. Mar- 
 tin, 64 Pa. St. 352; Bentz v. Rockey, 69 Pa. SL 
 71; Miller ». Garman, 69Pai St. 134; Garman?). 
 Cooper, 72 Pa. St. 32; Worman v, Kramer, 73 
 Pa. St. 378; Bond ». Bronson, 80 Pa. St. 360; 
 Maynes v. Atwater, 88 Pa. St. 496; Bismarck 
 Bldg. Assn. V. Bolster, 92 Pa. St. 123; Parks v. 
 Smith, 94 Pa. St. 46; Pearson v. Carter, 94 Pa. 
 St. 2r5; Barr v. Boyle, 96 Pa. St. 31; Dougherty 
 V. Haggerty, 96 Pa. St. 515; Crawford®. Davis, 
 99 Pa. St. 579. 
 
 6 Weeks v. Wood, 2 Aik. 64; Boardman ». 
 Keeler, 1 Aik. 168; Mott v. McNeill, 1 Aik. 162; 
 Wilson V. Hooper, 18 Vt. 653; Rockwood v. Col- 
 lamer, 14 Vt. 141; Mills v. Warner, 19 Vt. 609; 
 Stephenson v. Clark, 20 Vt. 624; Parker u. Hen- 
 drick, 89 Vt. 388; Houston v. Howard, 39 Vt. 
 54; Daniels D. Nelson, 41 Vt. 161; Pettingill v. 
 
 296 
 
 Elklns, 50 Vt. 431 ; Weeks v. Prescott, 53 Vt. 57; 
 Hildreth v. Pitts, 53 Vt. 684; Rothschild v. 
 Rowe, 44 Vt. 389. 
 
 ' Latimeru. Batson, 4 Bam. & C. 652; Leonard 
 V. Baker, 1 Maule & S. 251; Watkins v. Birch, 4 
 Taunt. 328; Jezeph v. Ingram, 8 Taunt. 838; 
 Hanford v. Obrecht, 49 111. 146; Lothrop v. 
 Wightman, 5 Wright, 297; Myers v. Harvey, 8 
 Pa. St. 478; Walter v. Gement, 13 Pa. St. 515; 
 Craig's Appeal, 77 Pa. St. 448; Maynes v. At- 
 water, 88 Pa. St. 496; Smite v. Crlsman, 91 Pa. 
 St. 428; Bisbing v. Third Nat. Bank, 93 Pa. St. 
 79; but see, contra, Fonde o. Cross, 15 Wend. 
 628; Gardenler i;. Tubbs, 21 Wend. 169; Stinson 
 V. Wrighley, 86 N. T. 332; see, also, Wordall v. 
 Smith, 1 Camp. 332; Ranney ti. Moody, 6 Up. 
 Can. Com. pi. 471. 
 
 ' Potter V. Smith, 4 Conn. 455; Foster v. Mc- 
 Gregor, 11 Vt. 595. But see, contra. Barton ti. 
 Brown, 68 Cal. 11, on the ground that the right 
 of exemption is a personal privilege, which is 
 waived if it is not claimed by the debtor. 
 
 8 See Griswold v. Shelden, 4N. Y. 501; Edgell 
 V. Hart, 9 N. T. 8, 6; Russell v. Winne, 57 N. Y. 
 591; Tennessee Bank v. Ebbert, 9 Heisk, 153; 
 Collins V. Meyers, 16 Ohio St. 547 ; Cobum v. 
 Pickering, 3 N. H. 415; Trash v. Bowers, 4N. 
 H. 309; Summers. Dalton, 38 N. H. 395; Stow o. 
 Taft, 38 N. H. 445; CooUdge v. Melvin, 48 N. H. 
 510 ; Lang ». Stockwell, 56 N. H. 561 ; Cutting ». 
 Jackson, 58 N. H. 253; Crawford V. Fonistall, 
 57 N. H. 108; Plaisted v. Holmes, 58 N. H. 293. 
 
 9 Scott B. Alford,53Tex. 82; Gray v. Bidwell, 
 7 Mich. 519; Brett v. Carter, 2 Low. C. C. 458; 
 Peck V. Land, 2 Kelly, 1 ; Fleming v. Townsend, 
 6 Ga. 103, 104; Rose v. Colter, 76 Ind. 590; Moh- 
 ter V. Robinson, 40 Mich. 200; Blackman v. 
 Wheaton, 13 Minn. 326 ; Robinson c. Uhl, 6 Neb. 
 333; Densmore i>. Tomer, 11 Neb. 118; Hanford 
 V. Artcher, 4 Hill, 271; Mitchell v. West, 55 N. 
 
CH. Xin.J CONSTEUCTIVE FKAUD. § 239 
 
 of law and fact; a question of law as to the existence or absence of a 
 presumption of fraud, and a question of fact, as to whether the evi- 
 dence in favor of good faith establishes a rebuttal of the presumption 
 of fraud.* In the states, in which the presumption of fraud is con- 
 clusive, it is generally held to be a question of fact for the jury 
 whether there has been a sufficient delivery.' 
 
 Mere delay in the delivery of the possession is ordinarily not con- 
 sidered fraudulent as to creditors, as long as delivery is actually made 
 before attachment. Until the attachment, the debtor has done noth- 
 ing to the injury of the creditor, on which to claim an avoidance of 
 the sale.' In New York the statute calls for an immediate delivery, 
 and so likewise in Minnesota, Nebraska and Wisconsin. In Missouri, 
 the delivery must be made within a reasonable time after the sale.' 
 
 § 239. What delivery is safiBcient as against creditors and snb- 
 tseqnent purchasers. — It has been already explained * that delivery is 
 essential to a transfer of the title of goods sold, as against creditors 
 and subsequent purchasers, and that the retention of possession is at 
 least prima fade, if not conclusive, evidence of fraud, sufficient to 
 avoid the sale in favor of the attaching creditor or subsequent pur- 
 chaser. But this rule of law is never enforced in so narrow a spirit 
 as to require the parties to the contract to do an impossible thing; and 
 hence the question, whether there has been a sufficient delivery as 
 against creditors and subsequent purchasers, must be considered and 
 answered in the light of the particular facts of each case. Where, of 
 course, the retention of possession by the vendor is held to be the only 
 'prima fade evidence of fraud, proof of good faith readily removes the 
 difficulty; but in any case the title is generally held to vest absolutely 
 in the vendee, wherever constructive or symbolical delivery is held to 
 be a sufficient substitute for an actual manual transfer of possession.' 
 Thus, actual delivery is not required as against creditors, where the 
 goods are, for any reason, not susceptible of a manual transfer of pos- 
 session. The constructive possession which the law implies in such 
 
 Y. 107; Mayu. Walter, 56 N. Y. 8; Blant ti. Gab- what constitutes a sufficient delivery to be 
 
 ler, 77 N. Y. 461 ; Eea ». Alexander, 5 Ind. 644; good against creditors and subsequent pur- 
 
 Boone V. Hardie, 83 N. C. 470. chasers, seepo»«, § 239. 
 
 1 See the New York cases. See, also. Brooks ' Gilbert v. Decker, 53 Conn. 401 ; Calkins v. 
 
 V. Powers, 15 Mass. 344; Bartlett v. Williams, Lockwood, 16 Conn. ^76; Hall v. Gaylor, 37 
 
 1 Pick. 288; Shumway v. Bitter 8 Pick. 443; Conn. 550; Bartlett ^. Williams, 1 Pick. 288; 
 
 Shurtleff v. Willard, 19 Pick. 202; Hardy v. Shumway v. Butter, 8 Pick. 447; Blake v. 
 
 Potter, 10 Gray, 89; Ingalls».Herriok, 108 Mass. Graves, 18 Iowa, 312; Clute v. Steele, 6 
 
 sai, Nev. 335; Kendall v. Simpson, 12 Vt. 515; 
 
 « Weber r. Armstrong, 70 Mo. 317; Hewson ti. Cruikshanks v. Coggswell, 36 111. 366; Frank 
 
 Tootle, 72 Mo. 632; Hughes B.Cory, 30 Iowa, 399; ». Miner, 50 III. 455; Berry r. Esnell, 2 Gratt. 
 
 Lake v. Morris, 30 Conn. 201 ; Weber v. Peck, 333 ; Snyder v. Gee, 4 Leigh, 535 ; Wilson v. Les- 
 
 31 Conn. 495; Clow v. Woods, 5 S. & R. 375; lie, 20 Ohio, 389; Brown v. Webb, 20 Ohio, 389. 
 
 Evans ». Scott, 89 Pa. St. 136; R thschild v. i Claflin ». Rosenberg, 43 Mo. 439; 43 Mo. 639; 
 
 Ttowe, 44 Vt. 389 Hesthal v. Myles, 53 Cal. 623. Bishop v. O'Connell, 56 Mo-. 168; Burgert v. 
 
 But the court may refuse to give the question Borohert, 59 Mo. 80; Wright v. McCormiok, 67 
 
 tothejury, where there is no evidence of a Mo. 626. 
 
 change of possession. Rothschild v. Rowe, 44 ' See ante, § 238. 
 
 Vt 389 For a discussion of the question, « See Tiedeman on Sales, §§ 104, lOP 
 
 297 
 
§ 239 EQUITY JUKISPKUDENCE. [CH. Xm. 
 
 cases, is held to be sufficient.* So, also, where goods are in the pos- 
 session of a bailee." But in that case notice to third persons in posses- 
 sion of property is essential to perfect the sale.' 
 
 The most important, as well as the most doubtful, question in this 
 connection, is whether there is a sufficient constructive delivery to avoid 
 the presumption of fraud on creditors, where the vendor retains 
 possession of the goods as bailee of the vendee. Where the statutes 
 expressly require an actual and continued change of possession, it 
 would be very doubtful, except in the plainest and most notorious 
 cases, whether there was a sufficient delivery. The authorities are not 
 uniform, some holding that there would be a sufficient delivery under 
 those facts; and this would seem to be the correct, as well as the most 
 reasonable, rule. * On the other hand, there are some authorities which 
 hold that there is not a sufficient delivery where the vendor retains 
 possession as bailee of the buyer. ^ But where the retention of posses- 
 sion by the vendor is accompanied by distinct and notorious acts of 
 ownership on the part of the buyer, as where the goods are kept in the 
 same place, but the sign is changed, the delivery is held to be sufficient.* 
 So, also, the branding of cattle," and the nailing up holes in a corn- 
 crib.' On the other hand, there is not a sufficient possession where the 
 old sign is retained over the door of the shop.' 
 
 In very many cases, the facts have been held sufficiently doubtful, 
 whether there has been a sufficient change of possession, to make the 
 sale vaM against the creditors and subsequent purchasers, in order to 
 submit the question to the jury." 
 
 '"Growing crops," Eobbins v. Oldham, 1 Campbell «. Hamilton, 63 Iowa, 393; Williams 
 
 DuT. 29; Cummlngs v. Gibbs, 2 Duv. 87; ». Lerch, 56 Cal. 330; Montgomery ». Hunt, 5 
 
 Morton v. Eagan, 6 Bush, 335. " Ponderous Cal. 366 (cattle left In charge of vendor's agent 
 
 articles," Broadwell v. Howard, 77 111. 305; as bailee of the buyer) ; Walden «. Murdook, 23 
 
 Jewett V. Warren, 12 Mass. 300; Davis v. Ran- Cal. 533 (where cattle were branded by the 
 
 som, 18 111. 396; Wright v. Grover, 27 111. 436; buyer); Evans v. Scott, 89 Pa. St. 136 (carpet 
 
 Hart V. Wing, 44 111. 141 ; Simmons «. Jenkins, 76 bought but left in the same place to be used by 
 
 111. 479; Websters. Granger, 78 111. 230; Lefever buyer jointly with vendor). 
 
 V. Mires, 81 111.456; Johnson v. HoUoway, 82 'Huddle v. Givene, (Cal.) 18 Pao. Bep. 421; 
 
 111. 334; Ticknor v. McClelland, 84 111. 471; Betz ». Franz, Pa. St. (n 3 Atl. Eep. 940) noted 
 
 Allen V. Carr, 85 111. 388 ; Goodheart v. Johnson, in 2? Cent. L. J. 19 ; Oro, &c. Co. v. Starr, (Cal.) 
 
 88 HI. 58; Richardson v. Eardln, 88 111.124; 8Pac. Eep. 242; Stevens ». Irain, 15 Cal. 603; 
 
 Dunlap I). Eppler, 88 111. 88 ; Greenebaum v. Bassinger v. Spoulger, 9 Col. 175. 
 
 Wheeler, 90 111. 296; Dunning v. Mead, 90 111. « Cook v. Mann, 6 Col. 21. 
 
 376; Eozier d. Williams, 93 111. 187; Clow v. ' Walden ». Murdock, 23 Cal. 533. 
 
 Woods, 5 S. & B. 275; Kingsley «. White, 57 * Pope u. Cheney, 68 Iowa, 562. 
 
 Vt. 565. 'Brown v. Kimmel, 67 Mo. 430; Woods v. 
 
 2 Linton v. Bntz, 7 Pa. St. 89; Worman v. Bugbey, 29 Cal. 466; Lawrence v. Bumham, 4 
 
 Cramer, 78 Pa. St. 378; Woods v. Hull, 81 Pa. Nev. 361; Hull v. Sigsworth, 48 Conn. 1^; 
 
 St. 451. Claflin v. Eosenberg, 42 Mo. 449 ; Perrln v. Reed. 
 
 STuxworth v. Willard, 9 Pick. 347; Carter v. 86 Vt. 2; Pierce v. Chipman, 8 Vt. 337. 
 
 Willard, 19 Pick. 1; Hardy v. Potter, 10 Gray, 'OEafferty v. McKenna, (Pa. St.) 1 Atl. Eep. 
 
 89; Whitney v. Lynch, 16 Vt. 579. 546 (stenciling vendee's name on side of cars); 
 
 ■•Hobbs V. Carr, 27 Mass. 532; Phelps v. Cut- Wolf ». Kahn, 62 Miss. 814 (business carried on 
 
 ler, 4 Gray, 137; Green «. Rowland, 16 Gray, 58; in same name) ; Parker ?;. Muwell 60N.H. 30 
 
 Stinsonti. Clark, 6 Allen, 340; Gushing o. Breed, (wagon left in seller's possession); Ziegler ». 
 
 14 Allen, 376; Ingalls v. Herrick, 108 Mass. 351 ; Hendrick, 106 Pa. St. 57 (horse, Ac. kept in barn 
 
 Russell V. O'Brien, 127 Mass. 349; Goodheart v. of seller's house) ; Brown v. Kimmel, 67 Mo. 
 
 Johnson, 88 111. 58; Smith v. Crisman, 91 Pa. 430; Evans «. Scott. 89 Pa. St. 136 (leaving 
 
 St 428; Steele ii. Miller, 1 Atl. Eep. (Pa.) 434; carpets in brother's house) ; Roasv Sedgwick, 
 
 298 
 
CH. XIII. J CONSTRUCTIVE FRAUD. § 240 
 
 § 240. Conflicting claims of yendor and vendee's creditors. — 
 
 As soon as the title of the goods has been passed to the vendee, his 
 creditors have a right to the goods as a part of the debtor's assets; and 
 if the vendee redelivers the goods to the vendor, it constitutes a pref- 
 erential satisfaction of a debt, and is fraudulent or not, in accordance 
 with the general principles set forth in the preceding two sections. 
 Thus, it would be a preference to the vendor as a creditor, if the goods 
 were returned to him after the vendee had acquired absolute possession 
 of the goods; ^ whereas, it is not a preference of a creditor for the 
 vendee to return the goods, or allow the vendor time enough to exer- 
 cise his right of stoppage in trmisitii, before the goods have come into 
 the actual possession of the vendee.^ 
 
 69 Cal. 247 (brother's control of furniture in HeineCkey v. Earle, 8 El. St, B. 410; Atkins «. 
 
 lodging-house) ; O'Gara v. Lowry, 5 Mont. 437 Barwick, 1 Stra. 165; 10 Mod. 438; Salts®. Field, 
 
 (brother driving team which he has sold) ; 5 T. K. 211. 
 
 Leayltt c. Jones, 54 Vt. 423 (41 Am. Eep. 849) " Atkins «. Barwick, 10 Stra. 165; Smith v. 
 
 (sale by husband to wife) ; McClure v. Tomey, Field, 5 T. E. 402; Whitehead v. Anderson, 9 M. 
 
 lOr Pa. St 414 (sale by father to daughter). & W. 529 ; Bartram v. Farebrothers, 3 Bing. 579 j 
 
 iBamesr. Freeland, 6T. E. 80;N^eate». Ball, Bolton c. Lancashire, <Sko. E. Co., L. E. 1 CO. 
 
 2 East, 123 ; Eichardson r. Goss, 3 Bos. & P. 119 ; 431 ; 35 L. J. 0. , p. 137 . 
 
 299 
 
CHAPTER XIV. 
 
 JURISDICTION OVER PERSONS NON SUI JURIS. 
 
 Section 
 ■Who are persons non gui juris ? . . . 844 
 Origin of the equitable jurisdiction over 
 
 infants S45 
 
 Conditions of acquiring jurisdiction . 246 
 
 Section 
 Extent and mode of exercising jurisdic- 
 tion 247 
 
 Jurisdiction over the custody of infants S48 
 Jurisdiction over persons of unsound 
 mind . . • .' . . . .249 
 
 § 244. Who are persons non sui juris. — Under this term are 
 included all persons who, through tender age or mental weakness, are 
 incapable of taking care of themselves. The fact, that they are incapa- 
 ble of taking care of themselves, is the justification for the exercise of 
 control by some court over their person and their property. In 
 modern times, .particularly in this country, this control of the person 
 and property of persons non sui juris is chiefly regulated by statute; 
 and the jurisdiction over them is generally conferred on the surrogate 
 or probate courts. In consequence of this modern legislation, the 
 modern equity jurisdiction is not so important as it once was; but in 
 very few cases, if at all, has this jurisdiction of courts having equity 
 powers been abrogated. It is, therefore, proper that a general account 
 should be given of this equitable jurisdiction; but no attempt will be 
 made to include in this chapter any full or general description of the 
 rights and powers of guardians and wards, inasmuch as the general 
 practice of the control of guardians and wards has been transferred 
 by statute to other courts. 
 
 § 245. Origin of the equitable jurisdiction over infants. — ^It 
 has been in times past a matter for dispute, as to the origin of the 
 equitable jurisdiction over infants; but whether it was due to the 
 original executive power of the kings, as parens patrioB, to take care of 
 his incapable subjects, or whether it had its beginning in the court of 
 chancery itself, is a matter of very little concern. It has been so 
 long settled as a branch of the equitable jurisdiction of the courts, 
 instead of being the personal prerogative of the chancellor, as the per- 
 sonal representative of the crown, that no dispute can be raised over 
 the authority of equity judges in general to assume jurisdiction 
 over the person and property of the infant. This is not only the 
 judgment of the English courte; ' but the same jurisdiction is exercised 
 
 •See Byre v. Countess of Shaftsbury, 2 P. 
 Wms. 103; 2 Bq. Lead. Cas. 1416, 1446, 1487 (4th 
 Am . ed.) i Morgan v. Dillon, Mod. 135, 139 ; De 
 
 300 
 
 MannevlUe v. De Manneville, 10 Ves. 52, 63; 
 Wellesleyt). Duke of Beaufort, 8 Russ. 1, 20, 
 21. 
 
CH. XIV. J JUEISDICTION OVER PEESONS NON SUI JURIS. § 247 
 
 freely by the American courts having equity powers, wherever such 
 jurisdiction has not been taken away by statute. ' 
 
 § 246. Conditions of acquiring jnrisdiction. — ^In order, however^ 
 that a court of equity may acquire jurisdiction over an infant, he 
 must have some property. A court of equity will not undertake the 
 control of the person of an infant where the petition to the court does 
 not contain an allegation that the plaintiflf is possessed of property. 
 The possession of property is not essential to the existence of the 
 jurisdiction; but the court will refuse to take jurisdiction where 
 the infant is not possessed of property; because, without such property, 
 the court could not enforce its decree in respect to the main- 
 tenance and care of the infant.^ But the amount of the property 
 is not material; and some of the American cases have gone so 
 far as to recognize the jurisdiction of a court of equity over the 
 infant, even where it appeared affirmatively that he has no property.* 
 In order that an infant might be brought within the jurisdiction of a 
 court of equity in any case, he must be brought into the court by 
 means of a suit of some sort, to which he is a party, either plaintiff or 
 defendant.* 
 
 § ,247. Extent and mode of exercising jnrisdiction. — As soon as 
 the jurisdiction of a court of equity has attached to an infant, by 
 the bringing of a suit in equity to which he is made a party, the 
 court proceeds to do whatever is necessary to protect the interest of the 
 infant. But, in order that any court of equity may acquire jurisdic- 
 tion over an infant, the court must be in the state in which the infant 
 is either domiciled or is at the time a resident,' or in which he has 
 property.' But if he is neither domiciled nor actually resident 
 within the state, and has no property there, the court cannot take 
 jurisdiction over him.' And a court will refuse to exercise juris- 
 diction over an infant who is by force, or surreptitiously, brought 
 
 1 Hutson V . Townsend, 6 Rich. Eq. 249 ; Strip- court) does not act where it has no property of 
 lin V. Waie, 36 Ala. 87; Goodman v. Winter, 64 an infant, but from want of the means to ex- 
 Jd. 410j Johns V. Smith, 56 Miss. 727j Cowls v. ercise its jurisdiction, because the court can- 
 Cowls, 3 Gilm. 435; Minor v. Minor, 11 111. 43; not take on itself the maintenance of all the 
 Lynch v. Botan, 39 Id. 14; McCord v. Ochiltree, children in the kingdom. It can exercise its 
 8 Blackf. 15; Gamer v. Gordon, 41 Ind. 93; jurisdietionusefullyandpracticallyonlywhere 
 Maguire v. Magiiire, 7 Dana, 181 ; Gardenhire v. it has the means of doing so — that is to say. 
 Hinds, 1 Head, 403; Woodt). Wood, 5 Paige, 596, by its having the means of applying property 
 605; People v. Wilcox, 28 Barb. 178; Matter of for the use and maintenance of the infants." 
 Clifton, 47 How. Pr. 172; State i). Stigall, S Zabr. » Johnstone v. Beattie, 10 Cl. & Fin. 42; Cowla 
 286, 289; State v. Balrd, 18 N. J. Eq. 194; 21 Id. v. Cowls, 3 Gilman, 435; Maguire v. Maguire, 7 
 384,387; In, re Harrall, 31 Id. 101; Downin a Dana, 181. 
 
 Specher, 35 Md. 474; Armstrong v. Stone, 9 * Butler ». Freeman, Ambl. 301; Williamson 
 
 Gratt. 102, 106; Williams v. Berry, 8 How. (U. v. Berry, 8 How. (U. S.) 495, 531; In re Graham, 
 
 S.) 495; In the matter of Hubbard, 82 N. Y. 90, L. E. 10 Eq. 530; In re Hodge's Settlement, 3 K. 
 
 92; Wilcox V. Wilcox, 14/4 575; Aymarii. Eoff, &, J. 213; In re Potter, L. E. 7 Eq. 484. 
 
 3 Johns. Ch. 49; Matter of Andrews, 1 Id. 99; « Johnstone v. Beattie, 10 Cl. & Fin. 43; and 
 
 Ex parte Crumb, ZJd. 439 ; Matter of WoUstone see Nugent v. Vetzera, L. E. 2 Eq. 704. 
 
 craft, 4 Id. 80. ' Logan v. Falrlee, Jacob, 193; Stephens ». 
 
 "Lord Eldon says, in Wellesley ». Duke of James, 1 My. <5c K. 627; Salles v. Savignon, 6. 
 
 Beaufort. 8 Euss. I, 21 : '• It is not, however, Ves. 572; Hope v. Hope, 4 De G. M. G. 388. 
 
 from any want of jurisdiction that it (the ' In the matter of Hubbard, 88 N. Y. 90, 93. 
 
 301 
 
§ 248 EQUITY JUKISPEUDENCE. [CH. XIV. 
 
 into a state, where he is not domiciled, and where he has no property.' 
 If the court can assume jurisdiction, the first step which it takes in 
 the assumption of control over the infant and his property, is to 
 appoint a guardian.^ After the guardian has been appointed to take 
 charge of the person or property of the infant, or of both, the further 
 control of the court over the infant's personal property is exerted 
 through the guardian, and consists, generally, in directing and super- 
 vising the actions of the guardian, and providing and compelling the 
 obedience of the infant ward to the guardian. In England, the con- 
 trol and supervision by a court relates to three distinct matters: Fi/rst, 
 the intellectual, moral, and religious training; second, the management 
 of the property and the provision for support; third, the marriage. 
 In regard to the marriage of the ward, in England, a court of equity 
 exercises a very rigid control; particularly with the view to secure a 
 proper settlement of the property of a female ward to her separate 
 use. And it is a contempt of court for one to marry a female ward, 
 without permission of the court which has jurisdiction over her estate. 
 In this country, that jurisdiction is not asserted or exercised, and a 
 court of equity undertakes only to care for the proper training of the 
 child, and the management of its property. The mental and moral 
 training of the child is left to the discretion of the guardian, where 
 the guardian is proven to be one capable of providing for such train- 
 ing. Where, however, the guardian has shown by his moral delin- 
 quencies to be incapable of duly providing for the moral and 
 intellectual training of the child, he will be removed and another 
 guardian appointed in his place. But in regard to the management 
 of the property by the guardian, a court of equity applies to it the 
 general jurisdiction, which it has over the performance of trusts in 
 general, and will employ whatever remedy may be needed to compel 
 an enforcement of the trust and the due administration of the property 
 of the infant. 
 
 § 248. Jurisdiction over the custody of infants. — ^Not only will 
 a court of equity appoint a guardian for the person of an orphan, but 
 it will exercise a controlling influence over the natural guardianship of 
 the parents; and whenever the character of the parents be such, that 
 the best interests of the child will be subserved by its removal from 
 the custody of the parents, a court of equity can, upon the application 
 of some friend of such infant, appoint a guardian to take charge of the 
 child, and remove it from the evil influences of its parents. But this 
 is a very delicate jurisdiction, and will only be exercised by a court of 
 equity in extreme cases, and where the facts are plain, and point to 
 
 1 See Dawson v. Jay, 3 De G. M. <fe G. 764; In Wood ti. Wood, 5 Paige, 596; In the matter of 
 
 thematterof Hubbard, 83 N.T. 90, 95; and see WoUstonecraft, 4 Johns. Ch. 80; Miner v. 
 
 Smith II. Meyeis, 1 T. & C. 665; Carpenter v. Miner, 11 111. 43; Maguire v. Maguire, 7 Dana, 
 
 Spooner, 2 Sandf . 717 ; In the matter of Lagrave, 181 ; Wellesley v. Duke of Beaufort, 2 Russ. 1 ; 
 
 45 How. Pr. 301, 305. In re Kaye, L. R. 1 Ch. 387; Wilcox v. Wilcox, 
 
 s In the matter of Hubbard, 83 N. T. 90, 93; 14 N. Y. 575. 
 
 302 
 
OH. XIV. J JURISDICTION OVEK PEKSONS NON SUI JURIS. § 249 
 
 the absolute necessity of the removal of the child from the custody of 
 its parents, in order to prevent its moral ruin.' For the same reason, 
 a court of equity has the power to remove a legally appointed 
 guardian, whenever the best interests of the child require such 
 removal.' 
 
 § 2i9. Jarisdiction over persons of nnsound mind. — It seems to 
 be definitely settled, that the equitable jurisdiction over persons of 
 unsound mind is not inherent in a court of equity, but is a personal 
 prerogative of the chancellor, as the representative of the crown. This 
 being the case, it is settled under the English chancery practice, that 
 the appointment of a guardian or committee for the care of an 
 unsound person or person of weak mind, either as to the person or to 
 his property, cannot be exercised by any judge of the court of equity, 
 but by the chancellor alone.' But after the chancellor has assumed 
 jurisdiction and appointed a committee or guardian, it becomes a part 
 of the general jurisdiction of a court of equity to compel such com- 
 mittee or guardian to perform the trust reposed in him.* This is the 
 view which prevails generally in this country; so that, independently 
 of statute, a court of equity does not claim the right to take jurisdic- 
 tion over the person or property of one who is non compos mentis.^ 
 But the affairs of persons of weak mind are now regulated by statute, 
 and those courts take jurisdiction over the affairs of such person, which 
 are authorized by this statute to do so. This is not only the rule in 
 England, ' but is likewise the case in the American states. The statutory 
 jurisdiction, thus acquired, extends not only to lunatics, but to all per- 
 sons who are non compos mentis, whatever may be the cause of their 
 mental infirmity.' But as soon as the court, which has this statutory 
 jurisdiction over persons of weak mind, has exercised its jurisdiction by 
 the appointment of a guardian or committee, then the court of equity, 
 
 1 Matter of Waldron, 13 Johns. 418 j People v. Leeming, 3 De G. F. & J. 43 ; In re Fitzgerald 
 
 Mercein, 8 Paige, 47 ; 25 Wend. 64 i Inre Besant, S Soh. A Lef. 151, 438 ; Jn r« Blewltt, 6 De G. M. 
 
 L. E. U Oh. D. 508j Swift v. Swift, 4 De G. J. <St & G. 187. 
 
 S. 710; De Manneville v. De Manneville, 10 Ves. ' See Dowell v. Jacks, 5 Jones Eq. 417. 
 
 68, 62; AVhitfield v. Hales, 18 Id. 498j Warde v. 'In re Webb, 3 Phil. 10; Lysaght v. Royse, S 
 
 Warde, 2 Phil. 786; Anon, 2 Sim., s. s., 54; Sch. & Lef. 151, 153; In re Monaghan, 3 Jo. & 
 
 Thomas ». Roberts, 3 De G. & Sm. 758; Welles" Lat. 258. 
 
 leyu.Dukeof Beaufort,2Russ. Ij s. c.,«Mft»o»i' 'Walker v. Russell, 10 S. C. 82; Morton v. 
 Wellesley v. Wellesley, 2 Bligh, n. b. , 124 ; and Sims, 64 Ga. 298 ; Gray v. Obear, 59 Id. 675 ; Wat- 
 see State V. Baird, 21 N.J. Eq. 384; Common- eon's Interdiction, 31 La. An. 757; Francke v. 
 wealth V. Addioks, 5 Blnn. 520 ; 2 Serg. & R. 174. His Wife, 29 Id. 302 ; Ex parte D03ier, 4 Baxt. 81 ; 
 
 2^a;j)arte Mountfort, 15 Ves. 445. Cuneo v. Bessoni, 63 Ind. 524; Meharry v. 
 
 'Ex parte Chumley, 1 Ves. 296; Mx parte Meharry, 59 Id. 257; In re Collins, 18 N. J. Eq. 
 
 Phillips, 19 Id. 118, 122; Explirte Pickard, 3 V . 253; In re Hill, 31 U. 203; In re Fitzgerald, 30 
 
 & B. 127; In the matter of Webb, 2 Phil. 10; Id. 59; In re Conover, 28 Id. 330; In re Law- 
 
 In the matter of Baker, 2 Johns. Ch. 232, 234; rence, 28 Id. 331 ; Dean's Appeal, 90 Pa. St. 106; 
 
 Ex parte Grimstone, Ambl. 706; s. c, 4 Bro. Rogers d. Walker, 6 Barr, 371 ; Dowell «. Jacks, 
 
 Ch. 235 n ; .Eyre v. Countess of Shaf tsbury, 2 5 Jones Eq. 417 ; see Matter of Baker, 2 Johns. 
 
 P. Wms. 103, 118, 119; Gary v. Bertie, 2 Vem. Oh. 232, 234; In re Lasher, 8 Barb. Ch. 97; In re 
 
 333, 342, 343; Wigg v. Tiler, 8Dick. 552. Dickie, 7 Abb. N. C. 417; Hlrsch v. Trainer, 3 
 
 ^Inre Baker's Trusts, L. R. 13 Eq. 168; Inre Id. 274; In re McAdams, 19 Hun, 292; In re 
 
 Evans, Id. 21 Ch. D. 297; In re Blair, 1 My. <fc Zimmer, 15 Id. 214; In re Page, 7 Daly, 155; 
 
 Cr 300, 302; In re Frost, L. R. 5 Ch. 699; In re Matter of Colah, 6 Id. 308. 
 
 303 
 
§ 249 EQUITY JURISPEUDENCE. [CH. XIV. 
 
 as such, can apply to that case its general jurisdiction over the enforce- 
 ment of trusts, and may compel such guardian or committee to per- 
 form the trust thus reposed in them. ^ 
 
 ij» re Harrall, 31 N. J. Eq. 101 j see, also, Stephens n. Marshall, 23 Hun, 6« ; Polls ». Tlce, 82 
 N. J. Eq. 432; Moody v. Bibb, 50 Ala.' 245; Cole's Com. v. Cole's Adm'T, 28 Giatt. 365; Stvuuph V. 
 Guard, of PfeiflEer, 58 Ind. 472. 
 
 304 
 
CHAPTER XV. 
 
 ANC3IENT USES AND STATUTE OF USES. 
 
 Section 
 
 Origin and history . . . 252 
 
 What is a use 253 
 
 Enforcement of the use .... 854 
 
 Distinction between uses and trusts . 255 
 
 How uses may be created . . . 856 
 
 Same— Resulting use 257 
 
 Same— By simple declarations . . . 258 
 Who might be feoffees to use and eestuis 
 
 que use , . . , . . . . 259 
 
 What might be conveyed to uses . 260 
 Incidents of uses .... .261 
 
 Alienation of uses 262 
 
 Estates capable of being created in uses . 263 
 
 Disposition of uses by will . 
 
 How lost or defeated 
 
 History of the Statute of Uses . 
 
 When statute will operate . 
 
 A person seised to a use and in esse , 
 
 264 
 265 
 
 267 
 
 Section 
 
 Freehold necessary 269 
 
 Use upon a use 270 
 
 Feoffee Bund cestui gue use. — Same person . 271 
 
 A use in esse 272 
 
 Cestui que use in esse ... . 273 
 
 Words of creation and limitation . . 274 
 
 Active and passive uses and trusts . . 275 
 
 Uses to married women .... 276 
 
 Cases in which the statute will not oparate 277 
 
 Future uses 278 
 
 Contingent future uses.— How supported 279 
 
 Contingent uses 280 
 
 Springing uses ... . . 281 
 
 Shifting uses ....... 282 
 
 Future uses in chattel interests . 283 
 Shifting and springing uses.— How de- 
 feated 284 
 
 Incidents of springing and shifting uses 285 
 
 § 252. Origin and history.— It is not proposed to give in detail 
 the history of the origin and introduction into the English jurispru- 
 dence of Uses and Trusts, but a few words are necessary as explanatory 
 of their character. At common law the only mode of conveying lands 
 was by transmutation of possession. This element was a necessary 
 ingredient of every conveyance, for a common law title was inseparable 
 from the right of possession. The power of alienation was also very 
 much restricted. It could only be done with the consent of the lord, 
 and even after these restrictions upon conveyancing were removed, 
 the inability to dispose of lands by will, the cumbersome character of 
 the common law conveyances, and the burdens attached as incidents to 
 a legal estate, such as the rights of dower and curtesy, the possibility 
 of escheat and forfeiture for attainder of treason or corruption of 
 blood, and the innumerable fines and reliefs required by the feudal law 
 of tenure to be paid to the lord, led to the introduction of Uses and 
 Trusts, which relieved the beneficial owner of all these burdens, and 
 gave him an almost absolute property in the lands. A further impetus 
 was given to their general adoption by the prohibitions imposed by the 
 magna cha/rta and the statute of TrwrPmmn upon the ecclesiastical cor- 
 porations to hold and acquire lands. These statutes, recognizing and 
 relating solely to legal estates, only prevented such corporations from 
 holding legal estates. The ecclesiastics, with their customary astute- 
 ness, had the lands conveyed to persons who could take and hold them 
 in trust, to permit the corporations to enjoy the benefit thereof. It 
 may be doubtful whether the ecclesiastics were the first to adopt this 
 20 305 
 
§ 254 EQUITY JUEISPKUDENCK. [CH. XV. 
 
 mode of holding lands, but to them certainly may be ascribed the 
 honor of devising the means for the enforcement of the confidence 
 reposed in the person to whom the land was conveyed. Finally the 
 civil wars between the houses of Lancaster and York, and the increased 
 danger of attainder and confiscation of estates, resulting from partici- 
 pation in these wars upon one side or the other, caused a large portion 
 of the lands of England to be settled in this manner.' It is supposed, 
 with good reason therefor, that the doctrine of uses and trusts was 
 derived from the civil or Roman law, and corresponds, in some respects, 
 to what is known in that system of jurisprudence as the fidei com- 
 missum. ' 
 
 § 253. What is a use ? — A use or trust is a confidence, which 
 acquired, under the operation of the rules of equity, the character of 
 an estate, reposed in the person holding the legal estate, who is known 
 as the feoffee to use or trustee, that he shall permit the person desig- 
 nated in the conveyance to the feoffee to use or by the legal owner, and 
 who is called the cestui que use or trust, to enjoy the rents and profits 
 of the land. The use or trust is the beneficial interest in and issuing 
 out of the land, while the legal title remained in the person who was 
 seised in the use.' In a court of law he was deemed the owner, brought 
 all the actions for the protection of the property against trespass, waste 
 and disseisin, and exercised generally the legal rights of an owner.* 
 He could even maintain an action of ejectment against the cestui que 
 use J" The rights of the cestui que use were not recognized in a court 
 of law. He had no standing in that court, and only obtained an ample 
 remedy for the protection of his estate when the court of chancery 
 assumed jurisdiction.' 
 
 § 254. Enforcement of the use. — Before the English court of 
 chancery acquired jurisdiction, the cestui que use was compelled to 
 rely upon the good faith of the feoffee to use, although there is supposed 
 to have been an inefficient remedy in the spiritual or ecclesiastical courts. 
 But since these courts had no means of enforcing their decrees, and 
 exerted only a spiritual influence over the conscience, the cestui que 
 use was practically dependent upon the honesty of his feoffee to use.' 
 
 1 2 Washb. on Real Prop. 384-386; 1 Spence ' 2 Washb. on Real Prop. 388; 2 Bla. Com. 330; 
 
 Eq. Jur. 439-442; Chudleigh's Case, 3Eep. 123; Bac. Law Tracts, 307; Co. Lit. 271 b, Butler's 
 
 2 Pomeroy Eq. Jur., §978. note, 231, § 2; 2 Pomeroy Eq. Jur., §§ 978, 979; 
 
 s 2 Washb. on Real Prop. 386 jBac. Law Tracts, 1 Spence Eq. Jur. 439-444 ; Burgess v. Wbeate, 
 
 315; Cornish, Uses, 10. "ihs fidei commUmm of 1 W. Bl. 158; Tud. Ld. Gas. 252, 253. 
 
 theRomanlaw, however, could only be created *Tud. Ld. Gas. 252; 2 Bla. Com. 330; 1 Spence 
 
 by will, and was designed to give the beneficial Eq. Jur. 442; Chudleigh's Case, 1 Rep. 121; 2 
 
 Interest in property to those who were other- Pomeroy Eq. Jur. § 979; 2 Washb. on Real 
 
 wise prohibited from taking as devisee. The Prop. 388. 
 
 testator would direct the heir to transfer the ■ ' 1 Spence Eq. Jur. 442; Tud. Ld. Cas. 253; 
 estate to the person designated. This trust Chudleigh's Case, 1 Rep. 121. 
 was then enforced by the courts. It Is, there- « 1 Spence Eq. Jur. 456; Co. Lit. 271 b. But- 
 fore, more proper to say that the fldel commia- ler's note, 231, § 2; Pom. Eq. Jur., §§ 979, 980; 
 Slim suggested the U'e, and the mode of en- Tud. Ld. Cas. 2,^2; Lewin on Tr. 3, 4. 
 forcing it, than that the use is derived from ' 1 Spence Eq. Jur. .444; Tud. Ld. Cas. 252; 
 theRomanlaw. Saunder's.Iustlnlan, 337,338; Bac. Law Tracts, 307. 
 2 Pomeroy Eq. Jur., §§ 976, 977. 
 
 306 
 
CH. XV. J ANCIENT USES AND STATUTE OF USES. § 256 
 
 The ecclesiastics were, of course, greatly concerned in providing a 
 sufficient remedy for their protection and the enforcement of their 
 uses. The court of chancery was at that time entirely under their 
 control, for the chancellor and other judges of the court were almost 
 always appointed from the clergy. And being learned in the civil law, 
 they readily found a precedent in the enforcement of the fidei commissa ^ 
 of that system of jurisprudence. With this precedent before him, 
 John De Waltham, Bishop of Salisbury, Master of the Rolls, devised 
 the "writ of subpoena," returnable in chancery, and directed against 
 the feoffee to use, by which he was made to account under oath to the 
 •cesinii qxie use for the rents and profits he had received from the land.* 
 This writ could at first be issued against the feoffee to use, but not 
 against his heirs and assigns. Subsequently it was made issuable 
 against the heirs and all alienees of the feoffee, who took with notice 
 of the use.' The court of chancery then for the first time acquired 
 complete jurisdiction over uses and trusts. From that time forward, 
 in the exercise of that jurisdiction, a set of rules has been established 
 ior their interpretation and construction, which gave to them, as nearly 
 as it was possible or advisable, the character and incidents of legal 
 estates.' 
 
 § 255. Distinction of uses and trusts. — ^Although the words 
 uses and trusts were employed before the passage of the Statute of 
 Uses, as if they were synonymous; and although they may be used 
 interchangeably when speaking generally of these equitable estates, as 
 they then prevailed, yet a distinction was made between them accord- 
 ing to the permanent or temporary character of the estate. If the 
 right to the rents and profits was permanent — that is, of a long dura- 
 tion — ^it was called a use. If the right was only of a temporary 
 character, or given only for special [purposes, it was designated a 
 i/rust.^ A more radical difference now exists in the present use of 
 these terms, arising out of the change made in equitable estates by the 
 Statute of Uses. 
 
 § 256. How uses may be created. — By feoffment. — Since at com- 
 mon law the ordinary conveyance was feoffment with livery of seisin, 
 operating by transmutation of possession and requiring no evidence in 
 writing of such conveyance, a use might have been created before the 
 Statute of Frauds, when employing this mode of conveyance, by a 
 simple declaration of the feoffor at the time that the feoffee was to 
 hold to the use of some other person.' The Statute of Frauds, how- 
 ever, requires uses and trusts as well as legal estates to be evidenced 
 by some writing signed by the party to be charged. At the present 
 
 1 1 Spence Bq. Jur. 436 ; Bao. Law Tracts, 315. Dig. 341 j 1 Spence Eq. Jur. 435 ; 2 Bla. Com. 331. 
 
 »1 Spence Eq. Jur. 438; 2 Washb. on Real « 2 Washb. on Real Prop. 398j 1 Cruise Dig. 
 
 Prop. 389 J 1 Pom. Eq. Jur., §§428-431. 246; Tud. Ld. Gas. 255; Saund. Uses, 3, 7; 1 
 
 3 1 Spence Eq. Jur. 445; 3 Washb. on Real Spence Eq. Jur. 448. 
 
 Prop. 380; 3 Bla. Com. 829; Burgess v. Wheate, » 1 Spence Eq. Jur. 449; 2 Washb. on Real 
 
 1 W. Bl. 156;2Pom. Eq. Jur., §980. Prop. 392; 2 Bla. Com. 331, 
 
 *2 Washb. on Real Prop. 392; 1 Cruise 
 
 307 
 
§ 257 EQUITY JtTEISPRUDENCE. [CH. XV. 
 
 day, therefore, an oral declaration will not be sufficient to raise a use.^ 
 § 257. Same— Resulting use. — As a consequence of the intro- 
 duction of uses, if one makes a conveyance in fee without receiving 
 any good or valuable consideration, equity, presuming that one will 
 not part with a valuable estate without receiving in return a consid- 
 eration, held that the beneficial or equitable interest remained in or 
 resulted to the grantor. He was supposed to have intended that the 
 use should be reserved to himself. This was called a resulting use. 
 It became, therefore, a general rule that a conveyance of the legal 
 estate in fee without a consideration will not carry with it the bene- 
 ficial interest unless the facts of the case were such as to rebut the 
 presumption that the feoffor did not intend to part with the beneficial 
 interest.^ But where the estate conveyed was less than a fee, there 
 was no resulting use, as the duties and liabilities attached to an estate 
 for life, for years and in tail, were considered a sufficient considera- 
 tion to prevent the use resulting to the grantor and, also, because the 
 retention of a part of the estate negatives the presumption that he did 
 not intend to part with the beneficial interest in the part which he did 
 convey.^ The use can result only to the grantor and his heirs.* And 
 for the purpose of carrying the use to the feoffee, the smallest nominal 
 consideration was sufficient. It need not be stated in the deed if an 
 actual consideration had passed between the parties; on the other 
 hand, if there is an acknowledgment of the receipt of the consideration 
 in the deed of conveyance, there need be no actual consideration, 
 since the parties to the deed will be estopped from denying it.^ Nor 
 is a consideration necessary where the deed expressly declares to 
 whose use the land shall be held. But if only a part of the use is 
 declared by the deed, the remainder would result to the grantor, in 
 the same manner as if no use had been limited, unless the use declared 
 is limited to the gi-antor, when the remainder will be in the feoffee.^ 
 Where, however, the use in remainder is limited by wiU, and there is 
 
 1 Stat. 29 Car. II, Oh. Ill, §§7, 8; 2Washb. on Lean, 1 Johns. Oh. 582; Farrington v. Barr, 38 
 
 Eeal Prop. 500, 601; Saund. Uses, 229; Tud. N. H. 86; Miller v. Wilson, 15 Ohio, 108; Phil- 
 
 Ld. Cas. 266. brook v. Delano, 29 Me. 410; Maigly v. Hauer, 7 
 
 25 Washb. on Eeal Prop. 393; 1 Spence Bq. Johns. 341; Shepherd v. Little, 14 Johns. 210; 
 
 Jur. 451; 2 Bla. Com. 331; Lloyd ». Spillett, 2 Morse c. Shattuck, 4 N. H. 229; 8 Washb. on 
 
 Atk. 150; 2 Pom. Eq, Jur., § 981; Osbom ». Eeal Prop. 394; Gould i>. LInde, 114 Mass. 366; 
 
 Osborn 26 N. J. Eq. 385. Graves ®. Graves, 29 N. H. 129; Cairns v. Col- 
 
 8 1 Prest. Est. 192; 1 Cruise Dig. 376; 1 Spence bum, 104 Mass. 274. 
 
 Eq. Jur. 452; 2 Washb. Eeal Prop. 396; Tud. « 1 Spence Eq. Jur. 449, 611; 2 Bla. Com. 329- 
 
 Ld. Cas. 258 Lloyd v. Spillett, 2 Atk. 150; Bac. Law Tracts,' 
 
 * 2 Washb. on Eeal Prop. 393, 394; 1 Prest. 317; Saund. Uses, 103, 104, 142; Co. Lit. 23 a- 
 
 Est. 195; 1 Cruise Dig. 373. Tud. Ld. Cas. 258; 1 Prest. Est. 191, 195; Pjbus v. 
 
 6 1 Spence Eq. Jur. 450, 451 ; 2 Bla. Com. 329; Mitford, 1 Veutr. 372; Tipping v. Cozzens, 1 Ld". 
 
 Tud. Ld. Cas. 255 ; Lewin on Tr. 27 ; Squire v. Eaym. 33 ; Volgen v. Yates, 5 Seld. 223 ; Farring- 
 
 Harder, 1 Paige, 494; Bk. of U. S. v. Houseman, ton v. Barr, 36 N. H. 88; Sir Edw. Clerc's Case 
 
 6 Paige, 526; Titoomb v. Morrill, 10 Allen, 16; 6 Eep. 17; Kennistou v. Leighton, 53 N. H. 311. 
 
 1 Greenl. on Ev., § 26; Wilkinson i). Scott, Graves u. Graves, 9 Fost, 129; Spragueti. Woods' 
 
 17 Mass. 257; Griswold v. Messenger, 6 Pick. 4 Watts & S. 192; Walkers. Walker, 2 Atk. 68- 
 
 617; Bragg ». Geddes, 93 111. 39; Bartlett v. Lampleigh v. Lampleigh, 1 P. Wms. 1I2- St* 
 
 Bartlett, 14 Gray, 277; Gerry ». Simpson, 60 Me. John 1). Benedict, 6 Johns. Ch. 116; Capen v 
 
 186; Wilt V. Franklin, IBlnn, 618; Boyd v. Mo- Richardson, 7 Gray, 370; Altham v. Angeleseal 
 
 308 
 
CH. XV.] ANCIENT USES AND STATUTE OF USES. § 259 
 
 no disposition of the use during the life of the trustee, particularly 
 where the trustee is the wife or other near relative of the testator, a 
 use is held to be limited by implication in the trustee for his or her life.* 
 The doctrine of resulting uses has been abolished by statute in some of 
 the states. 
 
 § 258. Same — By simple declarations. — ^Not only could uses be 
 raised by a declaration to that effect, made in connection with a feoff- 
 ment or other common law conveyance, as above explained, but also by 
 a simple declaration made by the legal owner that he held the land to 
 the use of another.* But since a court of equity lends its aid only to 
 the prevention of an injury or wrong {injuria), and will not enforce 
 mere voluntary obligations, these declarations, when made independ- 
 ently of a common law conveyance, had to rest upon a consideration, 
 in order that they might be enforced. If the declaration was made to 
 a stranger a valuable consideration was required, but it need not be a 
 substantial one; while in the case of a declaration to a near blood-rela- 
 tion, a good consideration, natural love and affection, would answer." 
 And under this rule equity always construed a contract of sale or agree- 
 ment to convey as a declaration to uses, and would enforce it if the 
 requisite consideration was present.* The Statute of Frauds now 
 requires all such declarations to be proved by some instrument in 
 writing.^ 
 
 § 259. Who might be feoffees to use and cestuis qne use. — As a 
 general proposition, all persons who could be grantees in a common 
 law conveyance can be either fooffees to use or cestuis que use, infants 
 and married women not excepted. The married woman, as JhoJ^ee to 
 use, would hold the legal estate free from any attaching rights of her 
 husband, and, as cestuis que use, enjoy the beneficial interest as freely 
 as if she were single. Her husband acquires no rights in the equitable 
 estate, since they attach and relate to only legal estates. ° Corporations 
 can be cestuis qus use.'' It was formerly held that corporations could 
 not he feoffees to u^e, it being supposed impossible to enforce the per- 
 formance of the use on account of the intangible, soulless character of 
 the corporation. That doctrine has now been exploded, and courts of 
 equity can enforce their decrees just as effectively against corporations 
 as against natural persons. It is, therefore, the prevailing rule in this 
 country that corporations may hold lands as, feoffee to v^e, provided the 
 
 11 Mod. 210; BoydV. McLean, IJohns. Ch. 582; « See^jos*, § 298. 
 
 Peabody v. Tarbell, 8 Cush. 232; Adams v. e Tud. Ld. Gas. 254; 4 Kent's Com. 293; Eger- 
 
 Savage, 2 Salk. 679; Rawley v. Holland, 2 Eq. ton v. Brownlow, 4 H. L. Cas. 206; Saund. Uses, 
 
 Cas. Abr. 753; 1 Cruise Dig. 376; Roe v. Pop- 349; Hill, Trust. 52; Pinson v. Ivey, 1 Yerg. 325; 
 
 ham, Dougl. (Mich.) 25; MoCownc. King, 23 S. Springers. Berry, 48 Me. 338; Claussen v. La 
 
 C. 232, Gove v. Learoyd, 140 Mass. 524. Franz, 1 Iowa, 237; 2 Washb. on Real Prop. 391, 
 
 1 Fisher V. Fisher, 41 N. J. Eq. 16. 392; 1 Cruise Dig. 340, It is here meant that 
 
 2 See post, § S94. the husband's rights during coverture do not 
 
 3 2 Bla. Com. 329; Co. Lit. 271 b, Butler's note, attach to the wife's equitable estate. But he 
 231; Tud. Ld. Cas. 268; 1 Spence Eq. Jur. 450; has curtesy in such estates, unless expressly 
 2 Washb. on Eeal Prop. 394, 395. excluded. See Tiedeman Real Prop. , § 105. 
 
 4 2 Washb. on Real Prop. 397; 1 Spence Eq. ' Cruise Dig. 354; 2 Washb. on Real Prop. 391; 
 Jui. 452. 453. Tud. Ld. Cas. 254. 
 
 309 
 
§ 262 ■ EQUITY JUEISPRUDENCE. [CH. XV. 
 
 limitations of their charters do not make such a conveyance foreign to 
 the purposes of their creation.' 
 
 § 260. What might be conveyed to uses.— Every species of real 
 property, which is comprehended under the terms lands^ teneTuents and 
 hereditcmients, both corporeal and incorporeal, may be the subject of 
 conveyance to uses." At an early period it was held necessary for the 
 grantor to be possessed of an estate of which seisin could be predicted, 
 in order that a use might be created out of it.' But this doctrine has. 
 long since been abandoned, and chattels, both real and personal, cau 
 now be settled to uses. But since a mortgage is treated in equity as 
 a lien instead of an estate in lands, there can be no conveyance of it to 
 uses, *. e., independently of the debt. The debt may be conveyed ta 
 uses, and the mortgage would follow as an incident of the debt.* 
 
 § 261. Incidents of uses. — As uses, considered as estates in lands, 
 were the mere creatures of equity, and acquired in the early days of 
 their existence no actual recognition in a court of law, the court of 
 chancery, in establishing rules for the government and construction of 
 them, while following to some extent the analogies of the law in rela- 
 tion to legal estates, adopted only such rules of the common law as 
 were consistent with the intended (jharacter of this equitable estate. 
 It, therefore, discarded the doctrines of feudal tenure and seisin alto- 
 gether. Nor did the court at first recognize in uses the rights of 
 dower and curtesy. Uses were also held to be not liable to levy and 
 sale under execution; nor were they forfeited to the crown upon 
 attainder until the statute of 33 Hen. VIII., ch. 20, § 2.= But they 
 were descendible to the heirs, in conformity with the common law of 
 descents.' 
 
 § 262. Alienation of nses. — For the same reasons, the restrictions 
 imposed upon the common law power of alienation were not applied 
 to uses. There is no limitation upon the alienation of uses, except that 
 imposed by the Statute of Frauds. Before the passage of that statute 
 no formal assignment in writing was required, a simple direction to 
 the trustee to pay oj^er the rents and profits to the assignee was suf- 
 ficient. These directions the trustee was bound to follow, and obedi- 
 ence could be enforced in like manner as in the case of the original 
 cestui que use. But the assignment of the use necessarily had no 
 effect upon the legal estate in the trustee, unless he joined in the con- 
 veyance.* And then the formalities required in all common law con- 
 
 lAng. & Ames on Corp., Ch. II, §§ 6-8j 2 297; 2 Bla. Com. 331; Jackson v. Catlin, Z 
 
 Washb. on Eeal Prop. 391; Vldal v. Girard, 2 Johns. 261. Uses are now very generally held 
 
 How. 127; Sutton ti. Cole, 3 Pick. 832; Phillip's to be subject to the husband's right of curtesy 
 
 Academy v. King, 12 Mass . 546. See Tiedeman Eeal Prop. , § 105. 
 
 2 2 Washb. v. Eeal Prop. 391; 2 Bla. Com. 331. » 8 Bla. Com. 329; 1 Spence Eq Jur 454 
 
 3 Bla. Com. 331; 1 Cruise Dig. 340; Tud. Ld. ' 2 Cruise Dig. 342; 1 Spence Eq! Jur. 454. 
 Cas. 859. The Statute of Frauds required all trusts and 
 
 *2 Washb. on Keal Prop. 408; Merrill n, confidences to be proved by some writing 2* 
 
 Brown, 18 Pick. 220. Car. II, Ch. IIL SeepoH, § 296. 
 
 «2Washb. on Eeal Prop. 395,399; 1 Spence '2 Washb. on Eeal Prop. 396; 2 Bla. Com 33L 
 Eq. Jur. 455, 456, 460; 1 Washb. on Eeal Prop. 
 
 310 
 
CH. XV.] ANCIENT USES AND STATUTE OF USES. § 266 
 
 veyances must have been complied with in order to pass the legal estate. 
 
 § 263. Estates capable of being created in uses. — When one has 
 an unlimited use, i. e. , a use in fee, whether alone or merged in the 
 legal estate, there is no limitation upon the number and kinds of 
 estates which might be carved out of it. Not only may all the estates 
 known to the common law be created, such as in tail, for years, for life, 
 in remainder vested or contingent, upon condition and upon limi- 
 tation,* but other estates and interests may be limited which are 
 unknown to the common law, and violate its most inflexible rules. 
 Thus, an estate in freehold in the use may be created to commence in 
 the future without a particular estate to support it, whether it be 
 vested or contingent. Or the grantor may limit the use in such a 
 manner as to pass from one to another upon the happening of a contin- 
 gency; or he may reserve to himself or grant to another the power to 
 divest the present cestui que use and vest the use in another to be 
 appointed, or simply by such destruction of the prior use to cause the 
 use to revert to the grantor. These limitations were impossible at 
 common law.^ And in construing the limitations of uses, the strict 
 technical rules are not observed, the intention governing in each case. 
 A fee might, therefore, be created in the use without an express limi- 
 tation to heirs, if the intention to create such an estate is manifested in. 
 any other way." 
 
 § 264. Disposition of uses by will. — Under the feudal system^ 
 lands could not be disposed of by will. But uses were held to be capable 
 of devise without limitation; and until the passage of the Statute of 
 Wills, 32 Hen. "VTII., which made lands divisable by law, as they 
 were under the Saxon law before the Norman conquest, it was a 
 common custom to convey lands to the use of the grantor, which he 
 could then dispose of by will as weU as by deed. The Statute of 
 Wills obviated the necessity of such a conveyance in respect to all 
 persons who were empowered by that statute to devise lands. As 
 married women were expressly excluded from the benefit of the 
 statute, this practice of conveying to uses to enable a disposition by 
 will still obtained as to them. The will in such cases only operates 
 as an assignment or devise of the use, or, if it be executed under a 
 power of appointment, as a declaration or appointment of a use, and 
 the legal estate remains unaffected in the hands of the trustee. But 
 in chancery the equitable interests thus acquired by the devisee would 
 receive as complete a protection as those of an assignee or grantee 
 imter vvoos.*' 
 
 § 265. How lost or defeated. — The enforcement, and hence the 
 
 » 1 Spence Eq. Jur. 455; 1 Cruise Dig. 343; 3 s i Spenoe Eq. Jur. 453; Tud Ld. Cas. 263; 3 
 
 Washb. on Keal Prop. 397. Washb. on Real Prop. 395. 
 
 aSWashb. on Real Prop. 39r, 398; 1 Cruise *Co. Lit. 371 b, Butler's note, 231; Tud. Ld. 
 
 Dig. 343; 1 Spence Eq. Jur. 455. Chudleigb's Cas. 268; 2 Bla. Com. 329; 2 Washb. on Real 
 
 Case, IBep. 135; Shelley's Case, 1 Eep. 101; Prop. 395, 396 ; 6 Cruise Dig. 3, 4. 
 Feame Cont. Hem. 884. 
 
 311 
 
§ 266 EQUITY JUEISPEUDENCE. [OH. XV. 
 
 validity of a use, depends upon a privity of estate and person, existing 
 between the feoffee and cestui que use in relation to the land. Before 
 the Statute of Uses, any act of the feoffee by which this privity was 
 destroyed, would defeat the use also. If the feoffee lost his seisin by 
 being disseised, or he disposed of the land by deed to a purchaser for con- 
 sideration and without notice of the use, the use would be defeated, 
 whether it was vested or contingent, in possession or in remainder. But 
 a conveyance to one with notice, or without consideration, or a descent 
 of the lands to the heirs of the feoffee would not affect the use. The use 
 could still be enforced against the assignee or heir.* Where the feoffee 
 was disseised, he alone could recover the seisin according to the 
 common law, and the cestui- que use could not enforce the use against 
 the disseisor. And, although even now the disseisin of the trustee is 
 likewise a disseisin of the cestv/i que use, and, if continued for a 
 sufficient length of time, would bar both the equitable and legal 
 estates, yet at present, the cestui que use may, upon his own motion, 
 and without the co-operation of his trustee, have the disseisor declared 
 a trustee, holding the legal estate subject to the use." 
 
 § 266. History of the Statute of Uses. — As has been stated in the 
 preceding sections, uses became a very common mode of limiting 
 estates. In consequence of the equitable and uncertain character of 
 the use, and its freedom from the burdens of common law estates, its 
 popularity gave rise to the constant perpetration of frauds upon the 
 legal rights of others. " Heirs were unjustly inherited; the king lost 
 his profits of attained persons, aliens born, and felons; lords lost their 
 wards, marriages, reliefs, heriots, escheats, aids; married men lost 
 their tenancies by the curtesy, and women their dower; purchasers 
 were defrauded; no one knew against whom to bring his action, and 
 manifest perjuries were committed." ' Several attempts were made 
 by the enactment of statutes to check these abuses, notably a statute 
 in the reign of Richard III. (1 R. III., ch. 1), but to no avail. Means 
 of avoiding the operation of these statutes were soon discovered, and 
 the abuses were as grievous after as they were before their enact- 
 ment. Finally the statute of 2Y Hen. VIII., ch. 10, the celebrated 
 Statute of Uses, was passed by Parliament.* The evident intention 
 
 'Co. Lit. 371 b, Butler's note, 231, § 8; tenements, rents, senrloes, reversions, romaln- 
 Tud. Ld. Cas. g54j Lewln on Tr. 2; 2 Washb. ders, or other horedltamentb, to the «««, con- 
 on Real Prop. 389, 400; 1 Spenoe Eq. Jur. 466; fidence o^trutt of any otker person or persons, 
 Chudlelgh's Case, 1 Rep. 120 ; Dennis v. MoOagg, or of any body politic, by reason of any bar- 
 32 111. 445; Hallett v. Collins, 10 How. 174; Den gain, sale, feoffment, fine, recovery, covenant, 
 V. Troutman, 7 Ired. 15.5; Burgess v. Wheate, 1 contract, agreement, will or otherwise, by any 
 W. Bl. 168; Oholmondely t). Clinton, 2 Merlv. manner of means whatsoever It be; that In 
 358. every such cawe, all and every such person and 
 
 « See preceding note; 1 Spenoe Eq. Jur. 601; persons and bodies politic, that have or here- 
 
 1 Cruise Dig. 403. after shall have, any such use, confidence or 
 
 « 1 Sugd. Pow. (ed. 1866) 78. trust, in fee simple, foe tail, for term of life, 
 
 * The statute enacted that " where any per- or for years or otherwise, or any use, confidence 
 
 (son or persons stood or ■were, seined, ot at any or trust in remainder or reverter, shall from 
 
 time thereafter should happen to be seized, henocforth stand and bo seized, deemed and 
 
 of and in any honours, castles, manors, lands, adjudgedln lawful aeiain, estate and iiosaesaion 
 
 312 
 
OH. XV. j ANCIENT USES AND STATUTE OF USES. § 268 
 
 of the legislator was to abolish the doctrine of uses altogether by the 
 statutory transfer of the legal estate from the feoffee to use to the 
 cestui- que use in every case, whatever may be the limitations upon 
 the use. But the statute met with the most determined opposition 
 from the bench and bar. Notwithstanding the many alleged frauds 
 which could be committed by an abuse of the doctrine, public senti- 
 ment was opposed to its absolute destruction, and was in favor of 
 preserving the power of creating an equitable estate in the nature of a 
 use. And notwithstanding the remedial character of the statute, it 
 received at the hands of the profession a strict and technical construc- 
 tion, and was permitted to operate only as far as it was impossible to 
 render nugatory its express provisions. Instead of destroying uses, 
 the statute only established them upon a firmer basis. By a remark- 
 able course of judicial construction — it was practically legislation — the 
 modern doctrine of trusts arose, which obtains to this day, and which 
 includes every species of equitable estate which, under the statute, is 
 capable of creation without being merged into the legal estate. 
 
 § 267. When a statute will operate. — The Statute of Uses will 
 only operate upon a conveyance to uses, and transfer the legal to the 
 holder of the equitable title, when the following three elements are 
 present: Mrst, a person seised to a use, and in esse; second, a cestui 
 que use in esse; and third, a use in esse.^ 
 
 § 268. A person seised to a use and in esse.— Any person who 
 was capable of being seised before the statute would satisfy the require- 
 ments. And although at first it was supposed and held, that aliens 
 and corporations could not be seised to uses, at the present day there 
 is no such restriction. In regard to alien feoffees to use, the general 
 rules of equity relating to trusts will apply, and prevent the failure of 
 the use because of their incapacity to hold the seisin." And in this 
 country corporations are included under the term of "persons," and 
 may be seised to uses if the limitations of their charters permit of 
 such holding.' But the person seised must be in esse. If by reason 
 
 of and In the same honours, castles, manors, the different states of this country as part of 
 
 lands, tenements, rents, services, reversions, the common law, or substantially re-enaoted, 
 
 remainders, orotherheredltaments, with their so that It prevails generally throughout the 
 
 appurtenances, to all Intents, constructions United States. 2 Pom. Eq. Jur., § 530, note Ij 
 
 and purposes In the law, of and In such like Perry on Tr. 289; Guest v. Farley, 19 Mo. 147; 
 
 estates as they had or shall have In the use, Booker v. Carlisle, 14 Bush, 154j Sherman v. 
 
 oonfldonoe or trust of or In the same ; and that Dodge, 88 Vt . 26, 31 ; Bryan v. Bradley, 16 Conn, 
 
 the estate, title, right and possession, that was 474; Bowman v. Long, 26 Ga. 142; MoNab «. 
 
 in such person or persons, that were or here- Young, 81 III. 11 i Gorham v. Daniels, 23 Vt, 600. 
 
 after shall bo seized of any lands, tenements » 1 Crulse'Dlg. 349 ; 2 Washb. on Real Prop.407. 
 
 or hereditaments to the use, confldenoo or "awashb. on Real Prop. 408; 1 Cruise Dig. 
 
 trust of any such person or persons, or of any 349; Bao. Law Tracts, 347, 348. 
 
 body politic, bo from henceforth clearly ssuttonu. Cole, 3 Pick. 240; TT. S. f. Amody, 
 
 deemed and adjudged to be in him or them 11 Wheat. 392; Vldal v. Glranl, 2 How. 127; 
 
 that have or hereafter shall have such use, Phillip's Academy v. King, 12 Mass. 546; Ang. 
 
 confidence or trust, after suoh!2'MoM<y,m«»n<'/', & Ames on Corp., Ch. V, §§6 8; Greene v. 
 
 form and condition ns they had before, in or Dennis, 6 Conn. 393; First Comr. Soc. v. At- 
 
 to the use, confidence or trust that was In water, 23 rd. 34; Mayor, Ac. v. Emott,3 Eawlo, 
 
 them " This statute has either been adoptedln 170; Bethlehem Borough v. Perseverance Plre 
 
 313 
 
§ 270 EQUITY JUKISPEUDENCE. [CH. XV. 
 
 of the limitations of the conveyance the feoffee to use is uncertain, as. 
 he would be if the legal estate upon which the use depends is a con- 
 tiagent remainder, the statute cannot operate imtil the contingency 
 happens, upon which the remainder becomes vested.* 
 
 § 269. Freehold necessary. — Seisin cannot be predicated of lease- 
 hold estates. In order, therefore, that the statute may take effect, 
 the estate in the feoffee to use must be a freehold, for the reason that 
 the statute only provides for the transfer of the legal estate where one 
 is seised to the use of another. All leaseholds held to uses remain, 
 unexecuted, as before the statute; and the uses are enforceable only 
 in a court of equity. It was once supposed that the freehold must be 
 greater than a life estate; but it is now held that any freehold estate 
 is sufficient, including life estates and all estates of inheritance.* If 
 the freehold, upon which the use depends, is not commensurate with 
 the use, the use will be valid and will be executed, only as far as the 
 legal estate extends. If the legal estate in the feoffee is only a life 
 estate, the use is good only for that time, even though the limitation 
 of the use be in terms a fee simple.' But it is probable at the present 
 day that the rule would be so far relaxed as to make the legal 
 estate by construction co-extensive with the use, unless a smaller 
 estate is expressly limited, in conformity with the rule governing 
 the same question in its connection with the doctrine of trusts.* And 
 an estate tail has been held sufficient to support a use in fee simple.* 
 
 § 270. Use npon a use. — Since seisin requires a legal estate, and 
 the person out of whom the legal estate is to be drawn by the statute, 
 and transferred to the cestui que use, was required to be seised, the 
 courts have held that the statute can only execute the first use, and can 
 have no effect upon the second or other use depending upon the first. 
 For example, an estate is limited to the use of A. to the use of B. 
 The statute can execute the use in A., but cannot go further and trans- 
 fer the legal estate to B., the final and actual cesind que use, because by 
 the strict construction of the statute the legal estate can only pass from 
 
 Co., 81 Pa. St. 445; Trustees, Ac. v. King, 12 190; 1 Spence Eq. Jur. 466-490; Ashhurst v. 
 Mass. 648-553; First Parish, &c. v. Cole, 3 Pick. Glvens, 5 Watts & S. SZT; Merrill v. Brown, 18 
 238-237; Wade ». Am. Col. Soc, 7 Smed. & M. Pick. 220; Gilbertson v. Richards, 5 H. & N. 
 697; Ayerssj. M. E. Church, 3 Sandf. 351; Mat- 454; Franciscusc. Reigart,4Watts, 118; 2 Pom. 
 terof Howe, 1 Paige, 214. But if the use or Eq. Jur. 984; Hopkins ». Hopkins, 1 Atk. 591} 
 trust is foreign to the purpose of its institu- 2 Washb. onBeal Prop. 408, 409. 
 tion, the corporation cannot hold the seisin or ^Tud, Ld. Gas. 259; 'Sandf. on Uses, 109; Jen- 
 legal estate. A new trustee must be appointed kins v. Young, Cro. Car. 230; 2 Washb. on Real 
 to take its place. Matter of Howe, 1 Paige, 214 ; Prop. 409. 
 
 Sloan ». McConahy, '4 Ohio, 157; Jacicson ». <Doe v. Nichols, 1 B. & C. 336; Doe o. Ewart, 
 
 Hartwell, 8 Johns. 422; Trustees, &e. v. Peas- 7 A. & E. 636; Norton t>. Norton, 2 Sandf. 896- 
 
 lee, 15 N. H. 317; Chapin v. School Dist. , 36 N. Barker v. Greenwood, 4 M. & W. 421 ; Adams ». 
 
 H. 445; Parmer's Loan, &c. Co. v. Carroll, 5 Adams, 6 Q. B. 860; Atty.-Gen. v. Props. Ac. 3 
 
 Barb. 613; BlissB. Am. Bible Soc, 2 Allen, 334; Gray, 48; Cleveland !). Hallett, 6 Gush. 407; 
 
 Montpelier«.EastMontpelier,29Vt. 12; Mason Farquharson v. Eichelberger, 15 Md. 73- 
 
 V. M. E. Church, 27 N. J. Eq. 47. Coulter v. Robertson, 278; Ward v. Armory, 1 
 
 '2 Washb. on RealProp. 408; Bao. Law Tracts, Curt. G. Ct. 419; Mortons. Barrett, 22 Me. 257; 
 
 349. Smith v. Metcalf, 1 Head, 64; Renziohausen ». 
 
 »1 Cruise Dig. 350, 351, 353; Tud.Ld. Cas. 257- Keyser, 48 Pa. St, 351. See 7io«<, § 298. 
 
 259; Galliers V. Moss, 9B. & G.267; 1 Prest. Est. ' 1 Cruise Dig. 352; 2 Washb.on Real Prop 409 
 
 314 
 
CH. XV.] ANCIENT USES AND STATUTE OF USES. § 271 
 
 persons who were seised of the legal estate under the deed. A. had 
 only a use, and therefore was not seised. But inasmuch as after the 
 execution of the use the cestui que vse was to hold the legal estate in 
 " such quality, manner, form and condition " as he had in the use, A. 
 in the case supposed would hold the legal estate to the use of B., and 
 accountable to B. in equity for the rents and profits.' 
 
 § 271. Feoffee and cestui que use. — Same person. — "Where the 
 feoffee to tise and the cestui que use are the same person, there is a 
 merger of the equitable in the legal estate without the aid of the Stat- 
 ute of Uses. He takes an absolute estate at common law, unless such 
 a merger would defeat the purposes of the conveyance.^ Nor would 
 there be a merger, if the use to the feoffee was not as extensive as the 
 legal estate which is conveyed to him; as where the estate is a fee, and 
 his use is a life interest, or he takes the use jointly with another. In 
 such cases, the use could only be executed by the statute.' But, 
 nevertheless, if a use is limited upon the use of the feoffee, it will be 
 construed such a limitation of a use as to preclude the execution of 
 the second use. Thus, in a conveyance to A. to the use of A. to the 
 use of B., although, in the absencH of the use to B., A. would have 
 been held to be in possession of the legal estate at common law by the 
 merger of the equitable in the legal estate, yet this express limitation 
 to his use wiU prevent the operation of the statute upon the use in B. 
 A. would hold the legal estate, and the use in B. would remain unexe- 
 cuted.* In some of the states this doctrine concerning the effect of a 
 use upon a use has been abolished by statute, and the legal title is made 
 to pass through all the intermediate cestuis que use until the final and 
 actual beneficiary is reached, when it becomes vested in him.' 
 
 '2 Washb. on Eeal Prop. 406, 409, 457, 460, 461; and sale, and such is supposed to be the case 
 
 Tyrrell's Case, Dyer, 155, 1 Go. Rep. 136 b, 187; where the bperative words are, "grant, bar- 
 
 Croxall V. Shererd, 5 Wall. 883; Wymau o. gain and sell," or "give, grant, bargain and 
 
 Brown, 50 Me. 157; Hopkins v. Hopkins, 1 Atk. sell," the use would presumably be executed 
 
 591; Willett v. Sanford, 1 Ves. Sr. 186; 8 Pom. by the statute, the bargainee or grantee hav- 
 
 Eq. Jur., § 985. The rule above enunciated, ing acquired the seisin and the legal esate by 
 
 that a use cannot be limited upon a use, has force of the deed as a common law conveyance, 
 
 been abolishedby statute in New York, Calif or- See Tiedeman Real Prop., § 782. 
 
 nia, Michigan, Minnesota, and Wisconsin. See 2 2Prest. Conv. 481; Co. Lit. 271 b, Butler's 
 
 post, § 277, noie. And it has also been disap- note, 231 ; 1 Cruise Dig. 354 ; Tud. Ld. Cas. 257 ; 
 
 proved and adversely commented on by the Jackson v. Gary, 16 Johns. 302; Jenkins ». 
 
 Massachusetts court. Thatcher v. Omans, 3 Young. Cro. Gar. 231 ; Sammes' Case, 13 Rep. 56; 
 
 Pick. 521, 528. But it is, perhaps, generally Doe o. Passlngham, 6 B. & G. 305, 317; Orne's 
 
 recognized in this country wherever It has Case, L. E. 8 C. P. 281. 
 
 been changed by statute. And, basing their si cruise Dig. 357; Tud. Ld. Gas. 258; Sam- 
 conclusions upon this doctrine, the courts mes' Case, 13 Eep.56; Saund. on Uses, 94, 96. 
 have held that where in a deed of bargain and 4 Doe «. Passingham, 6 B . & G. 305, 317 ; Wil- 
 sale the estate is limited to the bargainee to jj^^^ ^„ ^^^j p ^^ ^^^_ ^^ ^^^_ 
 the use of another, "IB such a use upon a use ^^^ ^ ^ 4 T. E. 89 ; 2 Smith Ld. Cas. 454; 
 
 as will not be executed by the statute. See 
 Guest «). Farley, 19 Mo. 147; Jackson v. Myers, 
 
 Whetstone v. Bury, 2 P. Wms. 146; 1 Sugden 
 
 3 Johns. 388, 396; Jackson t>. Gary. 16 Johns. «° ^°^- ^^' ^^^i ^oore v. Sohult^, 13 Pa. St. 
 
 302; Groxall v. Shererd, supra; Price v. Sis- 98; Hayes s. Tabor, 41 N. H. 521, B26; Atty.- 
 
 son, 2 Beas. 168. This is, however, only the Gen. ■„. Scott, Gas. temp. Talb. 138; Price v. 
 
 case with a pure bargain and sale deed. Sisson, 8 Beas. 168, 173, 174; 2 Bla. Com. 336; 
 
 When such a limitation occurs In a modem Franclscus v. Eeigart, 4 Watts, 118. Contra, 
 
 deed of conveyance, which might be treated as Hurst v. McNiel, 1 Wash. C. Ct. 70. 
 
 acommonlaw conveyance, as well as a bargain « See ante, 270, note; andpost, § 277, note. 
 
 315 
 
§ 2Y4 EQUITY JUKISPKUDENCE. [CH. XV. 
 
 § 272. A use in esse. — It matters not whether the use is one in 
 possession, reversion, or remainder, if the vesting of the title thereto 
 is not contingent, it is a use in esse, and will be executed at once by 
 the statute. If the use is one in possession it will be executed imme- 
 diately, both in title and in possession. If it is to commence in the 
 future, it is called, according to the terms of the limitation, a contin- 
 gent, springing, or shifting use, and vrill be considered in a subsequent 
 section.' Nor is it important in what manner the use is created — 
 whether by express limitation or by law, as in the case of a resulting 
 use, however the use arises — if it is m esse, i. e., vested, the statute 
 will execute it.^ If the use is contingent, the use is not in esse until 
 , the happening of the contingency upon which its vesting depends, when 
 it will be executed in the same manner as if it had been vested from 
 the time of its creation.' A contingent use cannot be executed by the 
 Statute of Uses into a legal estate, because the transfer of the seisin 
 would give the cestui que use a vested estate, while he had in the use 
 only a contingent estate. And the statute required that the cestui que 
 use should take the seisin or legal estate "in such quality, manner, 
 form and condition " as he had tBe use. 
 
 § 273. Cestui que use in esse. — There must, furthermore, be some 
 ascertained person in esse who is to take and who can take the use 
 tmder the conveyance. As a general proposition, subject to an excep- 
 tion to be mentioned elsewhere,* the character of the cestui que eus 
 will not affect the execution of the use. Any person m esse will 
 fulfill the requirements of the statute.^ But if the cestm que use is 
 not in esse, or not ascertained, the use is future and contingent, and 
 the operation of the statute is suspended until the cestui que use is 
 known." If a future use is to vest upon the happening of some con- 
 tingency independent of human action, it is called a contingent, 
 springing, or shifting use. But if the uncertainty or contingent char- 
 acter is to be settled by the act of some person or persons designated 
 by the grantor or testator, then the limitation, although in fact nothing 
 more than a contingent future use, receives the name of a power.' 
 
 § 274. Words of creation and limitation. — No special form of 
 expression or set of words is necessary in the creation of uses, provided 
 such words are used, as clearly show the intention of the grantor that 
 a use was to be declared in favor of another. The Statute of Uses 
 employs the words "use, confidence, or trust;" and it would, accord- 
 
 J See poit, §§ 278, 283. , » 1 Cruise Dig. 354; 2 Waslib.oii Real Prop. 410. 
 
 21 Cruise Dig. 358; Hopkins «. Hopkins, 1 «1 Cruise Dig. 354; 2 Bla.Com. 336; Chud- 
 
 Atk. 591; Cliudleigh's Case, 1 Rep. 126; Osman leigh's Case, 1 Rep. 126; Jackson ». Myers, 3 
 
 ■». Sheafe, 3 Lev. 370; Doeu. Salkeld.Willes, 674; Johns.388; Reformed Dutch CliUTOh ».Veeder,4 
 
 2 Smith's Ld. Gas. 288, 297; Hays «. Kershaw, 1 Wend. 494; Ashhurats. Given, 5TVatts&L. 323; 
 
 Sandf. Oh. 258; Tud. Ld. Gas. 262. Miller v. Chittenden, 2 Iowa, 371 ; Shapleigh 
 
 8 Chudlelgh's Case, 1 Rep. 126; Tud. Ld. Gas. v. Pilsbury, 1 Me. 271; Sewall v. CargiU, 15 Me. 
 
 ■262; Shep. Touch. Prest. ed. 529 n; Saund. on 414. See^JO**, §249. 
 
 Uses, 110; 1 Sugden Pow. 41. See j)OS*, § 279. '2 Washb. on Real Prop. 420; Shep. Touch. 
 
 4See^0«i, § 276. Prest. ed. 529 n. 
 
 316 
 
CH. XV. J ANCIENT USES AND STATUTE OF USES. § 275 
 
 ingly, be safer to adopt one of these words, although it is not necessary.' 
 Although the employment of technical words of limitation was not 
 necessary in the creation of a use before the statute/ and since the 
 statute they are not always necessary in the limitation of equitable 
 estates which are not executed by the statute, and which properly fall 
 under the head of trusts,' yet if the statute does operate, the use will be 
 valid for the purpose of execution, only so far as the words of limita- 
 tion are capable of limiting similar estates at common law. The word 
 " heirs' ' is, therefore, necessary to a use in fee, where the common law, 
 in respect to words of limitation, has not been changed by statute; and 
 its absence cannot be supplied by words of similar import. A con- 
 veyance, therefore, to the use of A. and the issue of his body would be 
 neither an estate tail nor a fee simple, and A. would take only a life 
 estate.* 
 
 § 275. Active and passive uses and trusts. — Both before and after 
 the passage of the statute, uses and trusts have been divided into active 
 and passive. Where i}a& feoffee to use was required to perform some 
 duty in respect to the estate, the use was an active one. Where the 
 feoffee had nothing to do but to hold the legal title and seisin for the 
 support of the use, it was called passive. Now, since the feoffee can 
 perform these duties only as long as he retains the legal estate, the 
 statute could not execute an active use or trust without defeating the 
 express purpose and intention of the grantor. Furthermore, his estate 
 in the use was subject to the performance of this duty by the legal 
 owner, and an execution of the use would not vest the seisin and estate 
 after " such quality, manner, form and condition " as he had in the 
 use. The courts, therefore, held that it was not the will of the legis- 
 lature to execute active uses.° And under the strict construction of 
 the statute, the slightest, most unimportant duty in the trustee would 
 prevent the operation of the statute. ° 
 
 1 S'Washb. on Eeal Prop. 411 s Tud. Ld. Cas. 258. que use to receive the net profits— to apply the 
 
 '1 Spence Eq. Jur. 452; 1 Crui-e Dig. 343j profits to the maintenance of the cesiKiffMease 
 
 Tnd. Ld. Cas. 253 ; 2 Washb. on Beal Prop. 395. — to pay annuities out of the rents, or to receive 
 
 ' VilIer3».Viilers,2Atk.71;Fisheri>. Fields, the rents and allow them to accumulate. In 
 
 10 Johns. 505; NewhallB. Wheeler, 7 Mass. 189; any such case, the legal estate being held 
 
 Cleveland v. Hallett, 6 Gush. 406; Shaw v. necessary to the performance of the trustee's 
 
 Weigh, 2 Stra. 803; Gibson v. Montford, t Ves. duty, the statute could not operate, and the 
 
 Sr. 485; Oates v. Cook, 3 Burr. 1684; Atty.-Gen. use retained an equitable estate, to be enforced 
 
 ». Props., 3 Gray, 48. See po««, § 298. by the courts of equity. 1 Prest. Est. 185; Co. 
 
 * Tud. Ld. Cas. 261; 1 Cruise Dig. 354; Saund. Lit. 290 b, note 249, § 6; 1 Cruise Dig. 385; 
 
 on Uses, 122; 2 Washb. on Eeal Prop. 380. In Doe v. Briggs, 3 Taunt. 109; Nevil v. Saunders, 
 
 most of the states the common law in respect 1 Vern. 415; Bass ». Scott, 2 Leigh, 356; Exeter 
 
 to the employment of technical words of limi- v. Odiome, 1 N. H. 233; Posey v. Cook, 1 Hill, (S. 
 
 tatlon has been abolished by statute. The C.) 413; Norton v. Leonard, 12 Pick. 152-158; 
 
 above rule, therefore, possesses very little prac- Newhall ». Wheeler, 7 Mass. 189; Morton v. 
 
 tlcal importance See Tiedeman Real Prop., §37. Barrett, 22 Me. 257 j Schley ». Lyon, 6 Ga. 530; 
 
 5 2 Washb. on Real Prop. 467. See note under Plenty v. West, 6 C. B . 201 ; Doe o. Homf ray, 6 
 
 I 377. A. & E. 206; Pullen v. Rianhard, 1 Whart. 514, 
 
 • Thns, the statute was held not to execute 520; Bamett's App., 46 Pa. St. 398; Fay v. Taft, 
 
 the use. Where the trustee was directed to sell l2Cush. 448; Smithwicku.^Jordan, 15Mass,113; 
 
 or dispose of the property— to collect and pay Lancaster v. Dolan, 1 Rawie, 231 ; Jones v. Say 
 
 overthe rentsand profits— to have the active and Seal, 1 Eq. Cas. Abr.383; Peter «. Beverley, 
 
 management of the estate— to permit the c««tei lOPet.532; Elliott D. Fisher, 12 Sim. 505 j Craig 
 
 317 
 
§ 276 EQUITY JUKISPKUDENCE. [OH. XV. 
 
 § 276. Uses to married women. — So, also, where the purpose of 
 the trust is that the cestui que v^e, a married woman, should hold and 
 enjoy the estate for her own separate use, the statute will not execute 
 the use. For the execution of the use would give to the husband 
 control over the property and its rents and profits during coverture, 
 and the common law right of curtesy would attach because of her 
 disability to hold the legal estate free from his control.' In making 
 a conveyance to the separate use of a married woman, her power of 
 alienation may, by a special clause, be entirely taken away during the 
 continuance of the marriage, and this restriction will revive upon any 
 subsequent marriage, if the trust is itself revived by such second mar- 
 riage." In the absence of such a restraining clause, in England and 
 some of the states, a married woman is to be treated, in respect to her 
 separate property, as afeimne sole, and she may dispose of the equitable 
 estate as she pleases.' In a number of the states, however, the 
 English rule has been discarded, and the contrary doctrine maintained 
 that the married woman has no power over her separate estate, except 
 what is expressly granted or reserved to her in the deed or settlement.* 
 The reason why the Statute of Uses could not execute the separate use 
 of a married woman, was that she could not, according to the common 
 law, take and hold the seisin and estate in " such quality, manner, 
 form and condition" as she had in the use. For this reason, it is to 
 be presumed that in those states where the disability of married 
 women is removed, and they are permitted to hold and dispose of 
 property as if they were single, the reason failing, the rule would 
 also fail, and the statute would execute the use.' So, likewise, since 
 the passive use in the married woman is not executed, only because 
 her disability at common law prevents her taking and holding the 
 
 ■0. Leslie, 3 Wheat. 683; Qott v. Cooke, 7 Paige, Conn. 175; Frary v. Bootb, 4 Am. Law Keg., s. 
 
 621; Cooper «. Whitney, 3 Hill, 95. B., 441, and note; Leaycraft®. Heddeii,3Qreen 
 
 » 1 Cruise Dig. 385; Harton v. Harton, 7 T. E. Oh. 651; Wyly i>. Collins, 9 Ga. 223; CooJ^e v. 
 
 <153; Stearcy v. Eice, 27 Pa. St. 75; Bush's App., Husbands, 11 Md. 492; Chew's Adm. v. Beall, 13 
 
 33 Pa. St. 85; Nevlll ». Saunders, 1 Vera. 415; Md. 348; McCroan v. Pope, 17 Ala. 813; Collins 
 
 Ware u. Eiohardson, 3 Md. 504; Williams V. i>. Larenburg, 19 Ala. 885; Coleman ir. WooUey, 
 
 Holmes, 4 Eioh. Eq.495; Linesi;.Darden,5Pla. 10 B. Mon.320;Hardy». VanHarlingen, 70hio, 
 
 78; Magniao v. Thompson, 1 Baldw.6S. n. b., 208; Whitesides v. Cannon, 26 Mo. 457; 
 
 SHawkes ». Hubback, L. E. 11 Eq. 5; In re Segoud». Gerland,23Mo.547; Fraziem. Brown- 
 
 Gaffee's Trusts, 1 Macn. &, G. 541; TuUett v. low, 3 Ired. Eq. 227; Newlin «.Freeman, 4 Id. 
 
 Armstrong, 4 My. <6 Cr. 377; Waters v. Taze- 312. 
 
 well, 9 Md. 291; Fellows v. Tann, 9 Ala. 999; 4 Ewing v. Smith, 3 Desau. 417; Eeed ... La^ 
 
 Shlrleyr. Shirley, 9 Paige, 363; Fears C.Brooks, mar, 1 Strobh. Eq. 87; Calhoun ». Calhoun, 2 
 
 12 Ga. 195; Baggett v. Meux, 1 Phil. 627; but Strobh. 831; Magwoodu. Johnson, 1 Hill Oh. 
 
 see Dubs v. Dubs, 31 Pa. St. 149; Miller v. Blng- 228; Lancaster v. Dolan, 1 Eawle, 231; Wallace 
 
 ham, 1 Ired. 423. v. Coston, 9 Watts, 137; Thomas v. Folwell, S 
 
 sFettiplace v. Gorges, 1 Ves. 46; Rich v. Whart. 11; Patterson ». Eobinson, 1 Casey, 81; 
 
 Cockrell, 9 Ves. 69; Wagstaff v. Smith, 9 Ves. Metcalf ». Cook, 2 E. I. 355; Williamson v. 
 
 520; SturgiSD. Corp., 13 Ves. 190; Major*. Lus- Beekman, 8 Leigh, 20; Morgan ». Elam, 8 Yerg. 
 
 ley, 2 Euss. & My. 357; Essex V. Atkins, 14 Ves. 375; Marshall v. Stephens, 8 Humph. 159; Doty 
 
 S42; Stead v. Nelson, 2 Beav. 245; Dyett ». v. Mitchell, 9 Smed. <S: M. 447; Montgomery ». 
 
 North American Coal Co., 20 Wend. 670; 7 Agricultural Bk., 10 Smed. & M. 567. 
 
 Paige Ch. 1; Powell u. Murray, 2 Edw. Ch. 636; ^soit was held in Sutton ». Aiken, 6SGa. 753; 
 
 Gardner v. Gardner, 20 Wend. 636; Yale V. Bratton ». Massey, 15 S. C. 277; Bayer ». Cock- 
 
 Dederer, 18N. Y. 269; Imlay v. Huntington, 20 erill, 3 Kans. 292. 
 
 318 
 
■CH. XV.] ANCIENT USES AND STATUTE OF USES. § 279 
 
 same rights and privileges in the legal estate as she had in the use, if 
 she assigns the use to one, who is not under a similiar disability, the 
 statute will at once execute the use, and her grantee would get the 
 absolute legal estate, without the joining of the trustees in the convey- 
 ance.^ And the husband would only have to join in the conveyance 
 in order to bar his curtesy, if he had any, in the equitable estate. 
 
 § 277. Cases in which the statute will not operate. — To recapit- 
 ulate, the following are the principal cases in which the statute will not 
 execute the use: 1. Uses in chattel interests. 2. A use upon a use. 
 3. Contingent uses, whether the contingency depends upon the uncer- 
 tainty of the cestui que use, or the use itself. 4. Active uses or trusts. 
 5. Uses to mai'ried women. Every other use will be executed immedi- 
 ately upon their creation, thefeq^ee to use acting merely as a conduit 
 ior the transfer of the seisin to the cestui que use. Contingent uses 
 are executed when they become vested, while the other classes of uses 
 above enumerated remain throughout their entire duration unexecuted, 
 and enforced as trusts by chancery." 
 
 § 278. Future uses. — It has been explained that a use could be 
 limited to commence in futuro, with or without a preceding estate in 
 the use to support it, and even in derogation of the preceding estate, 
 and that it may be either vested or contingent." If it is a vested use, 
 the statute will operate immediately and convert it into a legal estate, 
 having the characteristics of a vested estate in reversion. But if the 
 use is contingent, the operation of the statute is suspended until the use 
 vests or comes in esse. These future uses are divided into contingent, 
 springiug, and shifting uses, and will here be explained in the order 
 named. 
 
 § 279. Contingent future uses. — How supported. — In a convey- 
 ance, where there is a contingent use of limited duration, and conse- 
 quently there are other vested uses, the latter are executed eo instanii 
 
 iSee TIedeman Real Prop., §93. Levy v. Brush, 45 N. T. 595; Marvin v. Smith, 
 
 ! As has been remarked In a preceding note, 46 N. T. 571; Eose v. Hatch, 125 N. Y. 427; 
 
 the English Statute of Uses has been super- Greene v. Greene, 125, 506. The future contln- 
 
 «eded in some of the states by modem stat- gent uses become, by operation of the statute, 
 
 ntes, materially different in their operation future contingent estates of a legal character, 
 
 from the old statute. New York first set the and the common law was so changed as to 
 
 the example in 1848. The statute of New admit of the limitation of legal estates, which 
 
 York abolishes all express trusts heretofore were before only possible as the limitation of 
 
 known, and enumerates the classes of active a iJse. 1 E. S. N. Y. 724, §§ 16, 17, 18, 19. This 
 
 trusts which can be created. All other trusts, legislation has. In substance, been followed In 
 
 and particularly passive trusts, are declared to California, Michigan, Minnesota, and Wlscon- 
 
 be legal estates, and the seisin vests in the sin. Cal. Civ. Code, §§ 847, 857, 863, 867, 869, 879; 
 
 <M»tei que uee ox trust by force of the statute. 2 Comp. Laws, Mich. (1871) 1331; Gen. Stat. 
 
 1 Eev. Stat. N. Y., p. 727, §§ 45, 46, 47, 48, 49, 50. Minn. (1878), p. 553, § 11 ; 2 Rev. Stat. Wis., p. 
 
 In New York; therefore, all uses are converted 1129, § 11. In these states, therefore, the fore- 
 
 into legal estates, except the express trusts going presentation of uses under the Statute 
 
 enumerated in the statute and trusts arising of Uses, as well as the subsequent section on 
 
 by implication of law. 1 R. S. N. Y. 728, §§ 51, future or contingent uses, must be taken with 
 
 52, 53, 55; Leggett v. Perkins, 2 N. Y. 297; the qualifications arising under the local stat- 
 
 Downing v. Marshall, 23 N. Y. 377; Ring v. utes prevailing there. 
 
 V. McCown, 10 N. Y. 288; Garfield v. Hatmaker, » See ante, % 263. 
 i5N. Y. 475; Lounsbury v. Pardy, 18 N. Y. 515; 
 
 319 
 
§ 279 EQUITY JUEI8PKUDENCE. [CH. XV. 
 
 whether they are created by express limitation or arise by operation 
 of law under the doctrine of resulting uses; while the contingent use 
 remains unexecuted until the contingency happens. But in order that 
 the statute may operate, there must be a seisin somewhere to feed the 
 contingent uses as they arise. Great difficulty is experienced in dis- 
 covering where that seisin is to be found, and in determining its 
 character. For example, if an estate is limited to the use of A. for 
 life, to the use of B. 's unborn son, to the use of C. in fee. The uses in 
 A. and C. being vested, are immediately executed by the statute, while 
 the use to the unborn son of B., being contingent, remains unaffected. 
 A., under the statute, acquires a legal estate for life, and C. a vested 
 remainder in fee. The statute, therefore, transfers to A. the seisin for 
 life, and to C. the seisin in fee in remainder. What is the nature of the 
 seisin left to support the contingent use in B.'s unborn son, and where 
 is it to be found when the use vests ? 
 
 The apparent necessity of locating this seisin and of determining its 
 character arose from the consideration of two questions, viz. : 1. After 
 the legal estate had been vested in A. for life and in C. in remainder, was 
 not the entire seisin exhausted and drawn out of the feoffees or releasees 
 to uses ? 2. If any seisin did remain in the feoffees, could it not be de- 
 stroyed and the contingent use defeated by a feoffment of the feoffees ? 
 
 A great deal of speculative discussion was indulged in by the earlier 
 judges and writers, and a variety of opinions was the result. Some 
 held that the entire seisin vested in the executed uses, subject to the 
 future vesting of the contingent use; others maintained that sufficient 
 seisin remained '■^ im, mubiJms, in mare, in terra, in custodia legis,''^ 
 ready to become united with the contingent use when the contingency 
 happens; while, perhaps, the largest number sustained the view that a 
 portion of the seisin, which they called a scintilla jwris (a right to 
 recover the seisin), remained in the feoffees to feed the uses as they 
 came into being. But, under this view of the case, it was necessary 
 for the feoffees to enter in order to revive the seisin for the contingent 
 use, and any feoffment by them would result in the destruction of the 
 seirvtilla juris, and along with it the use depending upon it. But the 
 modern writers upon uses have discarded aU this abstruse and subtle 
 reasoning, and support the more rational doctrine advocated by Mr. 
 Sugden that " upon a conveyance to uses * * * immediately after 
 the first estate is executed, the releasees to uses are divested of the 
 whole estate, the estates limited previously to the contingent uses take 
 effect, the contingent uses take effect as they arise, by force of and 
 relation to the seisin of the releasees under the deed, and vested 
 remainders over take effect according to the deed, subject to open and 
 let in the contingent uses."* The seisin receives, by force of the 
 
 J 3 Prest. Conv. 400; 1 Sugden on Pow. 2(M8; 1 Rep. 120; Brent's Case, Dyer, 340; Tud. Ld. 
 4Kent'8 Com. 238-247; Feame Cont. Rem. 305; Gas. 860; Saund. on Uses, 110. 
 2 Washb. on Real Prop. 611 ; Chudleigh's Case, 
 
 320 
 
CH. XV. J ANCIENT USES AND STATUTE OF USES. § 281 
 
 statute, the power or capacity of feeding all the uses fs they arise, and 
 of being transmitted from one to another as they vest in possession.' 
 The maintenance of this view does away with the scintilla juris, and 
 removes the necessity of a re-entry by the feoffee to regain the seisin 
 for the support of the contingent use, even where there has been a dis- 
 seisin of all the parties to the deed.^ 
 
 § 280. Contingent nses. — In the foregoing pages, the term con- 
 tingent use has been used to signify any future or executory use 
 whose vesting in title depends upon a contingency. But the term has 
 been given a more restricted signification, meaning contingent uses 
 which would be good contingent remainders if they had not been lim- 
 ited by way of uses.' It is a cardinal rule in the construction of all 
 future estates, whether created by deed or will, that if they can take 
 effect as remainders they will be construed to be such, even if they 
 are limited as uses.* A contingent use is, therefore, treated in all 
 essential particulars as a contingent remainder, and requires a partic- 
 ular estate of freehold to support it. If the use is not vested during 
 the existence of the particular estate in the use, it fails in the same 
 manner as if it had been limited as a common law contingent remain- 
 der. And if, at the time of the conveyance, the future uses can take 
 effect as remainders, they cannot take effect as future or executory 
 uses when a change of circumstances has made them void as contin- 
 gent remainders.^ And even where the future estate is void in its 
 inception, if it is limited by way of a remainder, as where the vesting^ 
 of the future use is made to depend upon the duration of a particular 
 estate which cannot support a contingent remainder because it is less. 
 than a freehold, the future use will be void as a remainder, and can- 
 not be construed as a springing or shifting use.* But where the 
 future use is not made to depend upon a preceding use, as where it is 
 to vest at a time subsequent to the natural termination of the particu- 
 lar use, a limitation entirely repugnant to the law of remainders, it 
 will be held to be a shifting or springing use, which will vest inde- 
 pendently of the preceding estate.' 
 
 § 281. Springing nses. — A springing use is one to commence in 
 the future, unsupported by the limitation of a preceding use, and 
 which does not, by its vesting, defeat or cut short any prior limitation, 
 
 » 2 Washb. on Eeal Prop. 420. v. Speed, Salt 675; but see Dingley v. Dingley, 
 
 » ISugden on Pow. 17-48; Feame Cont. Rem. 5 Mass. 535; Carroll v. Hancock, 3 Jones L. 471 j 
 
 293, 295, and Butler's note; 1 Cruise Dig. 282; 4 Nichols v. Denny, 37 Miss. 59. 
 
 Kent's Com. 238-246; 2 Washb. on Eeal Prop. 'Adams v. Savage, 2 Ld. Eaym. 854; [Will. 
 
 611, 612. iams on Eeal Prop. 293; Southsett v. Stowell, 1 
 
 a 1 Prest. Abatr. 105; 4 Kent's Com. 258; 2 Modern, 238; Cole v. Sewell, 4 Dru. & Warr. 
 
 Washb. on Real Prop. 608. 27; Tud. Ld. Cas. 263; 4 Kent's Com. 293j 2 
 
 * Co. Lit. 217; Feame Cont. Eem. 284; 1 Prest. Washb. on Eeal Prop. 612, 613. Mr. Washburn 
 
 Abstr. 108; 2 Washb. on Real Prop. 609; cites Wils. Uses, 9, in opposition to the text. 
 
 ' Feame Cont. Rem. 284, and Butler's note; 2 Washb. on Eeal Prop. 621. 
 
 2 Cruise Dig. 261; Adams v. Savage, Salk. 679; '2 Washb. on Eeal Prop. 621; Gore v. Gore, 2 
 
 s. c, 2 Ld. Eaym. 854; Goodtltle v. Billington, P. Wms. 28. 
 Dougl. 758; The State «. Trask, 6 Vt. 363; Davies 
 
 321 
 
§ 283 KQUITY JUEISPKUDENCE. [CH. XV. 
 
 Thus, a limitation to the use of B. and his heirs after the death of A. 
 Until the death of A. the use results to the grantor, and at his (A.'s) 
 death it is executed in B. and his heirs. A springing use may be 
 either vested or contingent, according to the certainty or uncertainty 
 of the event upon which it depends. The example given above is 
 a vested springing use, as A. is sure to die, and the use takes effect 
 whether B. dies before A. or survives him; but a limitation to the 
 heirs of B. after the death of A. would be contingent, because of the 
 imcertainty of B.'s dying before A.* 
 
 § 282. Shifting uses. — ^A shifting or secondary use is one which 
 is so limited, that its vesting will defeat the prior estate in the use, 
 and is always contingent. The tise upon the happening of the event 
 shifts from the first taker to the second. At common law, no estate 
 could be limited after a fee or in derogation of the preceding estate.* 
 But there is no such restriction upon the limitation of uses. The use 
 in fee may, upon the happening of successive events, be made to shift 
 from one person to another without limit, provided the doctrine of 
 perpetuity is not thereby violated. A shifting use is, therefore, one 
 class of what are called conditional limitations. A conditional limita- 
 tion can only be created under the Statute of Uses or the Statute of 
 Wills. Under the former, it is known as a shifting use; while under 
 the latter, it is called an executory devise. " When a future limitation 
 is a conditional limitation, as distinguished from a contingent 
 remainder, has been already discussed,* and will require no further 
 elucidation. 
 
 § 283. Future use in chattel interests. — At common law it is 
 impossible to create a remainder in a chattel interest. The lessee of a 
 term of years could grant a part of the term to one, and the rest to 
 another; as, for example, out of a term of thirty years he could assign 
 it to A. for ten years, and to B. for twenty years, beginning at the close 
 of A. 's term. But he could not give A. a life estate and B. a remainder 
 in fee.* This is possible, however, by way of a future use. Where, 
 therefore, such a limitation of a term is made by way of a use, it wiU 
 not take effect as a remainder, but as a springing or shifting use, accord- 
 ing to the terms of the limitation." 
 
 '2 Cruise Dig. 263;2Washb. on Real Prop. 
 ■600-613; 4 Kent's Com. 298; Egerton v. Brown 
 low, 4 H. L. Cas. 206 ; M utton' s Case, Dy er, 274 
 J^ackson v. Dunsbaugh, 1 Johns. Cas. 96; Sliap- 
 leigh V. Pilsbury, 1 Me. 271 ; Wyman v. Brown 
 50 Me. 156; McKee v. Marshall, (Ky.) 5 S. W. 
 
 heirs. The return of B. from Some would 
 determine the use in A., and execute the use 
 In C. Cogan ». Cogan, Cro. Eliz. 360; Car- 
 wardine v. Carwardine, 1 Eden, 34; Winchelsea 
 V. Wentworth, supra; Doe v. Whlttingham, 4 
 Taunt. 22; Buckworth v. Thirkell, 3 B. & P. 
 
 Eep. 415;MoCownw. King, 23S. C. 232. 655; Battey v. Hopkins, R. 1.445; Pogarty ». 
 
 2 See Tiedeman Real Prop., §§ 281,396. Stack, (Tenn.) 8 S. W. Rep, 846. 
 
 speame Cont. Rem. 385; 1 Spence Bq. Jur. *SeeTiedeman RealProp., §§281,396, 415,418. 
 
 452; Egerton v. Brownlow, 4 H. L. Cas. 206; 2 « 1 Cruise Dig. 235; Peame Cont. Rem. 401; 4 
 
 Cruise Dig. 284; Co. Lit, 271 b, note 231, § 3; Kent's Com. 270; Wright v. Oartwrlght, 1 Burr. 
 
 Tud. Ld. Cas. 363; Winchelsea v. Wentworth, 284. 
 
 1 Vern. 402; 2 Washb. on Real Prop. 622-624. « 2 Bla. Com. 174; Peame Cont. Rem. 401, 
 
 An example of a shifting use, would be, a Butler's note; Lampet's Case, 10 Rep. 46; 
 
 limitation to A. and his heirs, and if B. should Wright v. Cartwrlght, 1 Burr. 284; 2 Washb. ou 
 
 leturn from Rome, then over to C. and his Real Prop. 624, 625. 
 
 322 
 
CH. XV.] 
 
 ANCIENT TJSES AND STATUTE OF USES. 
 
 § 284 
 
 § 284. Shifting and springing uses. — How defeated. — At com- 
 mon law the destruction of the particular estate by feoffment or other 
 act of the tenant will defeat any contingent remainder depending upon 
 it.* And such is also the rule in regard to contingent uses.^ But no 
 act of the tenant of a preceding estate will effect the destruction of a 
 springing or a shifting use, which are in their nature independent of 
 any prior estate which may be had in the use.' It was formerly sup- 
 posed that, if the tenant of a particular estate was disseised, in order 
 that the contingent use might be executed, there must be an actual 
 entry by the tenant and the actual seisin regained. But this doctrine 
 has been repudiated by the best authorities; and it is now held that the 
 contingent use would vest in title, whether the tenant is seised or has 
 been disseised, and that the contingent cestui que use acquires the 
 right of entry by the force of the Statute of Uses.* 
 
 1 See Tiedeman Eeal Prop., § 419. 
 
 spaber ti. Police, 10 S. C, 376. And see cases 
 and references cited in note 3. 
 
 = 2 Cruise Dig. 281; 4 Kent's Com. 241; Tud. 
 Ld. Cas. 263; Archer's Case, 1 Eep. 67; Chud- 
 leigh'sCase, 1 Eep. 120; 2 Washb. on Eeal Prop. 
 588, 583, 625, 626; see Owlngs v. Hill, (Ky.) 5 S. 
 W. 418. 
 
 *Feame Cont. Bern. 286, 290, 295; 1 Kent's 
 Com. 242, 247; 1 Sugden on Pow. 17-48; 2 Cruise 
 Dig. 282, 2S4; Tud. Ld. Cas. 260; Chudleigh's 
 Case, 1 Eep. 120; Wegg v. Villers, 2 Eolle. Abr. 
 796. This last case is very celebrated, on 
 account of tlie fact, that the suit was brought 
 on the settlement by Lord Coke of his property 
 upon his wife and daughter. The following 
 is the account given of the case by Mr. Wash- 
 bum, which is here appended, because a 
 thorough appreciation of the fine points of the 
 ■case involves an accurate knowledge of the 
 principles enunciated in the preceding pages. 
 "The circumstances under which it (the case 
 of Wegg V. ViUers) arose were these, as stated 
 by the biographer of Lord Coke: The relations 
 of Lord Coke with his wife. Lady Hatton, it is 
 well known, were not of the most pleasant 
 kind. Coke having fallen into disgrace with 
 King James, while acting as Lord Chief 
 Justice, sought to regain the favor of that 
 weak and capricious monarch, and it was 
 through the agency of Buckingham, who 
 was, at the time, the King's favorite, that he 
 sought to operate upon the King . Buckingham 
 had a brother. Sir John Villers, and Coke a 
 daughter, Frances, by Lady Hatton, and he pro- 
 posed a match between them. The mother, 
 angry at not having been consulted in the 
 matter, carried her daughter off, and se- 
 creted her. Coke, discovering her place of 
 concealment, went with his sons and seized 
 her by force. Lady Hatton appealed 
 to the Privy Council, and it became an 
 affair of state. It was at length adjusted, 
 upon Lord Coke's paying £10,000 sterling, and 
 entering into articles of settlement upon the 
 marriage of his daughter, pursuant to articles 
 
 and directions of the Lords of the Council 
 The adroitness with which this settlement 
 was drawn, and the cunning manner in which 
 he arranged its provisions, so as to defeat it or 
 let it stand good as he niight choose, will be 
 perceived by recurring to its terms, and 
 remembering and applying the idea advanced 
 in Chudleigh's Case, that the uses, so far as 
 contingent, must have an actual seisin in some 
 one, answering to a feoffee's, to sustain them. 
 In the first place, the conveyance was made by 
 covenant to stand seised on his part, and the 
 limitations derived their force and effect from 
 the seisin in himself, for he covenanted to 
 stand seised to the use of himself for life, 
 remainder to the use of his wife for life, 
 remainder to the use of his daughter for life, 
 remainder to her first and other sons in tail, 
 reversion to his own right heirs. This gave 
 an estate to him for life in possession, a vested 
 estate for life in remainder to his wife, and 
 the same to his daughter for life in remainder, 
 with contingent uses by way of remainder to 
 unborn sons in tail, reserving to himself, after 
 and above all these limitations, a reversion in 
 fee. Lord Coke then made a deed of grant of 
 this reversion to a third person without con- 
 sideration, and in his deed recited the forego- 
 ing settlement. He then made a feoffment in 
 fee of the lands thus settled, with livery of 
 seising. As all the estates but the reversion 
 were by way of use. It was the seisin that was 
 in him as covenanter ^nd reversioner which 
 was to support them, and if this was 
 destroyed, so far as these were contingent, 
 they would be defeated. But as his grant of 
 this reversion was to one having notice. It 
 remained subject to the settlement, and the 
 seisin of this grantee was that out of which 
 these uses were to arise in the same way as 
 from the seisin which Lord Coke had had 
 before the grant. But as he was also in posses- 
 sion for life, the effect of his feoffment was 
 not only to destroy his own seisin and estate, 
 but to make a discontinuance of that of his 
 grantee, the reversioner, together with the 
 
 323 
 
§ 285 
 
 EQUITY JURISPRUDENCE. 
 
 [CH. XV. 
 
 § 285. Incidents of springing and shifting uses. — ^AU such uses 
 are capable of being disposed of in equity by assignment or by will, 
 and they descend to the heirs of the cestui que use, and this, too, when 
 the use is contingent, provided the contingency does not depend upon 
 the uncertainty of the cestui que use. But they cannot be aliened by 
 deed.* Where a springing use is vested, since the statute executes it 
 CO instwnti, it becomes a future legal estate, with all the ordinary rights 
 attaching thereto. Such a use can be disposed of in any manner of 
 which a legal vested estate is capable. For the protection of the 
 interests of these cestuis que use against any acts of waste of the prior 
 tenant, the rules of the common law in respect thereto apply by anal- 
 ogy, and chancery, upon the application of the cestui que use, would 
 restrain the commission of waste, just as if his estate had been a con- 
 tingent remainder.^ Springing and shifting uses are, in their charac- 
 teristics, essentially the same as executory devises, differing only in. 
 the manner of their creation.' 
 
 estates of the wife and daughter. But It left 
 a light of entry in the daughter. But as this 
 discontinuance was a forfeiture of the father's 
 life estate^ and that of his wife during covert- 
 ure, it gave a right of entry in the daughter 
 as bolder of the next vested estate, and a con- 
 tingent right of entry to the wife, dependent 
 on her surviving her husband. The former 
 was sufficient to support the contingent use to 
 the daughter's first son, provided there should 
 be a seisin to serve such use, when it should 
 arise. As it turned out. Lord Coke's wife sur- 
 vived him, and having, by the right of entry 
 which she thereby acquired, entered upon the 
 estate, reinstated the divested estates, includ- 
 ing that of the grantee of the reversion, out of 
 whose seisin the contingent uses were to 
 arise, and the limitations took effect in their 
 order. If, however, Lord Coke had made his 
 feoffment before making the grant of the 
 reversion, the effect would have been to have 
 worked a dis-seisin and divested all of the 
 then subsisting estates, including the estate 
 or seisin out of which the contingent uses 
 were to arise, and which was to serve them. 
 For as there was no privity between his 
 feoffee, his wife or daughter and his heirs, 
 whose seisin alone could support their contin- 
 gent uses, no entry by the wife or daughter 
 
 324 
 
 could restore the estate and seisin of Lord 
 Coke or his heirs, contrary to his own feoff- 
 ment, since he himself could not have entered 
 against such a feoffment. Now, the cunning 
 part of the arrangement, which was defeated 
 by his dying while things were in the above 
 state, was this: If he had seen fit to sustain 
 the remainders, he would have suppressed the 
 feoffment, and only have shown the grant of 
 the reversion, to counteract the feoffment, 
 if that should be set up by anyone. Whereaa 
 if he had wished at any time to destroy the 
 remainders, he would have suppressed the 
 grant of the reversion, and left the feoffment 
 to have its effect. As he left both these in 
 force, it gave rise to the action above named, 
 and an Indefinite amount of refinement and 
 Ingenious discrimination upon a rule of law 
 too subtle to be apprehended by ordinary 
 minds." 2 Washb. on Real Prop. 639-631. 
 
 iFearne Cont. Eem. 366, and Butler's note; 
 Jones V. Eoe, 3 T. R. 88; Hobson v. Trevor, 2 
 P. Wms 191; 8 Washb. on Real Prop. 626. 
 
 2 Feame Cont. Rem. 362, and Butler's note ; 
 Stansfleld v. Habergram, 10 Ves. 275; 2 Washb. 
 on Real Prop. 626. 
 
 "See Tiedeman Real Prop., Ch. XIV, %% 
 540-543, 645-547. 
 
CHAPTER XVI. 
 
 MODERN TRUSTS. 
 
 Section 
 
 What 18 a trust 286 
 
 Class of trusts.— Modem legislation In 
 
 regard to the same . 
 Active and passive trusts . 
 Modern statutory changes . 
 How express trusts vrere created 
 Express trusts inferred by construction . 
 Powers in trust distinguished from trust 
 
 estates 
 
 Executed and executory trusts . 
 Alienation of trust estate . 
 Merger of Interests ... 
 Statute of Frauds as to trusts in real 
 
 estate . . 
 
 Trusts of personalty when within the 
 
 Statute of Frauds ... 
 Words of limitation in the creation of 
 
 trusts in lands 
 
 387 
 
 892 
 
 294 
 
 297 
 
 Section 
 Doctrine of remainders applied to trusts 299 
 
 Voluntary trusts 300 
 
 Interest of the cestui que trust . . . 301 
 
 Liability for debts 303 
 
 Classes of active trusts 303 
 
 Voluntary assignments for the benefit of 
 
 creditors 304 
 
 Deeds of trust to secure debts . . 305 
 
 Public and charitable trusts . . 306 
 
 Certainty or uncertainty In the creation 
 
 of a charitable trust 307 
 
 Trusts arising by operation of law.— 
 
 Classes 308 
 
 Implied trusts ... . 309 
 Resulting trusts to donor . . 310 
 Kesultlng trusts to parties paying consid- 
 erations 311 
 
 Constructive trusts . . . 313 
 
 § 286. What is a trust ?— The Statute of Uses makes use of the 
 words "use, confidence, and trust," and recognizes no distinction 
 between them; and before the statute there was, as has been shown,* 
 no material difference between them. Such would have been the case 
 in modem times, if the statute had prevented the continued existence 
 of equitable estates, in conformity with the design and intention of the 
 legislators. But the statute was construed to have no effect upon cer- 
 tain equitable interests,* which remain equitable and distinct from the 
 legal estate after as weU as before the statute. For the sake of con- 
 venience, and the purpose of distinguishing them from those uses and 
 trusts which were executed by the statute, the term trust has since been 
 exclusively applied to those equitable interests, which remain such; 
 while the term use represents all such interests as are converted into 
 legal estates, either eo -mstanti or subsequently, as in the case of con- 
 tingent uses.' 
 
 § 287. Classes of trusts. — Modern legislation in regard to the 
 same. — Trusts are, in the first place, to be divided into two distinct 
 classes, viz. : express trusts, and those trusts which arise by implication 
 of law. As has already been said in the preceding paragraph, express 
 trusts constitute aU of those cases of ancient uses which remain unexe- 
 
 > See ante, § 255. 
 
 » See arite, § 277. 
 
 » 1 Spence Eq. Jur.491,493, 494} 1 Prest. Est. 
 186-190 i Tud. Ld. Cas. 368-276 ; 2 Bla. Conn. 336 ; 
 Doe V. Hamfrey, 6 A. <& E. 306; Doe V. Biggs, 3 
 
 Taunt. 169; Doe «. Collier, 11 East, 37T; 4Kent's 
 Com. 314 ; Ayer v. Ayer, 16 Pick. 327-330 ; Fisher 
 V. Fie'ds, 10 Johns. 505; Jones v. Bush, 4 Harr. 
 1; Horton v. Horton, 7 T. R. 653; 2 Pom. Eq. 
 Jur., §§ 984-986. 
 
 325 
 
§ 288 EQUITY JUEISPRUDENCE. [OH. XVI. 
 
 cuted by the Statute of Uses, with the exception of the contingent uses 
 which are expected to become vested upon the happening of the con- 
 tingency. Hence all express trusts will come within the four other 
 cases of exception to the operation of the Statute of Uses, viz. : First, 
 uses in chattel interest; second, a use upon a use; third, uses to married 
 •viovaen; f mirth, active uses or trusts. But under the later legislation, 
 in which New York took the lead and was followed by several of the 
 states, including Michigan, Wisconsin, Minnesota, California, and 
 Dakota, all uses and trusts heretofore known and operative under the 
 old Statute of Uses have been abolished, and all trusts not expressly 
 provided for and permitted by the statute have been pronounced legal 
 estates, vesting in the cestui que trust the legal title to the same extent 
 as such cestui que trust would have acquired the equitable title. Under 
 this statute, the express trusts which are declared to be possible are 
 four in number: 1. To sell lands for the benefit of creditors. 2. To 
 sell, mortgage, or lease lands for the benefit of legatees, or for the 
 purpose of satisfying any charge thereon. 3. To receive the rents and 
 profits of lands, and apply them to the use of any person, during the 
 life of such person, or for any shorter term, subject to the rules con- 
 cerning the suspension of the power of alienation. 4. To receive rents 
 and profits of lands, and to accumulate the same for the benefit of 
 minors, for and during their minority.^ The statutes in the other 
 states are substantially the same as the New York statute, the pro- 
 visions of which have just been given, and for all practical purposes in 
 this present connection may be considered as the same. 
 
 § 288. Active and passive trusts. — ^Where a special duty is to be 
 performed by a trustee in respect to the estate, such as to collect the 
 rents and profits, to sell the estate, etc.,^ the trust is called active. It 
 is the duty which prevents the operation of the statute, for the trustee 
 must have a legal estate in order to perform his duties.' All other 
 trusts are denominated passive trusts, because there is no duty imposed 
 upon the trustee. He simply acts as a reservoir of the legal estate, 
 because from the terms and character of the conveyance and limitation, 
 the statute cannot transfer the legal estate to the cestui que use or 
 trnist. Such would be a use upon a use, a use in chattel interests, and 
 uses to persons incapable of holding the legal estate, viz. : married 
 
 1 Amendments have been made to this statu. Blake ». Anscombe, IB. &P.,ii. B., 25; Doer, 
 cry provision, authorizing additional trusts, Field, 2 B. & Ad. 664; Culbertson's App., 76 Pa. 
 but^the underlying principle remains un- St. 145; Brooks ». Marbury, 11 Wheat. 78; Gott 
 changed. ». Cooke, 7 Paige, 521 ; Doe ». Barthrop, 5 Taunt. 
 
 2 1 Cruise Dig. 384; Co. Lit. 390 b, 249, §6; 382; Doe v. Bwart, 7 A, & E. 636; Upham v. 
 Tud. Ld. Gas. 270; 1 Prest. Abst. 143; Sherman Varney, 15 N. H. 462; William's Appeal, 83 Pa. 
 V. Dodge, 28 Vt. 26; Aiken ii. Smith, 1 Sneed, St. 377; Appeal of Watson, 125 Pa. St. 340; Mo- 
 304; Wells ». Castles, 3 Gray, 323; Acklando. Clellan's Appeal, 130 Pa. St. 451; Grothe's Ap- 
 Lutley, 9 A. & E. 879; Robinson ». Grey, 6 East, peal, 26 W. N. C. 265; Budy's Appeal, (Pa. '87) 
 1; Hovell v. Barnes, Cro. Car. 382; Douglass v. 11 Atl. Eep. 398. 
 
 Cruger, SON. Y. 15; Smith©. Harrington, 4 « See authorities cited in preceding note. 
 
 Allen, 566; Leonard v. Diamond, 31 Md. 563; » Doe v. Passingham, 6 B. & C. 305; Doe t> 
 
 326 
 
CH. XVI.] 
 
 MODERN TRUSTS. 
 
 § 289 
 
 § 289. Modern statutory changes. — The modern statutory legis- 
 lation already referred to ^ in respect to trusts, has had the effect 
 of limiting the trust estates, which may be created to the active 
 trust, declaring all passive trusts to be invalid and inoperative as 
 such. But in abolishing passive trusts the interest of the cestui que. 
 trust is fully protected by merger into the legal estate, and by transfer- 
 ring to him the legal estate and title which the trustee had acquired 
 under the conveyance.* It has been held that the first class of express 
 trusts, as provided for by the New York statute, is to be confined to 
 sales for the benefit of creditors. = But in California the statute 
 includes every kind of trusts in which the trustee is empowered to sell 
 for whatever purpose the sale was authorized.* In the second class 
 of cases are included all those trusts which provide for mortgaging or 
 leasing land and with the money raised to pay off incumbrances which 
 may be on the land, except for the payment of general creditors.* 
 In the third class of cases, where provision is made for the collection 
 of rents and profits, and the like, are included the greater number of 
 modern trusts under the statute, and concerning them is the greatest 
 amount of litigation. Some of the more important cases are found in 
 the note below. ° In the fourth class are included all trusts providing for 
 the accumulation of income for the benefit of minors in being, and 
 not longer than during the minority of such minors; and likewise such 
 accumulation is permitted in some of these states for the benefit of 
 
 Collier, 11 East, 377 ; Price v. Sisson, 13 N. J. 173 j 
 Hayes ». Tabor, 41 N. H. 521 ; Kuhn v. Newman, 
 26 Pa. St.227;Steaoyo. Rice, 27Pa. St. 75j Lines 
 ». Darden, 5 Fla. 78; Horton v. Horton, 7 T. R. 
 653; Williams. Holmes, 4 Rich. Eq. 495; Ware 
 V. Richardson, 3 Md. 505 ; Moore v. Shultz, 13 
 Pa. St. 98; Welch ». Allen, 21 Wend. 147; Ram- 
 say V. Marsh, 2 McCord, 252; Websterr. Cooper, 
 14 How. 488; 1 Prest. Abst. 140; Wagstaffti. 
 Smith, 9 Vea. 520; Boydi;. England 56 Ga. 598; 
 Sutton ». Aiken, 62 Ga. 733; Bolles v. State 
 Trust Co., 27 N. J. 308; Rogers Loc. Works v. 
 Kelly, 19 Hun, 399; Weber v. Weber, 58 How. 
 Pr. 255; Martins. Funk, 75 N. Y. 134; Boone v. 
 Bank, 84 N. T. 83; Badgett ». Keating, 31 Ark. 
 400. 
 
 i§287. 
 
 s Rawson v. Lampman,5 N. Y. 456; Wright v. 
 Douglass, 7 N. Y. 564; Astor o. L'Amoreux, 4 
 Sandf. 524; and see Hill v. Den. 54 Cal. 6 ; Wor- 
 mouth V. Johnson, 8 Pac. L. J. 362; Knight v. 
 Weatherwax, 7 Paige 182 ; Braker v. Deveraux, 
 8 Paige, 513, 518; Johnson ». Fleet, 14 Wend. 
 176 180, per Nelson, J. ; Rathburn v. Rathburn, 
 6 Barb. 98 ; Knickerbocker Ins. Co. v. Hill, 3 
 Hun 577; Patton ». Chamberlain, 44 Mich. 5; 
 Toms V. Williams, 41 Id. 552. 
 
 8 Selden v. Vermilyea, 1 Barb. 58. 
 
 ♦ Thompson ».McKay,41 Cal. 221, 230; Learned 
 V. Welton, 40 U. 349; Handley ®. Pfister, 39 Id. 
 283; Estate of Delaney, 49 Cal. 76, 86 ; Auguisola 
 V. Amaz, 51 Id. 435, 438; Grant ». Burr, 54 Cal. 
 
 298: Bateman v. Burr, 1 Pac. L. J. 274; Gseh- 
 wend II. Estes, 51 Cal. 134; Sharp v. Goodwin, 
 61 Id. 219; Tyler v. Granger, 48 Id. 259. 
 
 5 Lang V. Eopke, 5 Sandf. 363. 
 
 6 Cutter V. Hardy, 48 Cal. 568; Estate of De- 
 laney, 49 Cal. 76; Smith v. Ford, 48 Wis. 115;- 
 White V. Fitzgerald, 19 Wis. 480; Goodrich v.- 
 City of Milwaukee, 24 Wis. 422; overruling 
 Martin v. Titsworth, 10 Id. 320; Moore v. Hege- 
 man, N. Y. 376; Heermans v. Burt, 78 N.'T. 259; 
 Donovan i>. Van De Mark, N. Y. 244; Ireland ». 
 Ireland, 84 N. Y. 321; Delaney v. Van Aulen, N. 
 Y. 16; Toms v. Williams, 41 Mich. 552; Meth. 
 Church, &c. u.Clark, 41 Mich. 730; Lyle». Burke, 
 40 Id. 499; Schettler ®. Smith, 41 N. Y. 323; 
 Manice v. Manice, 43 Id. 303 ; Vernon v. Vernon, 
 53 Id. 351; Kiah v. Grenier, 56 N. Y. 220; Heer- 
 mans i>. Robertson, 64 N. Y. 332; Provosti). Pro- 
 vost, 70 N. Y. 141 ; Stevenson ». Lesley, N. Y . ' 
 51S; Verdin v. Slocum,71 Id. 345; Garvey v. Mc- 
 Devitt, 72 N". Y. 556; Low «. Harmony, N. Y. ' 
 408 ; Amory V . Lord, 9 N . Y. 403 ; Savage v. Burn- 
 ham, 17 N. Y. 561; Beekman v. Bonsor, 23 N. 
 Y. 298; Downing i>. Marshall, N. Y.366; Gilman 
 V. Reddington, 24 N. Y. 9; Everittu. Bveritt,29 
 N. Y. 39; Postii. Hover, 33 N. Y. 593; Harrison 
 V. Harrison, 36 N. Y. 543; Lorillard's Case, 14 
 Wend. 265; Hawley v. James, 16 Wend. 61; 
 Kane v. Gott, 24 Id. 641 ; Hone's Ex'rs v. Van 
 Sohaick, 20 Id. 564; Moore v. Moore, 47 Barb. 
 257; Burke v. Valentine, 52 Id. 412; Killam v. 
 Allen, Id. 605; Leggett v. Perkins, 2 N. Y. 297. 
 
 327 
 
§ 290 EQUITY JUKISPRUDENCE. [CH. XVI. 
 
 married women. ^ Under these statutory provisions, the cestui que 
 trust has no interest whatever in the property corresponding to an 
 estate in the land — simply the right to enforce such trust and to secure 
 by such enforcement of the trust a full return to him of the rents 
 and profits acquired. The entire estate in the land is vested in the 
 trustee, and he alone can do anything with the estate in the way of 
 alienation. Whether the trustee has the pow^r to sell the estate 
 depends upon the character of such an estate. Where the express 
 power is given to him as a matter of course, he can make the sale;^ 
 but where the express power is not given to him, he cannot claim the 
 power to sell, at least, without the order of a court or the express 
 authority of the statute.' But there is a possibility of a iona fide 
 purchaser acquiring title from such a trustee where the trust was not 
 declared in the same instrument which conveys the title to the trustee, 
 and in consequence of his title appearing on the face of the deed to 
 him to be absolute, a hona fide purchaser can claim to take the prop- 
 erty without notice of the trust. In his character as a iana fide 
 purchaser he can claim the absolute title to the property, free from 
 the claims of the cestui que trust. ^ 
 
 § 290. How express trusts were created. — Like uses before the 
 statute, no particular form of words is necessary in the creation and 
 declaration of trusts. Any words which manifest the intention that 
 the person named shall have the beneficial interest in the estate will be 
 sufficient.' The words used not only must show clearly an intention to 
 create a trust, but they must themselves create the trust, as verba de 
 prcBsenU. A promise to create a trust, if voluntary, will not raise a 
 
 » Harris v. Clark, 7 N. Y. 242; Kilpatrick ti. 228; Pratt v. Ayer, 3 Chand. 265; Norman v. 
 
 Johnson, 15 N. Y. 322 ; Dodge v. Pond, 23 Id. 69; Burnett, 25 Mass. 183 ; White v. Fitzgerald, 19 
 
 GiJman v. Reddington, 24 Id. 9; Toms». Will- Wis. 4S0j Coolcerill v. Armstrong, 31 Ark. 680; 
 
 lan.d, 41 Mich. 552; see Hawley v. James, 16 Zaver ». Lyons, 40 Iowa, 510 ; Smith ». Ford, 4* 
 
 Wend. 61; Vail v. Vail, 4 Paige, 317, 328; Mor- Wis. 115; Hill v. Den, 54 Gal. 6; Richardson v. 
 
 gan ». Masterton, 4 Sandf. 442. Inglesby, 13 Rich. Bq. 59; Lyle v. Burke, 40 
 
 2 Sprague 17. Edwards, 48 Cal. 239; Saunders®. Mich. 499; Morrison!). Kinstra, 55 Miss. 71; 
 
 Schmaelzle, 49 Id. 59; Learned v. Welton, 40 Kitchen v. Bedford, 13 Wall. 413; Gadsden v. 
 
 Cal. 349; Thompson v. McKay, 41 Id. 221, 230. Whaley, 14 S. C. 210; Harris' Bx'rs v. Barnett, 
 
 s Smith V. Bowen, 35 N. Y. 83; Briggs v. Pal- 3 Gratt. 339; Barkley v. Lane's Bx'r , 6 Bush, 
 
 mer,20 Barb. 392; Cruger v. Jones, 18 Id. 467; 587; Russell tf. Switzer, 63 Ga. 711; Wallace v. 
 
 Leltoh V. Wells, 48 Id. 637; Powers ». Bergen, 6 Wainwright, 87 Pa. St. 263; Porter v. Bk. of 
 
 N. Y. 358; Belmont v. O'Brien, 12 Id. 394. Rutland, 19 Vt. 410; Tobias v. Ketehum, 32 N. 
 
 * Griffin ». Blanchar, 17 Cal. 70; Thompson v. Y. 319; Selden's Appeal, 31 Conn. 548; McElroy 
 
 Toland, 48 Id. 99; Sharpw. Goodwin, 51 Id. 219; v. MoElroy, 113 Mass. 509; Wheeler v. Smith, 9 
 
 Scottv. Umbarger, 41 Id. 410; Price v. Reeves, How. 55; Slocum v. Marshall, 2 Wash. C. Ct. 
 
 38 Id. 457; Lathrop v. Bampton, 31 Id. 17; Hoi- 397; Smith v. Bowen, 35 N. Y. 83; Taft ®. Taft, 
 
 den V. N. Y. & Brie Bk., 72 N. Y. 286; New v. 130 Mass. 461 ; Toms v. Williams, 41 Mich. 552; 
 
 Nicoll, 73 Id. 127. Whitcomb v. Cardell, 45 Vt. 24; O'Rourke v. 
 
 6 Co. Lit. 290 b, note 249, § 14; 1 Spence Bq. Beard, (Mass. 1890) 23 N. E. Rep. 576; O'Riley v. 
 
 Jur. 506, 507; Gomez v. Tradesman's Bk., 4 McKiertian, (Ky. 1890) 13 S. W. Rep. 360; War- 
 
 Sandf. 102; Ames v. Ashley, 4 Pick. 71 ; Scltuate burton v. Camp, 55 N. Y. Super Ct. 290; Saun- 
 
 ». Hanover, 16 Pick. 222; Cleveland v.Hallett, 6 derson «. Broadwell, 82 Cal. 132; Hellman ». 
 
 Cush. 403 ; Montague v. Hayes, 10 Gray, 609 ; Or- McWilliams, 70 Cal. 449 ; Carter v. Gibson, (Neb. 
 
 leans D. Chatham, 2 Pick. 29; Fisher ». Fields, '90) 45 N. W. 634; Phipardr. Phipard, 55 Hun, 
 
 lOJohns.495; Wright r. Douglass, 7 N. Y. 564; 433; Guion i>. Williams, 7 NY. S. 786; Kintner 
 
 Raybold V. Raybold, 20 Pa. St. 308; Barron v. v. Jones, 122 Ind. 148; Macy v. Williams, 55 
 
 Barron, 24 Vt. 375; Ready j;. Kearsley, 14 Mich. Hun, 489. 
 
 328 
 
CH. XVI.] MODKKN TRUSTS. § 291 
 
 ti'ust, either express or implied; while such a promise, for a raluable 
 ■consideration, would raise an implied trust, which would be enforced 
 by a court of equity. ' The declaration must, and can only, be made by 
 the owner of the legal estate; but for the creation of the trust, it is not 
 necessary to transfer the legal estate to a third person as trustee. A 
 simple declaration by the owner of the land that he holds it in trust for 
 another,- will transfer the beneficial interest to the latter, and convert 
 the legal owner into a trustee, provided the requisite consideration is 
 present in the grant. ^ And it is not even necessary that the declax'a- 
 tion should be made to the proposed cestui que trust. It may be made 
 without his knowledge and yet be good, if he accepts it within a 
 reasonable time after he has heard of its existence.* The declaration 
 must, of course — particularly where it is testamentary — contain words 
 of description sufficient to identify the cestui que trust.*' But a trust 
 cannot be created in a deed by a declaration that a third party shall hold 
 in trust for the grantee the property which is formally conveyed by the 
 deed to the grantee.^ It is different in the case of devises where the 
 special intent of the testator to make a trust could be carried out. 
 
 § 291. Express trusts inferred by constructiou. — ^Not only is it 
 unnecessary for the execution of trusts to make use of formal modes 
 of expression, as has already just been explained in the preceding para- 
 graph, but it is likewise unnecessary, in the creation of express trusts, 
 that such trusts should be directly and explicitly declared in the instru- 
 ment which purports to create them. This is at least the case where 
 the instrument in question is a will. Such a trust may be presumed 
 or inferred indirectly fi'om the provisions of the will, when such pro- 
 visions, in regard to the disposition of the property, cannot be carried 
 out, except upon the hypothesis that a trust has been created. In 
 such a case, the trust is said to be inferred from the provisions of the 
 will as a necessary implication of the donor. Although the creation of 
 trusts by inference may take place in gifts inter vivos, it is more 
 likely to occur in testamentary dispositions; because the technical con- 
 
 1 Young V. Young, 80 N. Y. 428; Dellinger's Henry, 48 Md. 550; Ray». Simmons, 11 E. I. 386; 
 Appeal, 71 Pa. St. 425 J Hays ». Quay, 68 Pa. St. Minor v. Rogers, 40 Conn. 518; Gadsden v. 
 263; Martin v. Funk, 75 N. Y. 134; Stone v. Whaley, 14S. C. 210; Boykin ». Pace's Ex'r, 64 
 Hackett, 12 Gray, 23r; Huston v. Markley, 49 Ala. 68; Hill v. Den, 54Cal. 6; Baldwins. Hum- 
 Iowa, 168; Otis V. Beckwith, 49 III. 121; Olney phrey, 44 N. H. 609 j Bond v. Bunting, 78 Pa. 
 v. Howe, 89 111. 656; Andrews ». Hobson, 23 Ala. St. 210; Titehenell v. Jackson, 86 W. Va, 460; 
 2]»; Wyble v. MePheters, 58 Ind. 393; Lane v. but see Scales v. Maude, 6 De G. M. & G. 43; 
 Ewing, 31 Mo. 75; Estate of Webb, 49 Cal. 541 j Warriner v. Rogers, L. R. 16 Eq. 340. 
 Henderson v. Henderson, 21 Mo. S79; Neves v. > Barrell v. Joy, 16 Mass. 221 ; Wards. Lewis, 
 Scott, 9 How. 196; Blanchard r. Sheldon, 43 Vt. 4 Pick. 581; Beyant v. Russell, 23 Pick. 608; 
 512; Minor v. Rogers, 40 Conn. 512; Adams v. Berly v. Taylor, 6 Hill. 677; Shepherd v. Mo- 
 Adams, 21 Wall. 185; Taylors. Henry, 48 Md. ETers,4 Johns. Ch. 136; Scull ». Reeves, 2 Green 
 550; Owens JJ. Owens, 23N. J. Eq. 60; McNulty Ch. 84; Shlpwlth's Ex'rs v. Cunningham, 8 
 ■». Cooper, 3 Gill & J. 814; Davis v. Ney, 125 Leigh, 871. 
 Mass. 590. * Read v. Williams, 8 N. Y. S. 84 ; Ira ?■« Foley's 
 
 21 Spenoe Eq. Jur. 507; Crop v. Norton, 8 Will, ION. Y. S. 18. 
 
 Atk. 76; Suarez v. Pumpelly, 2 Sandf . Ch. 336; 6 Annis v. Wilson, 15 Col. 236. But see post, 
 
 Morrison v. Beirer, 2 Watts&S.81; Uraun ». § 333, where It is explained that a married wom- 
 
 Coates, 109 Mass. 581 ; Young v. Young, 80 N.Y. an's separate estate may be created in a direct 
 
 488; Tanner v. Skinner, U Bush, 120; Taylor v. conveyance to her of the absolutelegal estate. 
 
 329 
 
§ 291 EQUITY JUEISPBUDENCE. [OH. XVI. 
 
 Btruction of conveyances and agreements, operating inter vivos, make 
 it unlikely that any interest may arise by implication from the express 
 provisions of the instrument.' The cases, in which a trust would be 
 inferred from the provisions of a will, are three in number: Firsty 
 where the property is given to a parent, or one standing in locopa/ren~ 
 tis, yet with no express declaration of trust in behalf of the children j 
 but the same instrument contains directions for the maintenance of the 
 family or of the children, so constructed as to enable a court to pre- 
 sume, from the gift and from the directions for the maintenance of the 
 family, that the property was given in express trust for that purpose. 
 It is impossible to lay down any general rule in regard to this question; 
 each case must stand upon its own facts and circumstances. In every 
 case, it is a question of fact or of inference whether the testator 
 intended by the provisions of his will to create, in respect to the prop- 
 erty, a trust in behalf of the family for whose maintenance the donee 
 receives directions; and the courts have not uniformity rested their 
 decisions on any reliable principle or rule, which could serve as a reli- 
 able guide, in determining when a trust will be presumed or inferred, 
 and when it will not. The ordinary form of disposition of property, 
 from which the inference might be drawn that a trust was intended for 
 the benefit of a family, is where the property is given to one, followed 
 by a general statement that he may occupy and enjoy and otherwise 
 dispose of the property for the benefit of himself and his family. The 
 English cases generally pronounce such dispositions of property to be 
 a trust for the benefit of the whole family,^ unless other language is 
 contained in the instrument which excludes the testator's intention of 
 bestowing any beneficial interest upon the parent.' In some of the 
 cases, the gift has been construed to give the parent a life iestate, with 
 a power of appointment in trust for the children.* The American 
 cases are not uniform in their conclusions on this subject: some of the 
 cases holding, that with such disposition of property a trust has been 
 created in behalf of the family; ^ while on the other hand, in very 
 similar, if not identical, cases, other courts have come to the conclusion, 
 that no trust was intended in behalf of the children." 
 
 1 See Liddard ». Liddard, 28 Bear. 266. Beav. 185; Jeflfery «. De Vitre, 111.376; Shovel- 
 
 SByne v. Blackburn, 26 Beav. 41; Carr ». ton ». Shovelton, 32 /d. 143j but see Lambe ». 
 
 Living, 28 Id. 644; Bird v. Maybury, 33 Id. 351; Eames, L. B. 6 Oh. 597. 
 
 Hora V. Hora, Id. 88; Wilson ». Maddison, 2 Y. « Parsons v. Best, 1 T. & C. 211. 
 
 & C. Ch. 372; Longmore v. Elcum, Id. 363, 370; « Bryan v. Howland, 98 111. 625; Taft v. Taft, 
 
 Stanjland v. Staniland, 34Beav.536; Woods v. 130 Mass. 461; Biddle's Appeal, 80 Pa. St. 258^ 
 
 Woods, 1 My. & Cr. 401 ; Berry D. Briant, 2 Dr. see, in general. Whiting v. Wbiting, 4 Gray, 
 
 & Sm. 1; Castle v. Castle, 1 De G. & J. 352. 236, 240; Andrews v. Bank of Cape Ann, S 
 
 SBIakeneyi). Blakeney, 6 Sim. 58; Wetherell Allen,313; Smith v. Wildman, 39 Conn. 387; 
 
 ». Wilson, 1 Keen, 80; Browne. Casamajor, 4 Paisley's Appeal, 70 Pa. St. 153, 158; Whelanji. 
 
 Ves. 498; Benson D. Whittam, 5 Sim. 28; Bid- Eeilly, 3 W Va, 597 ; Woods «. Woods, 1 My. <fc 
 
 dies t). Biddies, 16 Sim. 1 ; Jones ». Greatwood, Cr. 401; Raikes jj. Ward, 1 Hare, 415; Carr». 
 
 16 Beav. 527; but see Wheeler i>. Smith, 1 Giff. Living, 28 Beav. &44; Bird v. Maybury, 33 Id. 
 
 300. 351 ; Byne v. Blackburn, 26 Id. 41; Longmore o. 
 
 * Armstrong v. Armstrong, L. E. 7 Eq. 518; Elcum, 3 Y. <S C. Ch. 363, 369; Berry v, Briant. 
 
 Crockett v. Crockett. 2 Phill. 553; Costabadle 2 Dr. &S'm. 1. 
 V. Costabadie, 6 Hare, 410; Gully v. Gregoe, 24 
 
 330 
 
CH. XVI.] 
 
 MODERN TRUSTS. 
 
 §291 
 
 The second class of cases of express trust, created by inference, are 
 those in which precatory words are employed. Words which, in their 
 ordinary acceptation, are precatory instead of being mandatory, when 
 used by a testator in respect to the estate devised, will sometimes be 
 sufficient to raise a trust, if from the whole will a clear intention to 
 create a trust may be gathered. Thus, the words entreat, desire, hope, 
 recommend, etc., have been held to declare a trust.* The disposition 
 of the courts, however, in the later cases, is to pronounce against the 
 presumption, that a testator using precatory words intended thereby 
 to create a trust. And while the general doctrine is still maintained, 
 the American courts are very strongly opposed to its extension.^ In 
 Connecticut and Pennsylvania, the courts are particularly resti'ictive 
 in their application of the doctrine; and it must be stated, that at 
 best it is a very unsafe practice to give to words of an entirely pre- 
 catory meaning the force and effect of a command.' 
 
 The last class of cases are those in which power is given to a trustee, 
 and the trust is inferred from the bestowal of such powers, because 
 
 iPennoek's Estate, 20 Pa. St. 874-280; Erick- 
 son V. Willard, 1 N. H. 217 ; Harper v. Phelps, 
 21 Conn. 257; Foose v. Whltmore, 82 N. T. 405j 
 Dresser v. Dresser, 46 Me. 48; Amee v. John- 
 son, 35 Vt. 173; Spooner v. Lovejoy, 108 Mass. 
 529; Paisley's Appeal, 70 Pa. St. 153; Van 
 Duynet). Van Duyne, 1 McCart. 397; Williams 
 V. Worthington, 49 Md. 572; Harrison u. Har- 
 rison's Adm'x, 2 Gratt. 1; Cooko. Ellington, 6 
 Jones Eq. 371; Tolson v. Tolson, 10 Gill & 3. 
 159; Young v. Toung, 69 N. C. 309; Lesesne v. 
 Wltte, 5 S. C. 450; Ingraham v. Fraley, 29 Ga. 
 653; Lines v. Darden, 5 Fla. 51; Cockrill v: 
 Armstrong, 31 Ark. 580; McKee's Adm'rs «. 
 Means, 34 Ala. 349; Collins v. Carlisle, 7 B. 
 Mon. 13; Lucas v. Lockhart, 10 Smed. & M. 
 466; Harding v. Glyn, 1 Atk. 469; 2 Eq. Ld. Cas. 
 1838-1848, 1857-1866; Enders v. Tasco, (Ky.) 11 
 S. W. Eep. 818; Baker v. Brown, 146 Mass. 369; 
 Noe V. Kem, 93 Mo. 367; Wood v. Carnden, 
 &c. Trust Co., (N. J. 1888) 14 Atl. Eep. 885; 
 Colton V. Colton, 127 TJ. S. 300; Taylor V. Mar- 
 tin, (Pa. ISST) 8 Atl. Bep. 928; Salomon i;. Law- 
 rence, 52 N. Y. Super. Ct. 164; see, also, 3 Pom. 
 Eq. Jur. §§ 1014-1017; but see Phillips v. Phillips, 
 112 N. Y. 197; FuUenwider v. Watson, 113 Ind. 
 18; SturgisD. Paine, 146 Mass. 354; i«r« Haven's 
 Estate, 6 Dem. 456; Sale o. Thomsberry, (Ky. 
 1887) 5 S. W.Eep. 468; Lawrence v. Cooke, 104 
 N. Y. 633; Bulfer v. Willigrod, 71 Iowa, 620; 
 Eose V. Porter, 114 Mass. 309; Hopkins v. Glunt, 
 111 Pa. St. 287; Corby v. Corby, 85 Mo. 371. 
 
 ^McEee's Adm'rs «. Means, 34 Ala. 349; Ellis 
 V. Ellis' Adm'rs, 15 Ala. 296; Lucas v. Lock- 
 hart, 10 Sm. & Mar. 466; Cockrill v. Armstrong, 
 31 Ark. 580; Collins v. Carlisle, 7 B. Mon. 13; 
 Hunt T. Hunt, 11 Nev. 442; Young v. Young, 68 
 N. C. 309; Lesesne v. Witte, 5 S. C. 450; Hunter 
 V. Stembridge, 13 Ga. 193; Ingram v. Fraley, 29 
 Id. 553; Lines v. Darden, 5 Flor. 51 ; Williams 
 V. Worthington, 49 Md. 672; Tolson v. Tolson, 
 
 10 Gill & 3. 159; Harrison v. Harrison's Adm'x, 
 
 2 Gratt. 1 ; Crump v. Eedd's Adm'x, 6 Gratt. 
 373; Eeid's Adm'r v. Blackstone, 14 Id. 363; 
 Ehett V. Mason's Ex'r, 18 Id. 541; Cook v. 
 Ellington, 6 Jones Eq. 371 ; Carson v. Carson, 1 
 Ired.389; Foose s.Whitmore, 83 N.Y. 405; Smith 
 V. Bowen, 35 7(^.83; Dominickv. Sayre, 3 Sandf. 
 555; Parsons ». Best, I. T. & C. 211; Arcularius 
 V. Geisenhainer, 3 Bradf. 64, 75; Van Duyne v. 
 Van Duyne, 1 McCart. 397; Ward v. Peloubet, 
 
 3 Stockt. Ch. 304; Dresser v. Dresser, 46 Me. 48; 
 Cole J). Littlefield, 35 Id. 439; Erickson v. Wil- 
 lard, 1 N. H. 317; Van Amee v, Jackson, 35 Vt. 
 
 . 173; Warner v. Bates, 98 Mass. 274, 277 ; Spooner 
 V. Lovejoy, 108 Id. 539. 533; Chase v. Chase, 2 
 Allen, 101; Homer v. Shelton, 2 Met. 194, 206; 
 Whipple V. Adams, 1 Id. 444; Enders v. Tasco, 
 (Ky.) 11 S. W. Eep. 818; Baker v. Brown, 146 
 Mass. 369; Noe v. Kern, 93 Mo. 367; Wood v. 
 Carnden, &c. Trust Co., (N. J. 1888) 14 Atl. Eep. 
 885; Colton «. Colton, 127 U. S. 300; Taylor u.. 
 Martin, (Pa. '87) 8 Atl. Eep. 928; Salomon v. 
 Lawrence, 53 N. Y. Super. Ct. 154; but see Phil- 
 lips V. Phillips, 113 N. Y. 197; FuUenwider c. 
 Watson, 113 Ind. 18; Sturgis v. Paine, 146 Mass. 
 354; In re Haven's Estate, 6 Den. 456; Sale v. 
 Thomsberry, (Ky. '87) 5 S. W. Eep. 468; Law- 
 rence V. Cooke, 104 N. Y. 632; Bulfer v. Willi- 
 grod, 71 Iowa, 620; Eose v. Porter, 141 Mass. 
 309; Hopkins u. Glunt, 111 Pa. St. 387; Corby v. 
 Corby, 85 Mo. 371. 
 
 » Harpers. Phelps. 21 Conn. 257; Bull v. Bull, 
 8 Conn. 47; Pennook's Estate, 30 Pa. St. 268; 
 Kinter*. Jenks, 43Pa. St. 445; Second Church 
 «. Disbrow, 52 Pa St. 219; Paisley's Appeal, 70 
 Pa. St. 153; Biddle's Appeal, 80 Pa. St. 258; 
 Burt V. Herron, 66 Pa. St. 400; Jauretche v. 
 Proctor, 48 Pa. St. 406; Walker v. Hall, 34 Pa. 
 St. 483; Coate's Appeal, 2 Barf. 129; Gilbert v. 
 Chapin, 19 Conn. 343. 
 
 331 
 
§ 292 EQUITY JURISPRUDENCE. [CH. XVI. 
 
 such an inference is necessary to the exercise of such powers. Wher- 
 ever the facts of the case are such, that the trustee is obliged to have 
 the legal title and the control of the property, in order that the powers 
 conferred upon him may be properly exercised, then a trust will be 
 inferred.' But in this connection it must be borne in mind, that for 
 many purposes a power may be held by such trustee without the estate 
 feeing given to him, and this brings us to the distinction which consti- 
 tutes the subject of the next paragraph. 
 
 § 292. Powers in trust distingnished from tmst estates. — 
 "Where a power is given to one, to be exercised by him in trust for 
 the benefit of another, the bare power is thereby acquired, while the 
 estate remains in the party creating the power; or in the case of his 
 death, where such power appears in the will, the estate vests in the 
 devisee, if there be a devise of the property, subject to the power. 
 If the will makes no disposition of the estate, the estate will vest in 
 the testator's heirs, subject to the exercise of the power created by 
 the will. If, on the other hand, the party to whom the power is given 
 is presumed to have had conferred upon him likewise the possession 
 and control of the land, he acquires the estate in trust prior to the 
 execution of his power, and as trustee is entitled to collect the rents 
 and profits of the estate and apply them to the purposes of the trust. 
 It is simply a question, as to what the testator intended in the prem- 
 ises. As a consequence of this liberal rule, concerning words neces- 
 sary to create a power in a will, it is very often difficult to determine 
 ■whether the intention of the testator was to give an estate in the land, 
 or only a naked power. Since technical words are used to create an 
 estate by deed, it rarely happens that doubt will arise in the construc- 
 tion of a power by deed. The question, therefore, possesses impor- 
 tance only in relation to wills. ^ The intention of the testator will 
 always govern, whenever it can be clearly ascertained, even though the 
 literal meaning of the words used would indicate a different conclu- 
 sion.' The most numerous cases have arisen under devises, in which 
 executors are directed to sell land for the purpose of distribution. If 
 the executors are intended to have possession until sale under the 
 power, then it is, of course, a power coupled with an interest, and the 
 estate does not descend for the time being to the donor's heirs.* Suc- 
 
 > Tobias v. Ketchum, 32 N. Y. 319, 33r-331j 532; Jackson ». Jansen, 6 Johns. 73; Jackson 
 
 Brewster v. Striker, 2 N. Y. 19; Lewin on «. Schauber, 7 Cow. 187; Clary v. Frayer, 8 
 
 Trusts, 248; Barkers. Greenwood, 4 M. & W. Gill & J. 403; Walker v. Quigg, 6 Watts, 87; 
 
 421; White v. Parker, 1 Bing. N. C. 573; Ladd «. Ladd, 8 How. 10. 
 
 Birmingham v. Kirwan, 2 Sch. & Lef. 444; 'Bloomer t;. Waldron, 3 Hill, 361; see cases 
 
 Leggett V. Perkins, 3 N. Y. 297; Garvey v. Mc- cited in preceding note; Franklin v. Osgood, 
 
 Devltt, 73 N. Y, 556, 562; Smith v. Scholtz, 68 14 Johns. 537; Brearlyu Brearly, 1 Stockt. 21; 
 
 Id. 41; Knox v. Jones, 47 Id. 389, 396; Vernon Digges' Lessee v. Jarman, 4 Har. & McH. 468; 
 
 V. Vernon, 53 Id. 351, 359; Van Nostrand v. Jackson v. Ferris, 15 Johns. 346; Nelson v. 
 
 Moore, 52 Id. 12, 18; WagstaJE v. Lowerre, 23 Carrington,4 Munf. 338,pl. 9; Zeback «. Smith, 
 
 Barb. 209, 221; Ferry v. Liable, 31 N. J. Eq. 566. 3 Binn. 69; De Vaughan v. McLeroy,82 Ga. 687. 
 
 »4 Kent's Com. 319; Sharpsteen .). Tillon, 3 <Gary v. Lynch, 8 Gill, 403; Hartley v. 
 
 Cow. 651; Jameson c. Smith, 4 Bibb, 307; Gray Minor's App., 53 Pa. 212; Clary v. Frayer, 8 
 
 ». Lynch, 8 Gill, 403; Peter V. Beverly, 10 Pet. Gill & J. 403; 2 Kent's Com. 320. 
 
 332 
 
CH. XVI.] 
 
 MODERN TRUSTS. 
 
 § 293 
 
 cinctly stated, if the devise be that " the executor shall sell," or that 
 "the land shall be sold," only a naked power is granted. But a 
 devise to the executor "to sell," or words of similar import, will 
 vest the legal title in him; it will be a power coupled with an interest.* 
 All doubt is, of course, removed where the will makes some other 
 disposition of the legal estate." In New York State, by statute, the 
 executor in all such cases takes only a naked power, unless some duty 
 is imposed upon him in regard to the management of the property, 
 which would require its possession.' 
 
 § 293. Executed and executory trusts. — ^Where the limitations 
 are all definitely settled by the deed of creation, and there is nothing 
 further to be done in order to determine the exact interest of the cestui 
 que use and the duration of the trust, the trust is said to be executed,. 
 But where the terms of the ti'ust deed simply define how the settle- 
 ment shall be made, and imposes that duty upon the trustee, the trust 
 is called executory. All passive trusts and such active trusts, in 
 which the duty of the trustee is confined to the ordinary administra- 
 tion of the property, are executed trusts; while active trusts, in which 
 it is the duty of the trustee to convey to the person named, or to 
 determine the shares which several persons shall take, and the like, 
 are comprehended under the head of executory trusts. Executory 
 trusts bear a close resemblance to powers when granted to trustees, 
 which has been already explained in the preceding paragraph.^ 
 
 iTates V. Crompton, 3P. Wms. 308; Lancaster 
 V. Thornton, 2 Burr. 1027; Bergen v. Bennett, 
 1 Gaines' Cas. 16; Doe v. Sliotter, 8 Adol. &, Ell. 
 905; Patton v. Crow, 26 Ala. 426;*Cllnefelter ■€. 
 Kye.TS, 18 IlL 3S9j Gregg v. Currier, 36 N. H. 
 200; Thornton v. Gailliard, 3 Rich. 418; Bayard 
 V. Eowen, 1 A. K. Marsh. 214; Snowhill v. 
 Snowhill, 3 Zabr. 447; KUlam v. Allen, 52 Barb. 
 605; Inman v. Jackson, 4 Greenl. 237; Mc- 
 Knight V. Wimer, 38 Mo. 132; 1 Williams on 
 Ex. 540; 4 Kent's Com. 326; 1 Sugden on Pow. 
 189-194; Mosby v. Mosby, and Miller v. Jones, 
 
 9 Gratt. 584; Finite *. Fluke, 1 Greenl. 478; 
 Fay o. Fay, 1 Cush. 93; Howell v. Barnes, Cro. 
 Car. 382; Haskell ». House, 3 Brev. 242; Fere- 
 bee r>. Proctor, 2 Dev. & B. 439; Jackson ». 
 Shauber, 7 Cow. 18; Peck v. Henderson, 7 Yerg. 
 18j Bloomer v. Waldron, 3 Hill, 361; Co. Lit. 
 113 a, Hargrave's note, 2; Greenough v. Wells, 
 
 10 Cush. 371; Gordon v. Overton, 8 Yerg. 121; 
 Warfield v. English, (Ky.) 11 S. W. Rep. 662; 
 Herberts v. Herberts' Ex'rs, 85 Ky. 134; Trap- 
 hagen v. Lery, 45 If. J. Eq. 448; Perkins v. 
 Presnell, 100 N. C. 220; Narr ». Narr, 41 N. J. 
 Eq. 88. 
 
 sDen». Awllng, 1 Dutch. 449; Hemingway*. 
 Hemingway, 22 Conn. 462; Peter v. Beverly, 10 
 Pet. 53S; Ladd v. Ladd, 8 How. 10. 
 
 3N. Y. Rev. Stat., Art. 2, § 68; Aldrich v. 
 Green, (1888) 1 N. Y. S. 549. In Pennsylvania 
 the statute provides that in all such cases, 
 whatever may be the phraseology used, the 
 executor takes the power coupled with the 
 
 estate. Cobb v. Biddle, 14 Pa. St. 444; Brown 
 f . Sterritt, 29 Pa. St. 38; Shippen's Heirs ». 
 Clapp, 29 Pa. St. 265. 
 
 * Doe V. Passingham, 6 B. & C. 305; Doe v. 
 Collier, 11 East, 377; Price v. S sson, 13 N.J. 
 173; Hayes v. Tabor, 41 N. H. 521 ; Kuhn ». New- 
 man, 26 Pa. St. 227; Steacy v. Rice, 27 Pa. St. 75; 
 Lines v. Darden, 5 Fla. 78; Horton v. Horton, 7 
 T. R. 653; William ». Holmes, 4 Rich. Eq. 495; 
 Ware v. Richardson, 3 Md. 505; Moore v. 
 Shultz, 13 Pa. St. 98; Welch v. Allen, 21 Wend. 
 147; Ramsay v. Marsh, 2 MeCord, 852; Webster 
 ■0. Cooper, 14 How. 488; 1 Prest. Abst. 140; Wag- 
 staff V. Smith, 9 Ves. 520; Boyd v. England, 56 
 Ga. 598; Sutton ». Aiken, 68 Ga. 733; BoUes V. 
 state Trust Co., 27 N. J. 308; Rogers Loc. Works 
 ». Kelley, 19 Hun, 399; Weber v. Weber, 58 
 How. Pr. 855; Martin v. Funk, 75 N. Y. 134; 
 Boon V. Bank, 84 N. Y. 83; Badgett v. Keating, 
 31 Ark. 400. 
 
 6 See § 292. It will be observed that the terms 
 exeeuted and executory, when applied to mod- 
 em trusts, have a different significance from 
 that which is given to them, in referring to 
 the operation of the Statute of Uses upon uses. 
 Fearne Cont. Rem. 55, 113, 139; 4 Kent's Com. 
 304, 305. Mr. Lewfn defines these classes of 
 trusts thus: " Trusts executed are where the 
 limitations of the equitable interest are com- 
 plete and final; in the trust executory, the 
 limitations of the equitable interest are not 
 Intended to be complete or final, but merely to 
 serve as minutes and instructions for per- 
 
 333 
 
§ 295 EQUITY JURISPRUDENCE. [CH. XVI. 
 
 § 294. Alienation of trust estate. — It is also a well-established 
 rule that the trustee of a dry or passive trust may be compelled by 
 decree in chancery to convey the estate as the cestui quQ trust may 
 direct. And this rule, it would seem, applies to every species of trust 
 where such a decree is not inconsistent with the express terms of the 
 trust. Equity will give to the cestui que trust the full power to dis- 
 pose of the estate, whenever it can do so without violating the express 
 or implied purpose of the trust, and without doing injury to anyone 
 interested therein. Where there is no prohibition against alienation, 
 the execution of the deed of conveyance by trustee and cestui que trust 
 passes the absolute title, and the trust is destroyed by the consequent 
 merger of interests.^ To what extent these general powers exist in an 
 active trust, must depend upon the peculiar limitations of such a trust. 
 Whenever the power of the trustee involves the exercise of a proprie- 
 tary authority over the property, equity will regard him as the 
 owner, so far as it is necessary for the performance of the trust. 
 And to that extent will the rights and powers of the cestui que 
 trust be curtailed.^ But when the duties which bave made the trust 
 active have been performed, the trust again becomes passive, and if it 
 is not executed by the Statute of Uses, the court might direct a con- 
 veyance by the trustee in accordance with the desires of the cestwi 
 que trust. ^ In New York, and other states in which the New York 
 statute on the subject of trusts has been substantially followed, 
 the cestui que I/rust is now possessed of no interest, which he may 
 assign, where the trustee is charged with the collection and pay- 
 ment of the rents and profits of the estate to the cestui que trust. *■ 
 
 § 295. Merger of interests. — ^If the legal and equitable estates of 
 a trust become lawfully united in one person, the equitable is merged 
 in the legal estate, in accordance Avith the general law of merger. 
 But the conjunction of the two estates in one person will not produce 
 
 fecting the settlement at some future period. ■"■ Parke, 7 W. AS. 19; Harris v. McElroy, 45 
 
 Lewiu on Tr. 45j 2 Pom. Eq. Jur., §§ 1000, 1001; Pa- St. 216j Barnett's Appeal, 46 Pa. St. 399; 
 
 Saunders «. Edwards, 2 Jones Eq. 134; Evans Battle v. Petway, 5 Ired. 576; Arrlngtou v. 
 
 V, King, 3 Id. 387; Porter v. Doby, 8 Rich. Eq. Cherry, 10 Ga. 429; Stewart v. Chadwick, 8 
 
 49; Gushing I?. Blake, 3D N.J. 689; lEq. Ld.Cas. Iowa, 469. But see ante, § 376, where it is 
 
 1-36; Neves ». Scott, 9 How. 211; Tillinghast v. claimed that, in the case of a passive trust of 
 
 Coggeshall, 7 R. I. 393; Egerton v. Brownlow, 4 "■ married woman, the conveyance of the 
 
 H. L. Gas. 210 ; Leonard v. Countess of Sussex, equitable estate by her, without the co-opera- 
 
 2Vern. 526; Wright «. Pearson, 1 Eden, 119; tion of the trustee, will pass the legal title as 
 
 Austin V. Taylor, 1 Eden, 361 ; Boswell v. Ml- well. 
 
 Ion, Drury, 291 ; MuUany v. Mullany, 3 Green ^ Lewin on Tr. 470; Barnett's Appeal, 46 Pa. 
 
 Ch. 16;Sackville-Westv. Holmesdale, L.R.4H. St. 399; MoGosker u. Brady, 1 Barb. Ch. 329; 1 
 
 L. Cas. 543; Carroll d. Ronick, 7 Smed. & M. Spence Eq. Jur. 496, 497; Culbertson's Appeal, 
 
 798;; Bowen v. Chase, 94 U. S. 812; Imlay v. 76 Pa. St. 145; Williams' Appeal, 83 Pa. St. 377; 
 
 Huntington, 20 Conn. 146; Biddle «. Cutter, 49 Smith v. Harrington, 4 Allen, 566; Bowditch v. 
 
 Iowa, 547; Tillman v. Wood, 26 Wend. 9; Berry Andrew, 8 Allen, 339; Douglass v. Cruger, 80 N. 
 
 V. Williamson, 11 B. Mon. 245; Home v. Lyeth, Y. 15. 
 
 4 Har. & 3. 431 ; Dennison v. Goehring, 9 Pa. St. ' Welles v. Castles, 3 Gray, 323; Sherman v. 
 
 175; Wood ». Burnham, 6 Paige, 513; Shelley v. Dodge, 28 Vt. 26; Waring v. Waring, 10 B. Mon. 
 
 Shelley, L. E. 6 Eq. 510; Gamsey v. Mundy, 24 331 ; Leonard's Lessee v. Diamond, 31 Md. 536; 
 
 N. J. 243 ; Garner v. Garner, 1 Deems, 437. Perry on Tr., § 351. 
 
 »1 Cruise Dig. 448; Lewin on Tr. 470 ; Vaux < See an/«, § 289. 
 
 334 
 
CH. XVI. J MODERN TRUSTS. § 296 
 
 a merger, if it would be prejudicial to the rights of anyone lawfully- 
 interested in the trust property. As a general rule, it is necesssary 
 that the equitable estate should be of equal extent with the legal estate, 
 so that a merger might take place.' 
 
 § 296. Statute of Frauds as to trusts iu real estate. — Before the 
 Statute of Frauds, a trust could be created or transferred by an oral 
 ■declaration. No writing was necessary for its valid creation. But the 
 Statute of Frauds requires that all declarations or creations of trusts 
 in lands should be manifested and proved by some instrument in writ- 
 ing signed by the party creating the trust. But the statute neces- 
 sarily does not apply to implied, resulting and constructive trusts, and 
 the original English statute expressly excepted them from its opera- 
 tion. These trusts may, therefore, be proved by parol evidence.^ The 
 statute, however, covers all express trusts; and these must invariably 
 be proved by some writing.^ But it is not required that the trust 
 shall be created by some instrument in writing. The writing is only 
 necessary for its proof. Therefore, the writing need not have been 
 made for the purpose of creating or declaring a trust; it can act by 
 way of an admission, as evidence of an existing trust.* But the evi- 
 dence must, in that case, be clear and free from doubt. ° The statute 
 only requires the writing to show that there is a trust, and to give 
 its limitations. If the writing is but an imperfect presentation of the 
 trust, and the terms there stated are uncertain, the trust will not be 
 enforced. Parol evidence is not admissible to supply what has been 
 omitted.' Letters, indorsements on envelopes, acknowledgments and 
 
 13 Prest. Conv. 1 Spence Eq. Jur. 508, 572j Jones Eq. 292; Dean v. Dean, 6 Conn. 285; 
 
 Nicliolson B. Halsey, 7 Johns. Oh. 422 j Rogers Osterman v. Baldwin, 6 Wall. l]6j Bates v. 
 
 V. Rogers, 18 Hun, 409; Gardner v. Gardner, 3 Hurd, 65 Me. 180; Homer c. Homer, 107 Mass. 
 
 Johns. Oh. 53; Hopklnsono. Dumas, 42 N. H. 82; Faxon «. Folvey, 110 Mass. 392; Fordyce «. 
 
 307; Bolles V. State Trust Co., 27 N. J. Eq. 308; 'WilUs, 3 Bro. Ch. 577; Wallace v. Wainwright, 
 
 Cooper II. Cooper, 1 Halst. Ch. 9; James v. 87Pa. St. 263; Berrien jj. Berrien, 3 Green Ch. 
 
 Morey, 2Cow. 284; Donalds «. Plumb, 8 Conn. 37; McCubbin v. Cromwell, 7 Gill cfc J. 164; 
 
 453; Mason v. Mason, 2 Sandf. Ch. 432; Healy v. Barnes v. Taylor, 27 N. J. Eq. 259; Packard v. 
 
 Alstoon, 25 Miss. 190; Badgett S.Keating, 31 Putnam, 57 N. H. 43; De Laurencelv. De Boom, 
 
 Ark. 400; Hunt ». Hunt, 14 Pick. 374; Downess. 48 Cal. 581; Eeid v. Eeid, 12 Rich. Eq. 213; 
 
 Grazebrook, 3 Merlv. 208; Brydges ». Brydges, Kingsbury v. Burnside, 58 111. 310; Gibson v. 
 
 3 Ves. 126; Selby v. Alston, 3 Ves. 339; Wade v. Foote, 40 Miss. 788; Brown v. Brown, 12 Md. 87. 
 
 Paget, 1 Bev. Ch. 363; Butler r. Godley, 1 Dev. *1 Cruise Dig. 390; Forster v. Vale, 3 Ves. 
 
 94. See ante, Chapt. VII, where the whole 70?; Ambrose v. Ambrose, 1 P. Wms. 322; 
 
 subject of equitable merger Is fully presented. Dayies v. Otty, 33 Beav. 540 ; Steere v . Steere, 5 
 
 22 Washb. on Real Prop. 445, 446, 447; 1 Johns. Ch. 1; Jackson v. Moore, 6 Cow. 706; 
 
 Spence Eq. Jur. 497, 512. See post, §§ 308-312. McClellan v. MoClellan, 65 Me. 500; Movan v. 
 
 3 Hall V. Young, 37 N. H. 134; Bartlett v. Hays, 1 Johns. Ch. 339; Unitarian Soc. v. 
 Bartlett, 14 Gray, 278; Lloyd v. Lynch, 28 Pa. Woodbury, 14 Me. 281 ; Orleans v. Chatham, 2 
 St. 419; Bragg v. Paulk, 42 Me. 602; Moore v. Pick. 29; Barrell v. Joy, 16 Mass. 221; Pinney 
 Moore, 38 N. H. 382; Pinney v. Fellows, 15 Vt. v. Fellows, 15 Vt. 525; Flagg v. Mann, 2 Sumn. 
 525; Sturtevant v. Sturtevant, 20 N. T.39, Flagg 486; Brown v. Brown, 1 Strobh. Eq. 363; Brown 
 V. Mann, 2 Sumn. 486; Hearst v. Pujol, 44 Cal. v. Combs, 5 Dutch. 36; Cornelius v. Smith, 56 
 230; Eatlifif ». Ellis, 2 Iowa, 59; Movan v. Hays, Mo. 528j Trapnall u. Brown, 19 Ark. 48. 
 1 Johns. Ch. 339; Lynch u. Clements, 24 N. J. 6 Rogers «. Rogers, 87 Mo. 257. 
 Eq. 431; Pattonc. Beecher, 62 Ala. 679; Wood « Forster v. Vale, 3 Ves. 707; Wright v. 
 V. Cox, 2 My. & Cr. 684; Cornelius v. Smith, 55 Wright, 1 Ves. Sr, 409; Brydges v. Brydges, 3 
 Mo. 528; Ambrose v. Otty, 1 P. Wms. 322; John- Ves. 120; Steere v. Steere, 5 Johns. Ch. 1 ; Park- 
 son D.Ronald, 4 Munf. 77; Wolford v. Fam- hurst «. Van Cortlandt, 1 Johns. Ch.2r3) Abeel 
 lam, 44 Minn. 159; see Shelton V. Shelton, 5 i). Radoliffe, 13 Johns. 297; Walker v. Locke, 6 
 
 335 
 
§ 298 EQUITY JURISPRUDENCE. [CH. XVL 
 
 admissions in equitable pleadings have been held sufficient writing for 
 the proof of a trust. ' But they are not conclusive." 
 § 297. Trusts of personalty when within the Statute of Frauds^ 
 
 — The provision of the Statute of Frauds, which directs that declara- 
 tions of trusts should be manifested by' some instrument in writing, is 
 applied to all interests in lands, whether they be freeholds or chattels 
 real.' But in the declaration of trusts of strictly personal property, 
 or chattels personal, the statute does not apply; so that not only may 
 a parol declaration of a trust in personal property be made, but it may 
 also be proven by parol evidence and without the aid of any memo- 
 randum or written admission.* And this is likewise the case in respect 
 to trusts declared by parol in notes or bonds which are secured by 
 mortgage upon lands; such declarations do not come within the pro- 
 visions of the Statute of Frauds." 
 
 § 298. Words of limitation in the creation of trusts in lands. — 
 Unlike legal estates in lands at common law, in the limitation of trusts 
 the same technical words are not required to be used. A trust in fee 
 may be created without using the word heirs, if the intention of the 
 grantor is manifested in any other way. And such intention will be 
 presumed, if the terms of the trust cannot in any other manner be 
 satisfied. This rule not only refers to the quantity or duration of the 
 equitable estate in the cestui que trust; but if the equitable estate 
 under this construction is larger than the legal estate in the trustee, 
 according to the ordinary legal construction, the latter estate will be 
 enlarged by construction to meet all the demands of the trust estate, 
 and the trustee will take a fee, even though the estate is not limited to 
 heirs.' As a corollary to the above rule, it has been well established 
 
 CUBh. 90; Chad wick «. Perkins, 3 Me. 399; Pat- "Parkman v. Suffolk Sav. Bank, 151 Mass. 
 
 ton V. Beecher, 62 Ala. 579; Rusaell ». Switzer, 218; 24 N. B. 43; Beaver v. Beaver, 117N. Y. 421. 
 
 63Ga. 711j Wteelerjj. Smith, 9How.55j2Pom. 8Forster». Vale, 3 Ves. 696; Riddle ». Emer- 
 
 Eq. Jur., § 1009. son, 1 Vern. 108. 
 
 iForster v. Vale, 3 Ves. 696 j Smith v. Mat *Silvey v. Hodgdon, 52 Cal. 363; Ray ». 
 
 thews, 3 DeG. P. & J. 139; Wrights. Douglass, Simmons, 11 E. 1. 266; Chace i>. Chapin, 130 
 
 7 N. y. 564; Montague ». Hayes, 10 Gray, 609; Mass. 128; Gadsden v. Whaley, 14 S. C. 210; 
 
 Pratt t;. Ayer, 3 Chand. 265; Pishero. Fields, Davis ii. poburn, 128 Mass. 377; McFadden v. 
 
 10 Johns. 495; Barren v. Joy, 16 Mass. 221 ; Bai> Jenkyns, 1 Phil. 153, 157; Hawkins v. Gardiner, 
 
 ron ». Barron, 24 Vt. 375; Hutchinson v. Tin- 2 Sm. & Giflf. 441, 451; Clapp v. Emery, 98 111. 
 
 dall, 2Green Ch. 35?; Union Mut. Ins. Co. v. 523; Hon ii. Hon, 70 Ind. 135; ReiflP v. Horst, 63- 
 
 Campbell, 95 111. 267 ;De Laurence! ti.De Boom, Md. 255; Eaton*. Cook, 25 N. J. Eq. 55; Hooper 
 
 48 Cal. 581; Moore v. Pickett, 62 111. 158; Mc- v. Holmes, 3 Stockt. Ch. 122; Kimhall v. Mor- 
 
 Lamie ». Portlow, 53 111. 340; Kingsbury v. ton, 1 Halst. Ch. 26, 31 ; Barkley v. Lane's Ex'r, 
 
 Bumside, 58111. 310; McClellan ». McClellan, 6 Bush, 58?; Higgenbottom ». Peyton, 3 Rich. 
 
 65 Me. 500; Bates v. Hurd, 65 Me. 180; Packard Bq. 398; Maffltt's Adm'r v. Rynd, 69 Pa. St. 380; 
 
 v. Putnam, 67 N. H. 43; Baldwin o. Humphrey, see Lister v. Hodgson, L. K. 4Eq. 30. 
 
 44 N. Y. 609; Ivory v. Bums, 56 Pa. St. 300; »Bellasls». Oompton, 2 Vern. 294; Benbowe. 
 
 Johnson «. Delaney, 35 Texas, 42; Cozine v. Townsend, 1 My. & K. 506. 
 
 Graham, 2 Paige, 177 ; Patton v. Chamberlain, « Villiers o. Villiers, 2 Atk. 71 ; Oates v. Cooke, 
 
 44 Mich. 5; Broadrup v. Woodman, 27 Ohio St. 3 Burr. 1684; Shaw v. Weigh, 2 Stra. 803; Trent. 
 
 553 ;Lorlngti. Palmer, 118 U. S. 321; Weavers. ti. Banning, 7 East, 97; Gibson ». Montfort, 1 
 
 Emigrant, Ac. Sav. Bank, 17 Abb. N. C. 82j Ves. Sr. 485; Loveacres v. Blight, Cowp. 356; 
 
 Tltchenello. Jackson, 28 W.Va. 754; McCand- poe v. Davies, 1 Q. B. 438; Stanleys. Colt, 5 
 
 less o. Warner, 26 W. Va. 754; Macy o. Will- Wall. 168; Neilson v. Lagow, 12 How. 98; 
 
 Jams, 8 N. Y. S. 658; 65 Hun, 489; Fowler v. . Fishers. Fields, 10 Johns. 505; Gould s. Lamb, 
 
 Bowery Sav. Bank, 47 Hun, 399. 11 Mete. 87; Welch s. Allen, 21 Wend. 147; 
 
 336 
 
CH. XVI. J MODERN TRUSTS. § 299 
 
 that trustees will not take any larger legal estate than is required for 
 the purposes of the trust. If, by the express limitation of the deed, 
 the trustee has a larger estate; as, for example, he has a fee, and the 
 trust is only a life estate; there is a resulting use in the remainder to 
 the grantor and his heirs, which under the statute will be executed, 
 leaving to the trustee only a legal life estate.^ But these are only 
 rules of construction by which the character and duration of the legal 
 and equitable estates in the trust are determined, where the intention 
 of the grantor is not clearly expressed. If the estate in the trustee is 
 expressly limited for life, the fact that it is not altogether sufficient to 
 support the equitable estate wiH not enable a court of equity to enlarge 
 it by construction.^ And so, also, if the estate in the trustee is larger 
 than the equitable estate, but the latter is uncertain and indefinite in 
 its duration, there will be no execution of the resulting use in the 
 grantor until the trust has terminated, or has been rendered certain. 
 The uncertainty of duration of the trust makes the resulting use con- 
 tingent, corresponding somewhat to the legal possibility of reverter. " 
 § 299. Doctrine of remainders applied to trusts. — If the future 
 estate in a trust is contingent, and is preceded by a particular 
 estate, the destruction of the particular estate by the act of the first 
 cestui que trust, or its natural termination before the happening of the 
 contingency, does not defeat the contingent trust, as it would have 
 done if the future estate had been a legal contingent remainder, or 
 one by way of use. The future estate in a trust is altogether inde- 
 pendent of the prior estate, and need not necessarily take effect 
 immediately upon the termination of the latter.* The rule in Shelley's 
 Case appMes generally to aU executed trusts, so that when an estate is 
 limited in trust to A. for life and remainder in fee to his heirs, A. will 
 
 Newhalls. Wheeler, 7 Mass. 189; Cleveland v. Pearoe v. Savage, 45 Me. 90; Eenziehausen v. 
 
 Hallett, 6 Gush. 406; Angell v. Eosenbury, 12 Keyser, 48 Pa. St. 351; Farquharson v. Eichel- 
 
 Mich. 266; Cumberland v. Graves, 9 Barb. 595; berger, 15 Md. 73; Liptrot v. Holmes, 1 Ga. 381. 
 
 Wellss. Heath, lOGray, 25; Atty.-Gen. v. Prop's, ^ Waiter v. Hutchinson, 1 B. & 0. 721 ; Evans 
 
 <fec. 3 Gray, 48; Farquharson v. Eiohelberger, «;. King, 3 Jones Eq. 387. It is possible that 
 
 15 Md. 73; Deering v. Adams, 37 Me. 264; this strict rule would not be observed generally 
 
 Pearce v. Savage, 45 Me. 90; Greene v. Wilbur, in this country. At any rate, even an express 
 
 15 B.I. 251; Chase v. Cartwright, (Ark. 1890) llmitationfor life to the trustees may probably 
 
 14 S. W. Hep. 90; Boston, &c. Trust Co. v. be enlarged into a fee by construction, if the 
 
 Mixter, 146 Mass. 100; Foe v. Ladd, 77 Ala. 283. deed gave aifirmative evidence of the donor's 
 
 Words of limitation are not now required in a intention that the trustee is to have as large 
 
 number of the states, in order to create an an estate as the nature of the trust requires, 
 
 estate in fee. The above statement applies ' Doe v. Ewart, 7 A. & E. 636; Doe v. Davles, 
 
 only to those states where the common law 1 Q. B. 437; Doe v. Nichols, 1 B. & C. 341; 
 
 mle, in respect to words of limitation, still Bush's Appeal, 33 Pa. St. 85; Morgan ». Moore, 
 
 prevails. 3 Gray, 323; Seldeu v. Vermilya, 3 Comst. 525; 
 
 iDoe V. Davles, 1 Q. B. 438; Doe v. Barthrop, Steacy v. Rice, 27 Pa. St. 75; Liptrot v. Holmes, 
 
 5 Taunt. 382; Barker «. Greenwood, 4 M. & W. 1 Ga. 381; Comby v. MoMichael, 19 Ala. 747; 
 
 421; Doe v. Timlns, 1 B. <fc Aid. 547; Doe v. Cumberland ». Graves, 9 Barb. 595. 
 
 Nichols, 1 B. & C. 336; Doe v. Ewart, 7 A. & E. < 2 Washb. on Real Prop. 463; Fearne Cont. 
 
 636; Ward D.Amory,! Curtis cot. 419; Morton Rem. 304, 305; 1 Spence Bq. Jur. 605; 1 Prest. 
 
 V. Barrett, 23 Me. 237j Wells v. Heath, 10 Gray, Abstr. 146; Scott ». Scarborough, 1 Beav. 168; 
 
 25; Norton v. Norton, 2 Sandf. 296; Bush's Walnwright j>. Sawyer, 105 Mass. 168; People's 
 
 Appeal, 33 Pa. St. 85; Cleveland v. Hallett, 6 Sav. Bank v. Denlg, 131 Pa. St. 241; Barnes w^ 
 
 Cnsb. 406; Deering v. Adams, 37 Me. 264; Dow, 59 Vt. 530. 
 
 337 
 
§ 300 EQUITY JUKISPKUDENCE. [CH. XVI. 
 
 be considered cestm que trust in fee. But the rule does not apply to 
 executory trusts; and whenever it is the clearly expressed intention of 
 the grantor that the trust shall not vest in fee in the first taker, the 
 rule will not be enforced, and the heirs will take as independent 
 purchasers.' 
 
 § 300. Voluntary trusts. — The general rule of equity, is that no 
 relief will be granted, or agreement or contract enforced in equity, 
 unless such agreement or contract is based upon and supported by a 
 valuable consideration. This is likewise the rule of law; and in both 
 law and equity the rule is very strictly enforced as to all executory 
 contracts. The necessity, however, of a consideration in order to 
 secure validity is limited to executory contracts. As soon as a con- 
 tract is executed, and rights have been acquired or transferred in the 
 execution of the contract, the fact that its execution was voluntary, 
 and was not based upon any consideration, is no ground for invali- 
 dating what has become an executed gift. But a court of equity vsdll 
 never interfere, in the case of an agreement to mate a gift, to aid any 
 defective execution of such an agreement. Such is the general rule 
 of law, which is more fully explained in works upon contracts, and 
 needs no citations in support of them in the present connection.^ The 
 question here mooted is, under what circumstances a trust without 
 consideration will be enforced; and the answer to the question can 
 only be obtained by an inquiry, in each particular case, whether a 
 trust has been actually created, or whether there is simply an execu- 
 tory agreement to create a trust. If the transaction takes the form 
 of an executory agreement to create a trust, or where an attempted 
 execution of such an agreement is imperfect, there is no ground for 
 holding that the contract is enforceable in equity, or that such a 
 transaction gives rise in equity to the implied creation of a trust. 
 But where the contract or transaction has the effect of creating a 
 trust, and the trust is actually created; the fact, that it has not been 
 supported by some sort of consideration, is not any objection to its 
 validity." In the cases just cited, the proposition is maintained, that a 
 
 1 Tud. Ld. Cas. 503, 504; 2 Washb. on Eeal 219j Pinckard v. Plnckard, Id. 649; Crompton 
 Prop. 455; 1 Spence Eq. Jur. 503; Croxall v. v. Vesser, 19 Jd. 259; Bvans v. Battle, Id. 398; 
 Shererd, 5 Wall. 281 ; TiUinghast v. Coggeshall, Lane v. Ewlng, 31 Mo. 75; Dunbari). Woodcock, 
 7 R. I. 383; Berry v. Williamson, 11 B. Mon. 10 Leigh, 628; Reed ». Vannorsdale, 8 M.569; 
 245; Gillii. Logan, 11 B. Mon. 231; Williamson Taylor o. Henry, 48 Md. S50; Cox ». Hill, 6 /<J. 
 Eeal Prop. 285. But the rule in Shelley's Cases 274; McNulty v. Cooper, 3 Gill & J. 214; Tolar 
 has been abolished in a large number of v. Tolar, 1 Dev. Eq. 460; Dellinger's Appeal, 71 
 States. See Tiedeman Real Prop., §433. Pa. St. 425; Crawford's Appeal, 61 M. 52; Prin- 
 
 2 See Lawson on Contracts, % 91, et seq. gle v. Pringle, 59 Id. 281 ; Ritter's Appeal, Id. 9; 
 ' Martin ». Punk, 75 N. Y. 134, 137; Day v. Cressman's Appeal, 42 Id. 147; Lonsdale's 
 
 Roth, 18 N. Y. 448; Young v. Young, SON. Y. Estate, 29 Id. 407; Dennlson v. Goehrlng, 7 
 
 422, 436; Estate of Webb, 40 Gal. 541,645; Stone Burr. 175, 178; Jones V. Obenchain, 10 Gratt. 
 
 V. Hackett; 12 Gray, 227; Hendersons. Hender- 259; Bunn v. Winthrop, 1 Johns. Ch. 329, 337; 
 
 Son, 21 Mo. 379; Otis v. Beckwith, 49 111. 121, Souyerbye v. Aiden, Id. 240; Minturn «. Sey- 
 
 128; Olney V. Howe, 89 Id. 556; Clark v. Lott, 11 mour, 4 Id. 497; Owens v. Owens, 23 N. J. Eq. 
 
 Id. 105; Huston v. Markley, 49 Iowa, 162; Wyble 60, 68; Vreeland v. Van Horn, 17 Id. 137, 139; 
 
 V. MoPheters, 52 Ind. 393; Dawson v. Dawson, Carhart's Appeal, 78 Pa. St. 100, 119; Trough's 
 
 Dev. Eq. 93, 400; Andrews v. Hobson, 23 Ala. Estate, 75 Id. ll.i; Zimmerman t'. Streeper, 75 
 
 338 
 
■CH. XVI.] MODERN TRUSTS. § 301 
 
 simple declaration of a trust will have the effect of creating a trust, 
 even though such declaration is not supported by a valuable con- 
 sideration. There is no question as to the correctness of that proposi- 
 tion, where such declaration or trust refers to personal property; 
 and in such cases, any parol declarations of a trust will have the effect 
 of creating a trust, valid and binding upon the party declaring it, 
 although he has never parted with the possession of the goods; because 
 the title to personal property can pass from one to another by simple 
 agreement of the parties to that effect, without a transfer of the pos- 
 session, where the intention to transfer such title is made manifest, 
 and is accompanied by an agreement or understanding, that for some 
 purpose or other the possession of the goods or other personal 
 property will be retained by the donor. ' That being possible in regard 
 to gifts of personal property, a declaration by the donor that he will 
 «ver after hold the personal property in trust for the beneficiary, is 
 nothing more than an equivalent of the present gift of the property, 
 with the understanding that the possession will be retained by such 
 ■donor for certain purposes agreed upon between the parties. It is 
 nothing more than the creation of a bailment, or differs very little 
 irom such a transaction. In respect to real estate, a different rule 
 has been adopted. It has been explained in the preceding chapter ' 
 that there are three methods of creating uses or trusts in real estate. 
 In one case, the use or trust is an impKcation of law from the absence 
 of a consideration in a grant of land, viz.: the resulting use.* The 
 second method is the transfer of the legal title of such property to a 
 third person accompanied by a declaration, that the property is to be 
 held by such grantee in trust for another. In such a case, where the 
 title is taken by the trustee, subject to the condition of recognizing 
 in the beneficiary the equitable interest created in his behalf, no other 
 consideration than this condition is necessary to make the trust vahd.* 
 But where the legal title is retained by the donor, and he desires to 
 create a trust in behalf of another, the conveyance must be supported 
 by an actual consideration, either good or valuable; or such considera- 
 tion acknowledged under seal, whereby the parties are estopped from 
 •denying its existence.' 
 
 § 301. Interest of the cestui que trust. — This subject has in the 
 main been already explained while treating of uses and trusts as they 
 «xisted before the Statute of Uses; ° and nothing more need now be done 
 
 H. 147; Stone o. Hackett, 12 Gray, 297; Eay». 342; Sherwood v. Andrews, 2 Allen, 79, 81; 
 
 Simmons, 11 E. I. 266; Taylor v. Staples, 8 Id. Neves v. Scott, 9 How. (U. S.) 196; Adams v. 
 
 170, 176; stone v. King, 7 Id. 388; Minor v. Eog- Adams, 21 Wall. 185; Blanchard v. Sheldon, 43 
 
 «rs', 40 Conn. 512; Trow v. Shannon, 78 N. T. Vt. 612; Davis v. Ney, 125 Mass. 590. 
 
 ■446'; Curry v. Powers, 70 Id. 312, 219; Wright v. i Tiedeman on Sales, § 84. 
 
 Miller, 8 Id. 9; Hunter !i. Hunter, 19 Barb. 631 ; 2 §§256-258. 
 
 Gilchrist «7. Stevenson, 9 Id. 9; Acker ». Phce- 
 
 nlx, 4 Paige, 305 j Hayes v. Kershow, 1 Sandf. 
 
 Ch. 258, 261 ; Hunt v. Hunt, 119 Mass. 474; Clark 
 
 V. Clark, 108 Id. 522j Biabrook v. Five Cent 
 
 Saw. Bk., 104 Id. 228; Wason v. Colburn, 99 Id. 
 
 339 
 
 " Ante, 
 
 §257. 
 
 
 
 
 * Ante, 
 
 §2BS. 
 
 
 
 
 « Ante, 
 
 §258. 
 
 
 
 
 6 See ante, §§ 
 
 353, 
 
 253, 
 
 260-265. 
 
§ 302 EQUITY JURISPRUDENCE. [CH. XTL 
 
 than to refer to the more important peculiarities of modern trusts, in 
 which they differ from uses. Generally, trusts at the present day 
 have all the characteristics of an ancient use. They are equitable 
 estates, and enforceable solely in equity.* In New York, Michigan, 
 Wisconsin and other states, following the New York legislation, the 
 cestui que trust is declared to have no interest in such property that 
 can be aliened or otherwise disposed of. Wherever the trust is of a 
 permanent character, and is established for the purpose of providing^ 
 periodical payment to the beneJSciary of the rents and profits, the 
 rights of the beneficiary are limited to the direct enforcement of the 
 right to the receipt of the rents and profits that periodically accumu- 
 late.^ In the other classes of express trusts, where the purpose is to 
 provide for the sale of the property and a transfer of the proceeds of 
 sale to the beneficiary in the settlement of some particular claim, it is 
 ■ generally held that the interest of such cestui que trust can be assigned^ 
 but still it is a question of some doubt. 
 
 § 302. Liability for debts. — For a long time, and, indeed, until 
 within a late period, an equitable estate was not subject to liability for 
 the debts of the beneficiary; but now in England, and in most of the 
 states in this country, they are by statute made liable to the satis- 
 faction of his debts. ^ But the trust may be so limited as that it will 
 be terminated when an attempt is made to subject it to the debts of the 
 cestui que trust. The rule seems to be well established that, if the trust 
 is executory and its duration is discretionary in the trustee; or where 
 the trust by the terms of the deed or will is to cease upon an attempted, 
 involuntary conveyance (*. e., whenever creditors seize upon the estate 
 for the payment of a debt), or an assignment in bankruptcy, or upon 
 the insolvency of the cestui que trust, these are permissible limitations 
 upon the estate of the beneficiary, and will prevent the transfer of any 
 
 1 Co. Lit. 290 b, note 349, § 14; 8 Spenoe Eq. lam v. Allen, Id. 605; Leggeft v. Perkins, 3 N. 
 
 Jnr. 975; 1 Prest. Est. 189; 1 Spence Eq. Jur. Y. 397; Moore ». Hegeman,N. Y. 376; Heermans 
 
 497; Cliolmondeley «. Clinton, 8 Jac. & W. 148; ». Burt, 78 M 259 ; Donovan ». Van De Mark, N. 
 
 Burgess v. Wheate, 1 Eden, 833; Orleans v. Y. 244; Ireland ». Ireland, 84 N.Y. 321; Delaney 
 
 Chatham, 2 Pick. 29; Banks v. Sutton, 8 P. e. Van Aulen, Id. 16; Toms v. Williams, 41 
 
 Wms. 713; Bush'sAppeal, 33Pa. St. ^88; Price v. Mich. 558; Meth. Church, Ac. v. Clark, U. 730j 
 
 Sisson, 13 N. J. 174; 2 Pom. Eq. Jur., § 989; 8 Lyle v. Burke, 40 Id. 499; Estate of Delaney, 
 
 Washb. on Real Prop. 454-457. 49 Cal. 76; Smith ti. Ford, 48 Wis. 115; White 
 
 «Schettler v. Smith, 41 N. Y. 328; Manice v. v. Fitzgerald, 19 Id. 480; Goodrich «. City of 
 
 idlanice, 43 Id. 303; Vernon «. Vernon, 53 Id. Milwaukee, 84 Id. 422; overruling Marvin ». 
 
 351; Kiah v. Grenier, 56 Id. 220; Heermans v. Titsworth, 10 M. 320; Cutter v. Hardy, 48 CaL 
 
 Rohertson, 64 /(«. 332; Provost «. Provost, 70 /d. 568. 
 
 141; Stevenson v. Lesley, Id. 412; Verdin v. ^l Prest. Est. 144; 2 Washb. on Real Prop. 456; 
 
 Slocum,71 Id. 245; Garvey i?. McDevitt, 72 J(f. Pratt ». Colt, 3 Freem. 139; Forth v. Duke of 
 
 556; Low ». Harmony, 7(2. 408; Amory ?). Lord, Norfolk, 4 Madd. 503; Kip v. Bank of New 
 
 9 N. Y. 403; Savage v. Burnham, 17 Id. 661 ; York, 10 Johns. 63; Jackson «. Walker, 4 Wend. 
 
 Beekman v. Bonsor, 23 Id. 398; Downing v. 462; Foote ». Colvin, 3 Johns. 316; Johnson t). 
 
 Marshall,/!?. 366; Gilmanu. Eeddington, 24Id. Conn. Bk., 21 Conn. 159; Bush's Appeal, 33 Pa. 
 
 9; Everitt*. Everitt. 29 Id. 39; Post«. Hover, 33 St. 85; Hutchins V. Haywood, 50 N. H. 491; 
 
 Id. 593; Harrison «. Harrison, 36 /d. 543; Loril- Bramhall v. Ferris, l4 N. Y. 41; Campbell v. 
 
 lard's Case, 14 Wend. 265; Hawleyj). James, 16 Foster, 35N. Y. 361; Lyforda. Thurston, 16 N. 
 
 Id. 61; Kane». Gott, 84/d. 641; Hone'sEx'rsB. H. 408; Kennedy ». Nunan, 58 Cal. 326; Wis. 
 
 Van Sohaiok, 80 Id. 564; Moore V. Moore, 47 Rev. Stat. Ch, 134, §37;Rudd«. VanDerHagau, 
 
 Barb. 257; Burke v. Valentine, 52 Id. 413; Kil- (Ky. '87) 5 S. W. Rep. 416. 
 
 340 
 
CH. XVI.] MODERN TRUSTS. 303 
 
 interest therein to the creditors, even though there be no limitation 
 over.* But it will not be permitted to a man to settle his estate in 
 trust for himself, and so limit it that his creditors cannot touch it. 
 The rule only extends to the settlement of such trusts by friends and 
 relatives, whose desire is to secure means of support for the beneficiary, 
 iree from liability for his debts." But a condition against liability for 
 debts, is always good, where the property is conveyed to charitable 
 uses.^ 
 
 § 303. Glasses of active trusts. — It is almost impossible for one 
 to enumerate in any specific way the various classes of active trust 
 which are possible, in the absence of restrictive legislation. In New 
 York, and several other states which have followed the New York leg- 
 islation, the classes of express trust which may be created are expressly 
 enumerated, to which reference has already been made in a pre- 
 vious paragraph.* Express trusts, however, may be divided in the 
 first place into private, and public or charitable trusts. Under the 
 head of private trusts would be included all those, in which the bene- 
 fit is intended for some private person or object. They may, of 
 course, assume a great variety of forms; but, after all, they may be 
 subdivided into three general classes: Fvrst, including all those, in 
 which the trust is established for the purpose of collecting the rents 
 and profits of the estate, and paying them over periodically to the 
 private beneficiary during the time that the trust was intended to con- 
 tinue. Secondly, all those classes of trusts, in which the trustee is 
 directed to accumulate the rents and profits and ultimately divide the 
 ■estate between the certain beneficiaries. Thirdly, where the trust is 
 established for the purpose of securing a sale of such property and a 
 distribution of the proceeds of sale; either among certain beneficiaries 
 as a gift, or for the purpose of liquidating the indebtedness of the 
 creator of the trust to the beneficiaires. Nothing further can be said 
 of a general nature in explanation of the character of these various 
 trusts; but a special consideration should be given to two kinds of 
 the three classes of active private trusts just mentioned, viz. : volun- 
 tary assignments for the benefit of creditors, and deeds of trust to 
 secure the payment of a debt. 
 
 iNichols «. Levy, 5 Wall. 433; Nichols ». Green, 316; Shryocki;. Waggoner, 4 Casey, 430; 
 Eaton, 91 U. S. 716; Keyeer v. Mitchell, 67 Pa. Fisher v. Taylor, 2 Rawle, 33. 
 St. 473; Norrls®. Johnston, 5 Pa. St. 287; Rife « Lester «. Garland. 5 Sim. 205; Phlpps v. 
 ■». Geyer, 59 Pa. St. 293; Leavitt ®. Beime, 21 Lord Ennlsmore, 4 Russ. 131; Mackason's Ap- 
 Conn. 1, 8; Bramhall v. Ferris, 14 N. Y. 41; peal, 6 Wright, 330; Ashhurst'a Appeal, 77 Pa. 
 Markham v. Guerront, 4 Leigh, 379; Hallett v. St. 464; Brooks v. Pearson, 27 BeaT. 181 ; Par- 
 Thompson, 5 Paige, 583; Johnson v. Zane's tridge v. Cavander, 96 Mo.452; Lampert o. Hay- 
 Trastees, 11 Gratt. 552; Hill «. McRea,27Ala. del, 98Mo. 439; Cummings «;.Corey,58Mioh.494. 
 175; Pope's Ex'rs v. Elliott, 8 B. Mon. 56; But see Markham «.Guerront,4Leigh,279; John- 
 Easterly II. Kenny, 36 Conn . 18; Dick v. Pitch- son v. Zane's Trustees, 11 Gratt. 552; and Hill v. 
 ford, 1 Dev. <&. B. Eq. 480; McIIvaine v. Smith, MoRea, 27 Ala. 175, where trusts for the benefit 
 42 Mo. 45: Ashhurst V. Givens, 5Watts&S. 323; of the grantor and his wife or family have 
 Eyriso. Hetrick, 1 Harris, 491; Harnett's Ap- been supported against the claim of creditors, 
 peal, 10 Wright, 399-402; Shankland's Appeal, 'Butterfleld v. Wilton Academy, (Iowa) 38 N- 
 11 Wright, 113; Rowan's Creditors v. Rowan's W. 390. 
 fleirs, 2 DUT. 412; Frazier v. Barnum, 4 C. E. < See ante, § 289. 
 
 341 
 
§ 304 EQUITY JUEISPRUDENCE. [CH. XVI> 
 
 § 304. Toluntary assignments for the benefit of creditors.— 
 
 This assignment is a trust deed, whereby a debtor in failing circum- 
 stances teansfers to his assignee or trustee all his property or assets, 
 for the purpose of providing an equitable distribution of the same 
 among his creditors, in whole or partial liquidation of his indebted- 
 ness to them. Two diflferent rules prevail in England and in this 
 country, as to the character of such an assignment. According to the 
 English rule, such an assignment does not create a trust or clothe the 
 creditors with the rights of a cestui que trust; and the assignee is 
 treated and considered by these decisions as being merely an agent of 
 the debtor for the purpose of disposing of his property under the 
 debtor's directions. Under that view of the character of an assign- 
 ment for the benefit of creditors, the assignment may at any time be 
 revoked or cancelled at the direction of the assignor.^ This, however, 
 is only the case, as long as such assignment has not been accepted and 
 assented to by the creditors. As soon as the creditors have become 
 aware of such assignment and have accepted its terms; ^ and more- 
 especially, where they have made themselves actual parties by execut- 
 ing the deed of assignment,' the assignment becomes irrevocable, and 
 an actual trust has thereby been established. But where the assign- 
 ment stipulates that the terms and conditions must be agreed to, or 
 the assignment itself executed by the creditors within a stated time, 
 those who refuse or fail to execute the assignment within the stated 
 time will be excluded from the benefit of its provisions.* But, in 
 America, a different rule prevails, where it is held that an assignment 
 for the benefit of creditors — ^wherever local laws, in respect to the right 
 to make such assignment, do not interfere with its validity — is a 
 trust created in favor of the creditors; and, after having been once 
 executed and delivered to the trustee or assignee, is irrevocable and 
 enforceable by the creditors as a trust. ^ The assignee is treated as a 
 trustee for both the assignor and the creditors; and he must strictly 
 observe the terms of the trust in the performance of his fiduciary 
 duties." Assignments for the benefit of creditors are very generally 
 regulated by statutes; and certain kinds of preferential assignments 
 
 ' Actonr. Woodgate,2Mr. &K. 492j Browne ^Ingram v. Kirkpatrick, 6 Ired. Eq. 463j 
 
 V. Cavendish, 1 Jo. <fc Lat. 606; and see Brooks Stimpsons. Fries, 2 Jones Eq. 156; Tennant v. 
 
 D. Marbury, 11 Wheat. 78; Garrard ». Lauder- Stoney.l Rich. Eq. 282; England v. Reynolds, 
 
 dale,3Sim. 1; 2Euss. & My. 451; Walwyni). 38 Ala. 370; Pearson «. Rookhill 4 B. Mon. 296 j 
 
 Coutts, 3 Meriv. 707; 3 Sim. 14. Furmann. Fisher, 4 Coldw. 626; but see Glb- 
 
 2 Cornthwaite v. Frith, 4 De 6. & Sm. 552; son v. Rees, 50 111. 383; Pratt v. Thornton, 28 
 
 Synnot s. Simpson, 5 H. L. Gas. 121, 133; Biron Me. 355; Ward v. Lewis, 4 Pick. 518, 523; New 
 
 V. Mount, 24 Beav. 642; Kirwan v. Daniel, 5 Eng. Bank v. Lewis, 8 Picli. 113, 118; Pingree 
 
 Hare, 493, 499; Smith ®. Hurst, 10 Hare, 30; v. Comstock, 18 Id. 46, 50; Read v. Robinson, 6 
 
 Acton V. Woodgate, 2 My. & K. 492; Field v. Watts & S. 329; McKinney v. Rhoads, 5 Watts, 
 
 Lord Donoughmore, 1 Dr. & War. 227. 343 ; Ellison v. Ellison, 1 Eq. Lead. Gas. 423 (4th 
 
 s Montefiore v. Browne, 7 H. L. Gas. 241, 266; Am. ed.) ; Moses v. Murgatroyd, 1 Johns. Gh. 
 
 Le Touche ». Earl of Lucan, 7 Gl. & Pin. 772; 119, 129; Shepherd v. McEvers, 4 M. 136, 138; 
 
 Mackinnon v. Stewatt, 1 Sim., u. 8., 76, 88. NicoU, v. Mumford, li. 622, 529. 
 
 < Watson i). Knight, 19 Beav. 369; Johnson v. ' In re Lewis, 81 N. Y. 421; Nicholson v. Lea- 
 
 Kershaw, 1 De G. & Sm. 260 ; Forbes v. Limond, vitt, 6 U. 510, 519. 
 4 De G. M. & G. 298. 
 
 342 
 
CH. XVI.] MODERN TRUSTS. § 305 
 
 are prohibited as being fraudulent toward creditors. But, in the ab- 
 sence of such express regulations, any assignment for the benefit of 
 creditors will be valid and enforceable, even where preferences are 
 made, as long as the debtor is not a participant in the benefit of such 
 a preference. Assignments for the benefit of creditors, which are or 
 can be shown to be made for the purpose of hindering or delaying 
 creditors, are of course- void; but where that intention cannot be 
 shown to exist, the assignment is generally held to be free from 
 defect, subject, of course, to the express I'egulations of statutes, as to 
 what is or is not a valid assignment for the benefit of creditors.* An 
 assignment for the benefit of creditors may be made to include prop- 
 erty which has been levied upon by execution; but, of course, the 
 assignment attaches to such property subject to the lien of the levy.^ 
 And there may be a partial assignment of the debtor's property, 
 wherever such partial assignment is not made with a fraudulent intent, 
 and is in fact made to secure or provide for the payment of a iona 
 fide debt.' 
 
 § 305. Deeds of trust to secure debts. — Somewhat similar in 
 effect to mortgages with power of sale are deeds of trust, in which the 
 property is conveyed to a trustee, in trust to secure the creditor in his 
 claim, and to sell the property for the satisfaction of the debt, if it is 
 not paid at maturity. This conveyance is in the nature of a mort- 
 gage, and is very often used to secure an issue of railroad bonds, sa 
 as to avoid the necessity of giving a mortgage for each bond. But it: 
 is also very generally used in some of the western states in the place. 
 of an ordinary mortgage, in order to obviate the difficulty of securing a 
 valid sale of the premises, which is so often experienced when the mort- 
 gagee exercises the power of sale. It is the conveyance of a legal 
 estate, in trust to secure the debt and its satisfaction by sale upon the 
 breach of the condition.* It is to be distinguished from an assignment 
 
 iHalsteadD. Gordon, 34 Barb. 422; Schlussel Buss, 45 N. H. 325; Fairchild ». Hunt, 1 Mo- 
 
 ». Willett, Barl). 615; Barney t>. GrifiSn, 2 N. Y. Carter, 367; Hyslop ii. Clarke, 14 Johns. 458 j 
 
 365; Leitchi). Holllster, 4 Jtf. 211; Litchfield ». Austin r. Bell, 20 I(f. 442; Seaving t). Brinker- 
 
 White, 7 Irf. 438; Kellogg ». Slawsen, 11 1(f. 302, hofif, 5 Johns. Ch. 329; Sheldon v. Dodge, 4 
 
 304; Nicholso. McEwen, 17 Jtf.22; Campbell v. Denio, 217; Lentilhon v. MofiFat, 1 Edw. Ch. 
 
 Woodworth, 24 Id. 304; 33 Barb. 425; Coyne v. 451; Grover ». Wakeman, 11 Wend. 187, 201, 203; 
 
 Weaver, 84 N. T. 386; McConnell u. Sherwood, 4 Paige, 23. 
 
 84 Jd. 522; Townsend v. Stearns, 32 Id. 209; • ^ jumper c. Eushmore, 79 N. Y. 19. 
 
 Benedicts. Huntington, iif. 219; Spaulding». 'See State v, Benoist, 37 Mo, 600; Robbina 
 
 Strang, 37 Id. 135; 38 W. 9; Cuylerc. McCartney, v. Fitz, 33 N. Y. 420. 
 
 40 Id. 221; Putnam v. Hubbell, 42 Id. 106; and * Devin v. Hendershott,32Iowa, 194, Newman 
 
 see 1 Am. Lead. Gas., pp. 56-75; Hendricks ». v. Samuels, 17 Iowa, 536; Sargent v. Howe, 21 
 
 Robinson, 2 Johns. Ch. 283; Nicholson «. Lea- 111. 149; Thomton».Boyd,31 111.200; Sherwood 
 
 Titt, 6 N. Y. 5I0j Hauselt v. Vilmar, 76 Id. 630; v. Saxton, 63 Mo. 78; Soutter v. Miller, 15 Fla. 
 
 Halseyc. Whitney,4Mason, 206,227-230; Ogden 625; Richard ». Holmes, 18 How. 147; Coe ». Mo- 
 
 V. Larrabee, 57 111. 389; Dunham v. Waterman, Brown, 22 Ind. 257; Webb v. Hoselton, 4 Neb. 
 
 17 N. Y. 9; Nicholson v. Leavitt, 6 Id. 510; 308; 19 Am. Rep. 638; Woodruff !). Robb, 19 Ohio, 
 
 Brigham v. Tillinghast, 13 Id. 215; Rapalee v. 122; Chappell v. Allen, 38 Mo. 213; see Heard 
 
 Stewart, 27 Id. 310; Ogden v. Peters, 21 Id. 23; V. Baird, 40 Miss. 799; Lenox v. Reed, 12 Kans. 
 
 Griffin v. Marquardt, Id. 121; Jessup«. Haulse, 233; Union Nat. Bk. v. Bank of Kansas City, 136 
 
 la. 168; Wilson ». Robertson, /(?. 587; see Strick- U.S. 823; Plum ». Studebaker, 89 Mo, 162; but 
 
 ney ». Crane, 35 Vt. 89 ; Therasson «. Hickok, see 2 Am. Law Reg., N. s., 655. 
 Z! Id. 454; McGregor v. Chase, Id. 225; Frlnk v. 
 
 343 
 
§ 306 KQUITY JUKISPEUDENCE. [CH. XVI. 
 
 for the benefit of creditors, and does not come within the operation of 
 laws which prohibit preferential assignments.' It has been held that 
 mere payment of the debt will not revest the title in the grantor.* 
 But the weight of authority is in favor of holding that a reconveyance 
 is not necessary, although a satisfaction of the records may be 
 required.' But the payment or tender of payment will render the 
 the trust inoperative so far as the subsequent exercise of the power is 
 concerned.* The grantor by such a conveyance divests himself of his 
 entire legal estate in possession, and has nothing left, against which 
 execution may issue. But he has a reversionary interest, which in 
 equity may be reached by a creditor's bill, and which is also capable 
 of alienation. ° If the trustee dies or refuses to execute a trust, the 
 court will appoint another to take his place; and in some of the states, 
 by statute, it is provided that, upon the death, inability or refusal of 
 the trustee to serve, the sheriff will be authorized to execute the trust. 
 Or the deed may itself provide for a substitution of trustees." But 
 without express authority, the trustee can in no case delegate his 
 power to seU.' If there are two or more trustees, upon the death of 
 one, the survivors may execute the power.' But the court may, if 
 they deem it wise, compel the trustee to execute the trust instead of 
 appointing another.' Sales under the power are watched and closely 
 scrutinized by the courts, and a court of equity will at any time, at 
 the instance of one interested in the property, direct, restrain, or 
 enforce the exercise of the power." If there are two or more trustees 
 named as joint donees of the power, the sale will be valid, in the 
 absence of direct proof of fraud or unfairness, although it is conducted 
 in the absence of one of them." This class of deeds or ti'usts is gov- 
 erned by the same equitable rules, which are applied to ordinary 
 ti'usts, unless there are statutory provisions intended to supercede 
 them. 
 
 § 306. Fablic or charitable trusts. — The public or charitable 
 trust differs from the ordinary private trust in that the beneficiary or 
 beneficiaries of the public or charitable trusts are an uncertain and 
 constantly changing class, and, therefore, the variableness as to 
 
 1 TJnlon Nat. Bank v. Bank of Kansas City, era' Loan, &c. Co. v. Hughes, H Hun, 130j Mc- 
 
 a36U. S. 825. • Knight v. Winner, 38 Mo. 132; Whittlesey v. 
 
 ■5 Heard v. Baird, 40 Miss. 796. Hughes, 39 Mo. 13. 
 
 s Crosby v. Huston, 1 Texas, 839; Ingle i>. Cul- » Peter v. Beaverly, 10 Pet. 585; Franklin v. 
 
 Irertson, 43 Iowa, 265; McGregor ». Hall, 3 St. & Osgood, 14 Johns. 527; Hannah v. Carrington, 
 
 P.397; Woodruff «. Eobb,19 0hio, 218; Smith i>. 18 Ark. 104. 
 
 Poe, 26 Miss. 891. » Leffler v. Armstrong, 4 Iowa, 488 ; Sargent r. 
 
 *Thomtonti.Boyden, 31111. 810; Lowev.Grin- Howe, 21 111. 148; Drane «. Qunter, 19 Ala. 731; 
 
 nan, 19 Iowa, 197; Heard v. Baird, 40 Miss. 796. Bradley v. Chester Val. E. R., 36 Pa. St. 141. 
 
 s Pettitw. Johnson, 15 Ark. 55; Turners. Wat- i" Goode ». Comfort, 39 Mo. 325; Youngmane. 
 
 kins, 31 Ark. 489; Morris v. Way, 16 Ohio, 469; Elmlra, Ac. E. E., 65 Pa. St. 278; Newman v. 
 
 Molntyre v. Agric. Bank, 1 Preem. Oh. 105; Jackson, 12 Wheat. 572; Brisbane «. Stoughton, 
 
 Heard J!, Baird, 40 Miss. 796; Tyler v. Herring, 17 Ohio, 488; Brown v. Bartee, 10 Smed. & M. 
 
 (Miss. '90) 7 So. 840; S Jones on Mort., § 1769. 275; Kock v. Briggs, 14 Gal. 256; Reece v. Allen, 
 
 « Lake v. Brown, 116 111. 83. 5 Gilm. 236. 
 
 ' Holden v. Stickney, 2 McArthur, 141 ; Farm- " Smith v. Black, 115 U. S. 308. 
 
 344 
 
CH. XVI. j MODERN TRUSTS. § 306 
 
 beneficiaries introduces the element not only of uncertainty, but also of 
 perpetuity. The English statute of charitable uses expressly enumer- 
 ated the purposes, which would be considered as charitable and coming 
 therefore within the permissive provision of the statute. But the 
 statute has also been construed to give a general permission for the 
 creation of all sorts of charitable uses and trusts^ and the class enum- 
 erated in the statute have been taken simply as illustrative of what is 
 a charitable use or trust. Under that view, as to what is a charitable 
 use, and what is the proper construction to be placed upon the statute 
 of charitable uses, the American courts have generally held that chari- 
 table uses and trusts are recognized in this country, wherever they are 
 for religious, benevolent and educational purposes, and other purposes 
 of a public character. Under the heading of religious purposes, the 
 courts have generally included every provision of every sort for the 
 purpose of propagating any particular religion or religious doctrine.' 
 But it has been impossible, so it has been held, to sustain as a religious 
 trust provisions for the promotion of infidelity." In England, also, 
 it has been held that superstitious uses, such as provisions for masses 
 for the soul of the deceased, are not valid as a charitable use. 
 But it is believed in this country no such distinction, as to what is or 
 is not a superstitious use, will be recognized as a proper limitation 
 . upon the right to create a charitable use.* 
 
 Under the heading of benevolent purposes will be found all sorts of 
 charitable trusts, designed for the alleviation of poverty and suffering 
 by the establishment of hospitals, asylums and the like.^ Under the 
 head of educational purposes have been recognized all trusts for the 
 maintenance and support of institutions of learning, professorships 
 and schools, as well as for the promotion of scientific investigations.' 
 Finally, any trust which is established for the promotion of some pub- 
 lic cause or purpose, will be supported as a valid charitable trust, as 
 long as the purpose is not contrary to public policy. All trusts, there- 
 fore, designed to lighten public burdens, to improve towns, or assist in 
 
 iGoodell*. Union Ass'n, &C.,29N. J. Eq.32; son's Ex'rs ». Norrls, 20 N. J. Eq. 489 ; Ouldt). 
 
 Fairbanks v. Lamson, 99 Mass. 533; Maine v. Washington Hospital, 5 Otto, 303; McDonalds. 
 
 Baptist Miss. Con. v. Portland, 65 Me. 92; Mass. Gen. Hospital, 120 Mass. 432; Cruse ». 
 
 starkweather v. Am. Bible Soc.. 72 111. 50; De Axtell, 50 Ind. 49; Mason v. Meth. Epis. Ch., 27 
 
 Camp V. Dobbins, 29 N. J. Eq. 36; Trustees of N. J. Eq. 47; Fellows v. Miner, 119 Mass. 541; 
 
 Cory Univ. Soc. ii.Beatty, 28Id. Eq. 570; Jones Gooch v. Ass'n of Belief, &c., 109 Mass, 558; 
 
 T . Habersham, 3 Woods, 443 ; Laird v . Bass, 50 Sohier v. Burr, 127 Mass. 221 ; Goodell v. Union 
 
 Tex. 412; Old South Soc. «. Crocker, 119 Mass. Ass'n, &c . , 29 N. J. Eq. 32. 
 
 1, Meeting St. Bap. Soc. v. Hail, 8 E. I. 234. « Mason v. Meth. Epls. Ch., 27 N. J. Eq. 47; 
 
 2 Zeisweiss v. James, 63 Pa. St. 465. Birchard v. Scott, 39 Conn. 63; Craig v. Secrist, 
 
 a In re Blundell, 30 Beav. 360; Heath v. Chap- 54 Ind. 419; Clement v. Hyde, 50 Vt. 716; De 
 
 man,2 Drew. 417; Cary ». Abbot, 7 Ve8.490,495; Camp ». Dobbins, 29 N. J. Eq. 36; Atty.-Gen.t). 
 
 Atty.-Gen. «. Fishmongers' Co., 5 My. & Cr. 11; Parker, 128 Mass. 216; Dodge v. Williams, 46 
 
 West V. Shuttleworth, 2 My. & K. 684. Wis. 70; Came v. Long, 2 De G. P. & J. 75; 
 
 <Gass V. Wilhite, 2 Dana, 170; Methodist Ch. Atty.-Gen. v. Soule, 28 Mich. 153; Meeting St. 
 
 V. Eemington, 1 Watts, 218. Bap. Soc. v. Hail, 8 K. 1. 234; Eussell v. Allen, 5 
 
 5 Swift v. Beneficial Soc, 73 Pa. St. 362; De Dillon, 235; Boxford, &c. Soc. v. Harriman, 125 
 
 CampD. Dobbins, 29 N.J. Eq. 36; Mayer ». Soc. Mass. 321; Stevens v. Shippen, 28 N. J. Eq. 
 
 of Visitation of the Sick, 2 Brews. 385; Thom- 487. 
 
 345 
 
§ 307 EQUITY JUKISPKUDENCE. [CH. XVI, 
 
 the payment of public debts, will be sustained as a valid charitable use.* 
 § 307. Certainty or uncertainty in the creation of a charitable 
 trust. — Now the principal point which distinguishes charitable trusts 
 from private trusts, is in respect to the certainty or uncertainty of 
 the object of the trust and of the beneficiaries, and also the exception 
 in favor of charitable trusts to the rule of perpetuity. In conse- 
 quence of the necessity of the case, greater laxity is permitted 
 in respect to the certainty of the object of the trust in the case 
 of charitable uses, than in the case of private uses. And while the 
 transaction is one that may be created by deed, or other conveyance, 
 inter vi/vos, charitable uses and trusts are oftener created by will; and 
 the question as to the validity of charitable uses or trusts, on account 
 of uncertainty of the object, arises almost exclusively in the case of 
 wills. For, in the case of charitable trusts created by deed, the donor 
 may remove any such uncertainty by a supplementary deed of confirma- 
 tion. The general rule is, that gifts to charitable uses will be sustained, 
 although there are no trustees and no definite beneficiaries, provided 
 the general intent of the testator can be ascertained. It is explained 
 elsewhere,^ that courts of equity will never suifer a trust to fail for the 
 want of a trustee. But in ordinary trusts, the cestui que trust must 
 be definite and ascertained. The statute of 43 Eliz. , ch. 4, enacted 
 that where a devise was made to a charitable use, and no trustee was 
 appointed, the court of chancery shall have the power to appoint 
 trustees, who shall administer the trust in conformity with the testa- 
 tor's wishes, if they could be definitely ascertained and carried out; 
 and if not, then as nearly as possible, the latter provision being 
 known as the cy pres doctrine. It has always been a matter of con- 
 siderable doubt, whether the provisions of this statute constituted a 
 part of the American jurisprudence; but the general importance of 
 this question has been dissipated by the almost unanimous conclusion 
 of the courts, that the statute was only remedial and confirmatory of 
 the power which the court of chancery had , previously possessed and 
 exercised.' But whether the court of chancery had original jurisdic- 
 tion, or it was first conferred upon it by the statute of Elizabeth, the 
 doctrine of charitable uses is generally recognized throughout the 
 United States.* 
 
 1 Atty.-Gen. a. Eastlake, 11 Hare, 205, 215, Trustees of Sailors' Snug Harbor, 3 Pet. 140. 
 
 216; Atty.-Gen. v. Brown, 1 Sw. 265, 301, 303; Contra, Owens v. Missionary Soc, 14 N. Y. 380; 
 
 Humane Fire Co.'s Appeal, 88 Pa. St. 389; Basoom ». Albertson, 34 N. Y. 618. 
 Bethlehem v. Perseverance Fire Co., 81 M. ^SeeTappan v. Deblois, 45 Me. 122; Drews. 
 
 445; Atty.-Gen. v. Webster. L. E. 20 Eq. 483. Wakefield, 54 Me. 295; Burr's Ex'rs v. Smith, 
 
 i&ee post, %ZiZ. t vt. 241; Dashlell ». Atty.-Gen., 5 Har. & J. 
 
 8 Vidalt;. Gerard, 2 How. 127; Going ». Emery, 392; Gallego v. Atty.-Gen., 3 Leigh, 450; Beall 
 
 16 Pick. 107; Baptist Ass'n v. Hart, 4 Wheat. 1; v. Fox, 4 Ga. 404; Am. Bible Soc. v. Wetmoie, 
 
 Witman v. Lex, 17 Serg. & E. 88; Green !). 17 Conn. 181; Atty.-Gen. » Moore, 19 N. J. Eq. 
 
 Dennis, 6 Conn. 292; Earle v. Wood, 8 Gush. 503; Trustees, &c. u. ZanesviUe C. & M. Co., 
 
 430; Dexter v. Gardner, 7 Allen, 246; Jackson 9 Ohio, 203; Gals v. Wllhite, 2 Dana, 170; Grlf- 
 
 ». Phillips, 14 Allen, 577; Burbank J). Whitney, fins. Graham, 1 Hawks, 96; Miller ». CMtten- 
 
 24 Pick. 152; Potter ». Thornton, 7 E. I. 263; den, 2 Iowa, 315. 
 BeU Co. V. Alexander, 22 Texas, 362;lngllsv. 
 
 346 
 
CH. XVI. J MODERN TRUSTS. § 301^ 
 
 The uncertainty, which in private trusts would invalidate the devise, 
 but which could be cured under the doctrine of charitable uses, may 
 refer either to the trustee, to the beneficiary, or to the object of the 
 devise. In all charitable uses, the beneficiaries are indefinite and 
 uncertain, usually consisting of a class, the individuals of which are 
 constantly changing. Thus, where a devise is made to a university, 
 or to found one, the beneficiaries are the students, who from time to 
 time enter its halls. But it is a general rule that the object of charity, 
 and the class of persons who are to be benefited by it, should be 
 suflSciently described, as to be capable of identification. ' Where there 
 is a trustee or board of trustees appointed by the will to administer 
 the trust, it seems to be the universal rule, adopted alike in all the 
 states, that such a charitable trust will be sustained, if the class of 
 beneficiaries is definitely described. And I apprehend that a greater 
 uncertainty is permissible in such cases than in those in which no 
 trustee has been appointed.^ And where the trustees are authorized 
 by the will to exercise their discretion in the selection of the beneficia- 
 ries, the devise has in many cases been declared definite and valid, 
 while it would probably be invalid, if the trustees were not appointed 
 by the will. Id cerinim est, quod certwn reddi potest.^ It is also the 
 rule, in perhaps aU the states except New York, that where the object 
 of the devise is certain and ascertainable, it will be sustained, although 
 there are no ascertained trustees or beneficiaries. The courts of 
 equity have the power in such cases to appoint trustees to carry out 
 the will and administer the trust.* 
 
 Whether the English doctrine of cy pres is applicable in this coun- 
 try to a devige to a charitable use, where no trustee is appointed, is a 
 matter of some doubt. It is certain, however, that the courts would 
 
 1 Wheeler i>. Smith, 2 How. 55; Perin ». Carey, Atty.-Gen. v. Jolly, 1 Eich. Eq. 99. But there 
 24 How. 465; Loring v. Marsh, 6 Wall. 337; Bart- must be some definite description of the class 
 lett v. King, 12 Mass. 537; Atty.-Gen. t). Trinity of persons from which the trustees are to 
 Church, 9 Allen, 422; Treat's Appeal, 30 Conn. select. Wheelers. Smith, 9 How. 55; Pontain 
 113; State v. Griffith, 2 Del. Ch. 392; Newson «. «. Eavenel, 17 How. 369; Levy v. Levy, 33 N. Y. 
 Clark, 46Ga. 88; Fink «. Pink, 12 La. An. 301; 97; Gallego ». Atty.-Gen., 3 Leigh, 450; Miller 
 Wadeo. Am. Col. Soc.,7 Smed. & M. 695; Moore v. Atkinson, 63 N. 0. 537. 
 
 V. Moore, 4 Dana, 354; Miller v. Teachout, 24 * Preachers' Aid Soc. v. Rich, 45 Me. 552; 
 
 Ohio St. 525; De Bruler v. Ferguson, 54 Ind. Bliss i). Am. Bible Soc, 2 Allen, 334; Sanderson 
 
 549; Heuser v. Allen, 42 III. 425; Lepage v. Mo- V. White, 18 Pick. 328; Bull v. Bull, 8 Conn. 47; 
 
 Namara, 5 Iowa, 146; Blnell V. Universallst Stone r. Griffin, 3 Vt. 400; McAllister ii. McAl- 
 
 Gen. Convention, 76 Tex. 514. lister, 46 Vt. 272; McLain v. School Directors, 
 
 2 Perry on Tr., §732; Beekman ». Bonsor, 23 51 Pa. St. 196; Zeisweiss «. James, 63 Pa. St. 
 N. T. 298; Downing ». Marshall, 23 N. T. 366; 465; Dashiell v. Atty.-Gen., 5 Har. & J. 392; 
 Going V. Emery, 16 Pick. 107; Treat's Appeal, Walker u. Walker, 25 Ga. 420; Mason «. M. E. 
 30Conn. 113; Schultz's Appeal, 80 Pa. St. 396; Church, 27 N. J. Eq. 47; Williams v. Pearson, 
 Stater. Griffith, 2Del. Ch. 392; Needles v. Mar- 38 Ala. 299; Urmey v. Wooden, 1 Ohio St. 160; 
 tin,33Md. 609; Bridges «. Pleasants, 4 Ired. Trustees, Ac. v. Zanesville C. & M. Co., 9 
 Eq. 26; De Bruler «. Ferguson, 54 Ind. 549; Ohio, 203; GasB«. Wilhite, 2 Dana, 170; Griffin 
 Chambers©. St. Louis, 29 Mo. 543; Schumaoker «. Graham, 1 Hawks, 96; Miller i). Chittenden, 
 ». Reel, 61 Mo. 592; Lepage ii. McNamara, 5 2 Iowa, 315. Cora^ra, Levy jj. Levy, 33 N. Y. 97; 
 Iowa, 146; Miller®. Chittenden, 2Iowa, 315. Bascomw. Albertson, 34Iowa, 584; Downing^. 
 
 'Treat's Appeal, 30 Conn. 113; Wijman v. Marshall, 23 N. Y. 366; see, also, Tilden ». 
 Lex, 17 Serg. <Sc E. 88; Beavers v. Fllson, 8 Pa. Green, 130 N. Y. 29. 
 St. 327; Pickering v. Shotwell, 10 Pa. St. 23; 
 
 347 
 
% 307 
 
 EQUITY JURISPEUDENCE. 
 
 [CH. XVI. 
 
 not, in following the tendency of the English courts, go so far as to 
 authorize funds, bequeathed to found a Jews' synagogue, to be trans- 
 ferred to a foundling hospital, as was done in one case in an English 
 court/ And if the doctrine is recognized, it is applied in subordi- 
 nation to the general rule, that the coui'ts cannot supply the intention 
 of the testator by conjecture; but must act in strict compliance with 
 the general- intent, appearing on the face of the will; and then only, 
 when the special intent cannot be carried out.^ Finally, the doctrine 
 of perpetuities does not apply to charitable uses.' " 
 
 This distinction between charitable uses and trusts on the one hand 
 and private uses and trusts on the other, is accepted without qualifi- 
 cation in a few of the states.* And in a great majority of the 
 states, the distinction is adopted with some modification — particu- 
 larly in respect to the scope of the cy pres doctrine of construc- 
 tion.^ On the other hand, in some of the states, the distinction 
 
 iWashb. on Eeal Prbp. 521j Story on Bq. 
 Jur., § 1169. 
 
 ^Fontain v. Eavenel, 17 How. 389; Loring v. 
 Marsh, 6 Wall. 337; Harvard Colleger. Society, 
 •Ac, 3 Gray, 283; Saunderson ii. White, 18 
 Pick. 333; Brown v. Concord, 33 N. H. 286; 
 Beekman v. Bonsor, 23 N. Y. 308; Holmes u. 
 Mead, 52 N. T. 344; Philadelphia v. Girard, 
 ■Ac. 45 Pa. St. 28; Methodist Church v. Rem- 
 ington, 1 Watts, 226 ; McAuley v. , Wilson, 1 
 Dev. Oh. 276; Cromle's Heirs ». Louisville 
 Borne Soc. 3 Bush, 375. 
 
 s Jackson v. Phillips, 14 Allen, 550; Odell v. 
 Odell, 10 Allen, 8; Hilly ard v. Miller, 10 Pa. St. 
 .335; Griffin v. Graham, 1 Hawks, 131; Oassv. 
 Wllhite, 2 Dana, 183; Miller «. Chittenden, 2 
 Iowa, 362. Contra, Levy «. Levy, 33 N. T. 130; 
 Bascom !>. Albertson, 34 N. Y. 598. 
 
 * Kentucky: Hadden u. Chorn, 8 B. Mon. 70; 
 Atty.-Gen. v. Wallace, 7 Id. 611; Moore v. 
 Moore, 4 Dana, 354; Gass v. Wllhite, 2 Id. 170; 
 Cromes v. Louisville, &c. Soc, 3 Bush, 365; 
 Bap. Church v. Presb. Church, 18 B. Mon. 635. 
 Massachusetts: Burbank v. Whitneyj 24 Pick. 
 146; Sandersons). White, 18 Pick. 328; Goingu. 
 Emery, 16 Id. 107; Hadley v. Hopkins Acad., 14 
 Id. 249; Bartlett v. King, 12 Mass. 537; Barker 
 V. Wood, 9 Id. 419; Winslow v. Cummings, 3 
 Cush. 368; Brown v. Kelsey, 2 Id. 243; Baker v 
 Smith, 13 Met. 34 ; Sohier «. St. Paul' s Ch. , 142 1<«. 
 250; Washburn v. Sewall, 9 Id. 280; Tucker v. 
 Seamau's Aid Soc, 7 Id. 188; Bartlett v. Nye, 4 
 Id. 378; Easterbrooks v. Tillinghast, 5 Gray, 
 171; Am. Acad. v. Harvard Coll., 12 Gray, 
 682; Wellsc.Heath, lOGray, 17; NorthAdams, 
 &a. Soc. ». Eitch, 8 Id. 421; Harvard Coll. v, 
 Soc. Prom. Theol. Educ, 3 Id. 280; Wells v. 
 Doane, Id. 201; Earle «. Wood, 8 Cush. 430; 
 Nourse V. Merriam, Id. 11; Parkerv. May, 5Zd, 
 336; Odell v. Odell, 10 Allen, 1; Drury v. 
 Katick, Id. 169; Atty.-Gen. v. Trinity Ch., 9 Id. 
 422; Dexter v. Gardner, 7 Id. 243; Tainter v. 
 Clark, 6 Id. 66; Bliss v. Am. Bible Soc, 2 Id. 
 334; Nicholas v. Allen, 130 Mass. 211; Olliflfe v. 
 
 348 
 
 Wells, 130 i3. 221; Atty.-Gen. v. Garrison, 101 
 Id. 223; Fairbanks v. Lamson, 99 Id. 533; 
 Hosea v. Jacobs, 98 Id. 65; Jaclcson o. Phillips, 
 14 Allen, 539; Atty.-Gen. v. Old South Soc, 13 
 Allen, 474; Saltonstall v. Sanders, 11 Allen, 
 446; Atty.-Gen. v. Parker, 126 Mass. 216; Sohier 
 V. Burr, 127 Mass. 221; Boxford, <fec. Soc v. 
 Harriman, 125 Id. 321 ; McDonald v. Mass. Gen. 
 Hospital, 120 Id. 432; Old South Soc «. Crocker, 
 mid. 1; Fellows i;. Miner, 119 Id. 541; Gooch 
 V. Ass'n for Relief, &c., 109 Id. 558. 
 
 ^Alabama: Carter ». Balfour's Adm'r, 19 Ala. 
 814; Antones v. Eslava, 9 Port. 527; Johnson's 
 Adm'r v. Longmlre, 39 Id. 143; Williams v. 
 Pearson, 38 1(2. 299. As'kansas: Grissomc.Hill, 
 17 Ark. 483. California: Hinchley's Estate, 8 
 Pac. Law J. 407. Conneclicik: Am. Bible Soc. 
 ». Wetmore, 17 Conn. 181; Hampden ». Rice, 24 
 Id. 360; Whiteti. Fisk,22 Id. 31 ; Treat's Appeal^ 
 30 Jd. 113; Birchard v. Scott, 39 Id. 63; Bull v. 
 Bull, 8 Conn. 47; Chatham v. Brainard, 11 Id. 
 60; Brewster v. McCall, 15 Id. 274. Vermont: 
 Clement v. Hyde, 50 Vt. 716; Burr v. Smith, 7 
 Id. 241 ; Penfleld v. Skinner, 11 Id. 296; Stone v. 
 Griffin, 3 Id. 400. New Jersey: Mason's Ex'rs 
 V. Meth. Bpis. Ch., 27 N. J. Eq. 47; Thomson's 
 Ex'rs ti.Norris, 20 Itf. 489; Norrisa. Thomson's 
 Ex'rs, 19 Id. 307; Atty.-Gen. v. Moore's Ex'rs, 
 19 Id. 503; Goodell v. Union Ass'n, 29 Id. 32; 
 De Camp v. Dobbins, 29 Id. 86; Trustees, Ac v. 
 Beatty, 28 Id. 570; Stevens v. Shippen, 28 Id. 
 487. Tennessee: Gass v. Ross, 3 Sneed^ 211; 
 Franklin v. Armfield, 2 Id. 305; Green V. Allen, 
 SHnmph. 170; Dieksont). Montgomery, IS wan, 
 348; White*. Hale, 2 Coldw. 77. Neuo Hamp- 
 shire: Dublin Case, 38 N. H. 459; Chapin v. 
 School Dlst., 35 /d. 445; Brown v. Concord, 33 
 Id. 295; Second Cong. Soc. v. First Cong. Soc, 
 14 Id. 315; Duke v. Fuller, 9 Id. 536. South 
 Carolina: Combe v. Brazier, 2 Desau. Eq. 431 ; 
 Gibson ». McCall, 1 Rich. Law, 174; Atty.-Gen. 
 V. Clergy Soc, 8 Rich. Eq. 190; Atty.-Gen. v. 
 Jolly, 1 Rich. Eq. 99; 2 Strobh. Eq. 379. Rhode 
 Island: Meeting St. Bap. Soc v. Hall, 8 E. I. 
 
CH. XVI.] 
 
 MODERN TRUSTS. 
 
 308 
 
 between charitable uses and trusts, as laid down by the English 
 and American cases in general, has been expressly abrogated, and 
 other statutes have been enacted, expressly prohibiting any kind 
 of charitable use or trust, except those which are enumerated and set 
 out in the provisions of the statute.' In a few states, the distinction 
 between the charitable and private trust is not recognized; and in. 
 order that the charitable trust may be upheld as valid, it is required 
 that such trust should contain all the elements of a valid private trust, 
 *. e., there must be the same distinctness and certainty as to the 
 trustee and beneficiary, as the law requires in respect to private trusts.* 
 § 308. Trusts arising by operation of law. — Classes. — Trusts, 
 which arise by implication of law are subdivided by the books into 
 implied, resulting and constructive trusts. These names are purely 
 arbitrary, and do not convey to the mind any idea of the distinguish- 
 ing feature of the trusts which they respectively represent. All 
 trusts created by operation of law may be said to be implied or con- 
 
 234; Potter v. Thornton, 7 Id. 252; Derby v. 
 Derby, 4 M. 414. 'Missouri: Acad, of Visitation 
 V. Clements, 50 Mo. 167; Russell v. Allen, 5 
 Dillon, 235; Chambers v. St. Louis, 29 Mo. 643; 
 state V. Prewett, 20 Mo. 165. Mississippi: 
 Wade V. Am. Colon. Soc, 7 Sm. & Mar. 663. 
 Maine: Howard v. Am. Peace Soc, 49 Me. 288; 
 Preachers' Aid Soc. v. Kich, 45 Id. 553; Tappan 
 V. Deblois, 45 Id. 122; Shapleigh v. Pllsbury, 1 
 Id. 271; Maine Bap. Miss. Con. v. Portland, 65 
 Me. 92; Swasey v. Am. Bible Soc, 57 Id. 523. 
 Louisiana: Fink v. Ex'r Pink, 12 Id. 301 ; New 
 Orleans v. McDonough, 12 Id. 240; Soc. of 
 Orphan Boys ».Xe w Orleans, 12 La. An. 62. Iowa: 
 Miller ». Chittenden, 2 Iowa, 315, 352; John- 
 son V. Mayne, 4 Id. 180; Lepage v. McNamara, 
 5 Id. 124, 146. Indiana: Ex parte, Lindley, 32 
 Ind. 367; Sweeney v. Sampson, 5 Id. 465; Com- 
 mon Council of Richmond v. The State, 5 Id. 
 334; McCordti. Ochiltree, 8 Blackf. 15; Comm'rs 
 of Lagrange Co. v. Rogers, 55 Id. 297; Craig v. 
 Secrist, 54 Id. 419; Cruse v. Axtell, 50 Id. 49; 
 Grimes' Ex'rs u. Harmon, 35 Id. 198. Illinois: 
 Starkweather v. Am. Bible Soc, 72 111. 50; 
 Heuser». Harris, 42 Id. 425; Oilman ». Hamil- 
 ton, 16 Id. 225. Pennsylvania: Zimmerman v. 
 Anders, 6 W. & S. 218; Philadelphia v. Elliott, 
 3 Rawle, 170; Girard v. Philadelphia, 7 Wall. 1 ; 
 Vidal V. Girard's Ex'rs, 2How. (0. S.) 127; Pick- 
 ering d- Shotwell, 10 Barr. 23; HUlyard v. Mil- 
 ler, 10 Pa. St. 326; Method. Oh. v. Remington, 1 
 Watts, 218; Martin v. McCord, 5 Watts, 493; Hx 
 parte Cassel, 3 Id. 408, 440; Morrison V. Beirer, 
 2 W, & S. 81 ; Cresson s Appeal, 30 Pa. St. 437; 
 Barr v. Weld, 24 Id. 84: Brendle v. German 
 Ref . Cong., 33 Id. 415; Witman v. Lex, 17 S. & 
 R. 88; Gregg v. Irish, 8 Id. 211 ; Wright v. Linn, 
 9 Barr. 433; Henderson v. Hunter, 59 Pa. St. 
 335; Philadelphia v. Fox, 64 Id. 169; Soohan v. 
 Philadelphia, 33 Id. 9; Price v. Maxwell, 28 Id. 
 23; Griffiths ». Cope,17l£f.96i McLain ». School 
 Directors, 51 Id. 196; Evangelical Association's 
 Appeal, 35 Id. 316; Mission. Society's Appeal, 
 
 30 Id. 425; Humane Fire Co.'s Appeal, 88 Pa. 
 St. 389; Swift's Ex'rs v. Eaton Beneficial Soc, 
 73 Id. 362; Zelsweiss v. Jamess, 63 Id. 465; 
 Mayer v. Soc. of Visitation of the Sick, 2 
 Brews. 385; Philadelphia u. Girard. 45 Pa. St. 
 9; McLean ». Wade, 41 Id. 266; Miller ». Porter, 
 53 Id. 292. Georgia: Walker v. Walker, 25 Ga. 
 420; Beall v. Pox, 4 Id. 404; Jones v. Haber- 
 sham, 3 Woods, 443. Ohio: Am. Bible Soc. ■!;. 
 Marshall, 15 Ohio St. 537; Urmey's Ex'rs v. 
 Wooden, 1 Id. 160; Hullman v. Honcomp, 5 Id. 
 237; Mcln tire's School v. Zanesville, 9 Ohio, 
 203. Delaware: Griffith v. State, 2 Del . Oh. 421 j 
 State V. Griffith, 2 Id. 392. 
 
 ''^ Michigan: Methodist Ch. v. Clark, 41 Mich. 
 830; Atty.-Gen. v. Soule, 28 Mich. I.53. Wis- 
 consin: Gould V. Taylor Orphan Asylum, Wis. 
 106; see Dodge v. Williams, 46 Id. 70; Heisa 
 V. Murphy, 40 Wis. 276; Ruth ». Oberbruner, 
 40 Wis. 238. New York: Williams v. Williams, 
 8 N. Y. 525; Basoom v. Albertsou, 34 N. T. 
 584; Levy v. Levy, 33 Id. 97; Holmes v. Mead, 
 52 Id. 332; Beekman v. Bonsor, 23 Id. 298; 
 Dodge V. Pond, Id. 69; BurriU v. Boardman, 
 43 Id. 254, 263; Adams ». Perry, Id. 487; Rose 
 V. Rose, 4 Abb. App. Deo. 108; but see Powers 
 V. Cassidy, 79N. Y. 602. 
 
 ^Virginia: Virginia v. Levy, 23 Gratt. 21 1 
 Carter v. Wolfe, 13 Id. 301; Seabum's Ex'r v. 
 Seaburn, 15 Id. 423; Gallego's Ex'rs v. Atty.- 
 Gen., 3 Leigh, 450; Kain v. Gibboney, 11 Otto, 
 362; 3 Hughes C. C. 397. Maryland: Metho- 
 dist Church V. Warren, 28 Md. 338, 355; 
 Needles v. Martin, 33 Id. 609; Murphy v. Dal- 
 lam, 1 Bland, 529; Dashlell v. Atty.-Gen., 5 H. 
 & J. 392, 400; 6 K. 1; Wilderman ». Baltimore, 
 8 Md. 551. North Carolina: Trustees v. 
 Chambers' Ex'rs, 3 Jones' Eq. 253; Holland v. 
 Peck, 2 Ired. Eq. 255; White u. Atty.-Gen., 4 
 Id. 19; Miller ». Atkinson, 63 N. Car. 537; Mc- 
 Auley V. Wilson, 1 Dev. Eq. 276. West Vir- 
 ginia: Venable v. CofiFman, 2 W. Va. 310i 
 Carpenter v. Miller's Ex'r, 3 Id. 174. 
 
 349 
 
§ 309 KQUITY JUEISPEUDENOE. [OH. XVI. 
 
 structive; while the use of the word resulting serves, perhaps, to 
 confound these trusts with resulting uses. But it is convenient to make 
 use of this subdivision; and, for liie want of better terms, these are 
 employed to denote the three classes. Trusts created by operation of 
 law cannot be executed by the Statute of Uses. They are not recog- 
 nized by courts of law. They are the creatures of equity, and the 
 principles are applied by the court of equity to all inequitable trans- 
 actions where the ends of justice cannot be otherwise attained.' But 
 such trusts cannot be enforced against the property, after it has passed 
 iato the hands of a hona fide purchaser for value.^ 
 
 § 309. Implied trusts. — Whenever the owner of land directs a 
 certain disposition of it, which is to enure to the benefit of a third 
 person without expressly creating a trust in his behalf, under the 
 maxim, that equity treats that as done which ought to be done, a trust 
 will be implied in behalf of such beneficiary. Thus, if the testator 
 directs his lands to be sold for the satisfaction of his debts, an implied 
 trust is raised in favor of the creditors which will enable them to com- 
 pel a performance of the trust by the executor. This implied trust 
 was specially valuable in the days when real property was not liable 
 for the debts of the owner.' This species of trust is, however, really 
 an express trust, although it arises by construction, and is not strictly 
 created by express limitation.* Another well-known application 
 of the doctrine is the case of equitable conversion, so-called.* When 
 a contract for the sale of real property is made for a valuable consid- 
 eration, and it is evidenced by an instrument in writing, equity will, 
 by raising an implied trust in favor of the vendee, treat the vendor as 
 his trustee in respect to the land to be conveyed, and the trust will be 
 enforced by a decree for specific performance." But there must, of 
 course, be a written agreement of sale to satisfy the Statute of Frauds, 
 or such a part performance as will take the case out of the statute.' 
 An implied trust will also arise in favor of partnership-creditors in 
 respect to the partnership property, when the insolvency of a firm or 
 of its members creates a contention of interests between the partner- 
 ship creditors and the creditors of the individual partners.' So settled 
 
 1 8 Washb. on Real Prop. 437; 2 Pom. Eq. Jur., " 1 Spence Eq. Jur. 509; Jackson ». Moise, 16 
 
 S 1030; ISpenceEq. Jur. 496; 1 Prest. Est. 191; Johns. 197; Connor u. Lewis, 16Me. 268; Coman 
 
 Nightingale®. Hidaen,7E. I. 121; Thompson v. Lakey, 80 N. Y. 345; Pelton u. Westchester 
 
 ti. Peake, 7 Rich. 353. Fire Ins. Co., 77 N. Y. 605; Musham ». Musham, 
 
 2 Kearney®. Fleming, 10 N. Y. S. 169. 8? 111. 80; Felch o. Hooper, 119 Mass. 52; Bowie 
 
 3 1 Spence Eq. Jur. 509; 2 Washb. on Real v. Barry, 3 Md. Ch. 359; Knox v. Gye, L. R. 5 H. 
 Prop. 438. L. Cas. 656; Coffin t). Argo, (III. '90) 34 N. E. 
 
 *2Pom.Eq. Jur., §1010. See Walker®. Whit- 1068; Green ». Brooks, 81 Gal. 328. 
 
 Ing, 23 Pick. 313; Pay v. Taft, 12 Gush. 448; ' Harris v. Barnett, 3 Gratt. 339; Hill V. 
 
 Baker v. Red, 4 Dana, 158; Lane v. Lane, 8 Meyers, 43 Pa. St. 170; Phillips o. Thompson, 1 
 
 Allen,350;Hoxie». Hoxie, 7Palge, 187; Blatch Johns. Ch, 131; Ryan ®. Dox, 34 N. Y. 312; 3 
 
 V. Wilder, 1 Atk. 420; Withers v. Yeadon, 1 Washb. on Real Prop. 215. 
 
 Rich. Eq. 324; Watson®. Mayrant, 1 Rich. Eq. « Hastings ®. Drew, 76 N. Y. 9; Bartlett V. 
 
 449; Randolph v. Randolph, 40 N. J. Eq. 73. Drew, 57 Id. 587; Murray v. Murray, 5 Johns. 
 
 ' See ante, Chapt. IX, where the subject of Ch. 69; West ®. Skip, 1 Ves. Sr. 239; Campbell 
 
 Conversion and Reconversion Is fully pre- ®. Mullett, 3 Sw. 551; Kuox v. Gye, L. E. 5 H. 
 
 aented. L. Cas. 656. 
 
 350 
 
CH. XVI.] MODERN TRUSTS. § 309 
 
 is the fiduciary character of the relation of vendor and vendee under 
 an executory contract of sale, that the vendee may enjoin the vendor 
 from the commission of waste. ^ This trust may be enforced against 
 the subsequent purchaser from the vendor with notice of the prior 
 ■contract of sale. * 
 
 At this point attention should be given to an apparent contra- 
 diction. The implied trust, just explained, which arises from an 
 executory contract for the sale of land, is held to be beyond the 
 operation of the Statute of Uses,' so that the cestui que trust, or 
 executory vendee, would never acquire the legal title to the land, 
 unless the trust is enforced by a decree for specific performance of the 
 ■executory contract of sale. In a previous paragraph,* where the cre- 
 ation of uses by simple declai'ations is explained, it is stated that 
 " Equity always construed a contract of sale or agreement to convey 
 as a declaration to uses, and would enforce it if the requisite consider- 
 ation was present." That is, equity would treat a bargain and sale of 
 lands as the express creation of a use, which could be executed in a 
 legal estate by the Statute of Uses, if the use so created did not come 
 within one of the five Classes of Cases, in which the statute did not 
 •operate.'' Whenever the English statute of enrolment is in force, no 
 use created by bargain and sale can be executed by the Statute of Uses, 
 unless it be created by deed, sealed and recorded. In England, there- 
 fore, a use created by a bargain and sale, which did not conform to 
 the requirements of the Statute of Enrolment, would be denominated 
 an implied trust which could be enforced only by a decree for specific 
 performance. But this distinction between these two classes of equit- 
 able estates only obtains, where the mode of creating uses by simple 
 ■declarations is regulated by statute, beyond the requirement of the 
 Statute of Frauds, that it should be manifested in writing. Where 
 there is no such regulation of the creation of uses, the executory bar- 
 gain and sale would, according to one set of authorities, create a use 
 which would be executed into a legal estate; and, according to the 
 second set of cases, it would be an implied trust, which would remain 
 an equitable estate until the trust is enforced by a decree for specific 
 performance. There is but one way to reconcile these otherwise con- 
 flicting decisions, viz.: that the character of the equitable estate 
 created by a bargain and sale, would depend upon the intention of the 
 parties in making the bargain and sale. If, in executing the written 
 contract of sale, the intention was to pass an absolute title, the equit- 
 able estate of the vendee would be a use and not an implied trust; and 
 if the intention of the parties was to make the bargain and sale only 
 preliminary to a specific and more formal performance, then the bar- 
 gain and sale creates an implied trust and not a use. ° 
 
 1 Moses V. Johnson, 88 Ala, 517. = See ante, § 277; Tiedeman Real Prop., % 776. 
 
 2 McWMnne v. Martin, (Wis. '90) 46 N. W. 118. « See Hanks v. Folsom, 11 Lea. 555; Opinion by 
 » See ante, § 308. Chancellor Cooper, citing Beecher v. Hiclcs, 7 
 -* See ante, §258. Lea. 211;0arnesD. Apperson,2Sneed,562iTopp 
 
 351 
 
§ 310 EQUITY JURISPRUDENCE. [CH. XVI. 
 
 § 310. Resulting tmsts to donor. — These trusts arise in two prin- 
 cipal cases: First, where only a part of the trust is declared, and the 
 rest remains undisposed of. In such a case there is a resulting trust 
 in favor of the grantor. Eesulting trusts of this class are such as result 
 to the grantor; but which, on account of the terms of the conveyance, 
 cannot be executed as uses. Where the statute can operate, the equit- 
 able interest is a resulting use, and becomes a legal estate under the 
 statute. Resulting interests in chattels, held in trust, are resulting 
 trusts, and not resulting uses. They are called resulting trusts, because 
 they cannot be executed by the statute of uses. In every other respect 
 they are like resulting uses, and will arise only under such circum- 
 stances as would cause a resulting use in the freehold estate. A result- 
 ing trust in a chattel only arises when there is no consideration to the 
 grantor, and no consideration expressed in the grant. ^ In the devise of 
 an income to one, when he becomes of age, there is a resulting trust in the 
 immediate income to the devisor's heirs; or where property is directed 
 to be sold for certain purposes, and the proceeds are more than sufficient 
 for the purposes of the trust, there is a resulting trust in the surplus 
 to the heirs of the devisor." There is also a resulting trust in favor of 
 the grantor and his heirs, where the purposes of the express trust have 
 failed, from whatever cause the faihire may arise. Thus, if the trust 
 be to appoint the estate in favor of a certain person, and the trustee 
 fails to appoint, or the person dies before the appointment, the trust 
 will result to the grantor.' The'' trustee will in none of these cases 
 enjoy the trust, even though a nominal consideration be mentioned in 
 the deed. Nothing will prevent the resulting of the trust to the grantor 
 but the payment of an adequate, or at least substantial, consideration.* 
 
 V. White, 12 Heisk. 165, 173 ; Alderson v. Clears, 7 221 ; Dashiell v. Atty.-Gen. , 6 Har. & J. 1 ; Power 
 
 Heisk. 667; Lafferty v. Whitesldes, 1 Swan, 123. ■;;. Cassidy, 79 N. T. 602; Lemmond v. Peoples, 
 
 ' For the particular cases in which there will 6 Ired. Eq. 137; Hawley v. James, 5 Paige, 318; 
 
 be a resulting use, and, if it be a chattel Inter- Stratt v. TJhrig, 56 Mo. 488; Bennett v. Hudson, 
 
 est, a resulting trust, see ante, § 257. 33 Ark. 762; Buss v. Meblus, 16 Gal. 350; Ack- 
 
 2 Lloyd V. Lloyd, L. E. 7 Bq. 458; Longley v. royd v. Smithson, 1 Bro. Ch. 503; Goodere o. 
 
 Longley, L. R. 13 Eq. 133; Cottingeri). Fletcher, Lloyd, 3 Sim. 538; Taylor v. Haygarth, 14 Sim. 
 
 2 Atk. 155; Lloyd v. Spillet, 2 Id. 149; Ellcock 8; Williams v. Coade, 10 Ves. 500; Davenport 
 
 ». Mapp, 3 H. L. Gas. 492; Davidson ». Foley, 2 v. Goltman, 12 Sim. 588; James v. Allen, 3 
 
 Bro. Ch. 203; Halford v. Stains, 16 Sim. 488; Meriv. 17; Stubbs v. Sargon, 3 My. & Cr. 507; 
 
 Watson V. Hayes, 5 My. & Or. 135; Sewell v. Kendall v. Granger, 5 Beav. 300; Williams v, 
 
 Denny, 10 Beav. 315: Read v. Stedman, 26 Id. Kershaw, 5 Gl. & Fin. Ill; Richards o. Del- 
 
 495; Esterbrooks v. Tillinghast, 5 Gray, 17; bridge, L. R. 18Eq.ll; Carrick ». Errington, 3 
 
 Hogan ». Jaques, 19 N. J. Eq. 123; Loring v. P. Wms. 361; Coard v. Holdemess, 20 Beav. 
 
 Elliott, 16 Gray, 568; Hogan v. Stayhorn, 65 N. 147; Pawson v. Brown, L. R. 13 Oh. 202; Pllk- 
 
 C. 279; McCallister v. WiUey, 52 Ind. .382; Ington v. Boughey, 12 Sim. 114; Dawson v. 
 
 Trapnall v. Brown, 19 Ark. 39; Pouce v. Mc- Clark, 18 Ves. 247; Atty.-Gen. v. Windsor, 8 H. 
 
 Blroy, 47 Gal. 154; Kennedy v. Nunan, 52 Cal. L. Gas. 369; Ashton v. Wood, L. E. 6 Eq. 419; 
 
 326; Edinger v. Heiser, 62 Mich. 598; Sohles- Stansfield«. Habergham, lOVes. 2?3; Woodu. 
 
 singer v. Mallard, 70 Cal. 326; Ball o. Gaflf, Cox, 2 My. & Gr. 507; Pratt v. Miller, 23 Neb. 
 
 (Ky. '90) 1 S. W. 724. " 496 ; Parker v. McMillan, 55 Mich. 265. 
 
 ^ICruiseDig. 375, 394; Ashhurst j). Glvens, 5 ^1 Spence Eq. Jur.4«7; Ortonu. Knab,3WlB. 
 
 Watts & S. 3S7; Sturtevant v. Jaques, 14 Allen, Br6; 2 Washb. on Real Prop. 438; 2 Pom. Eq. 
 
 523; Shaw «. Spencer, 100 Mass. 382; Nichols j>. Jur., § 1033; see Clark v. Hershey, 52 Ark. 
 
 Allen, 130 Mass. 211; Olliffe «. Wells, 130 Mass. 473. 
 
 352 
 
CH. XVI. J MODERN TRUSTS. § 311 
 
 The nominal consideration will prevent the resulting of such a use as 
 will be executed by the statute, but will have no effect upon the resulting 
 trust. 
 
 § 311. Resulting trusts to parties paying considerations. — 
 The second class of resulting trusts includes those cases, in which the 
 estate is purchased in the name of one person, and the consideration 
 is paid by another. But two circumstances must concur, in order that 
 a trust may result to the one paying the consideration: First, the 
 execution of the deed in the name of the one person must be the result 
 of some fraud, accident, or mistake. Or, if it is done with the 
 knowledge and consent of the person paying the consideration, his 
 intention that he should have the beneficial interest in the estate must 
 be clearly established.* The payment of the consideration and the 
 intention of the parties in respect to the beneficial interest may be 
 established by parol evidence, even against the express recitals of the 
 deed. But the evidence must be clear. It would seem that this 
 would be a clear violation of the Statute of Frauds, where the deed 
 was taken in the name of another, with the understanding that the one 
 paying the consideration shall be the beneficial or equitable owner. 
 For it is difficult to see in what way such a trust differs from an ex- 
 press trust, which is required to be manifested by some writing. But, 
 the decisions have held that it was not necessary for it to be in 
 writing, and such must be taken to be the law. In like manner the 
 presumption of a trust arising from the payment of the consideration 
 may be rebutted by parol evidence, showing that the one papng the 
 consideration intended that the grantee in the deed should have the 
 
 'Dyer v. Dyer, 2 Cox, 92;1 Eq. Ld. Cas. 314; 587; see Willis ». Willis, 2 Atk. 71; Gascoignep,. 
 
 Lloyd V. Kead, 1 P. Wms. 6OT; Withers v. Thwing, 1 Vem. 366 ; Heard u. Pilley, L. R. Oh., 
 
 Withers, Ambl. 151; Eider v. Kidder, 10 Ves. 518; Baker v. Vlning, 30 Me. 121; Boyd v. Me- 
 
 360; Medmer V. Medmer, 26 N. J. Eq. 269; Lean, 1 Johns. Ch. 582; Hennesyu. Walsh, 5S 
 
 Smith a. Patton, 12 W. Va. 541; Billings v. N. H. 515; Parker v. Snyder, 31 N. J. Eq. 164; 
 
 Clinton, 6 S. C. 80; Lee v. Browder, 51 Ala, 288; Livermore v. Aldrich, 5 Cush. 431; Jackson v. 
 
 Thomas ». Standiford, 49 Md. 181; Tilford v. Feller, 2 Wend. 465; Stumpfer v. Roberts, 18 
 
 Torrey, 53 Ala. 120; Cunningham ». Bell, 83 N. Pa. St. 283; Whitmore v. Learned, 70 Me. 276; 
 
 C.328;Kelley«. Jenness,50Me. 455; Hopkinson Thomas v. Standiford, 49 Md. 181; Miller v. 
 
 V. Duman, 42 N. H. 306; Kendall v. Mann, 11 Blose's Ex'r, 30 Gratt. 744; Hyden v. Hyden, 
 
 Allen, 15; Nixon's App., 63 Pa, St. 279; Clark v. 6 Baxt. 406; Coates v. Woodworth, 13 111. 654; 
 
 Clark,43Vt. 685; Boyd ». McLean, IJohns. Ch. Lee v. Browder, 51 Ala. 288; Agricultural 
 
 582; Brooks ». Shelton, 54 Miss. 353; Hampson Ass'n «. Brewster, 51 Texas, 257; Byers ti, 
 
 1!. Fall, 64 Ind. 382; Duval ». Marshall, 30 Ark. Wackman, 16 Ohio St. 440; Bryant v. Heu^ 
 
 230; Dean ». Dean, 6 Conn. 285; McGovem «>. dricks, 5Iowa, 256; Murphy u. Peabody, 63 Ga, 
 
 Knox, 21 Ohio St. 547; Latham ». Henderson, 47 522; Billings v. Clinton, 6 S. C. 90; Drum «, 
 
 nL185; Mathisjj.Stufflebeam, 94111.481; Moss Simpson, 6 Binn. 478; Smith v. Patton, 12 W, 
 
 V. Moss, 95 111. 449; Johnson v. Quarles, 47 Mo. Va. 541 ; MoCreary v. Casey, 50 Cal. 349; Ward 
 
 423; McLenant). Sullivan, 13 Iowa, 521; Bosko- V. Armstrong, 84 111. 161; Lane v. Dlghton, 
 
 witzt;. Davis, 12 Nev. 446; Logan v. Walker, 1 Ambl. 409; Benbow v. Townsend, 1 My. & K. 
 
 Wis. 527; Case ». Codding, 38 Cal. 191 ; Roberts 506; Hopkinson v. Duman, 48 N. H. 303; Ed^ 
 
 B.Ware, 40Cal. 634; Baumgartnerr.Guessfeld, wards v. Edwards, 39 Pa. St. 378; Carter v. 
 
 38 Mo. 36; Jackson v. Cleveland, 15 Mich. 102; Montgomery, 2 Tenn. Ch. 216; White v. Car- 
 
 Smlthi!. Strahan, 16 Texas, 314; Sayrec. Town- penter, 2 Paige, 238j Perkins v. Nichols, 11 
 
 send, 15 Wend. 647; Mershon ». Duer, 40 N. J. Allen, 545j Adams v. Greerard, 26 Ga. 651 j 
 
 Eq. 333; Osgood*. Eaton, 62 N.H. 512; Parker Shepherd v. White, 11 Texas, 346; Warren «, 
 
 V. Logan, 82 Va. 376; Farrington v. Duval, (S. Steer, 112 Pa. St. 634; Tryon v. Huntoon, 67 Cal. 
 
 C. '90) 10 S. C. 944; Mance v. Mance, 28 111. App. 325; Moore v. Williams, 55 N. T. Super. Ct. 116, 
 
 353 
 
§ 311 
 
 EQUITY JURISPRUDENCE. 
 
 [CH. XVI. 
 
 benefit of the purchase as a gift, provided such parol evidence does 
 not contradict the terms of the deed. 
 
 The second circumstance is that the consideration must be paid by 
 the person claiming the resulting trust at the time of the transaction 
 of sale or conveyance. Any subsequent payment of the consideration 
 by such person, even though he has been compelled to do so as surety 
 of the grantee, will not raise a trust. ^ So, also, wiU the trust result to 
 one vrho pays a part of the purchase money with the intention that 
 he shall have an interest in the land. But in order that there may be 
 a resulting trust in his favor, the exact amount which he advances 
 must be clearly established. Any doubt or uncertainty in that 
 respect will prevent the trust from resulting." The absence of either 
 of these circumstances vrill prevent the trust resulting from the pay- 
 ment of the consideration.' And the evidence in support of both 
 propositions must be clear and free from reasonable doubt.* 
 
 Eesulting trusts are now regulated by statute in New York, Michi- 
 gan, Indiana, Kentucky, Minnesota, Wisconsin and Kansas. They 
 all substantially aboMsh such resulting trusts as arise in a conveyance 
 to one person in favor of another who has paid the consideration, 
 except in favor of the judgment-creditors of the latter. They may 
 enforce the trust in their behalf if they were creditors at the time of 
 the conveyance. But the statutes expressly except those cases where 
 the deed has been taken in the name of another, through some acci- 
 dent, fraud or mistake.^ 
 
 1 Howell V. Howell, 15 N. J. Eq. 78; Brooks v. 
 Powler, 14 N. H. 248 ; Bnck v. Swazey, 35 Me. 41 ; 
 Kelley v. Johnson, 28 Mo. 249; Oliveri). Dough- 
 erty, 3 Iowa, 371; Sullivan v. McLenans, 2 
 Iowa, 442; Baumgartner v. Guessfeld, 38 Mo. 
 96; Brawner v. Staup, 21 Md. 337; Francestown 
 V. Deering, 41 N. H. 443; Bamett v. Dougherty, 
 
 32 Pa. St. 371; Gee v. Gee, 32 Miss. 190; Kendall 
 V. Mann, 11 Allen, 17; Perkins «. Nichols, 11 
 Allen, 546; Kellum v. Smith, 33 Id. 164; Alex- 
 ander V. Tarns, 13 111. 281; Perry v. McHenry, 
 
 33 Id. 227; Davis v. Wetherell, 11 Allen, 20; 
 Whiting V. Gould, 2 Wis. 552; Hopklnson v. 
 Dumas, 42 N. H. 301; Pegnes v. Pegnes, 5 Ired. 
 Eq. 418; Mershon v. Duer, 40 N. J. Eq. 333; 
 Brown v. Cave, 23 S . C. 351 ; Walsh v. McBride, 
 <Md. '90) 19 Atl. 4; Shaw v. Shaw, 86 Mo. 594: 
 Pulford V. Morton, 62 Mich. 25; Rice v. Penny- 
 packer, 5 Del. Ch. 33. 
 
 "Purdy V. Purdy, 3 Md. Ch. 547; Shoemaker 
 ^). Smith, Humph. 81; Miller v. Birdsong, 7 
 Baxt. 531; Smith v. Patton, 12 W. Va. 541; 
 Pierce v. Pierce, 7 B. Mon. 438; Franklin v. Mc- 
 Entire, 23 111. 91; Smith v. Smith, 85 111. 189; 
 Cramer v. Hoose, 93 111. 503; Shea v. Tucker, 56 
 Ala. 450; Hidden v. Jordan, 21 Oal. 92; Bayless 
 V. Baxter, 22 Cal. 578; Case ». Codding, 38 Cal. 
 191; McCreary v. Casey, 50 Gal. 349; Wray v. 
 Steele, 2 V. & B. 388; Barron v. Barron, 24 Vt. 
 375; McGowani;. McGowan, 14Gray, 119; Harper 
 ■». Phelps, 21 Conn. 257; Williams ». Hollings- 
 •worth, 1 Strobh. Eq. 103; Botsford v. Burr, 2 
 
 354 
 
 Johns. Ch. 405;Smith». Strahan, 16 Texas, 314j 
 Say re v. Townsend, 15 Wend. 647; Wallace v. 
 Duffleld, 2 Serg. & K. 521 ; Springer v. Springer, 
 114111. 550; Somers v. Overhulser, 67 Cal. 237. 
 
 » McCue V. Gallaghbr, 23 Cal. 53; Gee v. Gee, 
 32 Miss. 190; Dow v. Jewell, 21 N. H. 470; Gib- 
 son to. Foote, 40 Miss. 792; Hunt v. Moore, 6 
 Gush, 1; Ramsdell v. Emory, 46 Me. 311; Jack- 
 man 17. Kingland, 4 W. & S. 149; Botsford v. 
 Burr, 2 Johns. Gh. 405; Stephenson v. Thomp- 
 son, 13 111. 186; McCullough v. Ford, 96 111. 439; 
 House V. House, 57 Ala. 262; Kennedy ». Price, 
 57 Miss. 771 ; Hennesy v. Walsh, 55 N. H. 515, 
 and cases cited in the preceding notes ; Hen- 
 eke V. Floring, 114 111. 554; Green v. Dietrich, 
 114 111. 636; Burdette v. May, 100 Mo. 13; Nance 
 V. Nance, 28 HI. App. 587; Rice ®. Pennypaoker, 
 5 Del. Ch. 33. There is no resulting trust in 
 favor of one whose money is expended in im- 
 provements on the land. Bodwell v. Nutter, 
 63 N. H. 446. 
 
 *Heneke v. Floring, 114 111. 554; Green V. 
 Dietrich, 114 111. 636; St. Patrick's Catholic 
 Church V. Daly, 116 111. 76; Woodward ». Sibert, 
 82Va. 441; Catoe v. Catoe, (S. C. '90) 10 S. E. 
 1078; Hoover v. Hoover, 129 Pa. St. 201; Behm 
 V. Molly, (Pa. '90) 19 Atl. 562; Guest®. Guest, 74 
 Tex. 664. 
 
 ' For oases in which these statutes have been 
 under consideration see Eeitz v. Reitz, 80 N. Y. 
 538; Siemon v. Schurck, 29 N. Y. 598; Moore «. 
 Williams, 55 N. Y. Super, 116; Woerz v. Rade- 
 
CH. XVI.] 
 
 MODERN TEUSTS. 
 
 § 311 
 
 These resulting trusts rest upon the presumption that the person 
 beneficially entitled has been deprived of his interest against his will. 
 But where the relation between the parties is so close as to permit of 
 the counter-presumption, that the one paying the consideration 
 intended it as a gift to the one in whose name the deed is taken, as 
 where the parties are husband and wife, parent and child, and the 
 like, there wiU be no resulting trust. It is presumed to be a gift, 
 because the purchasers in the cases supposed, husband and father, are 
 under a moral qucbsi legal obligation to maintain the persons in whose 
 names the deeds are taken, viz. : wife and child. ^ And the same pre- 
 sumption prevails whenever one purchases property in the name 
 of another, while the former stands in loco pa/rentis, as between 
 mother and child, ^ or between grandfather and grandchild.' On the 
 other hand, there is no presumption of a gift where the deed is taken 
 in the name of the husband or father, and the purchase money is 
 paid by the wife or child.* But aU these are dispufeble presumptions, 
 and may be rebutted by the proof of a contrary intention. If it is shown 
 that the deed was taken in the name of the wife or child through a 
 mistake of the scrivener, or the fraud of someone, or with the 
 intention that the husband or father should have the beneficial interest, 
 the trust wUl result as in any other case.^ 
 
 macher, 120 N. Y. 62; Denning v. Kane, 7 N. T. 
 S. 704; Weare v. Linnell, 29 Mich. 234; Muncli 
 •o. Shabel, 37 Micli. 166; Derry v. Deny, 74 Ind. 
 560; Hon V. Hon, 70 Ind. 135; Catherwood, 65 
 Ind. 576; Baker v. Baker, 22 Minn. 262; Eogers 
 ■o. McCauley, Id. 384; Durfee v. Pavltt, 14 Minn. 
 422; Graves v. Graves, 3 Mete. 167; Kennedy v. 
 Taylor, 20 Kans. 558; Mitchell v. Skinner, 17 
 Kans. 563; Underwood v. Sutllffe, 77 N. Y. 51; 
 Traphagen v. Burt, 67 N. Y. 30; Bedford v. 
 Graves, (Ky. '90) 1 S. W. 534. 
 
 11 Cruise Dig. 394; 1 Spence Eq. Jnr. 511; 
 Kingdom v. Bridges, 2 Vem. 67; Dyer «. Dyer, 
 2 Cox, 92; Eider V. Kidder, 10 Ves. 360; Finch 
 -». Finch, 15 Ves. 43; Williams v. Williams, 32 
 Beav. 370; Sayre v. Hughes, L. R. 5 Eq. 376; 
 Marshall v. Crutwell, L. E. 20 Eq. 328; Living- 
 ston V. Livingston, 2 Johns. Oh. 537; Famell v. 
 Lloyd, 69 Pa. St. 239; Lorentz v. Lorentz, 14 W. 
 Va. 809; Douglass v. Brice, 4 Elch. Eq. 322; 
 Stevens D. Stevens, 70 Me. 92; Welton«. Divine, 
 atTBarb. ff; Lochenour v. Lacbenonr, 61 Ind. 
 595; Smith v. Strahan, 16 Texas, 314; Sunder- 
 land v. Sunderland, 19 Iowa, 338; Baker v. 
 Baker, 22 Minn. 262; Bead v. Huff. 40 N. J. Eq. 
 229; Eobinson v. Eobinson, 45 Ark. 481; Spauld- 
 ing®. Cleghom, 8 N. Y. S. 269; In re Camp, 10 
 K. Y. S. 141. 
 
 ^In re De Visme, 2 De G. J. & S. 17; Batstone 
 -B. Salter, L. E. 19 Eq. 250; but see Murphy u. 
 Nathans, 46 Pa. St. 508; Shaw i>. Bead, 47 Pa. St. 
 103; Flynt v. Hubbard, 57 Miss. 471. 
 
 3 Co. Lit. 290 b, note 249, § 8; Ebrand v. 
 Dancer, 2 Chan. Gas. 26; see generally, Beck- 
 ford «. Beckford, Loflft. 490; Loyd v. Read, 1 P. 
 Wms. 607 J Tucker*. Burrow, 2 Hem. & M. 515; 
 
 Sayre v. Hughes, L. E. 5 Eq. 376; Currant v. 
 Jags, 1 Coll. 261; Smith v. Patton, 12 W. Va. 
 541 ; Higdon v. Higdon, 57 Miss. 264. 
 
 4 Howell r. Howell, 15 N. J. Eq. 77; Beck's 
 ExTs V. Graybill, 28 Pa. St. 66; Thomas ». 
 Standiford, 49 Md. 181; Loften v. Witboard, 92 
 m. 461; Moss V. Moss, 95 III. 449; Catherwood 
 V. Watson, 65 Ind. 675; Squire v. Harder, 1 
 Paige, 494; Euss V. Mebius, 16 Cal. 350; Cun- 
 ningham®. Bell, 83 N. C. 328; Tilford v. Tor- 
 rey, 53 Ala. 120; Leman v. Whitley, 4 Euss. 423; 
 Sasser v. Sasser, 73 Ga. 275; Chiles v. Gallagher, 
 (Miss. '90) 7 So. 208. 
 
 6 Wallace v. Bowens, 28Vt. 638; Sawyer's Ap- 
 peal, 16 N. H. 414; Dickinson v. DaVls, 43 N. 
 H. 647; Jackson v. Matadurf, 11 Johns. 91; 
 Livingston v. Livingston, 2 Johns. Ch. 539; 
 Stevens v. Stevens, 70 Me. 92; Baker ®. Vinlng, 
 30 Me. 121 ; Rankin ». Harper, 23 Mo. 579; Eddy 
 V. Baldwin, 23 Mo. 588: Springer v. Berry, 47 
 Me. 338; Shepherd ji. White, 10 Texas, 72 ; Guth- 
 rie V. Gardner, 19 Wend. 414; Smith®. Strahan, 
 16 Texas, 314; Lampleigh v. Lampleigh, 1 P. 
 Wme. Ill; Sidmouth v. Sidmouth,2 Beav. 447; 
 Williams v. Williams, 32 Beav. 370; Kilpin v. 
 Kilpin, 1 My. & R. 520; Devoy v. Devoy, 3 Sm. 
 & Giflf. 403; Read v. Huff, 40 N. J. Eq. 229; 
 Eussell®. Russell, (Ky. '90) 12 S. W. Rep. 709. 
 It has been held that there can be no resulting 
 trust in favor of a husband in property in the 
 name of the wife, because the wife cannot be 
 trustee for the husband. 1 Cruise Dig. 402; 
 Kingdon v. Bridges, 2 Vem. 67; Alexander®. 
 Warrance, 17 Mo. 228; Jencks v. Alexander, 11 
 Paige Oh. 619. This technical rule Is not pre- 
 sumed to prevail In this country asan obstacle 
 
 355 
 
§ 312 
 
 EQUITY JURISPEUDENCE. 
 
 [CH. XVI. 
 
 § 312. Constructive trusts. — Constructive trusts arise where the 
 trustee or any other person holding a fiduciary position, by fraud, 
 actual or constructive, makes an illegal disposition of the trust prop- 
 erty, to the injury of the cestid que trust or beneficiary. The latter 
 can, at his election, follow such trust property, into whosoever hands 
 it may come, with notice of the trust. ^ And it matters not whether 
 the original holding of such property was legal or illegal; if it after- 
 wards becomes illegal, the same rule wiU apply. Thus, if a mortgage 
 is given jointly to two, and one dies, the survivor would hold the 
 mortgage as trustee for himself and the heirs and personal representa- 
 tives of the deceased.^ The most common instances of constructive 
 trusts are purchases by the trustee of trust property at his own sale, 
 or an illegal conveyance by him to one having notice of the trust, 
 without paying any valuable consideration. It is a general rule of law 
 that a trustee cannot pu-rchase at his own sale; and if he does, he can- 
 not acquire* an absolute title. It is voidable at the election of the 
 cestid que trust. Until an avoidance or ratification by him, there is a 
 constructive trust raised in his favor.' But this rule does not prevent 
 him from purchasing the trust property with the consent of the 
 cestv/i que trust, provided the latter is of age and sui juris. But such 
 transactions are closely watched; and if the consideration paid therefor 
 be not adequate, the courts are greatly disposed to set aside the sale.* 
 The court of equity may also authorize the trustee to buy the property 
 
 In the way of raising a resulting trust, and 
 certainly not in those states where the wife is 
 treated, in respect to her property, as &femme 
 sole. See cases cited, sw^ra. 
 
 ' 2 Washb. on Eeal Prop. 447 ; 1 Spenoe Eq. Jur. 
 611; 2 Pom. Eq. Jur. 1044; Perry on Tr., § 166; 
 Bailey v. Winn, (Mo. '90) 12 S. W. 1045; Murphy 
 V. Murphy, (Iowa, '90) 45 N. W. 914; Lehmaun i>. 
 Eothbarth, 111 111. 185; Morgan v. Fisher's 
 Adm'rs, 82 Va. 417. 
 
 2 Buck V. Swazey, 35 Me. 41 ; Randall v. Phil- 
 lips, 3 Mason, 378; Caines v. Grant, 5 Binn. 119. 
 
 = Jennison v. Hapgood, 7 Pick. 8; Gardner v. 
 Ogden, 22 N. Y. 327; Collins ». Smith, 1 Head, 
 251; Swinburne i;. Swinburne, 28 N. Y.568; Bell- 
 amy V. Bellamy, 6 Pla. 62; McNish v. Pope, 8 
 Eich. Eq. 112; Brown r. Lynch, 1 Paige, 167; 
 Hubbell V. Medbury, 53 N. Y. 98; Hoffman, &c. 
 Co. V. Cumberland, &c. Co., 16 Md. 507; Jami- 
 son V. Glasscock, 29 Mo. 191; Pairman ». Bavin, 
 29 111. 76; Charles v. Dubose, 29 Ala. 367; Huffo. 
 Earl, 3 Ind. 306; Herr's Estate, 1 Grant Gas. 272; 
 Baldwin v, Allison, 4 Minn. 25; Gaerrers v. Bail- 
 leno, 48 Cal. 118; Scott v. Umbarger, 41 Cal. 410; 
 Boyd». Blankman, 29 Cal. 20; Mitchell ». Berry, 
 1 Meto. (Ky.) 602; MoCrary v. Poster, 1 Iowa, 
 276; Grumley ». Qrumley, 44 Mo. 444; Cookson 
 V. Richardson. 69 III. 137; Newton v. Taylor, 39 
 Ohio St. 399; Rea». Copelln, 47Mo. 76; Broy- 
 les». Nowlln, 69 Tenn. 191 ; Reickhoff ». Breoht, 
 51 Iowa, 633; Pindall v. Trevor, 30 Ark. 249; 
 Blauvelt u. Ackerman, 20 N . J. Eq. 141 ; Barnett 
 
 356 
 
 ». Bamber, 81 Pa. St. 247; Webster v. King, 33 
 Cal. 348; Tracy u. Colby, 55 Cal. 67; Tracy «. 
 Cralg, 65 Cal. 359; Davis v. Rock Creek, 55 Cal. 
 359; Giddings V. Eastman, 5 Paige, 561; Reitz 
 ». Reitz, 80 N. Y. 538; Smith v. Stephenson, 45 
 Iowa, 645; Mathews v. Light, 32 Me. 305; Man- 
 ning V. Hayden, 5 Sawyer, 360; Jones v. Dexter, 
 130 Mass. 380; Whitwell ». Warner, 26 Vt. 435; 
 Blout V. Robeson, 3 Jones Eq. 73; Hastings ». 
 Drew, 76 N. Y. 9; Bennett v. Austin, 81 N. Y.. 
 308; Smith v. Frost, 70 N. Y. 605 ; TreadweU v. 
 McKeon, 7 Baxt. 201 ; Fox v. Maokreth, 2 Bro. 
 Ch. 400; Church v. Sterling, 16 Conn. 388; 1 Eq. 
 Ld. Cas. 188, e< eeq. ; Powell v. Glover, 3 P. Wms. 
 252; Kimber ». Barber, L. R. 8 Ch. 56 ; Heath o. 
 Crealock, L. R. 18 Eq. 215; In re Hallet's Estate,. 
 L. R. 13 Ch. 696; Wedderbum v. Wedderburn, 
 4 My. & Cr. 41; Willett v. Blanford, 1 Harr. 253; 
 Fawoett v. Whitehouse, 1 Russ. & M. 132; Great 
 Luxembourg Ry. Co. v. Magnay, 25 Beav. 586; 
 Barnes B. Addy, L. E. 9Ch. 244; Bassett». Shoe- 
 maker, (N. J. '90) 20 Atl. 52. 
 
 * Downes V. Grazebrook, 3 Meriv. 208; Ex 
 parte Laoey, 6 Ves. 625; Morse v. Royal, 12 Ves. 
 355; Denton v. Donner, 23 Beav. 285; Coles v. 
 Trecksthick, 9 Ves. 234; Spencer v. Newbold'a 
 Appeal, 80 Pa. St. 317; Bayan v. Duncan, 11 Ga. 
 67; Sallee v. Chandler, 26 Mo. 124; Richardson 
 V. Spencer, 18 B. Mon. 450; Kennedy v. Ken- 
 nedy, 2 Ala. 571 ; Villines v. Norfleet, 2 Dev. Eq. 
 167; Mitchell v. Berry, 1 Mete. (Ky.)602; Mar- 
 shall V. Stephens, 8 Humph. 159. 
 
CH. XVI.] 
 
 MODERN TRUSTS. 
 
 § 312 
 
 in, and in that case the title of the trustee will be good against all 
 parties.^ In the same manner, if the trustee attempts to make an 
 illegal disposition of the land, his grantee will take it bound with a 
 constructive trust in favor of the cestui que trusty unless he has had 
 no actual or constructive notice of the trust, and has paid a valuable 
 consideration.^ And where such grantee is a 5t>wa_;?6fo purchaser for 
 value, the proceeds of sale will be subject to the constructive trust in 
 iavor of the cestui que trust, into whatever kind of property such pro- 
 ceeds may be invested, as long as the possibility of identifying them 
 remains.' 
 
 These are only the more common instances of constructive trusts. 
 But there are many others; and it may be stated as the invariable rule 
 that, where there has been a fraud committed in the disposition or 
 acquisition of the property, equity will raise a constructive trust in 
 favor of the person defrauded, unless it will interfere with and affect 
 the interest of innocent third persons.* Thus, if one embezzles money 
 intrusted to his care and invests it in real estate, the person to whom 
 the money belongs will have a constructive trust in such land, as against 
 every one except an innocent subsequent purchaser.^ But there will 
 
 1 Scholle V. SehoUe, 101 N. Y. 167. 
 
 2 Thompson v. Wheatley, 5 Smed. & M. 499 ; 
 Fillman v. Divers, 31 Pa. St. 42; Hopkins v. 
 Duman, 42 N. H. 304; Shryock t>. Waggoner, 28 
 Pa. St. 430; Church v. Church, 25 Pa. St. 278; 
 Boone v. Chiles, 10 Pet. 177; Lyford «. Thurs- 
 ton, 16 N. H. 408; Stewarto. Chadwick, 8 Iowa, 
 463; Paul v. Fulton, 25 Mo. 156; MeVey ©.'Qual- 
 ity, 97 111. 93; Dey v. Dey, 26 N. J. Eq. 183; Pal- 
 mer V. Oakley, 2 Dougl. (Mich.) 433; Veile v. 
 Blodgett, 49 Vt. 270; Murray v. Ballou, 1 Johns, 
 Ch. 566; Phelps v. Jackson, 31 Ark. 2?2; Plant- 
 er's Bk. V. Prater, 64 Ga. 609; Dotterer v. Pike, 
 60 Ga. 29; Musham v. Musham, 87 111. 80; Swin- 
 hume V. Swinburne, 28 N. T. 568; Newton v. 
 Porter, 69 N. T. 133; Siemon V. Schurck, 29 N. T. 
 598; Russell v. Clark's Ex'rs, 7 Cranch, 69; 
 Mercjer v, Hemme, 50 Cal. 427 ; Sharpe v. Good- 
 ■win, 51 Cal. 219 ; Boyd v. Brincken, 55 Cal. 427; 
 Griffin v. Blancher, 17 Cal. 70; Winona, &c. B. 
 E. V. St. Paul, &c. E. E., 26 Minn. 179; Blandin 
 V. Silsby, (Vt. '90j 19 Atl. 639; McEachin v. 
 Stewart, 106 N. C. 336. 
 
 3 Burks V. Burks, 7Baxt. 353; Broylesji. Now- 
 lin, 59 Tenn. 191; Tilfordc. Torrey, 53 Ala. 120; 
 Plndall V. Trevor, 30 Ark. 249; Friedlander v. 
 Johnson, 2 Woods C. C. 675; McDonough v. 
 O'Neil, 113 Mass. 92; Tracy v. Kelley, 52 Ind. 
 S35; Cookson ». Richardson, 69 111. 137; Coless. 
 Allen, 64 Ala. 98 (when no trust arses) ; Dodge 
 V. Cole, 97 111. 338; Derry v. Derry, 74 Ind. 560; 
 Wells V. Eobinson, 13 Cal. 133, 140, 141 ; Lathrop 
 V. Bampton, 31 Id. 17; SchlaefiFer v. Corson, 53 
 Barb. 510; Swinburne r. Swinburne, 28 N. Y. 
 568; Hastings v. Drew, 78 N. Y. 9, 16; Bartlettu. 
 Drew, 57 Id. 687; Holden v. N. Y. & Brie Bk., 73 
 Id. 286; Newton ». Porter, 69 Id. 133, 136-140; 
 Taylor®. Mosely, 57Miss. 544; Mich.,*o. R.R. 
 
 V. Mellen, 44 Mich. 321 ; Murray v. Lylburn, 2 
 Johns. Ch. 441, 443; Boyd v. McLean, 1 /(?. 582; 
 Shaw V. Spencer, 100 Mass. 382; Shelton v. 
 Lewis, 27 Ark. 190 ; Mathews v. Hey ward, 2 S. C. 
 239; Thompson v. Perkins, 3 Mason, 232; Dun- 
 can V. Jaudon, 15 Wall. 165; Newton «. Taylor, 
 
 32 Ohio St. 399; Barretts. Bamber, 81 Pa. St. 
 247; Veile v. Blodgett, 49 Vt. 270; Hubbard *. 
 Burrell, 41 Wis. 365 (proceeds charged with a 
 trust on sale to a tona fide purchaser). 
 
 * Lakin v. Sierra Buttes Gold Mining Co., 
 25 Fed. Eep. 337; Boyce v. Stanton, 15 Lea. 346; 
 Palmetto Lumber Co. v. Eisley, 25 S. C. 309; 
 Wingerter v. Wingerter, 71 Cal. 105 ; Denning v. 
 Kane, 7 N. Y. S. 704; McElroy v. Hiner, (111. 
 '90) 24 N. E. 435; Huxley v. Eioe, 40 Mloh. 73; 
 Troll V. Carter, 15 W. Va. 567; Phelps ». Jack- 
 son, 31 Ark. 272; Hendrix v. Nunn, 46 Tex. 141; 
 Veile V. Blodgett, 49 Vt. 270; Newell v. Newell, 
 14 Kans. 202; Jenkins v. Doolittle, 69 111. 415; 
 Greenwood's Appeal, 93 Pa. St. 181 ; Barnes v. 
 Taylor, 30 N. J. Eq. 7; HoUinshead v. Simms, 
 51 Cal. 158 ; Mereier v. Hemme, 50 Id. 606 ; Dewey 
 V. Moyer, 73 N. Y. 70, 76 ; Hammond v. Pennock, 
 61 Id. 145; Fulton v. Whitney, 5 Hun, 16; Baler 
 V. Berberich, 6 Mo. App. 537; Beach v. Dyer, 93 
 111. 295; Naylor v. Winch, 1 S. & S. 555, 564; 
 Bingham v. Bingham, 1 Ves. Sen. 136; Tucker 
 V. Phipps, 3 Atk. 359, 360; Downes v. Jennings, 
 
 33 Beav. 390; Bailey v. Stiles, 1 Green Ch. 220. 
 
 6 Foote II. Colvin, 3 Johns. 316; Murdockj). 
 Hughes, 7 Smed. & M. 319; Prevost v. Gratz, 1 
 Pet. C. Ct. 364; Phillips D. Crammond, 3 Wash. 
 C. Ct. 441 ; Johnson v. Dougherty, 18 N. J. Eq. 
 406; Eobb's Appeal, 41 Pa. St. 45; Smith v. 
 Burnham, 3 Sumn. 435; Thomas v. Walker, 6 
 Humph. 93; Turners. Petlgrew, 6 Humph. 438; 
 Wallace v. Duffield, 3 Serg. & E. 521; Williams 
 
 357 
 
§ 312 
 
 EQUITY JURISPRUDENCE. 
 
 [CH. XVI. 
 
 not be any constructive trust unless it can be shown that specific pieces 
 of property had been purchased with trust funds. ^ A constructive 
 trust also arises, where one procures a devise or bequest upon the fraud- 
 ulent misrepresentation, that he will apply such testamentary provis- 
 ions to the use and benefit of another;^ or succeeds in effecting a 
 purchase of property, without the competition of one who desired to 
 make the same purchase, by fraudulently promising the latter the 
 benefit of any such purchase, if he refrains from competition.' But, 
 in all such cases of dissuasion from competition, the element of fraud, 
 and not the bare verbal promise, gives rise to the constructive trustj 
 and if there be no fraud, there will be no constructive trust.* And 
 the invalidity of the voluntary conveyance, against the creditors of the 
 grantor, may be ascribed to the application of the same principle. 
 The creditors have a constructive trust in the property of the debtor, 
 which follows the lands into the hands of the voluntary grantees.* A 
 
 V. Turner, 7 Ga. 348; Pratt v. Oliyer, 2 McLean, 
 313; 3 How. (U. S.) 333; Duncan u. Jaudon, 15 
 Wall. 16.5; Hubbard v. Burrell, 41 Wis. 365; 
 Pugh V. Pugh, 9 Ind. 138; Barker v. Barker, 14 
 Wis. 146; Barrett v. Bamber, 81 Pa. St. 247; Mc- 
 Larren v. Brewer, 51 Me. 402; Churcb v. Ster- 
 ling, 16 Conn. 388; Homer v. Homer, 107 Mass. 
 82; Jones v. Dexter, 130 Mass. 380; Sbaw v. 
 Spencer, 100 Mass. 382; Mathews v. Heyward, 2 
 S. C. 239; Watson v. Thompson, 12 E. I. 466; 
 Sohlaeffer v. Carson, 52 Barb. 510; Ferris v. Van 
 Veehten, 73 N. Y. 113; Bancroft v. Consen, 15 
 Allen, 50; Shelton v. Lewis. 27 Ark. 190; Mich., 
 Ac. E. E. V. Mellen, 44 Mich. 381; Derry v. 
 Derry, 74 Ind. 560; Eeickhoff «. Brecht, 51 
 Iowa, 633; White «. Drew, 42 Mo. 661 ; Tilford 
 V. Torrey, 53 Ala. 120 ; Coles v. Allen, 64 Ala. 98 ; 
 Moss ». Moss, 95 III. 449; Wintfleld v. Brink- 
 man, 21 Kans. 682; Eoy v. McPherson, 11 Neb. 
 197; Thomas v. Standiford, 49 Md. 181; Tracy 
 V. Kelley, 52 Ind. 535; Dodge v. Cole, 97 111. 338; 
 Settembre v. Putnam, 30 Cal. 490; Jenkins v. 
 Prink, 30 Cal. 586; Flanders d. Thompson, 3 
 Woods C. Ct. 9; Keech v. Sandford, Sel. Cas. 
 Ch. 61; 1 Bq. Ld. Cas. 48; Eiehl ». Evansville 
 Founding Ass'n, 104 Ind. 70; Paxton v. Stuart, 
 80 Va. 873; Phillips v. Overfield, 100 Mo. 466; 
 McEachin v. Stewart, 106 N . C. 336. 
 
 1 Phillips V. Overfield, 100 Mo. 466. 
 
 a Bulkley v. Wilf ord, 8 Bligh, u s.. Ill ; Ches- 
 ter V. Drwick, 23 Beav. 407; Middleton v. Mid- 
 dleton, 1 J. & W. 94, 96; Church*. Euland, 64 
 Pa. St. 432; McCormick v. Grogan, L. E. 4 H. L. 
 82, 97, per Lord Westbury (see ante, Vol. I, 
 § 431); Podmore v. Gunning, 7 Sim. 644; 5 
 Id. 485; Hoge v. Hoge, 1 Watte, 163, 213; Dowd 
 V. Tucker, 41 Conn. 197; Williams v. Vreeland, 
 29 N. J. Eq. 417. 
 
 8 Combs V. Little, 3 Green Ch. 310 ; Marlatt v. 
 Warwick, 18 N. J. Eq. 108; 19 Id. 439; Merritt v. 
 Brown, 21 Id. 401, 404; Martin v. Martin, 16 B. 
 Mon. 8; Arnold v. Cord, 16 Ind. 177; Laings. 
 McKee, 13 Mich. 124; Nelson v. Worrall, 20 
 
 358 
 
 Iowa, 469; Coyle v. Davis, 20 Wis. 564; Hidden 
 V. Jordan, 21 Cal. 98, 99, 102; Sandfoss v. Jones, 
 35 Id. 481, 489; Coyote, <feo. Co. v. Euble, a 
 Oreg. 284; Troll o. Carter, 15 W. Va. 567; 
 Schmidt v. Gatewood, 8 Eich. Eq. 168; Green v. 
 Ball, 4 Bush, 686; Moore v. Tlsdale, 5 B. Mon. 
 352; Eose v. Bates, 13 Mo. 30; Wolford v. Her- 
 rington, 86 Pa. St. 39; 1 Bq. Lead. Cas. 350, 364 
 (4th Am. ed.); Hunt v. Eoberts, 40 Me. 187; 
 Hodges V. Howard, 6 E. I. 149 ; Eraser v. Child^ 
 4 B. D. Smith, 153; Hoge v. Hoge, 1 Watts, 163^ 
 214; Cousins v. Wall, 3 Jones Eq. 43; Cameron 
 V. Ward, 8 Ga. 245; Jones «. McDongal, 32 Miss. 
 179; Eyan v. Dox, 34 N. Y. 307; and Wheeler v. 
 Eeynolds, 66 Id. 227; see, also, Dodd v. Wake-^ 
 man, 26 N. J. Bq. 484; Walker v. Hill's Ex'rs, 
 22 Id. 519; Merritt v. Brown, 21 Id. 401, 404; 
 Farnham v. Clements, 51 Me. 426; McCuiloch v. 
 Cowher, 5 Watts & S. 487, 430; Kislerii. Kisler, 
 2 Watts, 323. 
 
 * Pattison v. Horn, 1 Grant's Cas. (Pa.) 301 ; 
 Hogg V. Wilkins, 1 Id. 67; Barnet v. Dougherty^ 
 38 Pa. St. 371; Campbell v. Campbell, 2 Jones 
 Eq. 364; Chambliss v. Smith, 30 Ala. 366; Whit- 
 ing V. Gould, 2 Wis. 552; 1 Bq. Lead. Cas. 355, 
 364 (4th Am. ed.); Leman v. Whitley, 4 Euss. 
 423; Levy «. Brush, 45 N. Y. 589; Wheeleru. 
 Eeynolds, 66 Id. 227; Payne v. Patterson, 77 Pa. 
 St. 134; Bennett v. Dollar Sav. Bk., 87 Id. 382; 
 Hon V. Hon, 70 Ind. 135; Gibson v. Decius, 82 
 III. 304; Farnham v Clements, 51 Me. 426. 
 
 ' Hills V. Elliot, 12 Miss. 31; Partridge v. Mes- 
 ser, 14 Gray, 180; Case v. Gerrish, 15 Pick. 49; 
 BlisSD. Matteson, 45N. Y.28; Dewey ». Moyer,. 
 78 N. Y. 70; Mannt). Darlington, 15 Pa. St. 310; 
 Hasten v. Castner, 31 N. J. Eq. 697; Kahn v. 
 Gumbert, 19 Ind. 430; Jones ». Eeeder, 22 Ind. 
 Ill; Brackett v. Waite, 4 Vt. 389; Salmon j;. 
 Bennett, 1 Conn. 525; Clarku. Douglass, 62 Pa. 
 St. 408; Gridley ». Watson, 53 HI. 186; Cram- 
 baugh V. Kugler, 3 Ohio St. 544; PiUey v. Eeg- 
 ister, 4 Minn. 391; Fellows v. Smith, 40 Mich. 
 689; Cowen ti. Alsop, 51 Miss. 158; Crawford ». 
 
CH. XVI. j 
 
 MODERN TRUSTS. 
 
 § 312 
 
 constructive trust will also arise in favor of a principal, where an agent 
 buys property and takes a deed in his own name, when he had been 
 instructed to buy the property for his principal.^ So, also, is there a 
 constructive trust in favor of the wife, where a husband conveys an 
 estate to a third person, with an oral agreement that the grantee is to 
 convey the same to the wife.^ And it may be stated generally, that 
 whenever one, in a fiduciary relation with another, and in violation of 
 his duties to such beneficiary, acquires property or profit which ought 
 to have gone to such beneficiary, the property or profit so acquired is 
 
 charged with a constructive trust.' 
 
 Klrksey, 55 Ala. 282; Churoli v. Chapin, 35 Vt. 
 223; Freeman v. Burnham, 36 Conn. 469; Pome- 
 loy V. Bailey, 43 N. H. 118j Ellinger v. Growl, 
 17 Md. 361 ; Stewart v. Rogers, 25 Iowa, 395. 
 
 1 Rose V. Hayden, 35Kans. 106; Eeese v. Wal- 
 lace, 113 111. 589; Stewart ti. Duffy, 116 111. 47; 
 Storm Lake Bank v. Mo. Val. Ins. Co., 66 
 Iowa, 617; Hodge v. Twitchell, 33 Minn. 389; 
 McLemore v. Carter, (Miss. '90) 7 So. 357; but 
 Bee contra^ Baker v. Springfield & W. E.R. Co., 
 86 Mo. 75. 
 
 2 Fischbeck v. Gross, 112 ni. 208; Hall v. Linn, 
 8 Col. 264. 
 
 3 Baker v. Whiting, 3 Sumn. 475, 495; Kelley 
 V. Greenleaf, 3Story, 93, 101; HusonB. Wallace, 
 1 Rich. Eq. 1, 2, 3, 7; Lacy «. Hale, 37 Pa. St. 
 360; Barrett 1!. Bamber, 81 Id. 247; Winkfield 
 V. Brlnkman, 21 Kans. 682; Jones v. Dexter, 130 
 Mass. 380; Laffan v. Naglee, 9 Cal. 662; Gower 
 V. Andrew, 8 Pac. L. J. 617 ; Gibbes v. Jenkins, 
 3Sand. Ch. 130; Dickinson «. Codwlse, 1 Id. 
 214,226; Dougherty ». Van Nostrand, 1 Hoff. 
 Ch. 68, 70; Bennett v. Van Syckle, 4 Duer, 162; 
 Dunlop V. Richards, 2 E. D. Smith, 181 ; Strutt- 
 ers V. Pearce, 51 N. T. 357; Leach v. Leach, 18 
 Pick. 68, 75; Burden v. Barkus, 3 Giff. 412; 4 
 
 De G. F. & J. 42; Holridge v. Gillespie, 2 
 Johns. Ch. 30; Van Home v. Fonda, 5 Id. 388, 
 407; Davoue v. Fanning, 2 Id. 852, 258; Phyfe 
 V. Warden, 5 Paige, 268; Armour i;. Alexander, 
 10 Id. 571; Wood v. Perry, 1 Barb. 114, 134; 
 Webster «. King, 33 Cal. 348; Scott ». Umbar- 
 ger. 41 Id. 410; Guerreros. Ballerino, 48 Id. 118j 
 Tracy v. Colby, 55 Id. 67; Tracys. Craig, Id. 91; 
 DavisD. Rock Creek, ifcc. Co. , Id. 359; Cookson 
 V Richardson, 69 III. 137;Reickhoff». Brecht, 
 61 Iowa, 633; Treadwell v. McKeon, 7 Baxt. 
 201; Newton v. Taylor, 32 Ohio St. 399; Barrett 
 V. Bamber, 81 Pa. St. 247; Jones i). Dexter, 130 
 Mass. 380; Rea». Copelin, 47 Mo. 76; Whitwell 
 V. Warner, 20 Vt. 435; Giddings v. Eastman, 5 
 Paige, 561; Brown v. Lynch, lid. 147; Blau- 
 relt V. Ackerman, 20 N. J. Eq. 141; Grumley 
 V. Webb, 44 Mo . 444 ; Swinburne v . Swinburne , 
 28 N.Y. 568; Bennett v. Austin, 81 Id. 308; Hast- 
 ings V. Drew, 76 Id. 9; Holden ». N. Y. & Erie 
 Bk., 72 Id. 286; Smith v. Frost, 70 Id. 65; Hub- 
 bell «. Medbury, 53 Id. 98; Gardner V. Ogden, 
 22 Id. 327; Manning v. Hayden, 5 Sawy. 360; 
 Broyles ». Nowlin, 59 Tenn. 191; Pindall V. 
 Trevor, 30 Ark. 249. 
 
 359 
 
CHAPTER XVII. 
 
 POWERS, DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Section 
 How trusts are affected by want of a 
 
 trustee . . 313 
 
 Hefusal of trustees to serve . . .314 
 Rights and powers of surviving trustees 315 
 
 Eemoval of trustees 316 
 
 Duties and liabilities of trustees in gen- 
 eral 
 
 Trustees must conform to the directions 
 of the trust ....... 
 
 Trustees must use due care and dili- 
 gence 
 
 Duty of trustees as to investments . 
 
 317 
 
 318 
 
 Section 
 
 Good faith in dealing with trust property 321 
 
 Trustee cannot delegate his authority , 322 
 
 Trustee's duty to account .... 323 
 
 Duty to surrender trust property . . 324 
 Bight to compensation and allowance for 
 
 expenses 325 
 
 Breach of trust and liability therefor . 326 
 Bight of contribution among co-trustees 327 
 Liability of third persons for perform- 
 ance of the trust 328 
 
 Liability of guaei trustees or other fidu- 
 ciary persons 329 
 
 § 313. How trusts are affected by want of a trustee. — The trust 
 is never allowed to fail, because there is no trustee to hold the legal 
 estate. And it matters not from what cause the failure of the trustee 
 may arise, equity f oUows the property into whosoever hands it may fall, 
 and compels them to hold the legal estate subject to the trust. The 
 court will either compel the owner of the legal estate to perform the 
 trust; or it will appoint another to act as trustee, and direct a con- 
 veyance to him. ' 
 
 § 314. Refusal of trustee to serve. — ^No one, by the unauthorized 
 appointment of another, can be compelled to act as trustee. To make 
 the performance of the trust obligatory, he must accept the trust 
 expressly, ar so interfere with the trust property as to raise the pre- 
 sumption that he has accepted.* But when he has accepted it, 
 expressly or impliedly, he cannot of bis own motion abandon it, or 
 refuse to perform the duties. The court may, in the exercise of its 
 discretion, relieve him from his obligation or compel him to serve, 
 whichever course best subserves the interests of the cestui que trust. ^ 
 
 1 Co. Lit. 290 b, note 249, §4; 1 Cruise Dig. 
 403, 460; Wilson v. Towle, 36 N. H. 129; Tainter 
 V. Clark, 6 Allen, 66 ; King v . Donnelly, 6 Paige, 
 46j Shepherd v. McEvars, 4 Johns. Ch. 136; 
 Stone V. Griffin, 3 Vt. 400; McGirr v. Aaron, 1 
 Fenn. 49; Gibbs v. Harsh, 2 Mete, 243; Adams 
 V. Adams, 21 Wall. 185; Peter v. Beverly, 10 
 Pet. 532; BurrlU v. Shield, 2 fiarb. 457; Crooh- 
 eron i>. Jaques, 3 Edw. Ch. 207; Druid Park, 
 &c. Co. V. Dettinger, 53 Md. 46; Cloud v. Cal- 
 houn, 10 Rich. Eq. 358; M;lls V. Haines, 3 Head, 
 335; Furman v. Fisher, 4 Caldw. 626; Miller v. 
 Chittenden, 2 Iowa, 315; White v. Hampton, 10 
 Iowa, 844; s. c, 13 Iowa, 261; Griffith's Adm'r 
 V. Griffith, 5 B. Mon 113; Harris v. Rucker, 13 
 B. Mor. 584; Sohlessinger v. Mallard, 70 Cal. 
 
 ?60 
 
 326; Kenadayv. Edwards, 13411. S. 117; Chest- 
 nutt V. Gann, 76 Tex. 150. 
 
 'i Baldwin v. Porter, 12 Conn. 473; Scull r. 
 Beeves, 2 Green Ch. 4; Shepherd v. McEvers, 4 
 Johns. Ch. 136; Lewis v. Baird, 3 McLean, 58; 
 Eyrick v. Hetrick, 13 Pa. St. 488; Cloud v. Cal- 
 houn, 10 Rich. Bq. 358; Flint t>. Clinton Co., 12 
 N. H. 430; Goss v. Singleton, 2 Head, 67; Lyle 
 V. Burke, 40 Mich. 499; White v. Hampton, 13 
 Iowa, 259; Hearst v. Pojol, 44 Cal. 230; Mont- 
 ford V. Cadogan, 17 Ves. 485; Urch v. Walker, 3 
 My. & Cr. 702; Barclay v. Goodloe's Ex'rs, 83 
 Ky. 493. 
 
 'Shepherd -o. McEvers, 4 Johns. Ch. 136; 
 Tainter ». Clark, 5 Allen, 66; Cruger ti. Halli- 
 day, ll Paige, 319; Bowditch v. Banuelos, 1 
 
CH. XVII.] POWKKS, DUTIES AND LIABILITIES OF TRUSTEES. § 315 
 
 If the trustee named refuses to act, it would have no greater effect 
 upon the validity of the , trust than would his death, or a failure to 
 name a trustee in the deed creating the trust. Another trustee would 
 be appointed to take his place. But the refusal must be a positive 
 disclaimer of the trust; for otherwise the law will presume that the 
 trust is beneficial to the trustee, as well as to the cestid que trust, and 
 that they both have accepted it. A mere oral declaration will not 
 prevent the declining trustee from subsequently entering upon the 
 performance of the trust, if his place has not actually been filled by 
 the appointment of another; and, as a general rule, the court will not 
 make such an appointment until the trustee has made a more formal 
 disclaimer.^ 
 
 § 315. Bights and pewers of snrviTing tmstees. — If there are 
 more than one trustee, they take and hold the legal estate in joint- 
 tenancy. If, therefore, one of them dies, the estate vests in the sur- 
 vivors to the exclusion of the heirs of the deceased trustee, and they 
 are generally competent to administer the trust. This rule is without 
 limitation when applied to executed trusts; but whether an executory 
 trust survives, depends upon the amount of personal confidence 
 reposed in them all as one body.^ If the special powers in an exec- 
 utory trust are granted to the trustees ratione officii, i. e. , given in 
 general terms to "my trustees," the ordinary construction is that such 
 trust powers survive.' But if they are granted to them nominatim, 
 indicating a personal confidence in the discretion of each, there will be 
 no survivorship.* The same rule governs the right to exercise trust 
 powers of the new ti'ustee appointed by the court. Ordinary trust 
 powers may be exercised by him; but those involving a personal con- 
 fidence die with the removal of the trustee in whom the confidence was 
 reposed.* 
 
 Gray, 220; Gilchrist v. Steyenson, 9 Barb. 9; rill a. Shields, 2 Barb. 457; Saunders v. 
 
 People ». Norton. 9 N. Y. 176 ; Drane v. Gunter, Schmaelzle, 49 Gal. 59. In New York, If one of 
 
 19 Ala. 731; Diefendorfti. Speaker, 16 N.Y. 246; two or more trustees resign, the others have 
 
 In re Bernstein, 3 Eedf. 20; Wilkinson v. not the power to execute the trust, in the same 
 
 Parry, 4 Euss. 272; Greenwood o. Wakeford, 1 manner as if he were dead. Another trustee 
 
 Beav. 576; Forshaw v. Higpinson, 20 Beav. 485; must be appointed in his place. Van Wick's 
 
 Tilden v. Fiske, 4 Dem. 356; Barclay v. Good- Petition, 1 Barb. Ch. 570. 
 
 loe's Bx'r, 83 Ky. 493. spetert). Beverly, 10 Pet. 564; Jackson v. 
 
 'Talnter v. Clarke, 13 Mete. 220; Judson v. Given, 16 Johns. 167; Tainteru. Clarke, 13 Mete. 
 
 Gibbons, 5 Wend. 824; Goss v. Singleton, 2 230; Zebaoh u. Smith, 3 Binn. 69; Gray v. 
 
 Head, 77; McCosker v. Brady, 1 Barb. Ch. 329; Lynch, 8 Gill, 403; Bloomer v. Waldin, 3 Hill, 
 
 White V. Hampton, 13 Iowa, 259; Cloud v. Cal- 365; Dergen v. Duff, 4 Johns. Oh. 308; Franklin 
 
 honn, 10 Eich. Eq. a58; Adams V. Adams, 31 v. Osgood, 14 Johns. 553; Co. Lit. 113 a, note 
 
 Wall. 185; Flint v. Clinton Co., 12 N. H. 430; 146; Story's Eq. Jur., § 1062; Cole v. Wade, 16 
 
 Eyrick v. Hetrick, 13 Pa. St. 488; Lyie v. Ves. 28; Wells v. Lewis, 4 Mete. (Ky.) 271: 
 
 Burke, 40 Mich. 499; King o. Donnelly, 5 Paige, Lewin on Tr. 239. 
 
 -46; Putnam's Free School u. Fisher, 30 Me. <See preceding note, and Tiedeman Eeal 
 
 .526; Jones v. Moflfett, 5 Serg. & R. 523. Prop., § 566. 
 
 SLane v. Debenham, 11 Hare, 188; Cole v. 'Coleji. Wade, 16 Ves. 44; Hibbards. Lamb, 
 
 Wade, 16 Ves. 28; Warburtonti. Sands, 14 Sim. Ambl. 309; Doyley ». Atty..Gen.,2 Eq. Cas. 
 
 622; Franklin v. Osgood, 14 Johns. 553; Peter Abr. 195; Burrlll v. Shield, 2 Barb. 457; Lewin 
 
 V. Beverly, 10 Pet. 584; Jackson v. Schauber, 7 on Tr. 839. 
 Cow. 194; Stewart ». Pettus, 10 Mo. 755; Bur- 
 
 361 
 
§ 317 EQUITY JUKISPKUDENCE. [CH. XVII. 
 
 § 316. Bemoral of trustees. — The court of equity has the general 
 power to appoint new trustees, whenever the interests of the cestm 
 que trust demand such appointment. If the trustee leaves the state, 
 loses his mind, becomes insolvent, or does anything else which makes 
 it prejudicial to the cestui que trust for him to remain in charge of the 
 trust, the court may remove him and appoint another in his stead. ^ 
 And although at common law the legal estate in trust, upon the death 
 of the trustee, descends to his heirs to be administered by them, and 
 this is stiU the rule in the absence of the statute, yet, if it would be 
 beneficial to the estate that the new trustee be appointed, the court 
 may do so.^ If the trustee devises his trust estate, as he may do if 
 not prohibited by statute, his devisee takes the place of his heir, and 
 may perform the trust.* By recent statutes in England, and in some 
 of the United States, the appointment of a new trustee is made to 
 operate upon the legal title, and pass it to him from the former 
 trustee.* But where there is no statute of any kind, the appointment 
 does not effect the transfer of the legal estate. A court of equity, in 
 making the appointment, at the same time decrees a conveyance to the 
 new trustee, and will punish for contempt of court, if the holder of 
 the legal title refuses.* 
 
 § 317. Duties and liabilities of trustees in general. — Their rights 
 and powers must necessarily vary materially with the character and 
 terms of the trust. So, also, do the rights and powers of the cestui 
 que trust. The authority of the former is greatest and the powers of 
 the latter are least in the case of executory trusts, while the converse 
 is true of passive trusts. The powers, which either may have in active 
 trusts, and which are peculiar to such trusts, are wholly dependent 
 upon the particular provisions of each trust, and no general rules can 
 be laid down in explanation of them." It may be said of every species 
 
 1 2 Washb. on Real Prop. 475j Suarez ». Pum- Richards, 11 Gray, 277; Evans ». Chew, 71 Pa. 
 
 pelly,2Sandf. Ch.337;Peoplei;.Norton,9N.Y. St. 47; Gray v. Henderson, 71 Pa. St. 368j 
 
 176; Bowditohj). Banuelos,! Gray, 220; Farm- Dunning o. Ocean Nat. Bank, 6 Lans. 396; 
 
 era' Loan, &c. Co. v. Hughes, 18 N. Y. 130; Russell v. Peyton, 4 111. App. 473. In New 
 
 Sparhawl^ v. Sparhawk, 114 Mass. 356; Scott v. York, by statute the trust is made to vest in 
 
 Rand, 118 Mass. 215; Shepherd v. McEvers, 4 the supreme court, instead of descending to 
 
 Johns. Ch. 136; Bloomer's Appeal, 83 Pa. St. 45; the heirs of the deceased trustee. 1 R. S. N. 
 
 McPhersonj). Cox,96U. S.404; Ketehumi). Mo- Y. 730, § 68. See Boss v. Roberts, 2 Hun, 
 
 bile,&c. R. R., 2 Woods,538; Bailey v. Bailey, 90; Clark v, Crego, 51 N. Y. 647. Such seems 
 
 2 Del. Ch. 95; Satterfleld u. John, 53 Ala. 121; also to be the statutory rule in Michigan and 
 
 No. Ca. R. R. V. Wilson, 81 N. C. 823; Preston Wisconsin. 2 Washb. on Real Prop. 476. 
 
 t). Wilcox, 38 Mich. 578; Green d. Blackwell, sMarlowi). Smith, 2 P. Wms. 198; Tltleyv. 
 
 31 N. J. Kq. 37; Collier r. Blake, 14 Kans. 250; Wolstenholme, 7 Beav. 425. 
 
 Lanei). Lewis, I Dem. 468; Be Mayfleld, 17 Mo. i Parker ». Converse, 5 Gray, 336; McNish v. 
 
 App. 684; City Council v. Walton, 77 Ga. 517 Guerrard,4Strobh. Bq. 66; Taylor v. Boyd, 3 
 
 Lovemanu. Taylor, 85Tenn.l; Morgan's Es- Ohio, 337; Bennett -u. Williams, 5 Ohio, 461; 
 
 tate, 8 Pa. Co. Ct. 260. Insolvency does not, King!). Bell, 28 Conn. 598. 
 
 however, incapacitate the trustee to act, as ^CKeefe v. Calthorpe, 1 Atk. 17; Hx parte 
 
 long as the court does not remove him. Greenhouse, 1 Madd. 109; Berrien ». McLane, 
 
 Rankin ». Bancroft, 114111. 441. Hoffm. Ch. 420; Webster u. Vandeventer, 6 
 
 22 Washb. on Real Prop. 476, 477; 5 Kent's Gray, 428; Wallace v. Wilson, 34 Miss. 357; 
 
 Com, 311; Lewin on Tr. 303; Boon v Childe, Shepherd v. Ross Co., 7 Oloio, 271; Young v. 
 
 10 Pet. 213; Berrien v. lIcLaue, Hoffm. Ch. Young, 4 Cranch, 499. 
 
 420, Clark v. Taintor, 7 Cush. 567; Warden v. o See Morse i>. Morrell, 82 Me. 80; In re RoOi 
 
 362 
 
CH. XVII.] POWERS, DUTIES AND LIABILITIES OF TRUSTEES. § 318 
 
 of trusts, that possessory actions and actions for the protection of the 
 legal estate, must be brought by the trustee. The cestui que trust 
 cannot maintain them. In a court of law, the trustee is deemed to be 
 entitled to the possession of the land, and may even oust the cestuv 
 que trust from possession. The latter, if in possession, holds it merely 
 as a tenant at sufferance, or at will.' Whenever the trustees violate 
 the right of the cestui que trust, or fail or refuse to perform their 
 duties, courts of equity are the proper courts to apply to for relief. 
 And the decrees of those courts are paramount in all questions relat- 
 ing to the powers and duties of the parties to a trust. ^ If the duties of 
 the trustees be purely discretionary, the court will not compel an exe- 
 cution.'' Nor will the court attempt to control the discretion of a 
 trustee in any manner, except to prevent an unreasonable exercise of 
 it, which, on account of the injury to the beneficiaries, could not have 
 been intended by the donor.* An injunction will lie against a trustee 
 for committing waste. ^ But third parties cannot avoid their contracts 
 with trustees on account of the want of power of the trustees, if they 
 have been ratified by the cestui que trusts 
 
 § 318. Trustees most conform to the directions of the trust. — 
 One of the first obligations of a trustee, in the performance of his 
 duties as such, is to conform strictly to all of the directions contained 
 in the trust deed or settlement for the administration of the trust. 
 It is impossible for a trustee to violate the provisions or directions of 
 a trust, and claim justification therefor, on the ground that his course 
 appeared at the time to be the better course. His duty is plain, viz. : 
 to conform to these directions; and if he does so in a careful and skill- 
 ful manner, he is not responsible if injurious consequences follow. 
 
 119N. Y. 509; Kenaday ». Edwards, 134 U. S. 117; ». Nelson, 1 Jones L.396; Eobinson v. Mauldln, 
 
 Harris «. Petty, 66 Tex. 514; Kintneri;. Jones, 11 Ala. 997; Ilesu. Martin, 69 Ind. 114; Pressly 
 
 122 Ind. 148. V. Stribling, 24 Miss. 527; James v. Cowing, 82 
 
 1 1 Cruise Dig. 414; 2 Pom. Eq. Jur., §991; 2 N. Y. 449; Williams*. Dwinelle, 51 Cal. 442. 
 Waslib. on Real Prop. 483; Russell v. Lewis, 2 3 Stanley v. Colt, 5 Wall. 168. 
 
 Pick. 508; Woodman v. Good, 6 Watts & S. 169; * Arnold v. Gilbert, 3 Sandf. Ch. 531 ; Morton 
 
 Newton v. McLean, 41 Barb. 289; Trustees, &c. v. Southgate, 28 Me. 41; Zabriskie's Ex'rs v. 
 
 V. Stewart, 27 Barb. 553; Jackson v. Van Slick, Wetmore, 26 N. J. Eq. 18; Littlefleld v. Cole, 33 
 
 8 Johns. 487; Beach v. Beach, 14 Vt. 28; Mor- Me. 552; Leayitti). Beirne, 21 Conn. 1 ; Goddard 
 
 decai v. Parker, 3 Dev. 425; Hepbume v. Hep- v. Brown, 12 E. I, 31 ; Pulpress v. African Ch., 
 
 burne, 2 Bradf. 74; William's Appeal, 83 Pa. St. 48 Pa. St. 204; Haydell j). Hurck, 5Mo. App. 267; 
 
 377; Freeman ■». Cooke, 6 Ired. Eq. 373; Allen ». Starr t;. Moul ton, 97 III. 525; Vallette v. Ben- 
 
 Imlet, 1 Holt, 641; May v. Taylor, 6 Man. & Gr. nett, 69 III. 632; Phelps v. Harris, 51 Miss. 789; 
 
 261 ; White v. Albertson, 3 Dey. 241 ; Aiken v. Luige v. Luchesi, 12 Ney. 306 ; Eammelsberg v. 
 
 Smith, 1 Sneed, 304; Stone v. Bishop, 4 Cliflf. Mitchell, 29 Ohio St. 22; Brophy v. Bellamy, L. 
 
 593; Kennedy v. Fury, 1 Dall. 72; Brown v. E.8 Ch. 798; Bankes v. Le Despencer, 11 Sim. 
 
 Combs, 5 Dutch. 36; Gunn v. Barrow, 17 Ala. 508; Costabadie v. Costabadie, 6 Hare, 410; 
 
 743; Fitzpatrick u. Fitzgerald, 13 Gray, 400. Mauser©. Dix, 8 De G. M. & G. 371; Prender- 
 
 And as the legal ownerof the land, he is bound east v. Prendergast, 3 H. L. Cas. 195; In, re 
 
 to use all proper diligence in collecting rents Shaw's Trusts, L. R. 12 Eq. 124; In re Strutt's 
 
 and profits, and paying off all taxes and other Trusts, L. E. 16 Eq. 629; Evans v. Bear. L. E. 
 
 Charges against the estate. Mansfield v. Al- 10 Ch. 76; lies v. Martin, 69 Ind. il4; James i;. 
 
 wood, 84 111. 497, Hepbume „. Hepbume, 2 Cowing, 82 N. T. 449 ; Williams «. Dwinelle, 51 
 
 Bradf. 74. Cal. 442, 446. 
 
 2 Jones V. Dougherty, 10 Ga. 373; Tucker v. * Moses v.. Johnson, 88 Ala. 517. 
 
 Palmer, 3 Brev. 47; Bush v. Bush, 1 Stiobh. « Matheney v. Sandford, 26 W, Vb.386. 
 
 Ea 377; Den v. Troutman, 7 Ired. 155; McLean 
 
 363 
 
§ 319 EQUITY JURISPRUDENCE. [CH. XVII. 
 
 On the other hand, if he violates or disobeys these directions, he is 
 liable for such deviation from these directions to the beneficiaries, 
 whose rights have been injuriously affected.' But in following the 
 directions of the trust, intelligence must be exercised; and the trustees 
 are not confined to the very letter of the instructions. They are per- 
 mitted, in the exercise of a wise discretion, to vary the exact form of 
 the measures they adopt, as long as the general directions of the 
 instrument creating the trust are complied with, and they fall within 
 the spirit of such instructions.^ There is very often in the trust an 
 express permission to the trustee, to exercise a wise discretion, in 
 carrying out or departing from the instrument; and where that is the 
 case, the trustees are vested with full power to determine when, and 
 under what circumstances, the express directions of the instrument 
 must be conformed to. And as long as they practice good faith and 
 reasonable prudence in the exercise of this discretion, a court of 
 equity would not interfere; it would only interfere in the extreme case 
 of an unreasonable use of such discretion, to the almost certain detri- 
 ment of the beneficiaries.' 
 
 § 319. Trustees mnst use due care and diligence. — Jhe next 
 reqiiirement of a trustee is the exercise of due care and diligence in the 
 administration of his trust. It has been a question of considerable 
 doubt and dispute, what degree of care is required of trustees in the 
 administration of the trust estate; and this difficulty is created by the 
 fact that, for a long time in this country as well as in England- — and 
 even now it is still the case in England — a trustee was a voluntary 
 bailee without compensation; and the old distinction between the 
 various classes of bailments — in respect to the kind of care, which 
 could be required of them in the performance of their duties, *'. e., 
 between slight, .ordinary and extraordinary care — was held by the 
 earlier authorities to determine, that the trustee is only requii'ed to 
 exercise slight care in the performance of his trust and is only liable 
 to the beneficiary for gross negligence. But this distinction, as to the 
 Mnd and degree of negligence, is not now generally applied. In 
 every case of liability for negligence, reasonable care is required, viz. : 
 
 iVysei). Foster,L. H. SCh. 309; O'Hallorano. 1.31; Aldricli «. Aldrioh, 12 /(f. 141; Luige v. 
 
 Fitzgerald, 71 111. 53; Roberts v. Moseley, 64 Luchesi, IgNev. 306; Phelps d. Harris, 61 Miss. 
 
 Mo. 50?; Vose v. Trustees, &.C., 2 Woods, 647; 789. 
 
 Adair v. Brimmer, 74 N. Y. 539; Penny v. Cook, s Littlefield v. Cole, 33 Me. 558; Hawes Place 
 
 19Iowa,538; Hill ». Den, 54 Oal. 6; lies «. Mar- Cong. Soc. «. Trustees, &c., 5 Gush. 454; Leavltt 
 
 tin, 69 Ind. 114; Bowman «. Pinkham, 71 Me. v. Beirne, 21 Conn. 1; Arnold v. Gilbert, 3 
 
 295; /n r« Lewis, 81 N. Y. 421 ; James ». Cowing, Sandf. Ch. 531; Mason r. Mason's Ex'rs, 4 I(f. 
 
 «2 Iff. 449; Sharp ». Goodwin, 51 Cal. 219. 623; Pulpress v. African Ch., 48 Pa. St. 204; 
 
 SEammelsberg v. Mitchell, 29 Ohio St. 22; Cochran v. Paris, 11 Gratt. 348, 356; In re 
 
 Vallette v. Bennett, 69 111. 632; Zabrlskie's Beloved Wilkes' Charity, 3 Macn. & G. 440; 
 
 Ex'rs V. Wetmore,26 N. J. Eq. 18; Macon, &o. Brophyj;. Bellamy, L.E.SCh. 798; Jrar« Hodges, 
 
 E. E. V. Georgia, &c. E. E., 63 Ga. 103; Starr v. L. E. 7 Ch. D. 754; Prendergast v. Prendergast, 
 
 Moulton, 97 111. 525; Kekewich i;. Marker, 3 3 H. L. Gas. 195; Goddardu. Brown, 12 E. I. 31; 
 
 Macn. & G. 310; Barnett v. Sheffield, 1 De G. M. Aldrich v. Aldrich, 12 Id. 141; Haydel v. Hurck, 
 
 & G. 371 ; Manser v. Dix, 8 Id. 703; Leeming v. 5 Mo. App. 867; Starr v. Moulton, 97 111. 5S5; 
 
 Lady Murray, L. E. 13 Ch. D. 123; Hayes v. Morton ii. Southgate, 28 Ma. 41. 
 Oatley, L. E. 14 Eq. 1 ; Goddard v. Brown, 12 R. 
 
 364 
 
CH. XVII. J POWERS, DUTIES AND LIABILITIES OF TRUSTEES. 
 
 § 319 
 
 that care which is reasonable to require of any party under a similar 
 obligation and under similar circumstances.^ Not only on this 
 account, but likewise because trustees receive compensation, the rule 
 is now very generally recognized, that trustees are required to exer- 
 cise that amount of care in the administration of the trust, which a 
 reasonably prudent man would exercise in the care of his own prop- 
 erty.^ In fact, in one particular, viz. : in respect to investments, the 
 law is more exacting than what would be reasonably expected of a 
 prudent man in the care of his own property, as will be explained in 
 a subsequent paragraph. But where the trustee exercises all the care 
 that can be reasonably expected of him, and yet, notwithstanding such 
 care, incurs losses to the estate, the trustee is not liable, as long as 
 such losses are the result of unavoidable casualties.^ A trustee is 
 bound to protect the trust property in every waj'^, and by the exercise 
 of reasonable care, at all times during the continuance of the trust.* 
 He is not only required to take due care of the trust property, after 
 it has come into his possession, but it is his duty, immediately upon 
 his acceptance of the trust, or as soon thereafter as it is possible, to 
 obtain possession of the trust property. Any delay of an unreason- 
 able nature, in procuring the possession of the property, will be a 
 dereliction of duty on his part, for which he would be responsible.^ 
 Thus, for example, where, upon the assumption of the trust, there are 
 debts outstanding due to the estate, the trustee must with reasonable 
 
 J Mariner v. Smith, 5 Heisk. (Tenn.) 208j 
 McPheeters v. Hannibal, &c. E. Co., 45 Mo. 22j 
 compare Muellerc. Putnam Ins. Co., 45 Mo. 84j 
 Wilson V. Brett, 11 M. & W. (Eng.) 113; Wyld». 
 Pickford, 8 M. & W. (Eng.) 443; Storer v. 
 Gowen, 18 Me. 177; Story on Ballmen.s, § 11; 
 Smith V. New York Cent. R. Co., 24 N. T. 222; 
 Perkins v. New York Cent. E. Co., 84 N. Y. 196; 
 Hinton v. Dibbin, 2 Q. B. 661 ; McAdoo v. Rich- 
 mond, Ac. R. Co., 105 N. Car. 140; Steamboat 
 New World j;. King, 16 How. (U. S.) 469; Per- 
 kins V. New York Cent. E. Co., 24 N. Y. 196; 
 Deering onNeg., § 11, and cases cited; States. 
 Boston, &c. E. Co., 58N. H. 410; Milwaukee, &o. 
 E. Co. V. Arms, 91 U. S. 494; New York Cent. E. 
 Co. V. Lockwood, 17 Wall. (U. S.) 357. 
 
 2 Hun V. Cary, 82 N. Y. 65 ; Cartwright v. Cart 
 Wright, 4 Hayw. 134; Strong u.Wilkson, 14 Mo. 
 116; Pitts ». Singleton, 44 Ala. 363; see Ormis- 
 ton V. Olcott, 84 N. Y. 339; Gety's Estate, 12 
 Phila. (Pa.) 143; Lyell v. Hammond, 2 Lea. 
 (Tenn.) 378; Wayland y. Wayland, 79 Va. 602; 
 Klien v. French, 57 Miss. 662; Cooper®. Cooper, 
 77 Va. 198; Voorhee8t>..Stoothoff, UN. J. L. 145; 
 Dowd V. Sanders, 1 Harp. Ch. (S! C.) 277; Perry 
 V. Maxwell, 8 Dev. Ch. 488; Whitter v. Webb, 8 
 Dev. & Bat. Ch. (N. C.) 442; Webb v. Bellinger, 
 2Desau. (S. C.) 482; Huson v. Wallace, 1 Eich. 
 Ch. (S. C.) 1; Nyce's Estate, 5 Watts & S. (Pa.) 
 254; Noble v. Jonas, 35 Tex. 692; Williams v. 
 Maitland, 1 Ired. Bq. (N. C.) 92; Deas v. Spann, 
 1 Harp. Ch. (S. C.) 176; Calhoun's Estate, 6 
 
 Watts, (Pa.) 185; Whitney v. Peddlard, 63111. 
 249; Stevens v. Gage, 55 N. H. 175; TJpson v. 
 Badeau, 3 Bradf. Surr. (N. Y.) 13; Eaves v. 
 Hiokson, 30 Beav. (Eng.) 136; Hopgood »: 
 Packln, Q. E. 11 Eq. (Eng.) 74; Tedds v. Carpen- 
 ter, 1 Madd. (Eng.) 298; Dean v. Eathbone, 15 
 Ala. 328; Harris v. Parker, 41 Ala. 604; Mikell v. 
 Mikell, 5 Eich. Eq. (S. C.) 220 ; Twitty v. Houser, 
 7 S. C. 153; Estate of Bosie, 2 Ashm. (Pa.) 437$ 
 Eubottom V. Morrow, 24 Ind. 202. 
 
 3 Eubottom V. Morrow, 24 Ind. 202; Estate of 
 Secondo Bossio, 2 Ashm. (Pa.) 437; NefiE's Ap- 
 peal, 57 Pa. St. 91 ; Stirling v. Lawrason, 31 La. 
 An. 169; Stevens v. Gage, 55 N. H. 175; 2 Cen. 
 Law Jur. 589; see State V. Meager, 44 Mo. 356; 
 Fudge V. Dam, 51 Mo. 264; Farnam V. Coe, 1 
 Calnes, 96 Campbell v. Miller, 36 Ga. 304; Mikell 
 „. Mikell, 5 Rich. Eq. (S. C.) 820. 
 
 ♦Adair v. Brimer, 74 N. Y. 539; Fosoue v. 
 Lyon, 55 Ala. 440; Wasson v. Carrett, 58 Tenn. 
 477; Mansfield u. Alwood, 84 III. 497; Sharp V. 
 Goodwin, 51 Cal. 219; Gettinss. Scudder, 71 111. 
 86; Wiles v. Gresham, 5 De G. M. & Q. 770; 
 Lloyd V. Attwood, 3 De G. M. * J. 614; Goddard 
 V. Brown, 12 E. I. 31; Pool v. Dial, 10 S. C. 440; 
 Vose D. Trustees, &c., 2 Woods, 647; Carpenter 
 V. Carpenter, 12 E. I. 544; Gilmore v. Tuttle, 32 
 N. J. Eq. 611 ; Russell v. Peyton, 4 III. App. 473; 
 Morrow v. Saline Co. Comm'rs, 21 Kans. 484. 
 
 6 Salway v. Salway, 2 Euss. & M. 215; Butler 
 V. Carter, L. E. 5 Eq. 276. 
 
 365 
 
§ 320 EQUITY JUEISPEUDENCE. [CH. XVH. 
 
 diligence collect such debts; and he is liable for the loss that might 
 result from any unreasonable delay in making the collection.* Where 
 money is collected, or is in possession of the trustee prior to the 
 securing an investment, he must exercise reasonable care in the 
 selection of a bank of deposit; and the money must be deposited in 
 such bank to the credit of such trust estate. And when that is done, 
 the trustee is not liable for any loss, which might be occasioned by 
 the failure of the bank.^ The trustee is also required to make pay- 
 ment of all debts which the estate might owe, whenever there are 
 sufficient funds in his hands to pay such debts. And if, in conse- 
 quence of his neglect, the estate becomes liable for accruing interest, 
 the trustee is liable for such interest, on the ground that it is a damage 
 to the estate, due to his dereliction of duty.' The trustee, on the 
 other hand, must see that payments are only made to those, to whom 
 there is an indebtedness due; and if he makes wrongful payments, the 
 loss falls upon him, and not upon the estate. The trustee is charge- 
 able with all such wrongful payments. The liability, however, is 
 confined to those cases, where the wrongful payment is traced to a 
 want of care and diligence, in the consideration of the question of liabil- 
 ity of the estate. If, on the other hand, the payment is made with the 
 exercise of reasonable care and prudence, yet wrongfully, the trustee 
 is not obliged to bear the loss.* 
 
 § 320. Duty of tmstees as to inTestments. — The most important 
 duty, which the trustee has to perform in the protection and adminis- 
 tration of the trust, is the making of investments. The trustee is not 
 only charged with the safe custody of the trust property, but his 
 chief duty is to make that property productive. He cannot leave 
 
 1 Moore ». Mitchell, 2 Woods, 483; Dockeryt). Bacon «. Clark, 3 My. & Cr. (Eng.) 294; see 
 
 French, 73 N. C. 420j Mansfield v. Alwood, 84 Moore v. Hamilton, 4 Fla. 712; Moore o. Felkel, 
 
 111. 497;seeWlles».Gresham, 2Drew, 258;5De 7 Pla. 44; King r. King, 3 Johns. Ch. (N. Y.) 
 
 G. M. & G. 770; Grove v. Price, 26 Beav. 103; 552; Davis v. Yerhy, 1 Sm. & M. Ch. (Miss.) 608; 
 
 Sculthorpe v. Tipper, L. R. 13 Eq. 232 j ^x parte King v. Talbot, 40 N. Y. 77. 
 
 Ogle, L. R., 8 Ch. 711 ; Bacot v. Heyward, 5 S. C. « Fenwioke v. Clarke, 31 L. J. Ch. (Eng.) 728; 
 
 441; Paddon». Richardson, 7 De G. M. & G. Norwoods. Harness, 98 Ind. 134; s. c, 49 Am. 
 
 663; Denike v. Harris, 84 N. Y. 89; Tomkies v. Rep. 739; Twitty v. Houser, 7 S. 0. 153; Jacobus 
 
 Reynold, 17 Ala. 109 ; Garesche v. Priest, 78 Mo. v. Jacobus, 37 If . J. Eq. 17 ; Knight v. Lord Ply- 
 
 126; 8. c, 9 Mo. App. 270; MoyerjJ. Petway, 76 mouth, 3 Atk. (Eng.) 486; s. c, 1 Dick.(Eng.) 120; 
 
 N. C. 327; Bohde v. Bruner, 2Red(. (N. Y.) 333; Adams v. Claxton, 6 Ves. (Eng.) 26; Johnson v. 
 
 Matterof Mount,2Redf. (N.Y.)405; Sherins. Newton,llHare,(Eng,) 160; Mendessi.Guedalla, 
 
 Public Admr., 2 Redf. (N. Y.)421: Marsha. Gil- 2 Johns. & H. (Eng.) 259; Lord Cottenham, in 
 
 bert,2 Redf. (N. Y.) 465; Gillespie v. Brooks, 2 Clough v. Bond, 3 My. & Cr. (Eng.) 496; Wms. 
 
 Redf. (N. Y.) 349; Tucker v. Tucker, 33 N. J. Eq. Ex'rs, (7th Eng. ed.) 1817-1820; Churchill v. Hob- 
 
 235; Crane v. Howell, 35 N. J. Eq. 374; Lefever son, 1 P. Wms. (Eng.) 1818; Carpenter v. Car- 
 
 V. Hasbrouck, 2 Dem. (N.Y.) 667; Nyce's Estate, penter, 12 R.I. 544; Crane ». Moses, 13 S. C. 561; 
 
 5 W. & S. (Pa.) 254, 258; Sullivan v. Howard, 20 Eowth v. Howell, 3 Ves. 565; Swlnfen v. Swin- 
 
 Md. 194; Johnson's Appeal, 43 Pa. St. 471 ; Wil- fen, 29 Beav. 211j Pennell o. DeflEeU, 4 De G. M. 
 
 son's Appeal, (Pa.) 9 Atl. Rep. 473; compare & G. 372. 
 
 Brown«. Campbell, Hopk. (N.Y.) Ch. 233; State « Adair D. Brimmer, 74 N. Y. 539; Kingj). Tal- 
 
 ■B. Johnson, 7 Blackf. (Ind.) 529; Wms. Exrs. hot, 40 N. Y. 76; s. c, 50 Barb. 453. 
 
 Crth Eng. ed.) 1809; Terry i;. Terry, Prec. Chanc. < Forshaw v. Higginson, 8 De G. M. & G. 827; 
 
 (Eng.) 273; 8. c. Glib. Eq. Rep. 10; Ryder v. Avellne v. Melhuish, 2 De G. J. & S. 288; Hay- 
 
 Biokerton, 3 Swanst. 80, note ; Adye c. Feuille- del v. Hurck, 5 Mo. App. 267 ; Singleton ». Lown- 
 
 teau, 1 Cox, (Eng ) 24 ; s. c, 3 Swanst. (Eng.) 84, des, 9 S. C. 465; Wasson v. Garrett, 58 Tenn. 
 
 note; Vigrass v. Binfleld, 3 Madd. (Eng.) 68; 477; Drapers. Stone, 71 Me. 175. 
 
 366 
 
CH. XVn.] POWERS, DUTIES AND LIABILITIES OF TKUSTEES. § 320 
 
 money lying idle in the bank for an unreasonable time, without 
 assuming an extraordinary liability. Not only would he be liable 
 in such a case for a loss of the priacipal, resulting from the failure 
 of the bank, in which the funds were deposited,^ but he would likewise 
 be responsible to the beneficiaries for all the rents and profits, interest 
 or income which he did not receive, but which he could have received, 
 if he had exercised reasonable diligence in the administration of the 
 property, for the purpose of making it profitable.^ 
 
 On the other hand, the trustee cannot escape responsibility from a 
 failure to make a judicious investment by diligence in securing the 
 investment — his liability is of a double character. He is not only 
 liable, if he fails to make an investment within a reasonable time; but 
 he is also required to make a judicious and safe investment, and is 
 liable if he makes an ipjudicious one. Where the instrument creating 
 the trust gives directions for the making of investments, a conformity 
 with such directions will relieve the trustee of liability, if he carries 
 out the directions of the trust with reasonable care and prudence. 
 Even when a general discretion as to the choice of securities is 
 expressly given by the instrument, his discretion is required to be 
 exercised with reasonable diligence.' In regard to the making of 
 investments by trustees, when the trust instrument contains no direc- 
 tions therefor, a stricter rule of care is imposed upon the trustee, than 
 what would be expected of a reasonably prudent man; in other words, 
 in making an investment for a trust estate, securities must be selected 
 in which the element of uncertainty or of speculation is very limited 
 or reduced to a minimum. Ample security for the payment of the 
 debt is also required; and in determining the extent of the trustee's 
 discretion, the courts of equity have laid down rather minutely the 
 
 1 Matthews v. Brise, 6 Beav. 239; Moyle v. Ga. 304; King «. King, 15 Ala. 328; KaynerJ). 
 
 Moyle, 2 Knsa. & M. 710; Salway v. Salway, 2 Pearsall, 3 Johns. Ch. (N. T.) 578; Dean v. 
 
 Id. 215; see post, § 1076; Challen v. Shlppam, 4 Eathbone, 15 Ala. 328; Browne v. Montgomery, 
 
 Hare, 555; Johnson v. Newton, 11 Id. 160; Swin- 48 Ala. 353; Anderson v. Piercy, 80 W. Va. 282; 
 
 fen V. Swinfen, 29 Beav. 211; Kehden v. Wes- Julian ». Abbott, 73 Mo. 580; James v. Wingo, 
 
 ley, Jd. 213. 7 Lea. (Tenn.) 148; Eatcllffu. Winch, 17 Bear. 
 
 sSculthorpesi. Tipper, L. E. 13 Eq. S32; In re (Eng.) 217; Gates v. Whetstone, 8 S. C. 244; 
 
 British, &c. Co., L. E. 14 Ch., D. 335; Robinson Schaflfer's Estate, 46 Pa. St. 131; Cooleyv. Van 
 
 V. Eobinson, 1 De G. M. & G. S47; Atty.-Gen. v. Syckle, 14 N. J. Eq. 496; Jennings v. Weeks, 1 
 
 Alford, 4 Id. 843; Baud v. Pardell, 7 Id. 628; Eice, (S. C.) 453; Moore v. Beauchamp, 4 B, 
 
 Ashby ■». Blackwell, 8 Eden, 299, 302; Eayes v. Mon. <Ky.) 71; Aberorombie v. Skinner, 42 Ala. 
 
 mckson, 30 Beav. 136; Sporle v. Bamaby, 10 633; Stirling v. Wilkinson, (Va.) 3 S. E. Eep. 
 
 Jnr., N. B.,1142; Haydel ». Hurck, 5 Mo. App. 533; Coco's Succession, 32 La. Ann. 325; San- 
 
 267; Succession of Pool, 14 La. Ann. 677; San- derson v. Sanderson, 20 Fla. 292; Glover v. 
 
 bom V. Goodhue, 28 N. H. 48; Griswold v. Glover, 1 McMuUan Ch. (S. C.) 163; O'Dell u. 
 
 Chandler, 5 N. H. 492; Cooks. Cook, 29 Md. 538; Young, 1 McMullan, 155; Bryant v. Eussell, 23 
 
 Bowen v. Montgomery, 48 Ala. 353; Hepburn Pick. (Mass.) 566; Traddell's Appeal, 5 Pa. St. 
 
 ■B. Hepburn, 2 Bradf. Siir. (N. Y.) 74; Eomi'.y J). 15; Solleeu. Croft, 7Eioh. Eq. (S. C.)46; Neff's 
 
 M. E., in Clark v. Holland, 19 Beav. (Eng.) 271, Appeal, 57 Pa. St. 91 ; Gray v. Lynch, a Gill, 403. 
 
 272; Stiles T. Guy, 16 Sim. (Eng.) 230; see Mitch- » Nanorede v. Voorhis, 32 N. J. Eq. 521; Adair 
 
 ell V. Trotter, 7 Gratt. (Va.) 136; Nelson v. v. Brimmer, 74 N. T. 539; Denike v. Harris, 84 
 
 Page, 7 Gratt. (Va.) 160; Lowson v. Coi)eland, 2 Id. 89; Clark v. St. Louis, *c. E. E., 58 How. 
 
 Bro. C. C. (Eng.) 156; Ivey v. Coleman, 42 Ala. Pr. 21; Fosoue v. Lyon, 55 Ala. 440; Bowman 
 
 409; Miller's Ex'rst). Simpson, 2 S.W. Eep. 171; ». Pinkham, 71 Me. 295; Lewis ti. Nobbs, L. E. 
 
 Smith V. Col]amer,2 Dem. (N. Y.) 147; Travease 8 Ch. D. 591 ; Piokard v. Anderson, L. E. 13 Eq. 
 
 V Ball, 1 MoCord, 456; Campbell v. Miller, 38 608; Baud v. Fardell, 7 De G. M. & Q. 628. 
 
 367 
 
§ 320 
 
 EQUITY JUEISPEUDENCE. 
 
 [cH. xvn. 
 
 class of securities, in which trustees might invest the trust fund with 
 safety to both. And unless the instrument creating the trust author- 
 izes other investments, the trustee is liable if he makes an investment 
 in other than the authorized securities, although such an investment 
 would be held to be a prudent investment, if the funds belonged to 
 himself. As a general proposition, the trustee, independently of 
 statute, is confined in his investments to the purchase of government 
 securities and first mortgages on real estate.' It has also been held 
 that trustees who invested trust funds in the bonds of the Confederate 
 Government were liable for aU such losses.^ Municipal bonds and 
 bonds .of counties and other quasi municipal organizations, are not held 
 to be safe securities for trust investments, unless they are author- 
 ized, either by the instrument creating the trust, or by statute. ^ Under 
 no circumstances can a trustee invest the trust funds in a loan on a 
 mere personal security,* or in the stocks and bonds of private corpora- 
 tions.' It is also generally held to be the rule, independently of statu- 
 tory regulations, or express authorization in the trust, to be an 
 improper investment for a trustee to purchase securities of foreign 
 governments, or securities of any kind located beyond the jurisdiction 
 
 ' Denike v. Harris, 84 N. Y. 89, reversing s. 
 c.,23 Hun, 213; Baldwin v. Hatohett, 56 Ala. 
 461 J see Mosman ». Bender, 80 Mo. 579; Brown 
 ». Litton, 1 P. Wms. (Bng.) 141 ; Norbury i;. Nor- 
 bury,4Madd. (Eng.) 191; Farrar«. Baraeiougli, 
 2 Sm. & G. (Eng.) 231,235; Bogartf. VanVelsor, 
 4Eaw. Ch. (N. Y.) 718; Wilson v. Stats, 33 N. J. 
 Eq. 524. He cannot invest in second mortgages. 
 Nancrede v. Voorhis, 32 N. J. Eq. B24; Gilmore 
 t. Tuttle, 32 N. J. Eq. 611. 
 
 apatteson v. Horsley, 29 Gratt. 263; Dockery 
 J). French, 73 N. C. 420; Moore v. Mitoliell, 2 
 Woods, 483; Kirby v. Goodykoontz, 26 Gratt. 
 298; see, however, Eockhold v. Blevins, 6 
 Baxter, (Tenn.) 715; West v. Canthen, 9 S. C. 
 45; Ferguson D. Epes, 77 Va. 499; Sharpe ». 
 Kookwood, 78 Va. 24; Wilson v. Powell, 75 N. 
 Car. 468; Cabell v. Cox, 27 Gratt. (Va.) 182; 
 Tosh V. Robertson, 27 Gratt. (Va.) 182; Tosh v. 
 Kobertson, 27 Gratt. (Va.)870; Young v. Cabell, 
 2r Gratt. (Va.) 761; Mills v. Mills, 28 Gratt. (Va.) 
 442; Dietz V. Mitchell, 13 Helsk. (Tenn.) 676; 
 Estill V. McCllntie, 11 W. Va. 399; see Tomp- 
 kins «. Tompkins, 18 S. C. 1; Eobertson v. 
 Trigg, 32 Gratt. (Va.) 76; Douglass ». Steven- 
 son, 75 Va. 747; Le Grand v. Fitch, 76 Va. 635; 
 Wayland v. Crank, 79 Va. 602; Lipse v. Spear, 4 
 Hughes, (C. Ct.) 535; Mofflt v. Loughridge, 51 
 Miss. 211; Succession of Womack, 29 La. An. 
 577; Brandon ». Kowe, 58 Ga. 536; Lingle v. 
 Cook, 32 Gratt. (Va. ) 262; Patterson v. Bondu- 
 rat, 30 Gratt. (Va.) 94; Stewart v. Lee, 66 Ala. 
 53; Hutchinson©. Owen, 59 Ala. 582; Carter i». 
 Dulaney, 30 Gratt. (Va.) 192. 
 
 3 Gillespie v. Brooks, 2 Eedf. (N. Y.) 349, 358; 
 see Woodruffs. Ward, 35 N. J. Eq. 467; Tucker 
 V Tucker, 33 N. J. Eq. 236; Bohde v. Bruner, 
 2 Eedf CN. Y.) 333. 
 
 • Tucker v. Tucker, 33 N. J. Eq. 236; Crane o. 
 
 368 
 
 Howell, 35 N. Y. Eq. 374; Lefevers. Hasbrouck, 
 2 Dem. N. Y. 567; Nyce's Estate, 5 W. & S. (Pa.) 
 254, 258; Sullivan B. Howard, 20 Md. 194; John- 
 son's Appeal, 43 Pa. St. 471 ; Wilson's Appeal, 
 (Pa.) 9 Atl. Rep. 473; compare Brown v. Camp- 
 bell, Hopk. (N. Y.) Ch. 233; State v. Johnson, 7 
 Blaokf. (lud.) 529; Wms. Ex'rs, (7th Eng. ed.) 
 1809; Terry v. Terry, Preo. Chane. (Eng.) 273; B. 
 c, Gilb. Eq. Eep. 10; Eyder v. Bickerton, 3 
 Swanst. 80, note ; Adye v. PeuiUeteau, 1 Cox, 
 (Eng.) 24; s. c, 3 Swanst. (Eng.) 84, note; 
 Vigrass ». Blnfield, 3 Madd. (Eng.) 62; Bacon 
 ■V. Clark, 3 My. & Cr. (Eng.) 294; see Moore 
 V. Hamilton, 4 Fla. 713; Moore v. Felkel, T 
 Fla. 44; Klngu. King, 3 Johns. Ch. (N. Y.) 558; 
 Davis ». Yerby, 1 Sm. & M. Ch. (Miss.) 508; 
 King V. Talbot, 40 N. Y. 77; Tomkles *. 
 Eeynold, 17 Ala. 109; Garesche v. Priest, 78 Mo. 
 126; s. c, 9 Mo. App. 270; Moyer v. Petway, 76 
 N. C. 327; Bohde ». Bruner, 8 Eedf. (N. Y.) 333; 
 Matter of Mount, 2 Eedf. (N. Y.) 406; Sherln ». 
 Public Adm'r, 2 Eedf. (N. T.) 421; Marsh t>. 
 Gilbert, 2 Eedf. (N. Y.) 465; Gillespie »: Brooks, 
 2 Eedf. (N. Y.) 349 ; Paddon v. Richardson, 7 De 
 G. M. & G. 563; Denike v. Harris, 84 N. Y. 89. 
 
 'Trafford v. Boehm, 3 Atk. 440, 444; Howe». 
 Earl of Dartmouth, 7 Ves. 137, 150; Adair V. 
 Brimmer, 74 N. Y. 539; King ». Talbot, 40 N. Y. 
 76j s. c, 50 Barb. 453; Barney*. Saunders, 16 
 How. (U. S.) 635; Kimball 11. Eeding, 31 N. H. 
 352; Lovell v. Minot, 20 Pick. 116; Harvard 
 Coll. V. Amory, 9 Pick. 446; Smith ». Smith, 4 
 Johns. Ch. 281, 445; Thompson v. Brown, Id, 
 619, 628; Ackerman v. Emott, 4 Barb. 686; Wor- 
 rell's Appeal, 9 Barr. 508; Swoyer's Appeal, 5 
 Id.STt; Twaddell's Appeal, Id. 15; Murray ». 
 Feinour, 2 Md. Ch. 418, 419; Evans v, Iglehart, 6 
 Gill & J. 171, 192; Ellig s. Naglee, 9 Cal. 683; 
 Tucker v. The State, 72 Ind. 242. 
 
CH. XVII. J POWERS, DUTIES AND LIABILITIES OF TRUSTEES. § 321 
 
 of the court, or of the state, in which the trustee resides and the trust 
 estate is located. But this is a general rule, which is subject to the 
 discretion of a court of equity, which may permit such investment, 
 when under the peculiar circumstances of the case it is wise and proper 
 to make it. ^ In many of the states, however, statutes have been 
 passed, determining what kind of investments the trustee may invest 
 trust funds in. 
 
 Whenever there has been an improper investment of the trust fund, 
 in securities which the trustee was not authorized to purchase, the 
 beneficiaries, in the settlement of the estate with such trustee, can 
 refuse to accept the unauthorized securities, whether they have depre- 
 ciated or not.^ 
 
 § 321. Good faith in dealing with trust property. — The trustee 
 is also required to exercise the utmost good faith in dealing with the 
 trust property. He must not only exercise reasonable care and dili- 
 gence in the administration of the trust, but he must not so deal with 
 the trust property that he may acquire any benefit from such adminis- 
 tration of the trust, beyond the compensation which the law might and 
 ordinarily does concede to him. If, in the management of the trust 
 property he acquires any advantage or profit, it is a case of con- 
 structive fraud, for which he is liable to the estate. In cases of an 
 improper investment, or of the use of the trust property for the benefit 
 of the trustee, the beneficiary has the right to claim all the profit cre- 
 ated by such misuse of the trust funds, and to impose upon the trustee 
 all the losses which might have resulted from such employment or 
 misuse of the funds.' He must, also, in the care and management of 
 the trust fund, keep such funds and property separate and distinct from 
 his own property; and where in the administration of the trust he fails 
 to do this, and mingles the trust property with his own, so that the 
 two become more or less indistinguishable, either in the case of cor- 
 poral property or in the case of money being deposited to his own 
 account at a bank instead of a separate account to the credit of the 
 trust estate; in all such cases, the trustee will assume all loss that might 
 result to such property from the confusion of it with his own goods or 
 property. And where it is impossible to separate his own property 
 from the trust property, the entire property or fund becomes pri- 
 
 JOnniston «. Oloott, 84 N. Y. 339. Allen, 407; Marsh v. Renton, 99 Mass. 132, 135; 
 
 2King ■». Taibot,40N.T.76; s. c.,50Barb.453. Sohieflfelin i/. Stewart, 1 Johns. Oh. 620; Gil- 
 
 8 Docker u. Somes, 2 My. & K. 655; Willett ». man v. Oilman, 2 Lans. 1; Dlffenderffer u. 
 
 Blanford, 1 Hare, 253; Heathcote v. Hulme, 1 Winder, 3 Gill & J. 311; Morrow i;. Saline Co. 
 
 J. & W. 122; Moons v. De Bernales, 1 Russ. Comm'rs, 21 Kans. 484; Heath v. Waters, 40> 
 
 301 ; San Diego, &c. R. E., 44 Cal. 106, 112-116; Mich. 457; Malone v. Kelley, 54 Ala. 532; Baker 
 
 Page V. Naglee, 6 Id. 241 ; Gunter v. Janes, 9 Id. v. Disbrow, 18 Hun, 29 ; Romaine v. Hendrick- 
 
 643, 660-662; Commonwealth v. McAlister, 28 son, 27 N. J. Eq. 162; Blauvelt v. Ackerman, 
 
 Pa. St. 480; Chapman v. Porter, 69 N. Y. 276; 80 Id. 141, 148, 149; Sweet v. Jeffries, 67 Mo. 420; 
 
 Barnes ». Brown, 80 N. Y. 527, 635 ; Duncomb I). Vason ». Boall, 58 Ga. 500; O'Halloran ji. Fitz- 
 
 N. T., &c. R. R., 84M 190; Davis ». Rock gerald, 71 111. 53; Roberts v. Moseley, 64 Mo. 
 
 Creek, .fee. Co., 55 Cal. 359; Chamberlain v. 507; Fulton «. Whitney, 66 N. Y. 548; 5 Hun, 16; 
 
 Pacific Wool, &c. Co., 54 Id 103; Staats v. Past v. MePherson, 98 XU. 496; Coltrane o. 
 
 Bergen, 17 Id. 554, 562, 563; Trull v. Trull, 13 Worrell, 30 Gratt. 434. 
 
 24 
 
 369 
 
§ 322 
 
 EQUITY JUKISPKUDENCE. 
 
 [cH. xvn. 
 
 marily the property of the trust estate; and the burden of proving his 
 private property is thrown upon the trustee. Until such proof is preT 
 sented by him, the entire property will be held for the benefit of the 
 trust estate.' So, also, is the trustee prohibited from buying property 
 from himself for the trust estate, and from seUing trust property to 
 himself. In both cases a species of constructive fraud arises, and both 
 transactions can be avoided by the beneficiary.'' 
 
 The trustee is also required to abstain from the acceptance of any 
 position or appointment which would in any way interfere with the 
 performance of his duty to his beneficiary; and where he assumes any 
 such obligation, he is liable to the beneficiary for such violation of 
 duty, and may be relieved from the trust on such a ground.' 
 
 § 322. Trustee cannot delegate his authority. — The office of a 
 trustee is personal in its character, and involves the repose of a per- 
 sonal confidence in such trustee or trustees. The trustee cannot, 
 therefore, delegate his trust to anyone else, and thus escape the 
 responsibility of the maladministration of a trust by such a delegate, 
 unless he has been authorized by the trust to so delegate his authority. 
 In the absence of such an authorization, the delegation of his trust 
 would not release him from responsibility for the trust estate, and he 
 would be liable for the losses which were occasioned by the fraud, 
 negligence, or want of good faith of the delegate.* But the trustee is 
 
 1 Mumfoid V. Murray, 6 Johns. Ch. Ij Kip v. 
 Bank of N. Y., 10 Johns. 63; Commonwealtli v. 
 MoAUster, 88 Pa. St. 480j Gunter v. Janes, 9 
 Cal. 643, 660-668; Livingston v. Wells, 8 S. C. 
 347; Woodruff v. Boyden, 3 Abb. N. C. 89; 
 Malone v. Kelley, 54 Ala. 538; Davis v. Cobum, 
 128 Mass. 377; Marine Bk. v. Fulton Bk., 8 Wall. 
 258; Case v. Abeel, 1 Paige, 393; Utica Ins. Co. 
 ti. Lynch, 11 Id. 580; Ditmart). Bogle, 53 Ala. 
 169, 171; Henderson v. Henderson, 58 Ala. 583; 
 MoKenzle v. Anderson, 2 Woods, (U. S. C. C.) 
 
 357, 359, 364; State v. Chestou & Carey, 51 Md. 
 
 358, 381 ; Kirby v. State, 51 Md. 383; Thomson v. 
 Brooke, 76 Va. 160; Newton v. Poole, 13 Leigh, 
 (Va.) 112; Calvert v. Marlow, 6 Ala. 337; 
 Hendricks t>. Tuckwiller, 20 W. Va. 489; 
 Hanbest's Estate, 12 Phila. (Pa.) 73; Williams 
 V. Williams, 55 Wis. 390; s. c, 42 Am. Rep. 
 708; Wren». Klrton, 21 Ves. (Eng.) 377; Rob- 
 inson V. Ward, By. & Mood. (Eng.) 874; 2 
 C. & P. (Eng.) 59; Robinett's Appeal, 38 Pa. 
 St. 174; Gilbert's Appeal, 78 Pa. St. 866; 
 Nettles V. McCown, 5 S. C. 43; McKenzle •). 
 Anderson, 2 Woods, (U. S. C. C.) 357; Kirkman 
 o. Benham, 28 Ala, 501; Ditmar v. Bogle, 53 
 Ala. 168; Kellett «. Rathbun, 4 Paige, (N. Y.) 
 102; Ackerman v. Emott, 4 Barb. (N. Y.) 626; 
 Leake's Exrs. v. Leake, 75 Va. 792; Hagthorp 
 V. Hook, 1 GUI & J. (Md.) 270; Rorke v. McCon- 
 vlUe, 4Redf. (N. Y. ) 291; Perkins' Estate, (Vt.) 
 7 Atl. Rep. 605; Lacoste's Estate, Myrick's Pro- 
 bate, (Cal.) 67. 
 
 » Munn V. Berges, 70 111. 604j Bush v. Sher- 
 man, 80 Id. 160; Star Fire Ins. Co. -u. Palmer, 41 
 
 370 
 
 N. Y. Super. Ct. 267; Spencer's Appeal, 80 Pa. 
 St. 317; Tatum v. McLellan, 50 Miss. 1; Union 
 Slate Co. V. filton, 69 Me. 244; James v. James, 
 55 Ala. 525; Higgins *. Curtlss, 82 111. 28; Fer- 
 guson 0. Loweiy, 54 Ala. 510; see, also. In re 
 Bloye's Trust, 1 Maon. & G. 488; Knight v. 
 Marjoribanks, 3 Id. 10; Hickley v. Hickley, L. 
 E. 2 Ch. D. 190; Ellis ». Barker, L. E. 7 Oh. 
 104; Boerum v. Sohenck, 41 N. Y. 182. See 
 ante, % 312, where the whole doctrine of con- 
 structive fraud In the performance of fiduci- 
 ary duties is more fully set forth, 
 
 ' Gardner v. Butler, 30 N. J. Eq. 702; Sweet ». 
 Jeffries, 67 Mo. 420; Roberts v. Moseley, 64 Id. 
 507; O'Halloran v. Fitzgerald, 71 111. 53; Fast v. 
 McPherson, 98 Id. 498; Morrow «. Saline Co. 
 Comm'rs, 21 Kans. 484; Fulton u. Whitney, 68 N. 
 Y. 548; N. Y. Central Ins. Co. v. Nat. Protec. 
 Ins. Co., 14 Id. 85; St. James' Ch. v. Ch. of the 
 Redeemer, 45 Barb. 356 ; Davis v. Bock Creek, 
 Ac. Co., 55 Cal 359; Chamberlain v. Pac.Wool, 
 &c. Co., 54 Id. 103; San Diego v. San Diego, &c. 
 R. R., 44 Id. 106, 112-118; Stewart v. Lehigh VaL 
 R. R., 9 Vroom, 505; Twln-Liok Oil Co. v. Mar- 
 bury, 1 otto, 587; Risleyi). Indianapolis, &c. E. 
 R., 62 N.Y. 240; Hoyle v. Plattsburgh, &c. R. R., 
 54 Id. 314, 328; Butts v. Wood, STId. 317; Smith 
 V. Lansing, 22 Id. 520,531; Gardners. Ogden, 
 Id. 327. 
 
 *Berger v. Duff, 4 Johns. Ch. 368; Hawley ». 
 James, 5 Paige, 318; Pearson v. Jamison, 1 Mc- 
 Lean, 197; Vose v. Trustees, Ac, 2 Woods, 647; 
 Seeley v. Hills, 49 Wis. 473; Ex parte Eigley, 
 19 Ves. 463; Adams v. Clifton, 1 Russ. 297. 
 
•CH. XVII. J POWERS, DUTIES AND LIABILITIES^OF TRUSTEES. § 323 
 
 not thereby prohibited from employing agents, whose services, under 
 Ms direction, are indispensable or necessary to the due administration 
 of the estate; for the employment of such agents, under the discre- 
 tionary supervision of the trustee, is a necessary implication of the 
 trust. And if the trustee has exercised reasonable care and prudence 
 in the selection of such agents, he is not responsible for any losses occa- 
 sioned by the fraud or negligence of such agent. ^ Not only can the 
 trustee or ti-ustees not delegate his or their authority to an entire 
 stranger; but one trustee is also prohibited from transferring to a 
 <!0-tnistee the entire control of the trust estate; and where he does this, 
 he is liable for the maladministration of the trust by the co-trustee. 
 But this is only the case where there has been an absolute transfer of 
 the control of the trust to the co-trustee; and where there is an abso- 
 lute abstention by one trustee from the management and administration 
 of the trust.' But if the trustees agree among themselves for a divis- 
 ion of labor in the general administration of the trust, subject to the 
 general supervision of the estate by all, then the trustees in general 
 would not be responsible for any misappropriation or maladministra- 
 tion of the acting trustee of the funds of the estate, even though the 
 other trustees should join with the acting trustee in signing a receipt 
 for money paid to such acting trustee.' 
 
 § 323. Trustee's duty to account. — rThe main duty of a trustee in 
 this connection is to keep a regular and accurate account of the affairs of 
 the trust property, and be able to render at any time a full account of the 
 property and the moneys which have come into his possession, and the 
 moneys paid out at any time during his administration of the trust. 
 He must keep this account separate and distinct from his own private 
 property, and be ready at aU times to explain to the beneficiaries the 
 
 1 Bacon v. Bacon, 5 Ves. (Eng.) 334, 335; Cas- Wyman v. Jones i Md. Oh. 500; Stewartii. Con- 
 tie V. Warland, 38 Beav. (Bng.) 660; Bayner v. ner, 9 Ala. 803; Ducommon's Appeal, 17 Pa. St. 
 Peareall, 3 Johns. Ch. (N. T.) 578; Edmond v. 268;McNair'sAppeal,4Rawle, (Pa.) 154;Hewitt 
 Peake, 70 Beav. (Eng.) 239; Christy v. McBnde, v. Foster, 6 Beav. (Eng.) 259; Broadhurst v. Bal- 
 2 111. 75; Julian v Abbott, 73 Mo. 580; Watson ». guy, 1 T. & Coll. C. C. (Eng.) 16; Edmonds v. 
 Stone, 40 Ala. 451 ; Dockey «. McDonald, 40 Ala. Crenshaw, 14 Pet. (U. S.) 166; Hall v. Carter, 8 
 476; Neilson V. Cook, 40 Ala. 498; compare Ga. 388; Bates w. Underhill, 3 Eedf. 365; Gray 
 Lyon V. Lyon, 1 Tenn. Ch. 225; Succession of v. Reamer, 11 Bush, 113; Spencer v. Spencer, 11 
 Baum, 9 La. An. 412; Marshall v. Moore, 27 B. Paige, 299; Monell v. Monell, 5 Johns. Ch. 283; 
 Mon. (Ky.) 69; Greene. Hanbury, 2 Brock. Banks v. Wilkes, 3 Sandf. Ch. 99; Pirn ». Down- 
 (C. C.)403; Telford ». Bany, 1 Iowa, 591; Gal- ing, 11 Serg. & R. 66; Clough ». Bond, 3 My. & 
 honn's Estate, 6 Watts, (Pa.) 185; Blight v. Cr. 490, 497; Burrows «. Walls, 5 De G. M. & G. 
 :Schenek, 10 Pa. St. 285; Hawley ». James, 5 233; Styles ». Guy, 1 Macn. cfeG. 422; Paddons. 
 Paige, (N. Y.) 187; Lewis v. Eeed, 11 Ind. 239; Richardson, 7 De G. M. A G. 563; Thompson V. 
 Case v. Abeel, 1 Paige, (N. Y.) 393; Kellet o. Finch, 8 Id. 560, 563, 564; Wayman V. Jones, 4 
 Eathbun, 4 Paige, (N. Y.) 102. Md. Ch. 500; Ringgold?). Ringgold, 1 Har & 
 
 2 Monell V. Monell, 5 Johns. Ch. (N. Y.) 283, G. 11; Maccubbin v. Cromwell's Ex'rs, 7 Gill & 
 296; AmesJ7. Armstrong, 106 Mass. 18; Deader- J. 157; Royall's Adm'r v. McKenzie, 25 Ala. 
 ick ». Cantiell, 10 Yerg. (Tenn.) 254; Thomas 363; State V. Gilford, 15 Ohio, 593. 
 
 V Scruggs, 10 Yerg. (Tenn.) 401; Jones' a Brice ». Stokes, 11 Ves. 319; Ingle ». Par- 
 Appeal 8 Watts & S. (Pa.) 147; Maccubbin ». tridge, 32 Beav. 661; Peter v. Beverly, 10 Pet. 
 Cromwell, 7 Gill & J. (Md.) 157; Barrings V. 531; 1 How. 134; Taylor v. Benham, 5 How, 235; 
 Willing, 4 Wash. (C.C.) 251; Mesick ». Mesiok, Sinclair v. Jackson, 8 Cow. 543; see Ormiston 
 7 Barb. '(>r. Y.) 120; Clark ». Clark, 8 Paige, (N. v. Olcott, 84 N. Y. 339; Brice v. Stokes, 2 Eq. 
 T ) 133- Schenck v. Schenck, 1 Green, (N. J.) 174; Lead, Cas. 1748, 1805. 
 
 371 
 
§ 325 EQUITY JURISPRUDENCE. [CH. XVII. 
 
 condition of the estate.' When, of course, the trust is concluded, he 
 is required to produce and make a, full and final account of his conduct 
 in the management of the estate. 
 
 § 324. Duty to surrender trust property.— Finally, when the 
 trust is ended, and the time has come for his withdrawal from the 
 management of the trust property, it becomes the duty of such trustee 
 or trustees to make a complete and full surrender to the parties 
 entitled thereto, of all the property of the trust estate. And whenever 
 in the performance of this duty the execution of a conveyance is neces- 
 sary, he is required to do so.^ 
 
 § 325. fiight to compensation and allowance for expenses. 
 Formerly, the trustee was not entitled to any compensation for his 
 services, it being considered a matter of honor. The policy of the 
 law in respect thereto has since been changed; and it is now almost 
 the universal rule, that trustees receive a reasonable percentage — 
 usually five per cent. — upon aU disbursements made by them. But 
 they are not permitted to make any further charge against the trust 
 estate, and for the performance of which they may have hired others. 
 But he is permitted to give himself credit for the moneys paid out by 
 him in the employraent of agents in the administration of the trust, 
 where the employment of such an agent be reasonable and advanta- 
 geous to the estate.* In general explanation of this statement, it may 
 be added that it will be considered a just and proper allowance for 
 the service of agents, where the services are necessary to the perform- 
 ance of the trust, even though the trustee was capable of performing 
 the duty himself, as long as the duty did not constitute one of the 
 ordinary duties of a trustee. Thus, for example, an attorney at law, 
 acting as a trustee, cannot charge himself with compensation over and 
 above the percentage which the law allows Min' for -serving the estate 
 in the capacity of an attorney. If he performs these professional 
 duties to the estate, he must perform them gratuitously; but he is not 
 obliged to perform them. He may employ another attorney to con- 
 duct the suits, that must be prosecuted in behalf of the estate, and pay 
 such attorney a reasonable fee for such services. The same rule ap- 
 
 iMcDonnell v. White, 11 II. L. Gas. 570; Cra- Mass. 231; Singleton v. Lowndes, 9 S. C. 465} 
 
 mer ». Bird, L. E. 6 Eq. 143; Clark v. Moody, 17 Hallw. Hall, 78 N. Y. 635; Warbass v. Armstrong, 
 
 Mass. 145, 148; Cooley ». Belts, 24 Wend. 203; 2 Stockt. Ch. 263; Wagstaff v. Lowerne, 23 
 
 Lookwood V. Thome, 11 N. Y. 17D; Hart v. Ten Barb. 209; but see Constant v. Matteson, 23 III. 
 
 Byck, 2 Johns. Ch. 62, 108 ; Miller 'v. Simonton, 546 ; Mayor v. Galluchat, 6 Rich. Eq. 1. 
 5 S. C. 20; see Pearse v. Green, IJ. & W. 135; * Maenamara t>. Jones, 2 Dick. 587; Bright ». 
 
 Freeman v. Pairlee, 3 Meriv. 40, 42; White v. North, 2 Phil. 216, 220; Worrall v. Hartfoid, 8 
 
 Lady Lincoln, 8 Ves. 363. Ves. 4, 8; Phene«. Gillan, 5 Hare, 1,9; Douglas 
 
 2 Cramer v. Bird, L. E. 6 Eq. 143; Stokes' ti. Archbutt, 2 De G. M. & J. 148; Benett v. 
 
 Appeals, 80 Pa. St. 337; Pennock ». Lyons, 118 Wyndham, 4 De G. P. A J. 259; Duncans. 
 
 Mass. 92; King v. MuUins, 1 Drew. 309; Good- Findlater, 6 01. & Fin. 894; Heriot's Hospital 
 
 son II. Ellison, 3 Euss. 583. o. Eoss. 12 Iff. 507 ; Mersey Docks Trustees v. 
 
 3 Story Eq. Jur., § 1266; 1 Cruise Dig. 451 ; Gibbs, 11 H. L. Gas. 686; L. E. 1 H. L. 93; Jerris 
 
 Eobinson v. Pett, 2 Eq. Ld. Gas. 512, 538-600 (4th v. Wolferstan, L. R. 18 Eq. 18; Ellig v. Naglee, 
 
 Am. ed.) ; Meaoham v. Stemes, 9 Paige Ch. 398; 9 Gal. 683; Beatty v. Clark, 20 Id. 11, 30; New ». 
 
 In the matter of Schell, 53 N. Y. 9 Paige, 263; Nicoll, 73. N. Y. 127. 
 Denny ». Allen, 1 Pick. 147 ; Barren v. Joy, 16 
 
 372 
 
CH. XVII.] POWEKS, DUTIES AND LIABILmES OF TRUSTEES. § 326 
 
 plies in regard to any other aid or service, which a trustee might per- 
 form, for which he cannot secure compensation; as where the trustee 
 is a carpenter or mason, and makes repairs upon the trust estate; he 
 cannot obtain any compensation, but he may employ others for this 
 service, and obtain in the final settlement an allowance for such 
 expenses. And where the trustee is not in possession of sufficient trust 
 funds to pay for the necessary services thus rendered to the estate, it 
 has been held that he may advance the necessary money, and have 
 for the same a lien upon the trust estate, in order -to secure his 
 reimbursement. ' 
 
 If the estate is held in trust for the life of the cestui que trust, and 
 provides for a distribution of the property at her death, the costs of 
 administration, including the compensation of the trustee, should be 
 charged up to the account of the cestui que trust for life.^ 
 
 § 326. Breach of trust and liability therefor. — Whenever a 
 trustee violates his trust in any way whatever, whether by a want of 
 good faith, negligence, fraud or embezzlement — it matters not 
 whether the act is criminal in its character or only involves a civil 
 liability — in any case, such wrongful act is denominated a breach of 
 trust; and the beneficiaries are entitled to the protection of what- 
 ever remedies are necessary to a sufficient redress of their wrongs.' 
 These remedies, according to the character of the offense and liability, 
 may be enforced against the trustee himself, or after his death 
 against his estate.* Unless the Statute of Limitations expressly pro- 
 vides for application of its provisions to actions for breaches of trust, 
 no lapse of time will interfere with the prosecution of the action.^ 
 The liability of a trustee, however, for breach of trust may always be 
 defended by showing that the beneficiaries who are affected by the 
 trust acquiesced in or ratified such breach of trust. But in order that 
 
 'Macnamara v. Jones, 2 Dick. 587; Bright v. Siddall, 3 De G. F. & J. 58; Pearoe V. Pearce, 22 
 
 North, 2 Pliil. 216; New v. Niooll, 73 N. T. 127; Beav. 248; Hennessey v. Bray, 33 Id. 96; Look- 
 
 Ellig V. Naglee, 9 Gal. 683; Beatty V. Clark, 20 hart V. Keilly, 1 De G. & J. 464; Obee v. Bishop, 
 
 CaL 11, 30; Noyes v. Blakeman, 6 N. Y. 567; 3 I De 6. F. & J. 137; Ex parte Blencowe, L. K. 1 
 
 Sandf.531;Stanton«.King, 8 Hun, 4; Morrison Ch. 393; Holland V. Holland, L. E. 4 Ch. 449; 
 
 ■V. Morrison, 7 De G. M. & G. 214; Tennant v. Wynch v. Grant, 2 Drew. 312; Benbury v. Ben- 
 
 Trenehard, L. E. 4 Ch. 537; Eandall v. Dusen- bury, 2 Dev. & Bat. Eq. 235, 238. 
 
 bury, 63 N. T. 645; s. c, 39 N. Y. Super. 174. * Cook®. Addison, L. E. 7 Eq. 468; Beatty ». 
 
 But see contra, Taylor v. Clark, 56 Ga. 309; Curson, L. E. 7 Bq. 194; Jacobs v. Eylance, L. 
 
 Steele v. Steele's Adm'r, 64 Ala. 438. See, also, E. 17 Eq. 341; Livingston v. Wells, 8 S. C. 347; 
 
 ■ generally, on the subject of liens or trust Leedom v. Lombaert, 80 Pa. St. 381 ; Brown ». 
 
 estates, Starr v. Moulton, 97 111. 525; Bradbury Lombert's Adm'r, 33 Gratt. 256; Cesser v. Ead- 
 
 ■D. Biro'hmore, 117 Mass. 569, 580-582; Eyder v. ford, 1 De G. J. <fc S. 585; Bostock v. Floyer, L. 
 
 Sisson, 7 E. L 341; Kearney v. Kearney, 17 N. E. 1 Eq. 26; Sutton v. Wilders, L. E. 12 Eq. 373; 
 
 J. 59; Ferry!;. Laible, 27 N. J. Eq. 146; Williams Hopgood v. Parkin, L. E. 11 Bq. 74; In, re Gra- 
 
 V. Smith, 10 E. I. 280, 283; Eensselaer & E. E. bowski's Settlement, L. E. 6 Eq. 12. 
 
 U.Miller, 47 Vt. 146; Eobinson j). Hersey, 60 6 Burdick ». Garrick, L. E. 5 Ch. 233; Stone 
 
 jie_ 225. «• Stone, L. E. 5 Ch. 74; Dixon v. Dixon, L. E. 
 
 aCammannT. Cammann, SDemarest, (N. Y.) 9 Ch. D. 587; Pinsou v. Gilbert, 67 Ala. 35; 
 
 2ii_ Eowe V. Bentley, 29 Gratt. 756; Devaynes v. 
 
 8 Vernon v. Vawdry, 2 Atk. 119; Adey v. Eobinson, 24 Beav. 86; Brittiebank v. Good- 
 Arnold, 2 De G. M. & G. 432; Eackham V. Sid- win, L. E. 5 Eq. 645; Wood v. Wightman, L. E. 
 dall, 1 Macn. & G. 60? ; Lord D. Wrightwick, 4 13 Bq. 434; Taylor v. Cartwright, L. E. Eq. 
 De G M & G. 803; Life Ass'n of Scotland v. 167. 
 
 373 
 
§ 327 EQUITY JUKISPEUDENCE. [CH. XVII.. 
 
 any acquiescence or ratification may have the effect of barring actions 
 for breaches of trust, it must be shown that such acquiescence took 
 place, after such beneficiary had acquired full information of all the facts 
 of the case, and also after full knowledge of his legal rights under the 
 circumstances.' Mere delay is no defense; but if there is great delay 
 after knowledge of the breach of trust, and, particularly, where there 
 is some act which involves a recognition or condonation of the wrong- 
 ful act of the trustee, then such delay might be considered as having 
 the effect of an acquiescence.^ 
 
 § 327. Right of contribntion among co-trnstees. — For all breaches, 
 of trust, the trustee or trustees are jointly liable to the beneficiary for 
 the whole loss sustained ; and the whole amount due by such trustees, and 
 the joint judgment against all of them, may be enforced in full against, 
 any one of such trustees. ' Where one of them has thus been called upon 
 to satisfy the joint judgment, it will be found that the right of contri- 
 bution against the co-trustees, for the satisfaction of a joint judg- 
 ment for breaches of trust, wiU depend upon the character of the 
 wrongful act, which served as a foundation for the judgment. If the 
 breach of trust was a technical liability of duty, or acts of negligence, 
 or any other acts which were not of a fraudulent or criminal charac- 
 ter, then the trustees may be called upon to contribute towards the 
 settlement of the joint judgment, where one has been compelled to 
 make such a settlement to the beneficiary.* But where the breach of 
 trust is actually tortious or criminal in its nature; as where it consti- 
 tutes an actual fraud upon the beneficiaries, or was a criminal embez- 
 zlement of the trust funds — and perhaps also in cases of criminal 
 negligence and the participation of the trustee in a fraudulent or crim- 
 inal breach of trust — ^then there is no right of contribution recog- 
 nized by the courts in behalf of any one of them; and if one of them 
 has been compelled to satisfy in full the joint judgment against them all, 
 he is without any remedy to secure contribution from the co-trustees. 
 This is only a special application of the general rule that there is na 
 right of contribution between joint wrong-doers." 
 
 1 March ». Eussell, 3 My. & Or. 31; Lloyd v. Obee v. Bishop, 1 De G. F. & J. 137; Scott v. 
 
 Attwood, 3 De G. & J. 614j Aveliae v. Melhuish, Haddock, 11 Ga. 258. 
 
 2 DeG. J. & S. 288; Farrant v. Blanohford, 1 sWeetjen v. Vibbard, 5 Hun, 265; Heath !). 
 
 Id. 107, 119, 180 j Williams v. Heed, 3 Mason, 405; Waters, 40 Mich. 457. 
 
 Bond V. Bond, 7 Allen, 1 j Negley v. Lindsay, * Perry on Trusts, § 848; Llngard v. Bromley, 
 67 Pa. St. 217 ; Cumberland Coal Co. v. Sherman, 1 V. <Sc B. 114, 117 j Sherman «. Parish, 53 N. Y.' 
 20 Md. 117; Walker v. Symonds, 3 Sw. 1, 64; 483, 489; Priestman «. Tindall, 34 Beav. 244; 
 Wedderbuen v. Wedderbuen, 4 My. & Or. 41; Baynard v. Woolley, 20 7<i. 583; Birks v. Mick- 
 Clark o. Clark, 8 Paige, 152j Banks ». Wilkes, 3 lethwait, 33 Id. 409; Wilson v. Goodinan, 4 
 Sandf. Oh. 99; Monell v. Monell, 5 Johns. Ch. Hare, 54; Munch v. Cockerell, 8 Sim. 219; Pitt 
 283; Jones' Appeal, 8 Watts &S. 141, 147; Pim v. Bonner, 1 Y. & C. Ch. 670; Atty.-Ge'n. v. 
 V. Downing, 11 Serg. & E. 66; Wayman v. Jones, Daugars, 33 Beav. 621, 624; Perry v. Knott, 4 Id. 
 i Md. Ch. 500; Ringgold v. Ringgold, 1 Harr. & 179, 180; Coppard ». Allen, 2 De G. J. & S. 173^ 
 G.ll; State v. Guilford, 15 Ohio, 693; Royall's 177, per Turner, L. J.; Fletcher «. Green, 33 
 Adm'r, v. MoKenzie, 25 Ala. 363. Beav. 613, 615. 
 
 'Bright V. Legerton, 2 De G. F. & J. 806; ' Cunningham ». Pell,5 Paige, 607, per Wal- 
 
 Hodgson V. Bibby, 32 Beav. 221; Clanricarde v. worth, Ch., and in Heath v. Erie R. R. Co. 8 
 
 Henning, 30 Id. 175; Browne v. Cross, 14 Id. 105; Blatch. 347; Smith a. Rathbun, 28 Hun ISO- 
 
 374 ' ' 
 
CH. XVII.] POWEES, DUTIES AND LIABILITIES OF TRUSTEES. § 329 
 
 § 328. Liability of third persons for performance of tlie trust. 
 
 — It has been held in England, and in some of the American states, 
 where a trustee has a power of sale, that the land in the hands of pur- 
 chasers is subject to a constructive trust, which compels the purchaser 
 to see to the proper application of the purchase money. This doc- 
 trine has been wai-mly contested and denied in many of the states, and 
 presumably the rule is generally limited to such cases, where the trust 
 is special and the sale is for a special purpose; as for the satisfaction 
 of a particular debt or claim. Where the trust is general, it is impos- 
 sible for the purchaser to secure a proper application of the purchase 
 money, and he is not held liable for any misappropriations by the 
 trustees.' 
 
 § 329. Liability of qnasi trustees or other fiduciary persons. — 
 The conception of a trust relation, between parties having obligations 
 towards each other, runs through every part of equity jurispru- 
 dence; and whenever the court of equity desires or finds it necessary to 
 assume jurisdiction over such an obhgation, in order to prevent injury 
 to the rights of the parties, or to secure enforcement of the obligation, 
 the relation created between the parties to such obligation will be 
 treated as practically that of a trust, although the party, upon whom 
 the court will impose the duties of a trustee, has not the legal title to 
 the property concerned in the agreement. But inasmuch as the effect 
 of the non-performance of the duty of such a person is the same, as in 
 the case of the formal trust, these parties are treated in equity as essen- 
 tially under the duty and liability of trustees and are, therefore, con- 
 sidered as quasi-trustees. Executors and administrators constitute on& 
 of these classes.^ So, also, will the court of equity treat as a trustee the.' 
 guardians or committees, who have control of the person and property 
 of Insane persons and other persons laboring under disabilities.' So,, 
 likewise, does the court of equity treat as a trustee the guardian of 
 Infants,* and any fiduciary agent. ^ The directors of a stock or other 
 corporation are also subject to the same conception, and treated for 
 many purposes by a court of equity as trustees, not only for the cor* 
 poration, but likewise for the stockholders; and under that doctrine, the 
 court assumes jurisdiction over cases of maladministrations of ofl&cers 
 
 Atty.-Gea. v. Brown, 1 Sw. 265; Lord Hard- 641; StumphB. Guard, of Pfeiffer, 58 Ind. 472. 
 
 wicke's Charitable Corporation Case, (2 Atk.) 4 Wiokiser ». Cook, 85 111. 68; Reed u. Tlm- 
 
 400, 406; Atty.-Gen. v. Wilson, Cr. & Ph. 1, 28. mins, 58 Tex. 84; Hoyt v. Sprague, 13 Otto, 613 j 
 
 1 Story Eq. Jur., §§1127,1130; 1 Cruise Dig. Mieou ». Lamar, 17 Blatch. 378; Bourne©. May- 
 450; Potters. Gardner, 13 Wheat. 498; Duffy v. bin, 3 Woods, 724; In re Dean, 86 N. Y. 398; 
 Calvert, 6 Gill, 487; Dunch v. Kent, 1 Vern. 260; Chanslor v. Chanslor's Tr's, 11 BUsh, 663; Tan- 
 Spaldlng ». Shalmer, 1 Vern. 301; Andrews «. ner ». Skinner, 11 Id. ISO; Wood u. Stafford, 50 
 Sparhawk, 13 Pick. 393; Dayis v. Christian, 15 Miss. 370; Sledge v. Boone, 57 Id. 2S2; McNeill v. 
 Gratt. 11; Stalls. Cincinnati, 16 Ohio St. 169. Hodges, 83 N.C. 504; Lanier.u. Griffin, 11 S.C. 565; 
 
 2 Seepost, Chapt. XIX, for an explanation of Smith v. Davis, 49 Md. 470; Sage v. Hammonds, 
 the equitable jurisdiction in the admlnistra- 27 Gratt. 251; Wyokoffii. Hulse, 32N.J.Eq. 697; 
 tion of decedent's estates. Lewis ». Allred, 57 Ala. 628, overruling Spence 
 
 3 Polls V. Tice, 28 N. J. Eq. 432; Cole's Com. v. Spencer's Bx'r, 50 Id. 445; Monnin v. Berou- 
 V. Cole's Adm'r, 28 Gratt. 365; Moody v. Bibb, jon, 51 Id. 196; Corbett V. Carroll, 50 Id. 315 
 
 50 Ala. 245; Stephens v. Marshall, 23 Hun, ' Thornton v. Thornton, 31 Gratt. 212. 
 
 375 
 
§ 329 
 
 EQUITT JUKISPKUDENCE. 
 
 [cH. xvn. 
 
 of such corporations, not only for the protection of the corporations 
 as a totality, but also for the protection of the interests of the individual 
 stockholder. The director, in other words, is treated as being a trustee, 
 in respect to the interests confined to his care, both of the corporation 
 and of the individual stockholder.^ But, inasmuch as the duties of 
 directors are generally questions of law, and grow out of the simple 
 relation of principal and agent, it is not necessary in this connection to 
 explain in detail their duties, or the circumstances under which the 
 court of equity will enforce those duties under the conception of a trust 
 relation.* 
 
 1 Forbes v. McDonald, 64 Gal. 98; Davis v. 
 Eock Creek, Ac. Co., 56 Id. 359; Booth u. EoWn- 
 son, 55 Md. 419; Chouteau «. Allen, 70 Mo. 290; 
 Van Dyek v. McQuade, 86 N. T. 38, 45, 46, per 
 Danforth, J.; Chase v. VanderWlt, 68,N. T. 
 SW; Black v. Delaware, &o. Co., 22 N. J. Eq. 
 (7C. E.Green) 130, 393; Simons ». Vulcan Oil, 
 Ac. Co., 61 Pa. St. 202; Chetlain». Eepublic Life 
 Ins. Co., 86 111. 220; Deaderick v. Wilson, 8 
 Baxt. 108; Corbett v. Woodward, 5 Saw. 403; 
 Kyans. Leavenworth, &c. Ey., 21 Kans. 365; 
 Duncomb v. N. Y., H. & N. R. K., 84 N. Y. 190; 
 
 376 
 
 Smith V. Rathbun, 22 Hun, 150; Hun ». Cary, 
 82 N. Y. 65, 70; Forbes v. Memphis, &e. R. E., 2 
 Woods, 323; Jackson v. Ludellng, 21 Wall. 616; 
 Smith V. Poor, 3 Ware, 148; Ms parte Chippen- 
 dale, 4 De G.M. <& G..19, 52; Bagshawv. Eastern 
 Union Ey., 7 Hare, 114, 130, 131; 2 Hall & T. 
 201 ; Foss V. Harbottle, 2 Hare, 461, 493, 494; 
 Eussell V. Wakefield, &c. Co., L. E. 20 Eq. 474, 
 479. 
 
 ' See ante, § 233, where it is fully explained 
 how parties in confidential relations may be 
 guilty of constructive fraud. 
 
CHAPTEE XVIII. 
 
 POWERS OF APPOINTMENT. 
 
 The nature of powers in general 
 
 Powers of appointment . 
 
 Kinds of powers 
 
 Suspension and destruction of powers 
 
 How powers may be created . 
 
 Powers distinguished from estates 
 
 Powers enlarging the interest, w;th 
 
 which it is coupled 
 Who can be donees .... 
 By whom the powers may be executed 
 Mode of execution .... 
 
 Seotioit 
 
 330 
 
 . 330 a 
 
 330 b 
 
 330 
 
 . 330 d 
 
 . 330e 
 
 330f 
 
 330g 
 
 330 h 
 
 330 k 
 
 Seotion 
 Who may be appointees . . . 330 1 
 
 Execution by implication . . 330 m 
 
 Excessive execution . . . . 330 n 
 Successive execution . . . 330 p 
 
 Revocation of appointment . , . 330 s 
 Defective executions and non-execu- 
 tions— How and when cured . 330 1 
 
 Rules of perpetuity 330 u 
 
 Eights of donee's creditors in the 
 
 power 330 V 
 
 The rights of creditors of the beneficiary 330 w 
 
 § 330. The nature of powers in general. — A power, in the most 
 comprehensive sense in which the word can be used, is an authority 
 conferred upon a person to do a thing. But in its present application 
 it signifies an authority to dispose of property, which is vested either 
 in the person exercising the power, or in some other person. Under 
 this latter signification three distinct classes of powers will be recog- 
 nized: First, statutory powers; second, powers of attorney; and 
 third, what are generally called powers of appointment, or simply 
 powers. A statutory power is one which is created and vested in a 
 person by legislative enactment. It is an act of the government; 
 it derives its authority from the legislature, and is subject to the same 
 rules of interpretation and construction as statutes in general.^ Pow- 
 ers of attorney are authorities conferred by a principal upon an agent 
 to perform certain acts in the manner indicated in the instrument of 
 authority. The exercise of this power is the act of the principal 
 through, or by means of, the agent. It is exercised in the name of 
 the principal, and requires as much formality in execution as if the 
 principal were acting himself. This class of powers, so far as they 
 pertain to the law of real property, will be more specifically explained 
 in subsequent pages. ^ In both classes of powers just mentioned, stat- 
 utory powers and powers of attorney, the legal title to the property 
 thus disposed of is conveyed, not by the creation of the power, but by 
 the deed of conveyance made in pursuance of the power. The title 
 remains in the original owner, unaffected by the creation of the power, 
 until its execution. It is divested only when the deed of conveyance 
 is executed and delivered. ' 
 
 11 Baltimore v. Porter, 18 Md. 884; see, also, 
 Markhams. Porter, 33 Ga. 508j In the matter 
 of Bull, 45 Barb. 334; Leak v. Richmond Co., 
 64 N. C. 133. 
 
 2Seepo«<, §§805, 806. 
 
 »'2 Washb. on Real Prop. 610; 1 Sugden on 
 Pow. (ed. 1856) 1, 171, 174; 3 Washb. on Real 
 Prop. 277-879. 
 
 377 
 
§ 330 a EQtriTT jurispkudence. [ch. xvm. 
 
 § 330 a. Powers of appointment. — The third class of powers^ 
 enumerated above, is what concerns us at present, viz. : powers of 
 appointment. These powers, which are generally known simply as 
 powers, are modes of disposition of property, which operates under 
 the Statute of Uses or the Statute of Wills. The creation of the power 
 invests in the person to whom it is granted, called the donee, a present 
 indefeasible executory interest in the land. It is a right to convey 
 the land, and cannot be revoked by the donor.* The common, 
 law knows of no class of powers which will in themselves, by their 
 very creation, convey an interest in real property, and thus encum- 
 ber the title thereof.^ There are only two modes of creating such 
 a power. One is by way of a use. The power in such a case 
 is "aright to limit a use. " (Kent.) In the exercise of the power 
 a use is created, which is immediately executed into a legal estate 
 by the Statute of Uses in the person to whom the use has been lim- 
 ited, and who is called the appointee. The estates created by means 
 of these powers are either contingent, springing or shifting uses, 
 according to their relation with the other limitations in the deed or 
 will creating the power, and are governed by the same rules of con- 
 struction.' An ordinary contingent use vests upon the happening of 
 an uncertain event. In the case of an estate created by means of a 
 power of appointment, the uncertain event is the exercise of the power.* 
 The other mode of creating this kind of power is by will under the 
 Statute of Wills. The estate so created is an executory devise, deriv- 
 ing its force and effect from the will itself. All powers in a will 
 operate under the Statute of Wills, except where it takes the form of 
 a power to limit a use, and there is a special seisin raised by the will 
 to support the use thus limited. Then it operates under the Statute of 
 Uses, as a contingent or future use.^ Whether the power be created 
 by deed or by will, the appointee's estate vsdll have the same charac- 
 teristics as it would have had if, instead of the power, it had been, 
 limited in the instrument creating the power. And in order to deter- 
 mine the rights of the appointee, and the validity and character of the 
 estate appointed to his use, it must be tested by the relation it would 
 bear to the other limitations of the property, if it had occupied the 
 place of the power in the original instrument. The appointor is merely 
 an instrument employed to limit the estate; the appointee is in by the 
 original instrument, which creates the power.' The foregoing expla- 
 nation of the doctrine of powers is true as to this country generally, 
 
 > Eoland v. Coleman, 76 Ga. 652. 6 1 Sugden on Pow. (ed. 1856) 240 j Prest.Abst.347 
 
 2 Sugden on Pow. (ed. 1856) 4; Co. Lit. 237 a; «1 Sugden on Pow. (ed. 1856) 171, 242j Co. 
 
 see coreJra, Chance on Pow., §§5-12. Lit. 271 b, Butler's note, 231, § 3, pi. 4; 
 
 'Co. Lit. 271 b, n. 231; Bac. Law Tr. 314; 1 Gilbert on Uses, 127 n; 4 Kent's Com. 337; 4 
 
 Spence Eq. Jur. 455; 4 Kent's Com. 334; Will- Cruise Dig. 220; 2 Washb. Real Prop. 636, 637; 
 
 iams on Real Prop. 394. Doolittle v. Lewis, 7 Johns. Ch. 45; Bringloe 
 
 »Co. Lit. 271 b, Butler's note, 231; Tud. Ld. ». Goodson, Bing. N.C. 726; Roach ». Wadham, 
 
 Cas. 264; Sheph. Touch. 529; Williamson on 6 East, 289; Doe v. Britain, 2 B. & Aid. 93; 
 
 Real Prop. 294; Rnsh v. Lewis, 21 Pa. St. 72; Mosleyt). Mosley, 6 Ves. 256; Bradlsh «. Gibbs,. 
 
 Rodgers v. Wallace, 5 Jones L. 182. 3 Johns. Ch. 550. 
 
 378 
 
OH. XVin.] POWERS OF APPOINTMENT. § 330 b 
 
 with the, perhaps, single exception of New York. In that state all 
 powers, heretofore known as operating under the Statute of Uses and 
 the Statute of Wills, have been abolished, and only certain powers, 
 enumerated in the statute, can now be created. But they have received 
 at the hands of the courts of that state practically the same construc- 
 tion as powers in other states, so that what is subsequently said of 
 powers of appointment is equally applicable to powers in New York, 
 the only difference being that there they operate under the statute of 
 New York, instead of the old English Statutes of Uses and Wills, and 
 are confined to certain objects.' 
 
 § 330 b. Kinds of powers. — Powers of appointment may be con- 
 ferred upon persons having an interest or estate of some kind in land, 
 or they may be given to persons who are otherwise altogether 
 strangers to the property. In the latter case they are called collateral 
 or naked powers; the power is not attached to any present estate, and 
 the donee possesses the mere right to exercise the power. ^ In the 
 former case the power is either appendant or in gross, according to 
 its relation to the estate, to which it is attached. Any power whose 
 execution creates an estate, which issues partly or wholly out of an 
 estate vested in the donee, is a power appendant. Thus, where a 
 tenant for life has the power to make leases in possession, which are 
 to continue until their natural termination independent of the lessor's 
 life estate, it is called a power appendant. The lease granted takes 
 effect immediately in derogation of the tenant's life estate, and binds 
 the remainder-man, if it does not expire during the continuance of the 
 life estate.' Powers in gross are those which do not conflict with the 
 estate of the donee, and authorize the limitation of estates, which 
 take effect out of the interest or estate of some one else. Such would 
 be a power given to a life tenant to dispose of the remainder, to raise 
 a jointure for his wife, to make leases commencing at his death. The 
 exercise of these powers cannot by any possibihty affect the estates to 
 which they are attached.* Powers are also divided into general, and 
 special ot particular. If the donee has the power to appoint to whom 
 he pleases it is a general power; and if he can appoint to only certain 
 particular persons, it is a special or particular power.'* Then again a 
 general power may be for the benefit of the donee, or one in trust 
 for certain beneficiaries." If the power be to create a new estate, it is 
 
 1 N. Y. Rev. Stat., Art. 3, §§ 86-148j Hotoh- * 1 Sugden on Pow. 114; 4 Cruise's Dig. 220j 
 
 kiss V. Elting, 36 Barb. 38. Gorin v. Gordon, 38 Miss. 214; Wilson v. Troup, 
 
 STud. Ld. Cas. 286; Williams on Real Prop. 2 Cow. 236; Tud. Ld. Gas. 293. 
 
 294- 1 Sugden on Pow. 107; 2 Washb. on Real 6 2 Washb. on Real Prop. 641; Co. Lit. 271 b. 
 
 Prop. 639; Bergen v. Bennett, 1 Gaines' Cas. Butler's note, 231, pi 4, §3; Williams on Real 
 
 15; Edwards?). Slater, Hard. 416; Richardson «. Prop. 309; Roach v. Wadham, 6 East, 289; 
 
 Hunt 59 Hun, 627; Potters. Couch, 141 U.S. 296. Commonwealth o. Williams, 1 Harris, 29; 
 
 'Williams on Real Prop. 310; 3 Washb. on Wright v. Wright, 41 N. J. 383. 
 
 Real Prop. 639, MO; Edwards v. Slater, Hard. o Tud. Ld.' Cas. 294; Williamson Real Prop. 
 
 416; Bergen V. Bennett, 1 Gaines' Gas. 15; 307,308; Chance on Pow., § 34; Howell «. Tyler. 
 
 Maundrell v. Maundrell, 10 Ves. 246; Wilson V. 91 N. C. 207. 
 Tioup, 2 Cow. 236. 
 
§ 330 C . EQUITY JUEISPEUDENCE. [CH. XVm. 
 
 called a power of appointment. If it be simply to destroy an estate 
 already vested, it is called a power of revocation. A power of 
 appointment always implies a power of revocation, but as a rule an 
 express power of revocation will not raise by implication a power of 
 appointment. A power of appointment cannot be exercised without 
 revoking a previous limitation; by the exercise of the power of revo- 
 cation, where there is no express power of appointment, the land 
 reverts to the grantor and his heirs.' 
 
 § 330 c. Suspension and destruction of powers. — ^All general 
 powers given for the benefit of the donee, may be released by him to 
 one holding the freehold, whether in possession, remainder, or rever- 
 sion, and thus destroyed. And this, too, whether the power be 
 appendant, m gross, or collateral. For, it being given for the sole 
 benefit of the donee, if he releases it, he will not be allowed there- 
 after to exercise it in derogation of his own release.^ But a special 
 power, or a general power in trust for certain beneficiaries, cannot be 
 extinguished or released by any act of the donee alone. The power 
 in such cases is in the nature of a trust, and the beneficiaries have 
 rights therein which are beyond the power of the donee to destroy.' 
 And where the exercise of the special power is mandatory, thereby 
 imposing upon the donee a peremptory duty to exercise it; or where 
 the discretion, if any is given to the donee as to its exercise, is to be 
 exerted and employed at some future time, the donee has no power to 
 extinguish or release it, even though persons interested in, and to be 
 benefited by its exercise, consent to the release, and join in the deed.* 
 But if it is within the discretion of the donee when and whether, if at 
 all, he should execute the power, a joint deed of release by himself 
 and the beneficiaries will extinguish the power. ^ Where the power is 
 appendant, the conveyance of the entire estate to which the power is 
 annexed wiU destroy the power. The power can only be exercised in 
 derogation of the estate, and the donee will not be permitted to defeat 
 his own grant by executing the power.' But if he conveys only a 
 part of his estate, leaving a reversion in him, the exercise of the power 
 will only be suspended or postponed to the estate so grafted, and the 
 
 14 Cruise's Dig. 219, 220; Sandf. on Uses, 154; Cunyngliame v. Thurlow, 1 Russ. & M. 436 n; 
 
 Tud. Ld. Gas. 264; 4 Kent's Com. 415; Wright West v. Barney, 1 Russ & M. 431; Talnter v. 
 
 V. Tallmadge, 15 N. Y. 307; Ricketts v. Louis- Clark, 13 Meto. 220; Norris «. Thompson, 4 
 
 Tille, Ac. R. E. Co., (Ky. "91) 15 S. W. 182. Green L. 307. 
 
 ^Tud. Ld. Cas. 294; Edwards ». Slater, Hard. i2Washb. on Real Prop. 643; Chance on 
 
 416; Chance on Pow.,| 3115; ISugdenon Pow. Pow., § 3121; Williams on Real Prop. 310; see 
 
 112; Williams on Real Prop. 310; Smith v. Dave v. Johnson, 141 Mass. 287. 
 
 Death, 5 Mad. 371; Horner v. Swann, Turn. & 6 Brown & Sterritt's Appeal, 27 Pa. St. 62; 
 
 Russ. 430; Albany's Case, 1 Rep. 11 b, 113 a; Allison v. Wilson's Ex'rs, 13 Serg. & R. 330. 
 
 West ». Bemly, 1 Russ. & M. 431; Grosvenor ». "Goodright v. Cato, Dougl. 480; Wilson ». 
 
 Bowen, 15 R. I. 649. Troup, 2 Cow. 195; Noel 17. Henry, McClell. A 
 
 3 Co. Lit. 237 a, 265 b; 1 Sugden on Pow. 117; Yo. 302; Bullock «. Thome, Moore, 615; Anon., 
 
 Does. Smyth, 6B. AC. 172; a. o.,9Dowl. &Ry. Moore, 612; Yelland «. Ficlis, Moore, 788; 1 
 
 136 ; Toirason B. Tickell, 3 B. & A. 31; Begbie Sugden on Pow. 113-115; Penn o. Peacock, For. 
 
 «. Croak, 2Bing. N. C. 70; Tuickw. Ludborongh, 41; Cas. teuip. Talb. 43; Webb v. Shaftesbury, 
 
 3 Bulstr. 30; Tud. Ld. Cas. 28S, 295; Chance on 3 Myl. & Kee. 599; Parkers. White, 11 Ves. Jr. 
 
 Pow., § 3105; Tippet V. Eyres, 5 Mod. 457; 209; Walmsley v. Jowett, 23 Eng. L. <fe E. 353; 
 
 380 
 
CH. XVIII.] 
 
 POWEES OF APPOINTMENT. 
 
 § 330 d 
 
 estate created by the power will vest upon the termination of the prior 
 demise.^ The power may be exercised at any time; only the enjoy- 
 ment of the estate thus created is postponed." But no conveyance of 
 the estate of the donee, except by feoffment, will cause an extin- 
 guishment of the power in gross. As a rule a release is the only mode 
 of extinguishing this kind of power.' 
 
 § 830 d. How powers may be created. — ^Powers may be created by 
 deed or by will. They may be incorporated in the same instrument 
 which conveys the property, or they may be endorsed thereon, or even 
 granted by a separate instrument. If the instrument be a deed 
 operating by transmutation of possession, the conveyance of the legal 
 estate is necessary for the creation of the power. In the case of every 
 other instrument of conveyance, there can be a valid grant of a power 
 without a transfer of the legal estate.* No particular words or 
 phrases are required. Any words which clearly indicate the intention 
 of the donor to create a power, and which define its scope with a 
 reasonable degree of certainty, will be sufficient. This rule governs 
 all classes of powers, whether operating under the Statute of Uses or 
 the Statute of Wills. ^ Where the deed, which creates the power, 
 operates by transmutation of possession, and a seisin is therefore 
 raised by the deed to support the use, which is to be created under 
 the power, the legal estate so conveyed must be as extensive as the 
 
 Jones V. Wlnwood, 4 Meas. & Wels. 653 ; Chance 
 on Pow., §§ 3155, 3159; Maundrell v. Maundrell 
 10 Ves. 246; Doe v. Britain, 2 B. & Aid. 93; 
 Williams on Real Prop. 310; Tud. Ld. Gas. 260, 
 290; 4 Cruise's Dig. 157; Bringloe v. Goodsou, 4 
 Bing. N. C. 726. 
 
 lEen V. Bulkeley, Dougl. 292; Tyrrell v. 
 Marsh, 3 Bing. 31 ; Koper v. Halifax, 8 Taunt. 
 8«; Doe V. Scarborough, 3 Adolp. & BIL 2; 
 Bringloe v. Goodson, 4 Bing. N. C. 726; 4 
 Cruise's Dig. 221; Goodright v. Gator, Dougl. 
 477;. Tud. Ld. Gas. 287. 
 
 2 1 Sugdeii on Pow. 114, 115, citing Bringloe v. 
 Goodson, 4 Bing. N. C. 726; Anon., Moore, 612; 
 Bullocko. Thome, Moore, 615; Ren ». Bulkeley, 
 Dougl. 292; TyrreU v. Marsh, 3 Bing. 31; Davles 
 V. Bush, McClell. &, Yo. 58; Wilson v. Troup, 2 
 Cow. 837; Dalby v. Pullen, 2 Bing. 144; Tud. 
 Ld. Gas. 546; Chance on Pow., §402. Contra, 
 Snape v. Turton, Cro. Gar. 472; Mordaunt ». 
 Petershorough, 3 Keb. 305. But If the power 
 appendant enables only the creation of estates 
 in possession, as where it is a power to make 
 leases in possession and not in fuluro, the 
 exercise of the power is altogether suspended. 
 Bringloe t). Goodson, 4 Bing. N. G. 726; 1 Sugden 
 on Pow. 116. 
 
 3 Chance on Pow., § 3172; Edwards v. Slater, 
 Hard. 416; Savile v. Blacket, 1 P. Wms. 777; 2 
 Washb. on Eeal Prop. 643; 1 Sugden on Pow. 
 
 112. „ „ 
 
 40uton V. Weeks, 2 Keb. 803; Pitz v. Small- 
 brook, 1 Keb. 134; 1 Sugden on Pow. 217, 228- 
 231; Gilbert on Uses, 46; Williamson Pers. 
 
 Prop. 246; Co. Lit. 271 b, III, § 5, Butler's notej 
 Powell on Devises; 1 Sandf. on Uses, 195; 
 Andrews' Case, Moore, 107; Popham o. Bamp- 
 fleld, 1 Vern. 79; Thompson v. Lawley, 2 Bos. 
 & Pul. 311; Doe v. Pinch, 4 Barn. & Adolph. 
 283; Perry v. Phillips, 1 Ves. Jr. 255; Pearne 
 Gont. Eem. 128; Rash v. Lewis, 21 Pa. St. 72; 3 
 Kent's Com. 319; Maundrell v. Maundrell, 10 
 Ves. 255; 6 Cruise's Dig. 490. 
 
 6 2 Washb. on Real Prop. 650 ; 1 Sugden on Pow. 
 118; McCord v. McGord, 19 Ga. 602; Choofstall 
 «. Powell, 1 Grant's Cas. 19; Bradley «. Wescott, 
 13 Ves. 445; Smith v. Bell, 6 Pet. 68; Scott v. 
 Perkins, 28 Me. 22; Harris ». Knapp, 21 Pick. 
 416; Porcher v. Daniels, 12 Rich. Eq. 349; 
 Brant v. Va. Coal Iron Co., 93 U. S. 326; Jones 
 V. Hurst, 7 Ired. Bq. 134; Withington's Appeal, 
 32 Pa. St. 419; Dominick v. Michael, 4 Sandf. 
 374; Gregory v. Congill, 19 Mo. 415; Turner v. 
 Timberlake, 53 Mo. 371; Putnam School v. 
 Fisher, 30 Me. 523; Mather v. Norton, 8 Eng. L. 
 & E. 255; Bateman o. Bateman, 1 Atk. 421 j 
 Conover u. Hoffman, 1 Bosw. 214; Mundy v. 
 Sawter, 3 Gratt. 518; Dunn «. Keeling, 2 Dev. 
 283; Owen v. Ellis, 64 Mo. 77; Best v. Best, 
 (Ky.) 11 S. W 600; Goudie r. Johnston, 109 Ind. 
 427; Logue v. Bateman, 43 N. J. Eq. 434; 
 Pritsch V. Klansing, (Ky. '90) 13 S. W. 241; 
 Watson V. Sutro, 86 Cal. 500; Woerz v. Eade- 
 macher, 120 N. Y. 62; In, re Carr, 16 R. I. 645; 
 Brown v. Crittenden, (Ky.) 1 S. \V. 421 : Goaghan 
 V. Ockershausen, 5 N. Y. Super. Ct. 286; Ames 
 V. Ames, 15 R. I. 12; Cheray v, Greene, 115 111. 
 591 i Wright V. Wright, 41 N. J. Eq. 382. 
 
 381 
 
§ 330 e EQUITY JUKISPKUDENCE. [CH. XVIII. 
 
 use to be thus created. The appointee under the power cannot take 
 a larger estate than that granted to the f eoflfee to uses. This is only a 
 special application of a general rule governing all classes of uses.' 
 
 § 330 e. Powers distinguished from estates. — As a consequence 
 of this liberal rule concerning words necessary to create a power, it is 
 very often difficult to determine whether the intention of a testator 
 was to give an estate in the land, or only a naked power. Since 
 technical words are used to create an estate by deed, it rarely happens 
 that doubt will arise in the construction of a power by deed. The 
 question, therefore, possesses importance only in relation to wills. 
 The intention of the testator will always govern whenever it can be 
 clearly ascertained, even though the literal meaning of the words used 
 would indicate a different conclusion.^ The most numerous cases have 
 arisen under devises, in which executors are directed to sell lands for 
 the purpose of distribution. If the executors are intended to have pos- 
 session until sale under the power, then it is, of course, a power coupled 
 with an interest, and the estate does not descend for the time being to the 
 donor's heirs.* Succinctly stated, if the devise be that "the executor 
 shall sell," or that " the land shall be sold," only a naked power is 
 granted. But a devies to the executor to sell, or words of similar 
 import, will vest the legal title in him; it will be a power coupled 
 with an interest.' All doubt is, of course removed where the will 
 makes some other disposition of the legal estate." In New York, by 
 statute, the executor in all such cases takes only a naked power, 
 unless some duty is imposed upon him in regard to the management 
 of the property, which would require its possession.' 
 
 iCo. Lit. 271 b, Butler's note, 331; Cleveland Snowhill, 3 Zabr. 447; Killam v. Allen, 52 Barb, 
 
 ■e. Hallett, 6 Oush. 403; Norceum ». D'Oench, 605; InmaniJ. Jackson, 4 Greenl. 237; MoKnlght 
 
 17 Mo. 98; Exeter a. Ooiorme, 1 N. H. 232; 1 v. Wimer, 38 Mo. 138; 1 Williams on Ex. 540; 4 
 
 Sugden on Pow. 231 . Kent's Com. 326; 1 Sugdcn on Pow. 189-194; 
 
 2 4 Kent's Com. 319; Sbarpsteen v. TlUon, 3 Mosby «. Mosby, and Miller ». Jones, 9 Gratt. 
 
 Cow. 651; Jameson v. Smltb, 4 Bibb, 307; 584; Fluke ». Fluke, 1 Greenl. 478; Pay ». Pay, 
 
 Gray ». Lynch, 8 Gill, 403; Peter u. Beverly, 10 1 Cnsh. 93; Howell t7. Barnes, Cro. Car. 382; 
 
 Pet. 532; Jackson *. Jansen, 6 Johns. 73; Jack- Haskell v. House, 3 Brev. 242; Ferebee v. Proc- 
 
 son?!. Schauber, 7 Cow. 187; Clary o. Prayer, tor, 2 Dev. & B. 439; Jackson ■». Shauber, 7 
 
 8 Gill &J. 403; Walkers. Quigg, 6 Watts, 87j gow. 18; Peck v. Henderson, 7 Yerg. 18; 
 
 Ladd V. Ladd, 8 How. 10; Kichardson v. Hunt, gloomer v. Waldron, 3 Hill, 361 ; Co. Lit. 113 a, 
 
 69 Hun, 627; Potters. Couch MIU. S. 296. Hargrave's note, 2, Greenough v. Wells, li 
 
 Bloomer «. Waldron, 3 Hill, 361; see cases ^ush. 571, Gordon v. Overton, 8 Yerg. 121; 
 
 cited in preceding note; Franklin ». Osgood, ,„ . ,j „ ,, . ,t^ , ., .^ ..„ „„„ „ 
 
 14 Johns. 527; Brearly «. Brearly, 1 Stockt. 21 W^'A*"^ "• '^"Bllsh, (Ky.) 11 S. W. 662; Her- 
 
 Dlgges' Lessee «. Jarman, 4 Har. & McH. 468; *>«^^ "• Herberts' Ex'rs, 85 Ky. 134; Traphager 
 
 Jackson ». Ferris, 15 Johns. 346; Nelson v. Car- «• ^^"^^ ^ ^- '■ =1- «8; Perkins v. P.-«inell, 
 
 rlngton,4 Munf. 332, pi. 9; Zeback «. Smith,3 lOON. C.220; Naar». Naar, 41 N. J. 88. 
 
 Blnn. 69; De Vaughan v. McLeroy, 82 Ga. 687. ' ^^^ "■ Aweling, 1 Dutch. 449; Hemingway 
 
 *Gray ©.Lynch, 8 Gill, 403; Hartley d. Ml- ». Hemingway, 22 Conn. 463; Peter ». Beverley, 
 
 nor's App., .53 Pa. 212; Clary ». Prayer, 8 Gill & 10 Pet. 533; Ladd v. Ladd, 8 How. 10. 
 
 J. 403; 4 Kent's Com. 330. ' N. Y. Eev. Stat., Art. 2, § 68; Aldrich*. 
 
 6 Yates D. Crompton, 3P. Wms. 308; Lancaster Green, 1 N. Y. S. 549; s. u., 16 State Rep. 535. In 
 
 V. Thornton, 2 Burr. 1027 ; Bergen v. Bennett, 1 Pennsylvania a statute provides that In all 
 
 Caines' Cas. 16; Doe o. Shotter, 8 Adol. & Ell. such cases, whatever may be the phraseology 
 
 905; Patton v. Crow, 26 Ala. 426; Clinefelter v. used, the executor takes the power coupled 
 
 Ayers, 16111. 329; Gregg «. Currier, 36 N. H. with the estate. Cobb ». Biddle, 14 Pa. St. 444; 
 
 200; Thornton v. Gailliard,3 Rich. 418; Bayard Brown v. Sterrltt, 27 Pa. St. 32; Shippen's Hein 
 
 ». Eowan, 1 A. K. Marsh. 214; Snowhill v. ». Clapp, 29 Pa. St. 265. 
 
 382 
 
■CH. xvni.] 
 
 POWEES OF APPOINTMENT. 
 
 § 330 g 
 
 § 330 f . Power enlarging the interest witli wliicli it is conpled. — 
 
 If the power is general and coupled with an interest, the duration of 
 which is not clearly defined, as where there is a devise of lands 
 generally, with full power to dispose of them by deed or by will, the 
 <ievise will be construed to be that of an estate in fee, and not simply 
 a life estate with a general power in gross attached thereto. But if 
 the power is special, or a particular estate is expressly giyen with a 
 ^neral power of disposal, the power will not enlarge the estate, and 
 the testator's heirs will take as reversioners, if the power is not 
 exercised.^ In every case the limitation of the power of disposal must 
 be clear, especially in a will; for where the limitation of the estate is 
 expressly for life, the power of disposal may be limited in its operation 
 to the life estate.^ 
 
 § 330 g. Who can be donees. — ^Anyone, who is capable of holding 
 and disposing of his own property, can be the donee of the power. It 
 seems also that a purely collateral power may be exercised by an 
 infant; but this is doubtful, and it is to be supposed that, where the 
 power is to be executed by means of an instrument which an infant is 
 not capable of making, he will not be able to execute the power until he 
 becomes of age.* But a married woman can exercise a power as freely as 
 if she were &femime sole. This is a common mode of enabling a married 
 woman to dispose of the property secured to her by marriage settlement.* 
 
 1 1 Sugden on Pow. 179, 180; Flintham's App., 
 11 Serg. & R. 23, 24; Agee v. Agee, 22 Mo. 366; 
 Fairmani;. Beal, 14 111. 244; Bradley v. West- 
 
 ■cott, 13 Ves. 445; Eamsdell v. Eamsdell, 21 Me. 
 
 S88; Jennor V. Hardie, 1 Leo. 283; Jackson ». 
 
 Bobbins, 16 Johns. 537; Waid v. Amory, 1 Curt. 
 
 ■C. Ct. 419; Burleigh v. Clough, 52 N. H. 272; 
 
 OoUlns v. Carlisle's Heirs, 7 B. Mon. 13; Dead- 
 
 riclc V. Armour, 10 Humph. 588; Jackson v. 
 
 Coleman, 2 Johns. 391 ; McGaughey's Adm'rs v. 
 
 Henry, 15 B. Mon. 383; Maundrell v. Maundrell, 
 
 10 Ves. 246; Herrick ». Babcock, 12 Johns. 389; 
 
 Eelndeis v. Koppelman, 68 Mo. 483; 30 Am. 
 
 Eep. 482; Green v. Sutton, 50 Mo. 190; Gregory 
 
 ■V. Cowgill, 19 Mo. 415; Euby ». Barrett, 12 Mo. 
 
 1; Eandall V. Schrader, 20 Ala. 338; Urich's 
 
 App., 86 Pa. St . 386; 27 Am. Rep. 707; Page v. 
 
 Eoper, 21 Eng. L. A E. 499; Crozler v. Bray, 120 
 If. T. 366; Glover i>. Eeid, (Mich. '90) 45 N. W. 91 ; 
 Jenkins v. Compton, (Ind. '90) 23 N. E. Eep. 
 
 1091 ; Cashman's Estate, 28 111. App. 346; Kibler 
 
 V. Huver, ('90) 10 N. Y. S. 375; Hood V. Haden, 
 «2 Va. 588; Lininger's App., 110 Pa. St. 398; 
 
 Douglass V. Sharp, 52 Ark. 113; Rood v. Watson, 
 64 Hun, 85; Lewis v. Pitman, ('90, Mo.) 14 S. W. 
 52; Sanborn v. Sanborn, 62 N. H. 631; Miller's 
 
 Adm'r®. Potterfield, (Va. '90) 11 S. E. 486; Wit- 
 
 temore«. Eussell, 80 Me. 297; Glover ». Stillson, 
 <Conn. '88) 15 Atl. Eep. 754; Gray i;. Missionary 
 Soc., ('88) 2 N. y. S. 878; Forsythe v. Porsythe, 
 108 Pa. St. 129; Cresap ». Cresap, 34 W. Va. 310; 
 Dull's Estate, 137 Pa. St. 112; Holseno. Kook- 
 house, 83 Ky. 233; Peckham v. Lego, 57 Conn. 
 S53 ; Gaven v. Allen, 100 Mo. 293 ; Graves v. True- 
 
 blood, 96 N. C.395; see Best v. Best, (Ky.) 11 S. 
 W. 600; In re Cager's Will, 111 N. Y. 343; Eich- 
 ardson v. Richardson, 80 Me. 585; McConnell v. 
 Wilcox, (Ky.) 12 S. W. 469: In re Poster's 
 Will, 76 Iowa, 36. But this is not an absolutely 
 Invariable rule. If, from the whole will, It 
 appears to have been the testator's intention 
 to give a fee simple estate, the estate will be 
 enlarged by the power, notwithstanding the 
 devisee's estate has been expressly limited for 
 life. Goodtitle v. Otway, 2 Wlls. 6 ; Bradford v. 
 Street, 11 Ves. 135; Doe v. Lewis, 3 Adol. & Ell. 
 183; Wilsons. Gaines, 9 Rich. Eq. 420; Andrews 
 V. Brumfleld, 32 Miss. 107; Denson v. Mitchel}, 
 26 Ala. 360; Hoys. Master, 6 Sim. 568; Robinson 
 V. Dusgale, 2 Vt. 181; Burke v. Stiles, (N. H.) 
 18 Atl. Rep. 657; Walker v. Pritchard, 121 III. 
 221; Lienan v. Summerfield, 41 N. J. Eq. 381; 
 Eussell -u. Eubanks, 84 Mo. 82; Morford v. 
 Dieffenbacher, 54 Mich. 593; Bowen's Adm'r 
 V. Bowen's Adm'r, (Va. '91) 12 S. B. 885. And 
 where the power annexed enlarges the estate 
 Into a fee. It will, if not expressly qualified, 
 render any subsequent limitation void. Jones 
 »'. Bacon, 68 Me. 34; o. c, 28 Am. Eep. 1; Mc- 
 Kenzie'sApp.,41Conn. 607; 19 Am. Eep. 525; 
 Eona V. Meier, 47 Iowa, 607; 29 Am. Rep. 493. 
 
 2 Patty V. Goolsby, 51 Ark. 61; Douglass V. 
 Sharp, (Ark.) 12 S. W. Rep. 202; Cox v. Sims, 
 125 Pa. St. 522; Pernbacher i). Fernbacher, 4 
 Dem. 227; 17 Abb. N. C. 339. 
 
 8 4 Kent's Com. 324, 325; 1 Sugden on Pow. 
 181, 211 ; ? Washb. on Real Prop. 652. 
 *1 Sugden on Pow. 182; 4 Kent's Com. 325; 
 
 383 
 
§ 330 h EQUITY JXJKISPKUDENCE. [CH. XVin. 
 
 § 330 h. By whom the power may be executed. — As a general 
 proposition, only those who are named as the donees in the instrument 
 creating the power can execute the power. In testamentary powers, 
 the executor will be impliedly vested with the power, if no donee is 
 specially named or described.' The donee cannot assign it unless he 
 is expressly authorized, nor can his personal representatives execute 
 it unless expressly named. ^ This, however, is not true of powers in 
 trust, or powers coupled with an interest, the execution of which does 
 not require the exercise of a special discretion reposed in the particu- 
 lar donee. In the case of a power in trust, the court will not allow any 
 accident to or neglect of the trustee — not even his death — to defeat 
 the trust power. It will either compel the trustee to execute it or 
 appoint a new trustee in his stead, who wiU have the same power.* 
 But the trustee cannot delegate his power without authority.* It 
 would, however, not be a delegation of power for the donee to direct 
 his agents to do the subordinate ministerial acts.' A power coupled 
 with an interest will ordinarily, not only survive the donee, but can be 
 exercised by him, to whom the interest has been assigned, provided 
 always the power is not expressly personal to the donee. ° Where the 
 power is limited to several as a class, such as executors, trustees, or 
 sons, although all must join in the execution, if alive, the power wiU 
 survive the death of one or more; but there must be at least two sur- 
 viving, in order to comply with the plural description of the donee. ^ 
 In the case of executors, the rule is so far relaxed that a single survi- 
 vor may execute the power; and where the power is coupled with an 
 interest, the power may be exercised by those who qualify as execu- 
 tors; it is not necessary for the others to join in the execution of the 
 power.* Its exercise does not, however, depend upon their qualification 
 as executors; they may insist upon their right to join in the execution, 
 even though they or any of them have failed to qualify or have resigned 
 
 Doe «. Eyre, 3 C. B. 578; o. o., B C.-B. 741 ; Ladd 69; Cole V. Wade, 16 Ves. 28 n; 1 Sugden oa 
 
 V. Ladd, 8 How. 27; Hoover v. Samaritan So- Pow. 214, 216; Lewis on Tr. 228. 
 
 ciety, .5 Whart. 445; Wright v. Tallmadge, 15 6 Toders. Herring, (Miss. '90) 6 So. Rep. 840. 
 
 N. Y. 307; Leavltt v. Pell, 25 N. T. 474; Bradish o Hunt v. Eonsmanier, 8 Wheat. 203; Wilson 
 
 V. GIbbs, 3 Johns. Ch. 523; Barnes v. Irwin, 1 v. Troup, S Cow. 236; Bergen v. Bennett, 1 
 
 Dall. 201; Bush ». Lewis, 21 Pa. St. 72; Does. Caines' Gas. 15; Hartley's v. Minor's App., 53 
 
 Vincent, 1 Houst. 416, 427. See ante, | 276, Pa. St. 212; Jeneks v. Alexander, 11 Paige Ch, 
 
 note. 619; Doolittle ». Lewis, 7 Johns. Ch. 45. 
 
 1 OflScer V. Board of Home Missions. 47 Hun. ' 1 Sugden on Pow. 144, 146 ; Story's Bq. Jur., 
 
 372 §§ 1061, 1062 n; 4 Greenl. Cruise Dig. 211 n; Co. 
 
 21 Sugden on Pow. 214, 215; 4 Cruise's Dig. 211; Lit. 113, Hargrave's note, 146; Talnters. Clark, 
 
 Cole V. Wade, 16 Ves. 27; Tainter v. Clarke, 13 13 Mete. 220; Franklin v. Osgood, 14 Johns. 553; 
 
 Mete. 220, 226; Broom's Leg. Max. 665. Peter v. Beverley, 10 Pet. 564; Monteflore v. 
 
 8 2 Sugden on Pow. 158 ; Greenough v. Wells : Browne, 7 H. L. Cas. 261. 
 
 Hunt V. Eousmanier, 8 Wheat. 207; Glbbs v. 84 Kent's Com. 320; Bergen v. Bennett, 1 
 
 Marsh, 3 Mete. 243; Wilson v. Troup, 2 Cow. Caines' Cas. 16; 1 Sugden on Pow. 144, 146; Os- 
 
 236, 237; Leeds v. Wakefield, 10 Gray, 517. good v. Franklin, 2 Johns. Ch. 19; Franklin v. 
 
 * Story's Bq. Jur. 1062; Osgood «. Franklin, Osgood, 16 Johns. 553; Peter?). Beverley, 10 Pet. 
 
 2 Johns. Ch. 21; Berger v. Duff, 4 Johns. Ch. 564; Tainter ». Clark, 13 Mete. 220; Drayton«. 
 
 368; Franklin v. Osgood, 14 Johns. 562, 563; Grimke, 1 Bailey Eq. 393; Naunborf «. Sohun- 
 
 Peters. Beverley, 10 Pet. 585; Hertell v. Van lann, 41 N. J. Eq. 14; Vernor*. Cqville, 44 Mich. 
 
 Buren, 3 Bdw. Ch , 20 ; Zebach v. Smith, 3 Blnn. 281 ; In re Bailey, IB E. I. 60. 
 
 384 
 
CH. XVIII.] POWERS OF APPOINTMENT. § 330 k 
 
 their executorships. ' So, also, may the power be executed by the exe- 
 cutors, after they have been discharged from the administration of the 
 estate.^ But this is the case only when the power is given to the exe- 
 cutors nominatim. If the power be given virtute officii, the power can 
 only be exercised by the acting executors.^ And although by the law 
 the executor, appointed by will in one state, may not be able to exer- 
 cise the ordinary powers of an executor over lands situated in another 
 state, yet he may execute a testamentary power of sale when so directed 
 to do.* "Where the power is given to several donees nominatim, it 
 indicates the repose of a personal discretion in each, and the power will 
 not survive the death of one of them.^ So, also, if a power is given to 
 one or more executors by name, it cannot be exercised by an adminis- 
 trator with the will annexed." But it is, otherwise, if the power is 
 given to the executor as such.' 
 
 § 330 k. Mode of execation. — In the execution of the power the 
 donee must observe strictly all the conditions and restrictions imposed 
 by the donor, both as to the manner and the time of execution. The 
 donor has the right to impose whatever conditions he pleases, and 
 however unessential they may appear to be, a neglect of them would 
 make the execution defective. They must be strictly complied with.' 
 Thus a power to appoint by deed cannot be exercised by will; but if 
 there is no restriction as to the kind of instrument, it may be either by 
 deed or by will.' So must all other special directions be observed.^*' 
 If the power be to sell, the property can be sold only in the manner 
 prescribed by the donor, and a power of sale will not ordinarily imply 
 a power to mortgage," and a power to rent or lease does not include, 
 the power to sell absolutely.^' It is customary for the donee's instru- 
 ment of conveyance to contain a recital of the power under which ha 
 acts, but this recital is not competent evidence of the existence of the 
 power, and if it is questioned, it must be established by other testi- 
 mony.'^ 
 
 iTalnter ». Clarke, 13 Mete. 220; Clarke ». tliamv.Smitli.ClievesBq. 33; Andrews u. Eoye, 
 
 Talnter, 7Cush. 567; Tredwell ». Cordis, 5 Gray, 12 Rich. 546; Vincent v. Bishop, 5 Exch. 683; 
 
 341; Dunning «. Ocean Nat. Bank, 6 Lans. (K. Ladd». Ladd, 8 How. 30-40; Burdett v. Spils- 
 
 Y.) 296. bury, 6 Mann. & Gr. 386; Wright v. Wakeford, 
 
 2 SohoU V. Olmstead, 84 Ga. 603. 17 Ves. 454; Wright v. Barlow, 3 Maule & S. 518 j 
 
 s Yates ». Compton, 2 P. Wms. 309; Waters®. Ives ». Davenport, 3 Hill, 373; Williams on Eeai 
 
 Mayerson, 10 P. F. S. (Pa.) 39; Evans V. Chew, p^gp 295. 
 
 21P. F. S. 47. , .„ ^ , "ToddD. Sawyer, (Mass. '88)17 N.E. Rep. 527^ 
 
 4DooIittle«. Lewis,7 Johns. Ch 45-48; but ,,^^^^ r. Ladd, 8 How. 30^0; Moore^.Di- 
 
 see Hutchinsj. state Bank, 12 Mete, m ^ ^ ^ j ^3^, ^ Lawrence, 12 Gray, 
 
 6C0. Lit. 113, Hargrave's note, 148 ; 4 Greenl. ,V ., -u i tt j > t^ ,, . 
 
 Cruise Dig. 211 n; Story's Eq. Jur., §§ 1061, 1062; 3^^; Majoribanks v. Hovenden, 1 Drury, 11; 1 
 
 1 Sen on Pow. 144-146; Loring v. Maiih, ^ Chance on Pow. 273; Doe v. Peach, 2 Maule & 
 
 LawRepos. 377; Peteri). Beverley, 10 Pet. 563; S. 576; Hopkins v. Myall, 2 Russ. & Mylne, 86; 
 
 Franklin -0. Osgood, 14 Johns. 553; Talnter V. Rustin v. Oakes, 117 N. Y. 577; Rose v. Hatchj 
 
 Clarke, 13 Mete. 820 ; Cole «. Wade, 16 Ves. 27. 55 Hun, 457 ; Jennert v. Houser, 4 Ohio C. C. 353 ; 
 
 « Re Bierbaum, 40 Hun, 500; Compton v. Mo- Valentine v. Wyson, (Ind. '90) 23 N. E. 1076. 
 
 Mahan, 19 Mo. App. 490. "1 Sugden on Pow. 513; 4 Kent's Com. 331 j 
 
 ' Griggs V. Veghte, (N. J. '90) 19 Atl. 867. Bloomer v. Waldron, 3 Hill, 361 ; Leavitt v. Pell, 
 
 siSugdenonPow. 211, ^0,278; Langford v. 25N. Y.474;Ives«. Davenport, 3 HIU, 373. 
 
 Eyre, 1 P. Wms. 740; Habergham v. Vincent, 2 "Rog ». Vingut, 117 N. Y. 804. 
 
 Ves. 231; Hawkins v. Kemp, 3 East, 410; Ben- "Hershy ». Berman, 45 Ark. f" 
 
 25 
 
 385 
 
§ 330 m EQUITY JUKISPKUDENCE. [CH. XVEQ. 
 
 § 330 1. Who may be appointees. — If it be a general power, any- 
 one whom the donee selects may take under the power. A wife may 
 appoint the estate to her husband, and so may the husband to his wife.' 
 The donee may appoint himself.^ And if the donee appoints to A. to 
 the use of B., the Statute of Uses will execute the use in A., leaving 
 the use in B. unexecuted, it being a use upon a use.' But this rule 
 would not apply to powers which operated under the Statute of Wills. 
 If it be a special power, it can be exercised only in favor of the special 
 objects named. Thus a power of appointment to children will. not 
 support an appointment to grandchildren, unless in some unusual 
 cases, strongly impregnated with circumstances, such as the non-exist- 
 ence of children at the time when the power was created, and the 
 impossibility of other children being subsequently born, which clearly 
 show an intention to refer to grandchildren under the name of chil- 
 dren.* But the term issue is generally capable of embracing all des- 
 cendants of every generation.' 
 
 § 330 m. Execation by implication. — In order to insure a valid 
 execution, the power should be expressly referred to in the instrument 
 of execution; but this is not necessary if it appears in any way, upon 
 the face of the instrument, or from the facts of the case, to have been 
 the intention of the donee to exercise the power. ° And the courts 
 have of late years so far relaxed the rule as to construe the instrument 
 to be, by necessary intendment, a good execution of the power, if it 
 cannot operate in any other way, notwithstanding the deed or will 
 purports to disposes only of the individual property of the donee.' A 
 specific reference to the property subject to the power will be sufficient 
 in the case of a collateral or naked power; but where the power is 
 appendant or in gross, if there be no express reference to the power, 
 only the legal estate, to which it is attached, will pass. The capacity 
 of the instrument to operate upon the estate of the donee negatives 
 any implied or presumed intention to exercise the power. And where 
 the power is not coupled with an interest, if the donee has no property 
 which he could dispose of by means of the instrument executed, it will 
 be a good execution of the power, though neither the power nor the 
 property was referred to.' 
 
 >1 Sudgen on Pow. 182; 4 Kent's Com. 325j Parsley, 3 Ves. 421; Drake v. Drake, 58Hun, 390. 
 
 Doe V. Eyre, 3 C. B. 578; s. c, 5 C. B. 741; Hoover « 1 Sugden on Pow. 232; 4 Kent's Com. 334; 
 
 V.Samaritan Society, 5 Whart. 445; Barnes!). Story's Eq. Jur., § 1062 a. 
 
 Irwin, 2 Dall. 201; Ladd v. Ladd, 8 How. 87; ' Doe «. Vincent, 1 Houst. 416,437; Taylors. 
 
 Bradish v. Gibbs, 3 Johns. Cli. 583; Wright v. Erstman, 92 N. C. 601. 
 
 'Tallmadge, 15 N. Y. 307; Leavitt v. Pell, 25 N. s 4 Kent's Com. 336; Amory v. Meredith, 7 
 
 TT. 474; 8 Sugden on Pow. 24. Allen, 397; Blagge v. Miles, 1 Story, 426; White 
 
 82 Washb. on Keal Prop. 660; Williams on v. Hicks, 3S N. Y. 392; Jones v. Wood, 16 Pa. St. 
 
 3eal Prop. 295, n. 1. 25; Hay». Mayer, 8 Watts, 203; Probert v. Mor- 
 
 ^Sugden on Pow. 229; 2 Prest. Abst. 248; 2 gan, 1 Atk. 440; 1 Sugden on Pow. 432; 4 Cruise 
 
 Washb. on Real Prop. 613. Dig. 812; Co. Lit. 271 b, Butler's note, 231; 2 
 
 * 8 Sugden on Pow. 253; 4 Kent's Com. 345; Washb. on Real Prop. 612; Doe v. Rooke, 6 B. & 
 
 Tud. Ld. Cas. 306; Wythe v. Thurlston, Ambl. C. 720; Bepper's Will, 1 Pars. Eq. Cas. 440; 
 
 555; Horwitz v. Norris, 49 Pa St. 211. , Maryland Mnt. Benev. Society v. Clendiner, 44 
 
 '.Wythe V. Thurlston, Ambl. 555; Freeman v. Md. 429; 22 Am. Rep. 58; Patterson v. Wilson, 
 
 386 
 
CH. XVIII.] POWEES OF APPOINTMENT. § 330 p 
 
 § 330 n. Excessive execntion. — ^To what extent an excessive 
 execution will affect the validity of the appointment depends upon the 
 ability to separate the good part from the bad part. If the excess 
 can be separated and clearly distinguished [from what would have 
 been a valid execution, the latter will be sustained, and only the 
 excess declared void. But if such a separation cannot be made with- 
 out destroying the evidence of the donee's [intention to exercise the 
 power in the manner in which he could, the whole will be avoided, and 
 a failure of execution will be decreed.' Thus, if the appointment be 
 made to a number of persons, some of whom can take and others can- 
 not, it will be good as to the former, at least, in the case of a general 
 power. If the power be special, it would be good as to those who can 
 take, provided the partial execution of the power in this manner does 
 not affect the lawful rights of the others. ^ So also if the donee appoints 
 a larger simi or a larger estate than the power authorizes, the execu- 
 tion will be good within the limits of the power; or if he annexes to 
 the appointment conditions which are prohibited or not authorized by 
 the terms of the power, the illegal conditions will be void, and the 
 appointee will take an absolute estate.' In this connection it may be 
 stated that the cy pres doctrine of construction applies to powers exe- 
 cuted by will, as it does to all testamentary dispositions. If an appoint- 
 ment by will be void in part, when literally construed, and there 
 appears on the face of the will a general intent, which would be a good 
 execution of the power were it not for the special intent manifested by 
 the manner in which he executes it, the general intent will prevail, 
 and the appointment will be held to be good. Thus, if the appoint- 
 ment be to an unborn son for life, with remainder to his (the son's) 
 unborn sons in tail, since the latter limitation is void as against the 
 rule of perpetuity, the court would construe the appointment an estate 
 tail in the first taker, instead of a life estate, there appearing to have 
 been a general intent to that effect.* 
 
 § 330 p. Successive execntion. — The appointment of a less estate 
 than what may be created under the power will be good, unless there 
 is an express restriction against a partial execution.^ And as long as 
 the power is not exhausted it may be exercised successively, at dif- 
 ferent times over different parts of the property, or over different 
 estates in the same tract of land, whether the power is one of appoint- 
 ment or of revocation. And where it is intended that the power shall 
 
 64 Mo. 19S; Mut. Life Ins. Co. v. SMpman, 119 Pow. 85; Tud. Ld. Cae. 317-319! Alexander v. 
 
 >■. Y.324; HoodB. Haden, 82 Va. 588; Lee v. Alexander, 2 Ves. Sr.640;4Cruise Dig.202; Roe 
 
 Simpson, 134 U. S. 572. V. Prideaux, 10 East, 168; Powcey v. Bowen, 
 
 1 Tud. Ld. Cas. 306; 3 Sugd. Pow. 55, 62,75; 4 1 Chan. Cas. 23; Campbell c Leach, Ambl. 
 Cruise Dig. 205; Crompe v. Barrow, 4 Ves. 681 ; 740. 
 
 Warner v. Howell, 3 Wash. 0. Ct. 12; Hay v. < 2 Sugden on Pow. 60, 61; 3 Washb. on Real 
 
 Watkins, 3 Dru. & Warr. 339; Alexander V. Prop. 666; Robinson D. Hardcastle, 3 T. R. 241; 
 
 Alexander, 2 Ves. Sr. 640; Funk w.Eggleston, 92 Leeds D. Wakefield, 10 Gray, 514, 519. 
 
 III. 515; 34 Am. Eep. 136. ^ 4 Cruise Dig. 205; 2 Washb. on Real Prop. 
 
 2 Sadler t). Pratt, 5 Sim. 632. 621-668; Butler r. Heustis, 68 111. 594; 18 Am. 
 » Parker v. Parker, Gibb. Eq. 168 ; 2 Sugden on Eep. 589. 
 
 387 
 
§ 330 U EQUITY JURISPEUDENOE. [CH. XVIU^ 
 
 not be subsequently exercised, it is the custom to release it, where that 
 is possible.^ 
 
 § 330 s. ReTOcation of appointment. — The donee cannot revoke 
 his appointment, unless he expressly reserves the power of revocation' 
 in the instrument of appointment, or it is granted to him in the instru- 
 ment of creation. And if the power may be exercised by deed or by 
 wiU, the revocation of an appointment by deed will revive the power 
 to appoint by will.^ 
 
 § 330 t. Defective executions and non-executions, how and 
 wlien cured. — The subject-matter, which would properly fall within 
 this subdivision of the subject of powers, has been already fully 
 explained in a preceding connection,^ and the reader is referred, 
 thereto for information. 
 
 § 330 u. Rules of perpetuity applied to powers. — The rule 
 against perpetuity finds application both to the limitations of the 
 power and to the estates created under the power. If the power can 
 be exercised only at a time beyond that within which all limitations- 
 must take effect in possession, viz. : a life or lives in being and twenty- 
 one years thereafter, the power is void. It is, therefore, generally 
 necessary to place a limitation upon the time within which the power 
 may be exercised. A power to one and his heirs, without express or 
 implied limitation, would be void, at least so far as the heirs are con- 
 cerned.* The greatest difficulty has been experienced in applying the- 
 rule against perpetuity to the estates appointed under the power. 
 If the power is special, and the appointment is limited to a per- 
 son or to persons, none of whom can take from being too remote 
 under the rule, the power is absolutely void. But if the power per- 
 mits an appointment among a class, some of whom can take, and a 
 discretion is left in the donee as to which individuals of the class shall 
 be appointed, the power will be void as to those who cannot take. 
 The possibility of an illegal appointment will not invalidate the power, 
 if it is in the end properly exercised by an appointment to lawful per- 
 sons.^ In determining the validity of an appointment under a special 
 power in respect to perpetuity, the appointment must be viewed in its 
 relation to, and as a part of, th^ original instrument creating the power, 
 and must be considered in the light of the circumstances surrounding^ 
 the estate and the parties thereto, when the original instrument was 
 executed, if the power be created by deed, and at the death of the tes- 
 tator, if by will. Thus, a power to appoint among grandchildren 
 cannot be exercised in favor of such grandchildren, whose parents 
 
 1 1 Sugden on Pow. 342; 2 Id. 43-45; 4 Cruise < Bristow v. Warde, 2 Ves. 3B0; Ware V. Pol- 
 Dig. 200, 201j Dlgges' Case, 1 Eep. 174; Co. Lit. hill, 11 Ves. 283. 
 
 271 b, Butler's note, 231 ; Woolston v. Woolston, « 1 Sugden on Pow. 471-475; 2 Washb. on Eeal 
 
 1 W. Bl . 281. Prop. 672-675; Co. Lit. 271 b, Butler's note, 231 ; 
 
 S2 Sugden on Pow. 243; Co. Lit. 271 b, Gilbert's Uses, 160 n; Marlborough v. Godol- 
 
 Butler's note, 231; Saunders V. Evans, 8 H. L. phin, 2 Ves. Sr. 61 ; Routledge v. Dorrll, 2 Ves., 
 
 Cas. 721. Jr. 368; Griffith ». Pownall, 13 Sim. 393. 
 
 >Seean2e, §§178, 179. 
 
 388 
 
<CH. XVIII ] POWERS OF APPOINTMENT. § 330 W 
 
 "were not in being at the time that the power was created. ' But if it 
 be a general power, it is so much like an estate in fee, in respect to 
 the restriction against alienation, an appointment will be good if at the 
 time when the power was exercised it did not offend the doctrine of 
 perpetuity. The validity of an appointment under a general power is 
 determined by its condition when made, and not considered as a part 
 of the instrument in which the power was created. An appointment 
 under such a power to unborn children of parents who are in esse at 
 the time of execution, but unborn at the time of creation of the power, 
 would be good. The restriction upon alienation only began when the 
 appointment was made.^ 
 
 § 830 V. Rights of donee's creditors in the power. — The power 
 not being an estate in the land, if the donee's creditors have any 
 interest in the same or in the estate created under the power, it can 
 only be an equitable claim. The donee's creditors have no legal rights 
 in the power.' Where the power is general and coupled with an 
 interest, a sale of the interest will prevent the subsequent exercise of the 
 power.* In no case can the donee's creditors acquire an interest in, or 
 prevent the execution of a special power. It is^lso definitely settled 
 that where the donee has not exercised his general power, there is no 
 interest in the donee to which the rights of creditors may attach.' 
 Nor can the creditors, through their assignee in bankruptcy, under the 
 bankrupt law of 1867, execute the power for their benefit. ° But it has 
 been held that where the appointment is made under the power to a 
 voluntary appointee, the creditors may levy upon the estate in the 
 appointee's hands; and that the appointee always takes the estate sub- 
 ject to the payment of the donee's debts, if the donee might have exer- 
 cised the power in favor of his creditors.^ Since the creditors have no 
 interest in the power itself, and cannot execute it or compel its execu- 
 tion in their favor; and since the donee never had any other interest 
 in the property except the power, and the estate of the appointee 
 passed to him directly from the donor, it is diflicult to understand by 
 what course of reasoning the position of these two courts can be sus- 
 tained. 
 
 § 330 w. The rights of creditors of the beneficiaries. — As a 
 matter of course, if a special power or trust is exercised, the judgment- 
 creditors may levy upon the beneficiary's share in the proceeds of sale. 
 
 1 2 Waslib. on Real Prop. 671; Co. Lit. 271 b, 8 Vea. Jr. 3; Covendale v. Aldrlch, 19 Pick. 391. 
 
 Butler's note, 231 ; 1 Sugden on Pow. 471-475; 2 ^ Hobbs v. Smith, 15 Ohio St. 419; see ante, 
 
 Prest. Abst. 165, 166; Eoutiedgei). Dorril, 2 Ves. § 330 c. 
 
 Jr.a57; Hoclileys. Mawbey, 1 Ves. Jr. 150; Dana ' Tallmadge ». Sill, 21 Barb. 34; Johnson ». 
 
 ». Murray, 122 N. Y. 604; /»?•« Christie, 59 Hun, Gushing, 15 N. I-I. 298; Lavender o. Lee, 14 Ala. 
 
 j53_ 688; Strong ». Gregory, 19 Ala. 146; see Thorpe 
 
 SBWashb. onEealProp. 671;Feame'sExeo. ». Goodall, 17 Ves. Jr. 338, 460; Holmes s. Cog- 
 
 Dev. 5, Powell's note ; 1 Sugden on Pow. 516; hill, 12 Ves. 206; Jenny ». Andrews, 6 Madd. 264. 
 
 Mifflin's Appeal, 121 Pa. St. 205; Appleton's « Jones' Assignee v. Clifton, U. S. Cir. Ct. 
 
 Appeal, 136 Pa. St. 354. Dist. of Kentuolty, (1878) 7 Cent. L. J. 89. 
 
 3 Blaise V. Irwin, 3 Kelly, 345; Johnson v. ' Johnson d. Gushing, 15 N. H. 398; Tallmadge 
 
 Cushing, 16 N. H. 298; Townsend v. Windham, n. Sill, 21 Barb. 34. 
 
 389 
 
§ 330 W EQUITY JURISPRUDENCE. [CH. XVUI. 
 
 But they cannot compel the donee to execute the power.' And if the 
 legal title descended to the beneficiary, subject to a power of sale, 
 whatever interests the beneficiary's creditors and gi-antees acquire in 
 the estate will be defeated by the subsequent exercise of the power, 
 but they will in equity attach at once to the beneficiary's share in the 
 proceeds of sale." 
 
 1 Chew's Ex'rss). Chew, 28 Pa. St. 17. 
 
 s Allison «. Wilson V. Wilson's Ez'is, 13 Seig. &B,330: Reed v. tJnderhill 12 Baib. 113. 
 
 390 
 
CHAPTEE XIX. 
 
 EIGHTS OF PBOPEKTT AND CONTRACTUAL POWERS OF MARRIED 
 WOMEN IN EQUITY. 
 
 Section 
 
 
 
 Section 
 
 LegaJ status of married women 
 
 331 
 
 Contracts of married women.- 
 
 -General 
 
 A married woman's equitable separate 
 
 
 doctrine 
 
 
 338 
 
 estate 
 
 332 
 
 Married women's power to contract In 
 
 By what modes and instruments separate 
 
 
 the United States 
 
 
 339 
 
 property may be settled . 
 
 333 
 
 Settlement by wife in fraud of the 
 
 mar- 
 
 Her power of disposition 
 
 334 
 335 
 
 riage 
 
 
 . 340 
 
 Restraint upon anticipation 
 
 Wife's equity to a settlement 
 
 
 341 
 
 Disposition of separate estate on death of 
 
 
 Husband's estate by the curtesy 
 
 
 . 342 
 
 wife ... . . 
 
 336 
 
 Maintenance 
 
 
 . 343 
 
 The condition of the law in the American 
 
 
 Pin-money and paraphernalia . 
 
 
 344 
 
 states 
 
 337 
 
 Alimony ... 
 
 
 345 
 
 § 331. Legal status of married women. — The common law rule, 
 in respect to the legal status of married women, pronounced a com- 
 plete absorption of her legal personality in that of her husband; in 
 other words, the husband and wife constituted but one legal personal- 
 ity, of which the husband was the head and representative. In 
 conformity with this fundamental principle, the husband acquired at 
 the marriage, complete control of the management of the estates and 
 property of the wife. He acquired, not only the right to become 
 absolutely possessed of all her legal personal property by reducing it 
 to possession, but, likewise, the right during the marriage to appro- 
 priate to his own use the rents and profits of her real estate. Growing, 
 also, out of this principle of the married woman's loss of legal person- 
 ality, was the doctrine of the legal disability of married women to 
 make contracts during the marriage, which would be binding upon her 
 and upon her husband. The contract which was made in her name 
 was absolutely void. Nor could she make any disposition of her 
 property except with the consent and co-operation of the husband; not 
 even in respect to her interest in real property, to which the husband's 
 rights in anywise attach. Such may be accepted as a concise statement 
 of the common law in respect to the contracting disabilities of married 
 women and her rights in and to her property, as they obtain, wherever 
 the common law has not been changed by statute. This statement 
 will serve as an introduction to the consideration of the rights of prop- 
 erty and contractual powers of married women in ecjuity. 
 
 § 332. A married woman's equitable separate estate. — In con- 
 sequence of the many cases of hardship and injustice growing out of 
 the inflexible common law rule, which gave to the husband complete 
 control of the wife's property, and took away from her the capacity 
 
 391 
 
§ 332 EQUITY JURISPRUDENCE. [CH. XIX. 
 
 to make contracts in her own name; equity devised the means for an 
 escape from this hardship, while at the same time it recognized the full 
 force and effect of the common law rules. In obedience to the equi- 
 table maxim that " equity follows the law," it did not attempt to give 
 to the ordinary property of a married woman any other character than 
 what was conceded to it at law; but a plan was devised, whereby 
 property could be settled upon a married woman, to be held by her as 
 her sole and separate property; and this separate property was declared 
 by equity to be held by her, in accordance with the purpose of the 
 settlement, free from the marital claims of the husband and his right 
 of control. In such cases, the wife is the cestui que trust, having only 
 an equitable estate, and the legal title is in someone else as her 
 trustee. While at an early day it was the more common practice for 
 the property to be expressly conveyed to trustees, to be held by them 
 ior her sole and separate use; and although it has been held that such 
 a formal conveyance to trustees was necesssary, in order to make the 
 the property thus conveyed to the married woman her separate 
 estate; ^ yet it is well settled, in England and in this country, that it is 
 not necessary for this formal mode of transfer to trustees to be 
 observed. In obedience to the equitable doctrine, that equity will not 
 allow the trust to fail for the want of a trustee, it will fasten upon a 
 direct conveyance to the married woman of the legal estate its equitable 
 character as her separate estate, whenever the grantor or donor 
 declares that to be the purpose of the transfer. Independently of 
 statute, the wife could not under such a direct conveyance hold the 
 legal title to such property as her separate estate. But while such 
 legal title would under those circumstances pass under the control of 
 the husband, in accordance with the common law rules as to his mari- 
 tal rights; yet equity will arrest the equitable and beneficial interest of 
 such property, and retain it in the wife as her sole and separate prop- 
 erty, and as an equitable estate, in accordance with the wishes and 
 expressed intention of the donor or grantor, and compel the husband 
 to hold the legal title, which he has thus acquired, as trustee for the 
 wife." This declaration, that the husband will take the legal title as 
 
 1 Harvey ». Harvey, \ P. Wms. 185, per Lord S Russ. & M. 355; Woodmeston v. Walker, 3 
 Chan. Cowper. Russ. & M. 197j McKennan v. Phillips, 6 Whart. 
 
 2 TuUett V. Armstrong, 4 My. <fe Cr. 377; In re 571 ; Trenton Bk. Co. v. Woodruff, 1 Green's Ch. 
 Gaffee, 1 Macn. & G. 541; Green v. Green, 5 117; Steel w. Steel, 1 Ired. Eq. 453; McMillan v. 
 Hare, 400 n; Allen ». Walker, L. R. Ex. 187; Peacock, 57 Ala. 127; Miller t;. Voss, 63 Ala. 
 Newlands v. Paynter, 4 My. & Cr. 408; Gardner 122; Pepper v. Lee, 53 Ala. 33; Crooks v. Crooks, 
 V. Gardner, 1 Giff. 126; Parker i>. Brooke, 9 Ves. 34 Ohio St. 610; Blanchard v. Blood, 2 Barb. 
 583; Rich». Cockell, 9 Ves. 369, 375; Pears v. 352; Varner's Appeal, 80 Pa. St. 140; Vance ». 
 Brooks, 13Ga.l95; Hamilton ». Bishop, 8 Yerg. Nogle,70Pa. St. 176, 179; Shonk v. Brown, 61 
 33; Long's Adm'r v. White's Adm'rs, 5 J. J. Pa. St. 320; Jamison v. Brady, 6Serg. & R.466; 
 Marsh. 226; Freeman v. Freeman, 9 Mo. 772; Pribble ». Hall, 13 Bush, 61; Thomas v. Hark- 
 Bennet v. Davis, 2 P. Wms. 316; Slanning v. ness. Bush, 23; Jones v. Clifton, 11 Otto, (101 U. 
 Style, 3 P. Wms. 334, 337-339; Lucas v. Lucas, 1 S.) 835; Porter v. Bk. of Rutland, 19 Vt. 410; 
 Atk. 270; Ellis D.Woods, 9Rlch.Eq. 19; Boykin Shirley v. Shirley, 9 Paige, 363; Bradish ». 
 ». Ciples, 2 Hill's Ch. 200; Whitten ». Jenkins, Gibbs, 3 Johns. Ch. 523, 540; Firemen's Ins. Co. 
 34 Ga. 297; Darley v. Darley, 3 Atk. 399; Lee v. v. Bay, 4 Barb. 407; Payne v. Twyman, 68 Mo. 
 Pneaux, 3Bro. Ch. 381, 385; Major v. Lansley, 339, Loomisi). Brush, 36 llich. 40; Holthaus v 
 
 392 
 
CH. XIX.] EIGHTS AND POWERS OF MARRIED WOMEN. § 333 
 
 trustee for the wife in the case of a -direct conveyance to the wife for 
 her separate use, applies only to common law and statutory convey- 
 ances. If, however, the deed of conveyance to the wife is a bargain 
 and sale, or covenant to stand seised to her use, or any other convey- 
 ance which operates under the Statute of Uses, the wife as bargainee or 
 covenantee does not by virtue of the conveyance itself acquire the legal 
 title to such property; only the equitable. And inasmuch as she is 
 d.eclared in such bargain and sale deed, or covenant to stand seized, to , 
 take whatever interest she does get by such conveyance as her sole and 
 separate property, the use or equitable estate, thus created in her, 
 will remain unexecuted by the Statute of Uses. The legal title remains 
 in the bargainor or covenantor who will ever after hold it to her sole 
 and separate use.^ And where the conveyance employed has a dual 
 character; that is, it can operate as a common law or statutory con- 
 veyance, as well as a conveyance under the Statute of Uses; the 
 location of the legal title will be in the husband as trustee of the wife 
 where the conveyance is construed to be a common law conveyance; 
 and in the bargainor or covenantor where it is construed to be a con- 
 veyance under the Statute of Uses, and that construction as to the 
 character of the conveyance, will prevail, which will best effectuate the 
 intention of the parties to the deed.^ 
 
 § 333. By what modes and instruments separate property may 
 be settled. — A wife's separate property may include any kind of 
 property, whether real or personal, and whether her interests in such 
 property are absolute or limited; and may be created or settled upon 
 Ler by almost any legal instrument, which is capable of operating as a 
 legal transfer of property. Thus, such separate estate may be created 
 as ante-nuptial agreements and marriage settlements.' So, likewise, 
 by post-nuptial agreements and settlements of the husband upon the 
 wife. As to them, there may be a conflict between the wife's interests 
 and the husband's creditors; but, otherwise, such settlements would be 
 as valid and as binding on the parties thereto and their privies, as in 
 the case of ante-nuptial agreements and settlements.* So, also, may 
 
 Hombostle, 60 Mo. 439; Barron v. Barron, 24 W. Va. 572; Bk. of Greensboro' v. Chambers, 
 
 Vt. 375; City Nat. Bk. v. Hamilton, 34 N. J. Eq. 30 Gratt. SOS; Ex parte Holland, L. E. 17 Eq. 
 
 158; Davis ». Davis, 43 Ind. 561. 115; Campbell ». Bainbridge, L. E. 6 Eq. 269; 
 
 1 See ante, %% 258, 276, 300; Tledeman Eeal Jn re Edwards, L. E. 9 Oh. 97; Hastie v. 
 Prop., i§ 774-776. Hastie, L. E. 2 Ch. D. 304; Vlret ». Viret, L. 
 
 2 Tledeman Eeal Prop., § 782. E. 17 Ch. D. 365 n; ire re Jones' Will, L. E. 2 
 8 Head v. Temple, 4 Heisk. 34; Wallace v. Ch. D. 362; In re Campbell's Policies, L. E. 6 
 
 Wallace, 82 111. 530; Tucker's Appeal, 75 Pa. Ch. D.686; TuUett ». Armstrong, 1 Beav. 1,21; 
 
 St. 354; Hardy v. Holly, 84 N. C. 661; Caulk v. 4 My. & Or. 377; In wGaffee, 1 Macn. & G. 541. 
 Pox, 13Fla. 148; Wardens. Jones, 2 De G. & * Dukes «. Spangler, 35 Ohio St. 119; Sproul 
 
 J. 76, 84; ^purgeon v. Collier, 1 Eden, 55, 61; V. Atchison Nat. Bk. 22 Kans. 336; Blakeslee 
 
 Herring «. Wlckham, 29 Gratt. 628; Brown v. v. Mobile Life Ins. Co., 57 Ala. 205; Kilby v. 
 
 Poote, 2Tenn. ch. 255; Eeynolds ». Brandon, Godwin, 2 Del. Ch.61; Perkins j). Perkins, 1 
 
 5 Heisk. 593 ; see Simmons v. Simmons, 6 Hare, Tenn. Ch. 537 ; Warden «. Jones, 2 De G. & J. 
 
 352, 359; see Smith v. Lucas, L. E. 18 Ch. D. 76, 84; Pride v. Bubb, L. E. 7 Ch. 64; Payne v. 
 
 53l'- Dawes o. Tredwell, L. E. 18 Ch. D. 354; Hutcheson, 32 Gratt, 812; Majors v. Everton, 
 
 Kane v. Kane, L. E 16 Ch. D. 207; Coatney v. 89 111. 56; Jones v. Clifton Ins. Co., 57 Ala. 205; 
 
 Hopkins 14 W. Va. 338;Eadford v. Carwile, 13 Perkins v. Perkins, 1 Tenn. Ch. 537. 
 
 393 
 
§ 333 
 
 EQUITY JUKISPKUDENCE. 
 
 [oh. XEX. 
 
 there be absolute gifts from the husband to the wife during marriage, 
 to be held by her as her separate property, and which, for that reason, 
 would not be included in her paraphernalia.^ So, may there also be 
 settlements of property to the married woman's separate use, where 
 the property comes from third persons, and it consists of personal 
 property in the shape of absolute gifts,* or of interests in both real 
 and personal property, having a limited duration, as during life or 
 coverture.' In all of these settlements of property upon a married 
 woman to her separate use, the form of the settlement is of no value. 
 The special purpose of the courts will be carried out, whether the 
 property is directly conveyed to her, or indirectly, through trustees. 
 But the instrument, which operates as a settlement of property upon 
 her to her separate use, must contain language indicating the intention 
 of the parties, that the property transferred to or settled upon her, 
 shall constitute her separate property to be held by her free from the 
 control and the marital rights of the husband. If the intention that she 
 shall take the property free from the control of the husband, is not mani- 
 fest in the instrument, which settled the property upon her; whether 
 the estate or interest which was given to her be a legal or an equi- 
 table estate, the husband's marital rights will attach thereto.* What 
 
 >Loomls V. Brush, 36 Mioli. 40; Majors v. 
 Everton, 89 111. 56; Thomas v. Harkness, 13 
 Bush, 23; Irvine V. Greever, 32 Gratt. 411; 
 Graham v. Londonderry, 3 Atk. 393; Mews •>. 
 Mews, 15 Beav. 529; Grant «. Grant, 34 Beav. 
 623; Byam v. Byam, 19 Beav. 58; MoCampbell 
 ». MoCampbell, 3 Lea. 661; Pribble v. Hall, 13 
 Bush, 61; Jones v. Eeid, 12 W. Va. 350; Eycroft 
 V. Christy, 3 Beav. 238; M'Lean o. Longlands, 5 
 Ves. 71; Rich v. Cockell, 9 Ves. 369; Hoyes v. 
 Kindersley, 2 Sm. &. Giff. 195, 197; Haden v. 
 Ivey, 51 Ala. 381 ; Mounger v. Duke, 53 Ga. 277; 
 Woodford ». Stephens, 51 Mo. 443; BrookvlUe 
 Hat. Bk. V. Kimble, 76 Ind. 195; Lloyd d. Pughe, 
 L. E. 14 Eq. 241; L. E. 8 Oh. 88; Marshal v. 
 Crutwell, L. E. 20 Eq. 228; Ashworth v. Out- 
 ram, L. E. 5 Ch. D. 923; Syracuse, Ac. Co. v. 
 Wing, 85 N. Y. 421 ; Campbell v. Bowles' Adm'r, 
 30 Gratt. 652; Kidwell v. Kirkpatnck, 70 Mo. 
 214; la re Eykyn's Trusts, L. E. 6 Ch. D. 116; 
 Parker u. Lechmere, L. E. 12 Ch. D. 256; Linker 
 V. Linker, 32 N. J. Eq. 174; Crooks «. Crooks, 34 
 Ohio St. 610; Helmetagi). Frank, 61 Ala. 67; Mc- 
 Millan V. Peacock, 57 Ala. 127. 
 
 »Holthaus». Hornbostle, 60 Mo. 439; Haden 
 V. Ivey, 51 Ala. 381; Steedman v. Poole, 6 Hare, 
 193; Graham v. Londonderry, 3 Atk. 393. 
 
 3 Austin i>. Austin, L. E. 4 Ch. D. 233; Miller 
 V. Voss,i62 Ala. 122; Eobinson v. O'Neal, 56 Ala. 
 541; Goulderj;. Camm, 1 De G. F. & J. 146; In. 
 re Brenton, L. E. 19 Ch. D. 277; Bland v. Dawes, 
 L. E. 17 Ch. D. 794; Humphrey v. Humphrey, 1 
 Slm.jH. B.,536; Grains. Shipman, 45 Conn. 572; 
 Gray v. Eobb, 4 Heisk. 74; Buckalew v. Blanton, 
 7 Coldw. 214; Gumey v. Goggs, 25 Beav. 334; 
 Troutbeck v. Boughcy, L. E. 2 Eq. 534 ; Radford 
 V. Willis, L. R. 7Ch. 7; Eobertson v. Wilburn, 
 
 394 
 
 1 Lea. 633; Morrison v. Thistle, 67 Mo. 596; 
 Metropolitan Bk. v. Taylor, 53 Mo. 444; see 
 Cecil V. Juxon, 1 Atk! 278; Prout ti. Eoby, 15 
 Wall. 471; Musson v. Trigg, 51 Miss. 172. 
 
 *Heathmauj>. Hall,'3 Ired. Eq. 414; Davis v. 
 Cain's Bx'r, 1 Ired. Eq. 304; Eudisell v. Wat- 
 son, 2 Dev. Eq. 430; In re Peacock's Trusts,. L. 
 E. 10 Ch. D. 490, 495, 496; Bland v. Dawes. L. E. 
 17 Ch. D. 794, 797; Ellis ». Woods, 9 Rich. Eq. 19^ 
 Martin». Bell,9Rich. Eq. 42;Tennant». Ex'x 
 of Stoney, 1 Rich. Eq. 222; see Stanton v. Hall, 
 
 2 Euss. & My. 175, 180; Darley v. Darley, 3 Atk. 
 499; Moore v. Morris, 4 Drew. 33, 37; Massy i). 
 Eowen, L. E. 4 H. L. 288, 301; Ballard ». Taylor, 
 4Desau. 550; Williams v. Avery, 38 Ala. 115} 
 Ozley V. Ikelheimer, 26 Ala. 332; Cuthbert v. 
 Wolfe, 19 Ala. 373; Brown v. Johnson, 17 Ala. 
 232; Tylers. Lake, 2 Euss. & My. 183, 188; Mas- 
 sey V. Parker, 2 My. & K. 174, 181 ; Prout v. Eoby, 
 15 Wall. 471; Hale v. Stone, 14 Ala. 803; Cook ». 
 Kennerly, 13 Ala. 42; Newman v. James, 12 Ala. 
 39; Williams v. Claiborne, 7 Sm. & Mar. 488, 
 Wood V. Polk, 12 Heisk. 220; Buck v. Wroten, 
 24 Gratt. 250; Woodford v. Stephens, 61 Mo 443^ 
 Charles ». Coker, 2 S. C. 122; Warren v. Haley, 
 1 Sm. & Mar. Ch. 647; Coatney ». Hopkius, 14 
 W. Va, 338; Griffith's Vdm'r v. Griffith, 5 B. 
 Mon. 113; Bridges v. Wood, 4 Dana, 620; 
 Hamilton v. Bishop, 8 Yerg. 33; Somers ». 
 Craig, 9 Humph. 467; Beaufort v. Collier, 
 6 Humph. 487; Woodrum v. Kirkpatnck, a 
 Swan, 218; Morrison v. Thistle, 67 Mo. 596; 
 Comp. Lipplncot v. Mitchell, 4 Olto, K7; 
 Nix V. Bradley, 6 Rich. Eq. 43, 48; Evans v. 
 Gillespie, 1 Swau, 128; Houston o. Embry, I 
 Sneed, 480; Gardeuhire ». Hinds, 1 Head, 403; 
 Burnley v. Thomas, 63 Mo. 390, 393; see, also^ 
 
OH. XIX. J RIGHTS AND POWERS OF MARRIED WOMEN. § 333 
 
 will constitute a sufficient expression of the intention to make the estate 
 the separate property of the wife, will depend upon the language of 
 the will or deed or other instrument of settlement. It is not required, 
 however, that that intention should be manifest by any formal or 
 technical language; any language, however informal, which indicates 
 clearly the intention to give to the married woman a separate property, 
 will be sufficient. The ordinary expression used to indicate that inten- 
 tion is, " for her sole and separate use; " but other expressions of the 
 same general meaning will be sufficient, although there may be a 
 slight deviation from the common form. Thus, it has been held that 
 there is a sufficient expression of an intention to create a separate use, 
 where it is declared to be for her " sole benefit," " for her own use 
 independently of her husband," " to be at her disposal to do with it as 
 she should see fit," "to be delivered to her wlien she should demand 
 it," "to her absolutely," and the like.^ On the other hand, it has 
 been held insufficient to create a separate estate, where it is declared 
 to be given " to be applied by her to, and for the maintenance of her- 
 self and children," " for her use and benefit," and, " that the property 
 is not liable for debt. " The idea, that it shall be for her sole and 
 separate use, must in some form be expressed in the instrument." 
 Where a wife has a separate property, the rent, income and profit of 
 such estate is subjected to the same character; and she is entitled to re- 
 tain them as her separate property, as well as the vested interests, which 
 are the source of such income; and if she should invest any part of 
 such income, the investment so made wUl become a part of her sepa- 
 
 BuUoek». Menzies, 4 Ves. 798; Barrow v. Bar- 12 Sim. 178; Hobson v. Ferraby, 8 Coll. 412; 
 row, ISBeav. 538; BlacklowB. Laws,2Hare, 40, Piohard v. Ames, T. & E. 222; see Glovert). 
 49; Radford v. Willis, L. K. 7 Oil. 7; Austin v. Hall, 16 Sim. 568; Margetts v. Barringer, 7 Sim. 
 Austin, L. E. 4 Cb. D. 233; Nlgbtingale v. Hid- 482; Wagstaffe v. Smith, 9 Ves. 520; In re Tar- 
 den, 7E. L 115; Jarvis». Prentice, 19 Conn. 272; eey's Trust, L. E. 1 Eq. 561; Green t. Britten, 
 Stuart V. Kissam, 3 Barb. 493; Snyder v. 1 De G. J. & S. 649; Bland ». Dawes, L. E. 17 
 Snyder, 10 Barr. 433; Boal v. Morgner, 46 Mo. Ch. D. 794; Williman v. Holmes, 4 Eloh. Bq. 
 48; Clark v. Maguire, 16 Mo. 302; Roane v. 475, 479; Perry v. Boileau, 10 Serg. & R. 208; 
 Rives, 15 Ark. 338, 330; Hulmes. Tenant, IBro. Good i7. Harris, 3 Ired. Bq. 630; Jamison v. 
 Ch. 16; 1 Eq. Lead. Cas. 679, 709-713, 738-734 (4th Brady, 6 Serg. & E. 466; Garland v. Pamplin, 32 
 Am. ed.); TritfsAdm'r v. Colwell's Adm'r, 7 Gratt. 305; Brookvllle Nat. Bank v. Kimble, 76 
 Casey, 328; Clevenstine's Appeal, 3 Harris, 495, lud. 195; Charles v. Coker, 2S. C. 183; Gray ». 
 499;Craigo.Watts,8Watts,498;iEvans».Knorr, Eobb, 4 Heisk. 74; Metropolitan Bank v. 
 4Eawle, 66; Lewis «.Adams,6Leigh, 330; West Taylor, 53 Mo. 444; Short v. Battle, 58 Ala. 
 V. West's Ex'rs, 3 Band. 373, 378; Goodrum o. 456. 
 
 Goodrum,8 Ired. Eq. 313; Turton ». Turton, 6 ^pearsu. Brooks, 13 Ga. 195, 198; Ashcraft v. 
 
 Md. 375; Brandt v. Mickle, 88 Md. 436; Carroll Little, 4 Ired. Bq. 836; see Lewis v. Elrod, 38 
 
 V. Lee, 3 Gill & J. 504; Nixon v. Rose, 12 Gratt. Ala. 17; Gillespie's Adm'r v. Burleson, 28 Ala. 
 
 4^_ 551; Young 4). Young, Jones' Bq. 316; Martin 
 
 I'parker v. Brooke, 9 Ves. 683; Miller v. Voss, v. Bell, 9 Eloh. Eq. 42; Paul v. Leavitt, 53 Mo. 
 
 62 Ala. 122; Robinson v. O'Neal, 56 Ala. 541; 595; Massey v. Rowen, L. E. 4 H. L. 288; Gil- 
 
 Sprague v. Shields, 61 Ala. 428; Blakeslee v. bert v. Lewis, 1 De G. J. & S. 38; Lewis u. 
 
 Mobile Life Ins. Co., 57 Ala. 205; Pepper «. Matthews, L. R. 2 Eq. 177; Spirett v. Willows, 
 
 Lee, 53 Ala. 33; Shewell v. Dwarris, Johns. 172; 11 Jur., N. s., 80; Johnesu. Lookhart, 3 Bro. Ch. 
 
 Dixon V. Olimus, 3 Cox, 414 ; Inglefleld v. Cogh- 383 n ; Kensington v. Dollond, 3 My. & K. 184 ; 
 
 Ian 2 coll. 247; Lumb v. Milnes, 5 Ves. 517; Roberts i). Spioer, 5 Madd. 491; Tylers. Lake, 
 
 Kirk V. Paulin, 7 Vin. Abr. 95, pi. 43; Tyrrell v. 8 Euss. & My. 183; 'Massey v. Parker, 8 My. & 
 
 Hope, 3 Atk. 558, 561 ; Lee v. Prieaux, 3 Bro. K. 174; Lumb v. Milnes, 5 Ves. 517; Wardle v. 
 
 Ch. 381; Cooper ». Wells, 11 Jur., N. s.,923; Ex Claxton, 9 Sim. 584; Jacobs u. Amyatt, 1 Madd. 
 
 rtarte Ray. 1 Madd. 199; Lindsell v. Thacker, 376 n; Winnsw. Sayers, 4 Madd. 409. 
 
 395 
 
§ 334: EQUITY JUKISPEUDENCE. [CH. XIX. 
 
 rate estate.^ And this is the rule, whether the income of the married 
 woman proceeds from a separate estate of lands or of personal 
 property.'' With the agreement of the husband, the wife's earnings 
 will also be considered a part of her separate estate.' 
 
 But while a married woman is fully protected in respect to her 
 separate estate from any attempt of her husband to control such prop- 
 erty, and appropriate it to his own use without the consent of the 
 wife; as a general rule, the wife can authorize the husband to collect 
 and appropriate to his own use the rents and profits of such estate, and ; 
 after an actual appropriation by him of such income, no action will 
 lie for its recovery, except upon the charge that it had been procured 
 by his exercise of an undue influence over her.* 
 
 § 384. Her power of disposition. — Inasmuch as the married 
 woman is considered in equity as having, in respect to her separate 
 property, the character of &femme sole, it is not surprising that she is 
 conceded the power to dispose of aU such separate property by her 
 own acts, and without the co-operation of her husband. According, 
 to the English cases, it is not definitely settled that she has the power 
 of disposing of all such separate property, except where" in the settle- 
 ment of such property, restrictions upon or prohibitions of such 
 disposition of such property are imposed. ° It was at one time 
 supposed that a difference in respect to her independent power of dis- 
 position would be made between the cases, where her separate prop- 
 erty had been expressly conveyed to trustees for her use, and those in 
 which the property is conveyed directly to her and declared to be for 
 her sole and separate use. But that distinction is no longer recognized, 
 so that she is conceded to have full power of disposition of her sepa- 
 
 1 Humphrey v. Richards, 3 Jut., n. s„ 433; Dean, 4 Bro. Ch. 386; Payne v. Little, 26 Beay. 
 
 Newlands «. Paynter, 4 My. & Cr. 408;Gagei;. 1 ; Gardner «. Gardner, 1 Glflf. 126; Eowley i>. 
 
 Lister, 2 Bro. P. C. 4; Gore v. Knight, 2 Vern. Unwln, 2 K. & J. 138, 142; Caton v. Eideout, 1 
 
 535; but see Ordway v. Bright, 7 Heisk. 681 ; Macn & G. 599, 601, 603; Milnes v. Kusk, 2 Ves. 
 
 Askew V. Eooth, L. R. 17 Bq. 426 ; Muggeridge u. 488 ; Powell v . Hankey, 3 P. Wms. 82. 
 
 Stanton, 1 De G. P. & J. 107; Brooke v. Brooke, 6 Newcomen -o. Hassard, 4 Ir. Ch. Hep. 268, 
 
 25BeaT. 342; Barrack «. McCuUoch, 3 K. &J. 274; Wllcooksu. Hannyngton, 5 JH. 38; Blatch- 
 
 110. ford«. Woolley, 2Dr. &Sm. 204; Fettiplaceo. 
 
 ^ Joyce V. Haines, 33 N. J. Eq. 99: Justis ». Gorges, 1 Ves. 46; 3 Bro. Ch. 8; Rich v. Cockell, 
 
 English, 30 Gratt. 565; City Nat. Bank?). Hamil- 9 Ves. 369; Wagstaffe ». Smith,9 Ves. 520; Stur- 
 
 ton, 34 N. J. Eq. 158; Beal's Ex'r v. Storm, 26 gis v. Corp, 13 Ves. 190; Taylor v. Meads, 4 De 
 
 N. J. Eq. 372; Kidwell v. Kirkpatrick, 70 Mo. G. J. & S. 697, 604-607, per Lord Westbury; Hall 
 
 214. V. Waterhouse, 5 Giff. 64; 11 Jur., s. s., 361; 
 
 3 Jones V. Eeid, 12 W. Va. 350; Haden v. Ivey, Lady Arundell v. Phipps, 10 Jur., n. s., 139; 
 
 51 Ala. 381 ; Kidwell v. Kirkpatrick, 70 Mo. 214; Anderson v. Anderson, 2 My. & K. 427; Calvert 
 
 Pribble v. Hall, 13 Bush, 61. v. Johnston, 3 K. & J. 556; Stead «. Nelson, 2 
 
 * Hughes V. Wells, 9 Hare, 749, 773; Darkln v. Beav. 245; Wainwright v. Hardlsty, 2 Beav. 
 
 Darkin, 17 Beav. 578; Scalesu. Baker, 28 Beav. 363; Major v. Lansley, 2 Euss. & My. 355, 357; 
 
 91, and oases cited in note (1) under § 1037 ; Kid- Adams v. Gamble, 12 Ir. Chan. Eep. 102 ; Pride 
 
 well V. Kirkpatrick, 70 Mo. 214; Dunn v. Sar- v. Bubb, L. E. 7 Ch. 64; and see Cooper v. 
 
 gent,101 Mass. 336; Meth. Epis. Ch. v. Jaques, 3 Macdonald, L. R. 7 Ch. D. 283; Thaokwell o. 
 
 Johns. Ch. 77, 90-93; Coleman v. Semmes, 56 Gardiner, 5 De G. & Sm. 58; Hodgson v. Hodg- 
 
 Miss.331; Greens. Carlill, L. R. 4Ch. D. 882; son, 2 Keen, 704; Humphreys. Richards, 2 Jur., 
 
 Howard v. Digby, 8 Bligh, s. a., 224; 2 Cl. & m. s., 432; Troutbeck v. Boughey, L. R. 2Eq. 
 
 Pin. 634; Beresford ». Archb. of Armagh, 13 534; Lechmere v Brothendge, 32 Beav. 353; 
 
 Sim. 643; Dalbiacs. Dalbiao, 16 Ves. 116, 126; Winter v. Easu:j, 2 De G. J. & S. 272, Farlng- 
 
 Parkes v. White, 11 Ves. 209, 225, Squire v. ton v. Parker, L. R. 4 Eq. 116. 
 
 396 
 
CH. XIX.] RIGHTS AND POWEKS OF MAKKIED WOMEN. 
 
 § 334 
 
 rate property, in whatever form such property may have been settled 
 upon her.' In this country, where the question has not been modified 
 or controlled by modern statute, the courts have divided themselves 
 into two classes, according to the view they entertain of the power of 
 a married woman to dispose of the property. In the majority of the 
 American States the English doctrine has been accepted and acted 
 upon, generally without qualification or limitation; so that in these 
 states a married woman is conceded to have the power of disposition 
 of her separate estate, unless that power is taken away or restrained 
 in the deed of settlement.^ In some of these states, which are included 
 in these classes, the distinction is made in respect to the wife's sepa- 
 rate estate in fee, between the disposition of the rents and profits, and 
 of the corpus of the property. In these states the older English doc- 
 trine is adhered to, that the wife cannot, without express authority 
 being given to her, dispose of the corpus of her separate property; 
 that she has only the implied power to dispose of the rents and profits.' 
 In the second class of cases the courts, following the lead of the 
 court of South Carolina, have repudiated the English doctrine alto- 
 gether, and deny to the wife all power to dispose of her separate 
 property, except where such power is expressly given to her in the 
 deed of settlement. In these states, therefore, the power of (disposition 
 
 » Hall ». Waterhouse, 5 Giff. 64; 11 Jur., n. s., 
 361; Essex ». Atkins, UVes. 542; Hodgson d. 
 Hodgson, 2 Keen, 7(M. 
 
 2 Vermont: Dale v. Robinson, 51 Vt. 20; Cald- 
 well ». Renfrew, 33 Vt. 213; Frary v. Booth, 37 
 Vt. 78. Connectietit: Imlay v. Huntington, 20 
 Conn. 148. ^ew York: Gardner v. Gardner, 7 
 Paige, 112, 116; Knowles v. McCamly, 10 Paige, 
 342,346; Gumming «. Williamson, 1 Sandf, CIi. 
 17, 25; Curtis v. Engel, 2 Id. 287, 289; Mallory v. 
 Vanderheyden, 3 Barb. Cb. 10; IN. Y. 452, 462; 
 Yale V. Dederer, 18 N. Y. 265; 22 N. Y. 450; 
 Bicliernian v, Abrahams, 21 Barb. 551 ; Coon v. 
 Brook, Barb. 546; Jaques v. Meth. Bpis. Ch., 17 
 Johns. 548, overruling decision of Chancellor 
 Kent in 3 Johns. Ch. 77 ; Dyett v. North Am. 
 Coal Co., 20 Wend. 570; 7 Paige, 9, 14; Powell 
 V. Murray, 2 Edw. Ch. 636, 643; Albany F. Ins. 
 Co. V. Bay, 4 N. Y. 9; Wadhams v. Am. Home, 
 &c. Soc, 12 N. T. 415. Jffew Jersey: Peake «. 
 La Baw, 21 N. J. Eq. 269, 282; Homoeopathic 
 Mut.Life Ins. Co. v. Marshall, 32 N. J. Eq. 103; 
 Leaycraft v. Hedden, 3 Green's Ch. 512, 551; 
 Perkins v. Elliott, 23 N. J. Eq. 526. Delaware: 
 Kilby V. Godwin, 2 Del. Ch. 61. Maryland: 
 Buchanan v. Turner, 26 Md. 1, 5; Cooker. Hus- 
 bands, 11 Md. 492. Virginia: Bank of Greens- 
 boro' v. Chambers, 30 Gratt. 202; Justls v. Eng- 
 lish, 30 Gratt. 565; McChesney v. Brown's 
 HeirS, 25 Gratt. 393; Penn V. Whitehead, 17 
 Gratt. 503; Nixon v. Rose, 12 Id. 425; Vizon- 
 neau v. Pegram, 2 Leigh, 183. West Virginia: 
 Patton V. Merchants' Bank, 12 W. Va. 587; 
 Radford v. Oarwile, 13 W. Va. 572; Coatney «. 
 Hopkins, 14 W. Va. 338. Worth Carolina: Har- 
 
 ris V. Harris, 7 Ired. Eq. Ill; NewUn v. Free- 
 man, 4 Ired. Eq. 312; but see Hardy v. Holly, 84 
 N. C. 661. Georgia: Fears v. Brooks, 12 Ga, 
 195, 200; Wylly v. Collins, 9 Ga. 223; Dallas u. 
 Heard, 38 Ga. 604; Roberts v. West, 15 Ga. 122, 
 Florida: Lewis v. Yale, 4 Fla. 418. Alabama: 
 Miller I). Voss, 62 Ala. 122; Bradford v. Green- 
 way, 17 Ala. 797, 805 ; Jenkins v. McConico, Id, 
 213; Ozley v. Ikelhelmer, 26 Id. 332; Glenn v, 
 Glenn, 47 Id. 204; Denechaud v. Berrey, 48 Id. 
 591; Short v. Battle, 52 Id. 456; Robinson v. 
 O'Neal, 56 Id. 541 ; Blakeslee v. Mobile Life Ins. 
 Co., Id. 205; McMillan v. Peacock, 57 Id. 127; 
 Sprague v. Shields, 61 Id. 428. Arkansas: Col- 
 lins V. Waasell, 34 Ark. 17. Missouri: White- 
 sides V. Cannon, 23 Mo. 457; Segond v. Garland, 
 23 Mo. 547; Coats v. Robinson, 10 Mo. 757; Met- 
 ropolitan Bank v. Taylor, 53 Mo. 444; Kimm v. 
 Weippert, 46 Mo. 532. Kentucky: Burch v. 
 Breckinridge, 16 B. Mon. 482; Lillard v. Tur- 
 ner, 16 B. Mon. 374; Bell v. Kellar, 13 JcT. 381; 
 Coleman ». Wooley's Ex'r, 10 Id. 320. Minne^ 
 sola: Pond ». Carpenter, 12 Minn. 430. Cali- 
 fornia: Millers. Newton, 23 Cal. 554. District 
 of Columbia: Smith o. Thompson, 8 MacAr- 
 thur. 291. 
 
 'Bank of Greensboro' v. Chambers, 30 Gratt. 
 202; Justis V. English, 30 Gratt. 565; McChes- 
 ney V. Brown's Heirs 25 Gratt. 393; Penn v. 
 Whitehead, 17 Gratt. 503; Nixon v. Rose, 12 Id. 
 426; Vizonneau v. Pegram, 2 Leigh, 183; Coat- 
 ney v. Hopkins, 14 W. Va. 338, Radford ». Car- 
 wile, 13 W.Va.572; Patton ». Merchants' Bank, 
 12 Id 587. 
 
 397 
 
§ 335 EQtJITY JUKISPRUDENCE. [CH. XIX. 
 
 is dependent solely upon the express provisions of the instrument, by 
 which the separate property is conveyed to her." 
 
 Where a married woman has only a life estate in her separate prop- 
 erty, she may also have added to such life estate the power of appoint- 
 ment over the reversion or expectant estate. And where that is the 
 case, her power of control over the corpus of the property is limited 
 to the exercise of the power of appointment.* 
 
 In such a case her creditors could not proceed against the property 
 in the hands of the appointee; except, perhaps, where a fraud has been 
 practiced upon the creditors, in which the appointee has participated.^ 
 
 § 335. Restraint upon anticipation. — ^In these states, in which 
 married women are conceded to have the power of disposition of prop- 
 erty without any express grant of such power, it is always possible to 
 limit such power of disposition, or to absolutely take it away by a 
 declaration to that effect, contained in the deed of settlement. Inas- 
 much as this general or absolute power of her disposition of her 
 separate property renders her in many cases liable to the undue 
 influence of her husband, which might be exerted to her detriment; it 
 is very often desired by parties settling property upon a married 
 woman for her separate use, to prevent injury to herself by the 
 improper exercise of this power of disposition in favor of the husband. 
 For this reason, when the court of equity proceeded to construct the_ 
 married woman's separate estate in direct opposition to the common 
 law, it gave to that estate in detail such characteristics as were con- 
 sidered to be most advantageous to the wife, and permitted, therefore, 
 the donor, in the deed or other instrument to expressly limit the wife's 
 
 1 Rhode Island: Metcalf v. Cook, 2 R. I. 355; Marshall v. Stevens, 8 Humph. 159, 173; but see 
 hut see Ives v. Harris, 7 E. 1. 413. J^ew Hamp- Young «. Young, 7 Coldw. 461; Head «. Tem- 
 sMre: Cutter o. Butler, 85 N. H. 343. Fennsyl- pie, 4 Heisk. 34; Gray i>. Robb, Heisk.74; Kirby 
 vania: Wallaoeo.Coston, 9 Watts, IST; Thomas v. Miller, 4 Coldw. 3; Ware v. Sharp, 1 Swan, 
 V. Folwell, 2 Whart. 11, 16; Lancaster «. Dolan, 489; Brown v. Foote, 2 Tenn. Ch. 255; Cheat- 
 1 Eawle, 231; Penn. Co. for Ins. v. Foster, 35 ham v. HuSf, Tenn. Ch. 616; Reynolds v. Bran- 
 Pa. St. 134; Wright ». Brown, 44 Pa. 81.234; don, 3 Heisk, 593. Ohio (partially): Maehiro. 
 Rogers v. Smith, 4 Ban. 93; Lyne's Ex'r v. Burroughs, 14 Ohio St. 519. lUirwie: Wallace 
 Course, 1 Pa. St. Ill; Maurer's Appeal, 86 Pa. v. Wallace, 88 111. 530; Cookson v. Toole, 59 111. 
 St. 380; Hepburn's Appeal, 65 Pa. St. 468; Wells 515; Carpenter v. Mitchell, 50 111. 470; Rogers 
 V. McCall, 64 Pa. St. 207; Jones' Appeal, 57 Pa. v. Higgins, 48 111. 211; Cole v. Van Riper, 44111. 
 St. 369; MoMullin v. Beatty, 56 Pa. St. 389; 58; Swift ji. Castle, 23 111. 209; Bresslere. Kent, 
 Shonk V. Brown, 61 Pa. St. 320. Maryland: 61 111. 426, overruling Young v. Graff, 28 111. 20. 
 Tarr J). Williams, 4 Md. Ch. 68; Millers. Will- ^Sookettw. Wray, 4Bro. Ch. 483; Lee ». Mug- 
 iamson, 5 Md. 219. Virginia: (See last note). geridge, 1 V. & B. 118; Nixon v. Nixon, 2 Jo. & 
 NorthJJarolina: Hardy «. Holly, 84 N. C. 661 Lat. 416; see 1 Eq. Lead. Cas. 690; Bradly v. 
 (for earlier cases, see last note). South Caro- Westoott, 13 Ves. 445, 451 ; Eeid o. Shergold, 10 
 Una: Adams v. Mackey, 6 Rich. Eq. 75; Reld v. Ves. srO, 380; and see Noble v. Willock, L. E. 8 
 Lamar, 1 Strobh. Eq. 27, 37; Ewing». Smith, 3 Ch. 778; Bishop v. Wall, L. R. 3 Ch. D. 194; 
 Desau. 417; Oliver v. Grimball, 14 S. C. 556; Anderson v. Dawson, 15 Ves. 532; Heatleys. 
 Porchers. Daniels, 12 Rich. Eq. 349; Magwood Thomas, Ves. 596; Richards i>. Chambers, 10 
 t). Johnston, 1 Hill's Ch. 288; Robinson v. Ex'rs Ves. 580. 
 
 of Dart, Dudley's Eq. 128. 'Mississippi: Doty ' Blatchford v. Woolly, 2 Dr. & Sm. 204; but 
 
 V. Mitchell, 9 Sm. & Mar. 435, 447; Montgomery see London Bk. of Australia v. Lempriere, L. 
 
 V. Agricultural Bk., 10 Sm. & Mar. 566, 576; E. 4 P. C. 572; Shattock u. Shattock, L. R. 2 Eq. 
 
 Armstrong v. Stovall, 26 Miss, 275; Musson v. 182; 35 Beav. 489; Hobday v. PeterB,28 Beav. 
 
 Trigg, 51 Miss. 172. Tennessee: Hixii. Gosling, 354, 1%; 1 Eq. Lead. Cas. 690, 691 (4th Am. ed.); 
 
 1 Lea. 560; Robertson v. Wilburn, 1 Lea. 633; Vaughan v. Vanderstegen, 8 Drew. 165, 363. 
 
 398 
 
CH. XIX.] EIGHTS AND POWERS OF MARRIED WOMEN. § 336 
 
 power of disposition by restrictions, which were intended to serve as 
 a protection against her own indiscretions. The most common 
 restraint upon the power of disposition has been that against anticipa- 
 tion of the rents and profits of the property, as well as the assignment 
 or sale of the corpus of the property. The restraint against anticipa- 
 tion, therefore, confined a wife's powers to the periodical receiving of 
 the rents and profits, as they were collected or became due. She was 
 not treated as having all the powers of a single woman in respect to 
 such property, but only such powers as were permitted to her or 
 granted to her in the deed or other instrument of settlement. The 
 courts have given full force and effect to clauses which restrict anti- 
 cipation of the income or disposition of a married woman's separate 
 estate; ^ but in order that the restraint may be imposed, the intention to 
 impose it must be clearly manifest in the deed or will, by which the 
 property has been settled to the married woman's sole and separate use. 
 No formal or technical expressions are required, in order to manifest this 
 intention; but the intention must be made clear and explicit.' If the 
 expressions are not explicit or clear in the manifestation of the intention 
 to restrain anticipation or sale of the property, then there wiU be no 
 implication of such intention from words of double meaning. " The 
 restraint upon her power of alienating pi'operty settled to her separate 
 use, must be equivalent to an express restraint; it will not be implied 
 from her being authorized to dispose of the property in a particular 
 manner. The jus MspoTiendi, and the liability to payment of all 
 debts incurred, can only be taken away or limited by express words, 
 or by an intent so clear as to be equivalent to express words."' 
 
 The latter statements are applicable only to those states in which the 
 power of disposition of her separate property is conceded to the mar- 
 ried woman, unless such power is taken away. Where the power of 
 disposition in any form is not conceded to the married woman, unless 
 the instrument settling the property upon her contains an authority 
 for the exercise of such, power, the restraint upon alienation would be 
 inferred from the general tenor of such instrument and from the 
 absence of an express grant of the power of disposition. On the 
 absence of permissive language rests the presumption, that there is no 
 power to dispose of the property, or to anticipate the income.* 
 
 1 Brandon D. Eobinson, 18 Ves. 489; I>i re Macdougall, 8Beav. 187; Steedman ». Poole,6 
 
 Gaffee, 1 Maon. & G. 541 ; 1 Eq. Lead. Gas. 713- Hare, 193; Goulder v. Camm, 1 pe G. F. <fe J. 
 
 722 735-748, 765-772; Baggett v. Meux, 1 Coll. 1«; Baggett «. Meux, 1 Coll. 138; 1 Phil. 637; 
 
 138; 1 Phil. 637 ; Rennie v. Ritchie, 12 CI. & Fin. Per contra, Medley V. Horton, 14 Sim. 232. 
 
 204; Tullett«. Armstrong, IBeav. 1,29; 4 My. '^^^^^l^^^^T^'^l^' nll-l,';^^l^^t' f^' 
 
 & Or. 390, 405; Pybus v. Smith, 3 Bro. Ch. 340; ?.^^^' ".•-"^'^''J: '^ ?\^- *'" t .Tl ^' n!' 
 
 , ' „ '. „,, . ,o„ .-, Evans, 15Slm. 375; Pybus ». Smith, 3 Bro. Ch. 
 
 Jackson V. Hobhouse 2 Meny. 483, 487 ^ '^.J ,, ^^^ ^^ ^ ^_ 
 
 ^ spring V. Pnde 10 Jur., N. s 646; if. Sarel, ^^; ^g ^^^_ ^^^^^ ^ ^ 1 S_ ^ S_ 
 
 10 Jur., N. s., 876; Baker v. Bradley, 7 De ^ *"^^ ^^ g„^^, ,j^„^j_ j gj^^ ^ ^ _ 19g 
 
 G. M. & G. 597; Field v. Evans, 15 Sim. 375; gynjo^ds v. Wilkes, 11 Jur.,N. s., 659; see, also, 
 
 Moore v. Moore, 1 Coll. 54, 57; Harrop v. How- perkius v. Hays, 3 Gray, 405- Nixon ». Rose, 12 
 
 ard 3 Hare, 634; Brown v. Bramford, 1 Phil. Qjatt. 435; Nix v. Bradley, 6 Rich. Eq. 43; 
 
 620; Herbert v. Webster, L. R. 15 Ch. D. 610; Weeks «. Sego, 9Ga. 199. 
 Kadford B. Carwile, 13 W. Va. 572; Harnett u. < Nix ». Bradley, 6 Rich. Eq. 43. 
 
 399 
 
§ 335 EQUITY JUKISPRUDENCE. [OH. XIX. 
 
 Where such a restraint has been imposed upon anticipation or aliena- 
 tion of the married woman's separate property, it deiprives her alto- 
 gether, or to the extent to which the limitation is imposed, of her 
 power of disposition of the property.^ 
 
 But the restraint will only continue or be in force during the mar- 
 riage. Property might be settled upon a single woman to her sole 
 and separate use, and subject to these restraints against anticipation; but 
 it will not become a separate estate as to her until she marries. So, 
 also, if she should marry, and then subsequently survive the husband; 
 his death, and the consequent termination of the coverture, will revive 
 her independence as a single woman, and her restraint upon anticipa- 
 tion will cease to control her rights in and to that property; so, that, 
 notwithstanding the restraint upon anticipation or alienation, the wife 
 can, before marriage, and after the death of her husband, freely dis- 
 pose of or charge the property which she holds for her sole and sep- 
 arate use during the marriage. For, except during the coverture, the 
 wife's separate estate is governed by the general laws concerning 
 property, and is not at all aflfected by the equitable rules concerning 
 the separate property of a married woman. ^ The clause in restraint 
 of anticipation or alienation of property may be expressly limited in 
 its operation to some one particular coverture; and where such limita- 
 tion is clear, it will not be operative or be revived, in case of a second 
 marriage.' But the general rule is, as laid down by the courts of 
 England and of most of the American states, that, although the pro- 
 visions for the separate estate with all these limitations as to power of 
 disposition, become suspended during widowhood, they are revived in 
 case of a second marriage as against the second husband, unless they 
 are clearly restricted to one coverture; and unless, of course, the 
 widow exercises her power of disposition of the property during 
 widowhood; so, that, when the second marriage takes place, what was 
 once her separate property belongs to another.* But in a few of the 
 
 • Arnold V. Woodhams, L. E. 16 Eq. 89; Cllve 2 J. & H. 647, 655; Barton v. Briscoe, Jacob, 603; 
 
 11. Carew, 1 J. & H. 199j Stanley v. Stanley, L. In re Gaffee, 1 Maon. & G. 541, 547; TuUettti. 
 
 E. 7 Ch. D. 589; In re Brettle, 2 DeJ. &, S. 79; In Armstrong, 1 Beav. 1, 28; 4 My, & Cr. 377, 392; 
 
 re Eidley, L. E. 11 Ch. D. 945; but see Cooper Buttanshaws. Martin, Johns. 89; Woodmeston 
 
 V. Macdonald, L. E. 7 Ch. D. 288; Clive ». Cliye, v. Walker, 2 Euss. & M. 197; Brown v. Poote, 2 
 
 L. E. 7 Ch. 433; Kenriok v. Wood. L. E. 9 Eq. Tenn. Ch. 255; Hepburn's Appeal, 65 Pa. St. 468. 
 
 333; /» re Brenton, L. E. 19 Ch. D.. 277; In re « Hawkes v. Hubback, L. E. 11 Eq. 5; Moore 
 
 Ellis' Trust, L. E. 17 Eq. 409; Pike v. Fitzglb- ». Morris, 5 Drew. 33; Inre Gaffee, 1 Maon. <fc 
 
 bons, L. E. 17 Ch. D. 454 ; Horlock v. Horlock, 2 G. 541, 545. 
 
 De G. M. & G.644; In re Sykes' Trusts, 2 J. & * Anderson v. Anderson, 2 My, & K. 427; 
 
 H. 415. Hawkes v. Hubback, L. E. 11 Eq. 5; Newlands 
 
 2 Ash «. Bowen, Phila. 96; Ogden's Appeal, v. Paynter, 4 My. & Cr. 408; Staggers v. Mat- 
 70 Phila. 501; Wells v. McCall, 64 Pa. St. 207; thews, 13Eich. Eq. 142,154; Nix v. Bradley, 6 
 Springer v. Arundel, Pa. St. 218; Hamersley v. Eich. Eq. 43; Fellows v. Tann, 9 Ala. 999; Beau- 
 Smith, 4 Whart. 126; Snyder's Appeal, 92Pa. St. fort «. Collier, Humph. 487; Brown «. Poote 2 
 504, 7» ?•« Stirling, 11 Phila. 150; Pickering v. Tenn. Ch. 255; Tuilett v. Armstrong, 4 My. & 
 Coates, 10 Phila. 65; Lindsay v. Harrison, 3 Cr. 377; 1 Beav. 1; In re Gaffee, 1 Maon. &, G. 
 Eng. (Ark.) 302, 311; Apple v. Allen, 3 Jones' 541; Scarborough!). Borman, 4 My. & Cr. 378; 
 Eq. 180; but see Bridges «. Wilkins, Jones' Eq. Shirley ». Shirley, 9 Paige, 363; Waters ». Taze- 
 342, TullettD. Armstrong, 4 My. & Cr. 377; Mas- well, 9 Md. 291 ; Pears «. Brooks, 12 Ga. 195, 197; 
 sey V. Parker, 2 My. & K. 174; Wright v. Wright, Eobert v. West, 15 Ga. 122 
 
 400 
 
CH. XIX. J RIGHTS AND POWEES OF MARRIED WOMEN. § 337 
 
 states, it has been held, that the restraint upon alienation will only 
 operate during the single marriage, in which the separate use was 
 originally created.' 
 
 § 336. Disposition of separate estate on death of wife.— After 
 the termination of the coverture, the married woman has been shown 
 to have full power to dispose of, alien or charge her separate prop- 
 erty, notwithstanding the restrictions which may be imposed upon 
 her control of her separate estate.^ Therefore, when she dies, her 
 property devolves upon her heirs or her husband, under the general 
 laws concerning the descent and distribution of property; that is, in 
 the absence of statutory changes, her lands which were held in fee 
 will go to the heirs, subject to the husband's curtesy, unless the 
 husband's curtesy is excluded, 'and the personal property would go to 
 the administrator, whether he be the husband or someone else.* Of 
 course, where she has the power to dispose of such separate property 
 by will, as she has by statute in most of the states, such disposition 
 would change the devolution of the property. ^ 
 
 § 337. The condition of the law in the American states. — It 
 would be very difficult to give, in any general statement, detailed ex- 
 planations of the law in the diflFerent states, in respect to the powers 
 of married women over their separate estates, and their power to make 
 contracts, which would be binding upon such separate estates or upon 
 them absolutely. In a few of the states, like New York, statutes have 
 been passed which give to the married woman the same absolutely 
 independent position, not only in respect to her property rights, but 
 also in respect to the power of making binding contracts, which is 
 enjoyed by the single woman. In these states, the entire law in re- 
 spect to the legal disabilities of married women has been abolished; 
 and, therefore, the married woman stands free from all such disabili- 
 ties, and on the same plane of equality with single women. In these 
 states, therefore, there is never any question as to any separate estate or 
 the limitations of a married woman in respect to her power of making 
 contracts. She can make contracts which will be binding upon her, 
 and which will support a personal judgment against her. Such is found 
 to be the law in California, Colorado, Iowa, New Jersey, Nevada, New 
 York and South Carolina. In New York, also, it is expressly pro- 
 vided that, where an express trust is granted, if it is valid at all, the 
 beneficiary does not obtain any fixed title or interest which he can 
 
 1 Miller ti. Bingham, 1 Ired. Eq. 433; Apple v. * Musters v. Wright, 2 De G. & Sm 777, Stew- 
 Allen, 3 Jones' Eq. 120; and see eases ante in artu. Stewart, 7 Johns. Ch. 229; Donnington v. 
 note (1), p. 30, under § 1105; Hepburn's Appeal. Mitchell, 1 Green's Ch. 243; Cooney r. Wood- 
 65 Pa. St. 468; Bush's Appeal, 33 Pa. St. 85; Mc- bum, 33 Md. 320; Appleton v. Bowley, L. R. 8 
 Kee V. McKlnley, Pa. St. 92 ; Lindsay v. Harri- Eq. 139 ; Molony «. Kennedy, 10 Sim. 254 ; John- 
 son, 3 Eng. (Ark.) 302, 311 ; Hamersley v. Smith, stone v. Lumb, 15 Sim. 308; Proudley v. Fielder, 
 4 Whart. 126; Kuhn v. Newman, 26 Pa. St. 227; 2 My. & K. 57; Roberts v. Dixwell, 1 Atk. 607; 
 Dubs «. Dubs, 31 Pa. St. 149; Freyvogle <). Pitts. Jackson, 3 Bro. Ch. 51; Morgan i;. Mor- 
 Hughes, 56 Pa, St. 228. gan, 5 Madd. 408; FoUett v. Tyrer, 14 Sim. 125; 
 
 2 See ante, § 335. Harris v. Mott, 14 Beav. 169. 
 
 ' See post, § 342. s See Tiedeman Real Prop., § 881. 
 
 26 "101 
 
§ 337 EQuirr jueisprudence. [oh. xix. 
 
 dispose of or charge; and such is also found to be the law in perhaps 
 a few of the other states.' 
 
 In a great many of the states, which are not to be included within 
 the states following the example of New York, the legislation con- 
 cerning the rights of married w^men is more limited in extent, 
 although everywhere the legal rights of the married woman have been 
 greatly enlarged. In other words, in these states she is not given the 
 absolute power of acting in respect to her proprietary interests as a sin- 
 gle woman is; so, that the power to contract a personal obligation is not 
 granted to her; but, at the same time, the statutes have included, under 
 the description of her separate property, which she can hold free from 
 the claims of her husband, not only the equitable estates which could 
 be settled to her separate use prior to the statutory reform, but all of 
 her legal estates, which otherwise would have been subjected to the 
 marital claims of the husband. There is, however, a possibility of 
 division of these states into two classes: In one class, all the property 
 of the married woman is declared to be her separate estate, free from 
 any interest or control of her husband, and from liability for his debts, 
 but there is no express provision concerning its liability for her own 
 debts. In the second class, the same provision is found in respect to 
 making all of her property her separate estate; but an express 
 provision is added, which makes certain debts, or her debts in 
 general, binding upon her separate estate, while these contracts 
 are not declared to be personally binding on her. Such statutes are 
 to be found in Alabama, Arkansas, Connecticut, Delaware, Florida, 
 Georgia, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, 
 Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hamp- 
 shire, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, 
 Ehode Island, Tennessee, Texas, Vermont, West Virginia and Wis- 
 consin. 
 
 It is a general rule that, where statutes have been passed giving to 
 the married woman's property in general the characteristic of a sepa- 
 rate estate, she wiU not have the power to convey such property where 
 it constitutes lands, unless such power is expressly given by the stat- 
 ute; this, in the absence of such statutory authority to convey such 
 property in any other way than what is generally provided for, this 
 legal separate property of the married woman can only be transferred 
 or conveyed by her when her husband joins in the conveyance with 
 her, and all the formalities are observed, which were required in the 
 conveyance of her legal estates prior to the statute.' Where the 
 statute gives her the power to dispose of such property but prescribes 
 a form for the execution of the conveyance, the form must bo strictly 
 followed.' But where the power of disposition is given without any 
 
 ' See ante, §§ 889, 294, 301; Noyes v. Blake- Luce, 27 Me. 285; Lucas v. Cobbs, 1 Dev. & B. 
 
 man, 6 N. Y. 667; 3 Sandf. 531; Bramhall v. (N. Car.) L. 228, 232; Dressier v. Kent, 61 111. 
 
 Ferris, 14 N. Y. 41. 426; Rogers i>. Higgins, 48 III. 211, 216. 
 
 aparent v. Callerand, 64 111. 97, 99; Swift v. s silliman v. Cummins, 13 Ohio, 116, 118. 
 
 402 
 
CH. XIX. J RIGHTS AND POWERS OF MARRIED WOMEN. § 338 
 
 specification of the form of tiie deed, she may transfer it by whatever 
 deed would be valid, if she were single.^ 
 § 838. Conti-acts of married women. — General doctrine. — As 
 
 has already been stated, the common law did not recognize in the mar- 
 ried woman the power to make a valid contract in her own name. 
 She could, of course, make contracts as the agent of the husband, 
 whenever she was authorized to do so by him; and, also, in many 
 cases the law implied the power to make such contracts in his name, 
 where he failed to perform his duty to her, in providing a reasonable 
 support. But contracts, which were made by the married woman in 
 her individual capacity, were absolutely void at common law. "When, 
 however, the court of equity provided for the recognition of a married 
 woman's separate estate, and declared that she would hold that sep- 
 arate estate free from the control of the husband, it became an impor- 
 tant question, how far the married woman could make this separate 
 estate liable for her debts, and the property be sold at the instance of 
 such creditors for the satisfaction of such claims? It must be borne in 
 mind, that with the creation of the separate estate, the married woman 
 was not treated in every particular as a single woman, but only given 
 such power of control and disposition in respect to such separate 
 estate, which was deemed advantageous to her. It did not give her 
 any greater liberty, in respect to the making of contracts, which 
 would bind her personally; but it was conceded that a limited power 
 of making contracts would be necessary to the full enjoyment of her 
 separate estate; particularly, where the contracts were necessary, in 
 order to maintain the separate property in a proper condition. Witiiout 
 doubt, the first step to the recognition of a married woman's ability to 
 contract debts as a charge to her separate property, was taken in 
 respect to the benefit or maintenance of her separate estate; but grad- 
 ually the power to charge the separate estate was enlarged, so that it 
 may be stated as the generally accepted doctrine — at least in those 
 states where the English doctrine in respect to the married woman's 
 power of disposition over her separate property is recognized — that, 
 whenever she indicates an intention to make the payment of a debt 
 contracted by her in her individual capacity a charge upon her sep- 
 arate estate; it matters not what was the nature of such debt, or the 
 purpose for which it was contracted; if the debt was contracted on the 
 credit of this separate estate, and was intended by her to be charged 
 upon such separate estate, the contract will be valid, not as a personal 
 obligation of the married woman, but as a charge or lien upon her 
 separate estate. Under the English rule, as it has been finally for- 
 mulated, the debt will constitute a charge upon the separate estate when- 
 ever the character of the obligation involves some individual benefit 
 to herself, and is in form, as well as in fact, an obligation assumed by 
 
 iSilliman v. Cummins, 13 Ohio, 116, 191; Edwards v. Schoeneman, 104 111. S78, 384; Sorantonr. 
 Stewart. 52 Ind. 68, 89. 
 
 403 
 
§ 339 EQUITY JUBISPEUDENCE. [CH. XIX. 
 
 herself in ter individual capacity. It has thus been settled, that the 
 wife's separate estate is liable for all her contracts under seal/ bills 
 of exchange and promissory notes,* as well as all other written 
 agreements, from which she derives the benefit herself.' So, also, 
 as it has been finally stated by the English cases, her verbal con- 
 tracts and debts will constitute charges upon her separate estate, 
 where it can be shown that they were made on the credit of such sep- 
 arate estate.* Of course, the power to charge her separate property 
 with her debts is taken away from her, whenever a restraint is imposed 
 upon her right of anticipating the income, or otherwise disposing of 
 her separate property.' 
 
 Inasmuch as the charge of these debts upon the separate property is 
 the result of an actual or implied intention of the wife to so charge 
 her separate property; it could not be considered to operate as a 
 charge upon any separate property, which she does not own at the 
 time of entering into the contract, and which does not still remain 
 her property when the judgment is rendered against her." 
 
 § 339. Married women's power to contract in the United States » 
 — Bearing in mind the statutory changes, which have been made, 
 and which have already been explained in respect to the married 
 women's separate estates; it must first be stated that, in those states 
 in which the entire system of the common law and equity, in respect 
 to the property rights of married women, has been abolished, and the 
 same independence given in law to the married woman as a single 
 woman has, the statute gives her the power to make contracts, which 
 will be binding upon her individually, as well as upon her estate.'' 
 
 1 Pike V. Fitzgibbons, L. E. 14 Ch. D. 83T; 17 pect to the legal estates whieh have by statute 
 
 /(?. 454; Hulme w. Tenant,! Bro. Ch. 16; Heat- been made her separate property, 
 ley V. Thomas, 15 Ves. 596. ' New York; Ackley v. Westervelt, 86 N. Y. 
 
 "Vandergucht v. De Blaquiere, 5 My. & Cr. 448; McKeonw. Hagan, 18Hun, 65; Williamson 
 
 229; Owen v. Homan, 4 H. L. Gas. 997; MoHenry «. Duffy, 19 N. Y. 312; Embree v. Eranklin, ZS 
 
 V. Bavies, L. E. 10 Eq. 88; Davles v. Jenkins, N. Y. 203; People V. Williams, 8 Daly, 264j 
 
 L. R. 6 Ch. D. 728; BuUpln v. Clarke, 17 Ves. Blanke v. Bryant, 55 N. Y.649; Loomis «. Buck, 
 
 365; Stuart v. Lord Kirkwall, 3 Madd. 387; 66 N. Y. 462; Manhattan, &o. Co. «. Thompson^ 
 
 Field B. Sowle, 4EUSS, 112. 58 N. Y. 80; Cashman v. Henry, 75 N. Y. 103f 
 
 ' Owen ®. Homan, 4 H. L. Cas. 997; Pioard ». Tiemeyer v. Turnquist, 85 N. Y. 516; Cora 
 
 Hine, L. E. 5Ch. 274; Morrell ». Cowan, L. E. Exch. Ins. Co. v. Baboock, 42 N. Y. 613 j 
 
 6Ch. D. 166; Master v. Puller,4 Bro. Oh. 19; 1 Maxon v. Scott, 55 N. Y. 247; Hier v. Staples, 
 
 Ves. 513; Owens v. Dickenson, Cr. & Ph. 48; 51 N. Y. 136; Hinckley v. Smith, 51 N. Y. 21; 
 
 Murray «. Barlee, 3 My. & K. 209. Precking v. EoUand, 53 N. Y. 422, 426. New 
 
 4Shattock». Shattock, L. E. 2 Eq. 182; But- Jersey: Hinkeon v. Williams, 41 N. J. L. (12r 
 
 lers.Heyl, L. E. 20Eq. 381, 324;Picard!). Hlne, Vroom) 35; Wilson v. Herbert, N. J. L. 454. 
 
 L. E. 5 Ch. 274,277; Johnson ». Gallagher, 3 De Nevada: Barrenberger v. Haupt, 10 Nev. 43; 
 
 G. P. & J. 494; Mrs. Matthewman's Case, L.E. Beokman v. Stanley, 8 Nev. 257. South Caro- 
 
 3 Eq. 781 ; Hodgson v. Williamson, L. E. 15 Ch. Una: Clinkscales v. Hall, 15 S. C. 603; Boss v. 
 
 D. 87; Mayd v. Eield, L. E. 3 Ch. D. 587. Linder, 12 S. C. 592; Pelzer v. Campbell, 15 S. 
 
 « Be Syke's Trusts, 2 J. & H. 415; Eoberts ». C. 581. ColoraOo: Wells v. Caywood, 3 Col. 
 
 Watkins, 46 L. J. (Q. B.) 552; Pike v. Pitzgib- 4S7; Coon v. Elgden, 4 Col. 875. California: 
 
 bons, L. E. 17 Ch. D. 454, 459, 463, 463, overrul- Parry v. Kelley, Cal. 334; Marlow ». Barlew, 53: 
 
 ings. c, L. E. 14Ch. D. 837. Cal. 456; Alexander j>. Bouton, 55 Cal. 15; 
 
 6 EobertSD. Watkins, 46 L. J. (Q. B.) 552; Pike Wood v. Orford, 52 Cal. 413. Iowa: Miller ». 
 
 V. Pitzglbbons, L. E. 17 Ch. D. 454, 460, 463, 465; Hollingsworth, Iowa, 163; Spafford v. Warren, 
 
 Be Sykes' Trusts, 2 J. & H. 415. It may be 47 Iowa, 47; Sweazy c. Kammer, 51 Iowa, 642; 
 
 added that this doctrine is not recognized by Mitchell v. Smith, 32 Iowa, 484, 487; First Nat. 
 
 some of the American courts, at least in res- Bk. v. Haire, 38 Iowa, 443. 
 
 404 
 
CH. XIX. J EIGHTS AND POWERS OF MAKEIED WOMEN. § 339 
 
 It may be added that, where cases are cited from these states in sup- 
 port of the limited power of a married woman to charge her separate 
 «state with her debts, that these cases so cited were rendered prior to 
 the adoption of the statute in question. 
 
 It must also be observed that, in those states already referred to, 
 where the statutes modifying the married woman's property rights did 
 not go to the length of completely emancipating her from the common 
 law disabilities, but simply extended her separate estate to all of her 
 property, the principles of law in respect to her contractual capacity, 
 as they were evolved by the adjudication of the courts of equity in 
 respect to the married woman's equitable separate estate, were 
 applied without qualification to her legal separate estates which had by 
 statute been given all the characteristics of a separate estate. These 
 American courts may be divided into three classes, according to the 
 power which is conceded to the married woman to charge her separate 
 estate with her debts. In the first class, the English courts have been 
 closely followed and the doctrine laid down in such states, that the mar- 
 ried woman's separate estate is liable for all her contracts, entered into 
 for the benefit of such estate or for her own benefit, it matters not what 
 may be the form of such contracts; and although the intention to 
 charge such separate estate is not expressly declared in the instrument. 
 When a vnfe's contract is one of surety or guaranty, it will be a good 
 charge upon the separate estate only where she expressly declares her 
 intention to so charge her separate estate. Such is found to be the 
 law in Alabama, Missouri, Ohio, Virginia, and West Virginia.* In 
 the second class of states, in order that her debts might constitute a 
 charge upon the separate property, the intent to so charge her separate 
 estate, it must appear affirmatively and expressly, and cannot be 
 
 1 Fry ». Hammer, 50 Ala. 52; Eiley «. Pleice, Wagoner, 56 Mo. 115; Maguire v. Magulre, 3 
 
 Ala. 93; Booker ». Booker's Adm'r, 32 Ala. 473; Mo. App. 458; Pratt v. Eaton, 65 Mo. 157; 
 
 Sprague v. Tyson, 44 Ala. 338; Brame v. MoGee, Dameron v. Jamison, 4 Mo. 299; Nash v. Nor- 
 
 46 Id. 170; Jones v. Eeese, 65 M. 134; Drake v. ment, 5 Mo. App. 545; Morrison v. Thistle, 67 
 Glover, 30 Id. 382; Gunter v. Williams, 40 Id. Mo. 698; Hootou v. Eansom, 6 Mo. App. 19 
 561, 572; Smyth v. Oliver, 31 Id. 39; Canty v. Gay v. Ihm, 69 Mo. 684; De Baun v. Van 
 Sanderford, 37 Id. 91; Miller v. Voss, 62 Id. 122; Wagoner, 56 Mo. 347, 349; Westerman v. Wes- 
 Sprague v. Shields, 61 Id. 428; Lee v. Tanren- terman, 25 Ohio, 600; Logan v. Thrift, 20 Ohio, 
 baum, 62 /d. 501; Rogers v. Boyd, 33 Id. 176; 62; Clark o. Clark, Ohio, 128; Allison v. Porter, 
 Pickens v. Oliver, 29 Id. 528; Ozley v. Ikel- 29 Ohio, 136; Machlru. Burroughs, 14 Ohio, 619; 
 heimer, 26 M 332; Bradford ii. Greenway, 17 Avery v. Vansickle, 35 Ohio St. 270; Williams 
 M. 797;' Shulman v. Fitzpatrick, M. 571; Short «. Urmston, 35 Ohio St. 296; Rice v. Railroad 
 V. Battle, 52 Id. 456; Williams v. Baldridge, 66 Co., 32 M. 380; Levi v. Earl, 30 Id. 147; Phillips 
 id. 338; Paulk v. Wolfe, 34 Id. 541 ; Staley v, v. Graves, 20 Id. 371 j Patrick ». Littell, 36 Id. 
 Howard, 7 Mo. App. 377; Boatmen's Sav. Bk. v. 79; Fallls». Keys, 35 Id. 265; Swaseyi). Antram, 
 Collins,' Mo. 280; Klenke v. Koeltze, Mo. 239; 24 /(f 87; Jenz v. Gugel, 26 Id. 527; Meiley v. 
 Davis v. Smith, 75 Mo. 219; Gage v. Gates, 62 Bntler, Id. 535; Muller v. Bayly, 21 Gratt. 521; 
 Mo 412;'Eystra». Capelle, 61M0.578; Burnley Frank v. Lilienfeld, 33 Id. 377; Trlplett v. 
 V Thomas, 63 Mo. 390; Clark v. National Bk., Eomine's Adm'r, M. 651; Penn v. Whitehead, 
 
 47 Mo 17; Metrop. Bk. v. Taylor, 53 Mo. 444; 17 Id. 503; Harshberger's Adm'r v. Alger, 31 
 62 Id. 3^; Boeckler v. McGowan, 9 Mo. App. Gratt. 62; Garland v. Pamplln, 32 Id. 305; Bur- 
 373- Miller* Brown, 47 Mo. 604; Pemherton^. nett ». Hawpe's Bx'r, 25 M. 481; Radford v. 
 Johnson, 46'mo. 342; Sohafroth v. Ambs, 46 Carwile, 13 W. Va. 672; Weinberg ». Kempe, 15 
 Mo. 114; Kimm v. Weippert, 46 Mo. 532; W. Va. 829. 
 
 Lincoln v. Eowe, 51 Mo. 571; Meyers v. Van 
 
 405 
 
§ 339 
 
 EQUITY JUKISPBUDENCE. 
 
 [CH. XIX. 
 
 implied or presumed from any form of the engagement; except in the 
 one case, where the debt is contracted for the benefit of the separate 
 estate. In all other cases it will only constitute a charge upon the 
 separate estate when this intention is expressly declared. Such is 
 found to be the law in Indiana, Kentucky, Maryland, Rhode Island, 
 Vermont, New Jersey, and New York.' In the third class of cases, 
 are those states in which it is held that she has no power to contract 
 debts as a charge upon her separate estate, unless the power to so 
 charge the property is expressly given in the instrument creating it. 
 Where such power is given in the instrument, the debt will only con- 
 stitute a charge upon the separate estate, where it is made for the 
 benefit of such estate, or when it is expressly declared to be made on 
 the credit of such estate and intended to be a charge upon it. Such is 
 found to be the law in Massachusetts, Mississippi, Tennessee, and 
 formerly South Carolina.^ Other cases are cited from other states, 
 which do not fall specifically within the classification here given, but 
 which support generally the right of the married woman to contract 
 debts, which will be binding upon her separate estate.' 
 
 1 Miller v. Albertson, 73 Ind. 343| Vail v. 
 Meyer, 71 Ind. 159; Smith v. Smith, 80 Id. 267; 
 Wooden ». Wampler, 69 Id. 88; Jaclanan v. 
 Howling, Id. 188; Patton v. Bankin, 68 Zd. 245; 
 Williams v. Wilbur, 67 Id. 48; Smith v. Howe, 
 31 Id. 233; Eantiowitz v. Frather, 31 Ind. 92; 
 Llndley v. Cross, Id 106; O'Daily ». Morris, Id. 
 Ill; Montgomery «;. Sprankle, Id. 113; Bellows 
 V. Rosenthal, Id. 116; Putnam v. Tennyson, 50 
 /d. 456; Penni). Young, 10 Bush, 628; Hannon 
 V. Madden, Id. 664; Moreland v. Myall, 14 Id. 
 474; Uhrig v. Horstman, 8 Id. 172; Lillard v. 
 Turner, 16 B. Mon. 374; Bureh v. Breckinridge, 
 Id. 488; Young v. Smith, 9 Bush, 421; Smith v. 
 McAtee,27 Md. 420; Niller v. Johnson, Id. 6; 
 Six V. Shaner, 86 Id. 415; Buchanan v. Turner, 
 Id. 1; Cooke v. Husbands, 11 Id. 498; Eice v. 
 Hoffman, 35 Id. 344; Warner ». Dove, 33 Id. 579; 
 Barton o. Barton, 32 Id. 214; Enhn v. Stans- 
 fleld, 28 Id. 210; Wilson v. Jones, 46 Md. 349; 
 Kerchner s. Kempton, 47 Md. 568; Trader ». 
 Lowe, 45 /d. 1; Plumer v. Jarman, 44 Id, 632; 
 Oswald V. Hoover, 43 Id. 360; Hoffmann. Rice, 
 38 Id. 284; Petition of O'Brien, 11 R. I. 419; 
 Berry «. Teel, 12 Id. 267, 268; Warner V. Peek, 11 
 Id. 431; Elliott ». Gower, 12 R. I. 79; Angell v. 
 McCullough, 12 R. I. 47; Webster v. Hil- 
 dreth, 33 Vt. 467; White v. Hildreth, 32 
 Vt. 265; Peck v. Walton, 26 Id. 82; Dale v. 
 Robinson, 51 Vt. 20; Hinkson v. Williams, 41 
 N. J. L. (12 Vroom) 35; Wilson ». Herbert, Id. 
 454; Blake v. Bryant, 55 N. Y. 649; Loomis v. 
 Ruck, 56 N. Y. 462; Manhattan, &c. Co. v. 
 Thompson, 58 N. Y. 80; Cashman ». Henry, 75 
 N. Y. 103; Tiemeyero. Tumquist, 85 N. Y. 516; 
 Com Exoh. Ins. Co. v. Babcock, 42 N. Y. 613; 
 Maxon v. Scott, 55 N. Y. 247; Hler v. Staples, 51 
 N. Y. 136; Hinckley v. Smith, 51 N. T. 21; 
 Frecking v. Eolland, 53 N. Y. 422, 426; Ackley 
 t). Westervelt, 86 N. Y. 448; McKeon v. Hagan, 
 
 406 
 
 18 Hun, 65; Williamson v. Duffy, 19 N. Y. 312; 
 Bmbree v. Franklin, 23 N. Y. 203; People v. 
 Williams, 8 Daly, 264 ; Huyler's Ex'rs v. Atwood, 
 26 N. J. Eq. 504; Pierson v. Lum, 25 N. J. Eq. 
 390; Homceopathio Mut. Life Ins. Co. ». Mar- 
 shall, 38 N. J. Eq. 103; Perkins v. Elliott, 23 Id. 
 526; Merchant v. Thompson, 34 Id. 73; Johnson 
 ®. Cummins, 16 N. J. Eq. 97; Johnson v. Vail, 
 1 McCarter, 423; Compton V. Pierson, 28 N. J. 
 Eq. 229; Armstrong v. Ross, 20 Id. 109; Vree- 
 land's Ex'iB v. Eyno's Ex'r, 26 Id. 160; Belford 
 v. Crane, 16 Id. 265; Vreeland v. Vreeland, 16 
 U. 512; Beals' Ex'r v. Storm, 26 M. 372; Dilts v. 
 Stevenson, 17 Id. 407; Porch v. Fries, 18 Id. 204. 
 
 2 WiUard v. Eastham, 15 Gray, 328; see, also, 
 Rogers v. Ward, 8 Allen, 387; Magwood r>. 
 Johnston, 1 Hill's Ch. 228; Cater v. Eveleigh, 4 
 Desau. 19; James v. Mayrant, 4 Desau. 591; 
 Adams v. Maokey, 6 Rich. Eq. 75; Hebnm ». 
 Warner, 112 Mass. 271; Tracy v. Keith, 11 Allen, 
 214; Common'th v. Williams, 7 Gray, 337; 
 Conant v. Warren, 6 Id. 562; Real v. Warren, 2 
 Id. 447; Ea£tabrook v. Earle, 97 Mass. 302; 
 Faucett ti. Currier, 109 Mass. 79; MoCluskeyw. 
 Provident Inst., 103 Id. 300; Larabee ». Colby, 99 
 Id. 559; Towle v. Towle, 114 Id. 167; Stevens v. 
 Reed, 112 Mass. 515; Nourse «. Henshaw, 123 
 Mass. 96; Merriam V. Boston, &0. R, R. 117 
 Mass. 241; Pierce V. Kittredge, 115 Mass. 374; 
 Morrison v. Einstra, 55 Miss. 71; Musson tf. 
 Trigg, 61 Miss. 172; Ogden v. Guice, 56 Miss. 
 330; Davis v. Jennings, 3 Tenn. Ch. 241; Ar- 
 rington v. Roper, Id. 572; Sherman v. Turpln, 
 Coldw. 382; Young v. Young, 7 Id. 461; Hughes 
 V. Peters, 1 Id. 67; Chatterton v. Young, 2 
 Tenn. Ch. 768, Moseby ti. Partee, 5 Helsk. 26; 
 Shaoklett v. Polk, 4 Id. 104; Head v. Temple, 
 Id. 34. 
 
 3 Arkansas; Scott v. Ward, 35 Ark. 480; Dyer 
 V. Arnold, SJ Id. 17; Henry v. Blackburn, 32 
 
CH. XIX.] EIGHTS AND POWERS OF MAERIED WOMEN. 
 
 § 340 
 
 § 340. Settlement by wife in fraud of the marriage. — Inasmuch 
 as, under the common law, the husband became entitled at the mar- 
 riage to marital interests in the wife's property, except when such 
 property had been settled to her sole and separate use, it was consid- 
 ered to be a species of fraud upon the husband, if there was any secret 
 
 Ark. 445; Stillwell v. Adams, 39 Ark. 346; Col- 
 lins V. Wassell, 34 Id. 17; Roberts v. Wllcoxon, 
 36 /A 3.55; Ward c. Estate of Ward, Id. 586; 
 Collins V. Underwood, 33 Id. 265. California! 
 Miller V. Newton, 33 Cal. 554; Maolay «. Love, 
 25 /A 367 i Drals v. Hogan, 50 Cal. 131, 128; 
 Friedberg v. Parker, Id. 103; Terry v. Ham- 
 monds, 47 Id. 32. Connecticut; Jennings v 
 Davis, Conn. 134; Jackson v. Hubbard, 36 Id. 
 10; Imlay t). Huntington, 201(2. 146, 175; Dono- 
 van's Appeal, 41 Id. 551 ; Hitchcock v. Kiely, 41 
 Id. 611 ; Gore v. Carl, 47 Id. 291 s Whiting v. Beok- 
 with, 31 Id. 596. Delaware; State v. Gorman, 4 
 Houst. 631; Ross v. Singleton, 1 Del. Cb. 149. 
 Florida; Adm'r of Smith «. Poythress, 3 Fla. 
 92;-Lewis v. Yale, 4 Id. 418; Malben v. Bobe, Id, 
 381; Sanderson v. Jones, 6 Id. 430; Lignoski «. 
 Bruce, Id. 269; Tison v. Mattair, 8 Fla. 107; Als- 
 ton V. Rowles, 13 Id. 117. Georgia; Kent v. 
 Plumb, 57 Ga. 207; Humphrey v. Copeland, 54 
 Id. 543; Clark v. Valentino, 41 Id. 143; Huff v. 
 Wright, 39 /A 41; Dallas v. Heard, 32 Ga. 604; 
 Robert t). West, 15 Id. 123; Cherokee Lodge v. 
 White, 63 Id. 742. Illinoie: McDavid «. Adams, 
 77 IlL 155 ; Doyle V. Kelley, 75 Id. 574; Harrer v. 
 Wallner, 80 Id. 197; Husband v. Eping, Id. 172; 
 Yazel r. Palmer, 81 Id. 82; Whitford v. Daggett, 
 84 Id. 144; Elder v. Jones, 85 W. 381; Emmert ®. 
 Hays, 89 Id. 11; Robinson v. Brems, 90 Id. 351; 
 MoCullough V. Ford, 96 Id. 439; Patterson v. 
 Lawrence, 90 HI. 174; Thompson v. Scott, 1 111. 
 App. 641; Kaseu. Painter, 111. 543; Indianapolis, 
 Ac. Hy. V. McLaughlin, Id. 275; Bauman v. 
 street, 76 Id. 526; Patten v. Patten, 75 Id. 446; 
 Williams v. Hugunin, 69 Id. 214 ; Haight v. Mc- 
 Vegh, Id. 624; HaUey v. Ball, 66 Id. 250; Cook- 
 son V. Toole, 59 Id. 515. Kansas: Deerlng v. 
 Boyle, 8 Kans. 535; Going v. Orns, Id. 85j 
 Enaggs V. Mastin, 9 Id. 532; Monroe v. May, Id. 
 466; Miner o. Pearson, 16 Id. 27; Tallman v. 
 Jones, 13 Id. 438; Faddis v. WooUomes, 10 Id. 56; 
 Larimer ». Kelley, Id. 298; Wicks v. Mitchell, 
 9 Id. 80. Maine; Hancock Bk. v. Joy, 41 Me. 
 568; Merrill v. Smith, 37 Me, 394; Southard v. 
 Piper, 36 Me. 84; Southard v. Plummer, Me. 64; 
 Sampson «. Alexander, 66 Me. 183; Mayo v. 
 Hutchinson, 57 Me. 546; Bean v. Boothby, Me. 
 295; Hanson v. Millett, 55 Me 184; Johnson v. 
 StUlings, 35 Me. 427; How v. Wildes, 34 Me. 566; 
 Motleys. Sawyer, Me. 340; Duren v. Getchell, 
 Me. 241; Beales v. Cobb, 51 Me. 348; Wlnslowv. 
 Gllbreth, 50 Me. 90; Eldrldge v. Preble, Me. 148j 
 Clark V. Vlles, 33 Me. 32 ; McLellan v. Nelson, 27 
 Me. 139; Brookings v. White, 49 Me. 479; Springe 
 V. Berry, 47 Me. 330; Eaton ». Nason, Me. 132; 
 Beale v. Knowles, 45 Me. 479. Michigan,: Wat- 
 son V. Thurber, Mich. 457; Farr v. Sherman, 
 Mich. 33; Starkweather v. Smith, 6 Mich. 377; 
 Durfee v. MoClurg, Mich. 233; Burdeno v. 
 
 Amperse, 14 Mich. 91; Glover v. Alcott, II 
 Mich. 470. Minnesota: Williams v. McGrade, 
 13 Minn. 46; Rich v. Rich, 12 Minn. 468; Wilder 
 ■0. Brooks, 10 Minn. 50; Carpenter v. Wilvers- 
 chled, 5 Minn. 170; Carpenter v. Leonard, 5 Id. 
 155; Northwestern, Ac. Co. v. AUis, 23 Minn. 
 337; Wampach v. St. Paul, &c. R. R., 22 Id. 34; 
 Spencer o. St. Paul, &c. R. R., Minn. 39; Leigh- 
 ton V. Sheldon, 16 Minn. 243. Nebraska: Bar- 
 num V. Young, Neb. 309; Savings Bank v. 
 Scott, 10 Neb. 83; Hall o. Christy, 8 Neb. 264; 
 Anltman v. Obermeyer, 6 Neb. 360; Davis v. 
 First Nat. Bk. 5 Neb. 243; Webb v. Hoselton, 4 
 Neb. 308; McCormick v. Lawton, 3 Neb. 449. 
 New Hampshire: Bailey v. Pearson, 29 N. H. 77; 
 Blake v. Hall, 57 N. H. 373; Muzzy ». Reardon, 
 N. H. 3T8; Whipple v. Giles, 55 N. H. 139; Ham- 
 mond V. Corbett, 51 N. H. 311 ; Patterson v. 
 Patterson, N. H. 164; Shannon v. Canney, 
 44 N. H. 593; Ames v. Foster, 42 N. H. 381: 
 Woodward v. Seaver, 38 N. H. 29; Albin 
 V. Lord, 39 N. H. 196; Cooper v. Alger, 51 
 N. H. 172; Bachelder v. Sargent, 47 N. H. 263; 
 George v. Cutting, 46 N. H. 130; Hill v. Pine 
 River Bk., 45 N. H. 300. North Carolina: Kirk- 
 man V. Bk. of Greensboro, 77 N. C. 394; Knox 
 V. Jordan, 5 Jones' Eq. 175; Harris v. Harris, 7 
 Ired. Eq. Ill ; Frazier v. Brownlow, 3 Ired. Eq. 
 237; Hall v. Short, 81 N. C. 373; Plppen v. Wes- 
 son, 74 N. C. 437; Webb v. Gay, N. C. 447; Man- 
 ning, V. Manning, 79 N. C. 300. Oregon: Ken- 
 nard v. Sax, 3 Or. 363, 267; Brummetii. Weaver, 
 2 Or. 168; Starr v. Hamilton, 1 Deady, 368; Dick. 
 V. Hamilton, Or. 332. Pennsylvania: Berger v. 
 Clark, 79 Pa. St. 340; Silveus' Ex'rs v. Porter,. 
 74 Pa. St. 448; Speakman's Appeal, 71 Pa. St. 25;; 
 Bower's Appeal, 68 Pa. St. 126; Walker v. 
 Eeamy, 36 Pa. St. 410; Bear's Adm'r v. Bear, 3S 
 Pa. St. 525; Wright v. Brown, 44 Pa. St. 224; 
 Lipplncott V, Leeds, 77 Pa. St. 430; Appeal of 
 Germanla Sav. Bk., 95 Id. 339; Innis v. Tem- 
 pleton. Id. 262; Sawtelle's Appeal, 84 Id. 306; 
 Trimble®. Eels, 37 Id. 448; Thomdell v. Mor- 
 rison, 25 Id. 326; Peck v. Ward, 18 Id. 506; Shny- 
 der V. Nodle, 94 Id. 286. Texas: Hall v. Dotson, 
 55 Tex. 520; Bradford v. Johnson, 44 Tex. 381; 
 Wallace v. Finberg, 46 Id. 35; Rhodes v. Glbbs, 
 39 Tex. 432; Ferguson ». Reed, 45 Id. 574; Greg- 
 ory V. Van Vleck, 21 Id. 40; Cartwright v. Hol- 
 lis, 5 Id. 152; HolUs v. Francois, 5 Id. 195; 
 Hutchinson v. Underwood, 27 Tex. 255; Hamil- 
 ton V. Brooks, 51 Id. 142. Wisconsin: Conway 
 V. Smith, 13 Wis. 125; Meyers v. Rahte, 46 Wis. 
 655; McKesson v. Stanton, 50 Id. 297; Krouskop 
 V. Shontz, 51 Id. 204; Todd v. Lee, 15 Id. 265; 16 
 Id. 480j Beard v. Dedolph, 29 Wis. 136. United 
 States; Bk. of America v. Banks, 101 U. S. 240; 
 Cheever V. Wilson, 9 Wall. 108, 119. 
 
 407 
 
§ 34:1 EQUITY JUBISPKUDENCE. [CH. XIX. 
 
 settlement of her property immediately prior to the marriage, so that 
 his marital rights could not attach thereto. Where, therefore, a set- 
 tlement is made by the prospective wife of her property to her sole 
 and separate use, immediately before the marriage, and without the 
 knowledge of her intended husband, such a settlement was declared to 
 be a fraud upon him, and he could avoid it. ^ 
 
 § 341. Wife's equity to a settlement. — As has already been 
 explained, the married woman's property, both real and personal, 
 became subject to the husband's marital rights whenever such property 
 was not settled to her sole and separate use. The interest, acquired 
 by the husband in his wife's property, was not a trust fund held by 
 him for the benefit of the family, but became his own absolute interest; 
 and, therefore, was subjected to the claims of his creditors. His cred- 
 itors could levy upon his interest in his wife's property and sell the 
 same. Wherever the enforcement of the claims of the creditors against 
 the husband's interest in the wife's property did not require a resort 
 to the courts of equity, no limitation or restraint was imposed upon 
 the enforcement of such claims; even though it would result in reduc- 
 ing the wife and children to absolute want." But wherever a party, 
 claiming a right to the property of the wife through the husband, is 
 compelled, in order to acquire control of the property, to resort to the 
 court of equity for the requisite remedy, the court would refuse to 
 grant this extraordinary aid, in the enforcement of the legal claims 
 of the husband's creditors against the property of the wife, unless a 
 provision is made out of such property for the support of the wife and 
 children. The court enforces in this case a special application of the 
 equitable maxim, ' ' He who seeks equity must do equity. ' ' ' The wife's 
 
 • Taylor v. Pugh, 1 Hare, 608, 614; Downes v. man v. Hartman, 45 111. 57; McAffee v. Pergu- 
 
 Jennings, 38Beav. 890; Chambers v. Crabbe, 34 son, 9 B. Mon. 475; Cheshire v. Payne, 16 Id. 
 
 Beav. 467; but see St. Georges. Wake, 1 My. & 618, OTerrullng Hobbs». Blandford,? Mon. 469. 
 
 K. 610, 623; De Manneyille v. Compton, 1 V. <fc ^ Ward v. Ward. L. R. 14 Ch. D. 506; !» re 
 
 B. 354; Goddard v. Snow, 1 Rubs. 486; Lance v. Bryan, L. E. 14 Ch. D. 516; Canby v. McLear, 
 
 Norman, 2 Ch. Rep. 79; Blanchet ®. Poster, 2 13 Bankr. Reg. 22; Warden v. Jones, 2 De G. lic 
 
 Ves. Sen. 264 j Lewellin v. Cobbold, 1 Sm. & Gif . J. 76, 87 : Durham v. Crackles, 32 L. J. Ch. 111. 
 
 376; Hunt V. Matthews, 1 Vern. 408; Slooombe = Macaulay v. Philips, 4 Ves. 15, 19; Scott «. 
 
 V. Glubb, 2 Bro. Ch. 545; Cotton t>. King, 2 P. Spashett, 3 Macn. <&; G. 599; HavUandr. Bloom, 
 
 Wms, 358, 674; Ball v. Montgomery, 2 Ves. 191, 6 Johns. Ch. 178, 180; Dunkley v. Dunkley, 8 
 
 193; England v. Downs, 2 Beav. 522; Countess De G. M. & G. 390; Van Epps v. Van Deusen, 4 
 
 of Strathmore v. Bowes, 2 Bro. Ch. 345; 1 Ves. Paige, 64, 74; Van Duzer c.Van Duzer, 6 Paige, 
 
 :22; 1 Eq. Lead. Cas. 605, 611-617, 618-623; Ashton 366, 368; Martin v. Martin, 1 HofF. Ch. 462, 467; 
 
 ■1!. M'Dougall, 5Beav. 56; Wrigleys. Swainson, Hayilandi;. Meyers, 6 Johns. Ch. 25, 178; Helms 
 
 .3De G. &Sm. 458; Griggs ». Staplee, 2 /a!. 572; «. Franoiscus, 2Bland,544; Sturgia ji. Chami>- 
 
 Prideaux v. Lonsdale, 1 De G. J. & S. 433 ; Loa- nays, 5 My. & Cr. 97 ; Giacometti v. Prodgers, L. 
 
 der r. Clarke, 3 Macn. & G. 382; Linker v. R. 14Eq.253; 8Ch. 338;Kenny5).UdalI, 5 Johns. 
 
 Smith, 4 Wash. 224; Logan ». Simmons, 3 Ired. Ch. 464; 3 Cow. 590; Poindexter v. Jeffries, 15 
 
 Eq. 48?, 494; Terry V. Hopkins, 1 Hill's Ch. 1; Gratt. 363; but see Jackson ». Hill, 25 Ark. 223; 
 
 Tucker v. Andrews, 13 Me. 124; Williams v. In re Robinson's Estate, L. E. 13 Ch. D. 188; 
 
 Carle, 2Stockt. Ch. 543; Robinson ti. Buck, 71 Lady Elibank t). Mon tolieu, 1 Eq. Lead. Cas. 
 
 Pa. St. 386; Ramsay ». Jayce, 1 McMullin's Eq. 623, 639-669, 670-679; Life Association ». Slddal, 
 
 236, 249; McClure 0. Miller, Bailey's Eq. 108; 3 De G. E. &J.271; Pondt). Skeen,8 Lea. 126; 
 
 Belt I). Ferguson, 3 Grant's Cas. 289; Duncan's Allday v. Fletcher, 1 De G. & J. 82, White v. 
 
 Appeal, 43 Pa. St. 67; Waller v. Armistead's Gouldln's Ex'rs, 87 Gratt. 491; Canby t>. McLear, 
 
 Adm'rs,2Leigh, ll;Fletcherji.ABhley,6Gratt. 13 Bankr. Reg. 22, Real's Ex'm. Storm, 26 N. 
 
 538, 339; Manes*. Durant, 2 Rich. Eq. 404; Free- J. Eq. 378; Atchison v. Dixon, L E 10 Eq 
 
 408 
 
CH. XIX. J BIGHTS AND POWERS OF MARRIED WOMEN. 
 
 § 341 
 
 claim to this equitable settlement, in her behalf, out of her own prop- 
 erty is not limited to any particular amount. The court determines, 
 in every particular case, how much of said property should be settled 
 upon her free from the husband's creditors; her condition and the 
 needs of the family being taken into consideration in the ascertainment 
 of the amount. One-half of the fund was the ordinary provision, 
 unless peculiar circumstances required a larger amount to be set aside 
 for her.* To one who is under the influence of the notions of right 
 and justice, as they obtain in the nineteenth century, it seems absurd 
 that a court should in such cases feel compelled to limit its interfer- 
 ence in behalf of a wife to the protection of only a part of her own 
 property from the claims of her husband's creditors. But when one 
 views these provisions in the light of the domestic conditions of the 
 seventeenth and eighteenth centuries, one wUl consider such a pro- 
 vision as a very great advance upon, and a great relief from the hard- 
 ships of, the common law. 
 
 She could claim this equity in respect to any kind of property that 
 she might hold, and in respect to her interests in lands, whether they 
 were freeholds or chattels.^ So, also, could she claim this equity in 
 respect to her personal property, as long as such property has not been 
 reduced to actual possession by the husband.^ It may be stated as a 
 
 589j In re Carr's Trusts, L. E.12 Eq.609; McCaleb 
 «. Criclifleld, 5 Heisk. 288; Jackson v. Hill, 25 
 Ark. 223; Atkinson v. Beall, 33 Ga. 153; Sabel 
 V. Slingluff, 52 Md. 132; Moore v. Moore, 14 B. 
 Mon. 208; Bennett©. Dillingham, 2 Dana, 436; 
 Coppedge ®. Threadgill, 3 Sneed, 577; PMllips 
 ■e. Hassell, 10 Humpli. 197; In re Lush's Trusts, 
 L. E. 4 Ch. 591; Wiles v. Wiles, 3 Md. 1; Lay's 
 Ex'rs C.Brown, 13 B. Mon. 295; Wardi>. Amory, 
 1 Curtis, 419, 432; Andrews©. Jones, 10 Ala. 401. 
 
 1 Barrow v. Barrow, 5 De G. M. & G. 782, 794; 
 Gent V. Harris, 10 Hare, 383; Taunton ». Mor- 
 rison, L. E. 8 Ch. D. 453; 11 Id. 779; Dunkley v. 
 Dunkley, 2 De G. M. & G. 390; Gilchrist v. 
 Cator, 1 De G. & Sm. 188; Scott v. Spaschett, 3 
 Macn. A; G. 599; Brown v Clark, 5 Ves. 166; Ex 
 parteFugh., 1 Drew. 202, 203; Carter v. Taggart, 
 1 De G. M. & G. 286, 289; Layton v. Layton, 1 
 Sm. & Gif. 179; Spirett ®. Willows, L. E. 1 Ch. 
 520; In re Suggltt's Trusts, L. E. 3 Ch. 215; 
 Giacometti v. Prodgers, L. R. 14 Bq. 253; 8 Ch. 
 338; Smith ». Smith, 3 Giff. 121; /ti 7-«Kincaid's 
 Trusts, 1 Drew. 326; In re Cutler, 14 Beav. 220; 
 Marshall ». Fowler, 16 Beav. 249 ; Green V. Otte, 
 1 S. & S. 250; In re Erskine's Trust, 1 K. & J. 
 303; Coster v. Coster, 9 Sim. 597; Watson v. 
 Mashall, 17 Beav. 363; Francis V. Brooking, 19 
 Id. 347; Duncombe v. Greenacre, 29 Jd. 568; 
 Napier v. Kapler, 1 Dr. &, War. 407; ExpaHe 
 Pugh, 1 Drew. 202; Be Grove's Trusts, 3 Giflf. 
 675; White v. Gouldin's Ex'rs, 27 Gratt. 491 ; Be 
 Ford, 32 Beav. 621 ; In re Lewln's Trusts, 20 Id. 
 378; Johnson v. Lander, L. E. 7 Eq. 228; In re 
 Cordwell's Estate, L. E. 20 Eq. 644. 
 
 2 Duncombe v. Greenacre, 2 De G. F. &, J. 
 
 609; Sturgis v. Champneys, 5 My. & Cr. 97; see 
 Atkinson v. Beall, 33 Ga. 153; Sabel ». Sling- 
 luflp, 52 Md. 132; Smith v. Matthews, 3 De G. P. 
 & J. 139; Life Association •«. Siddal, Id. 271; 
 Wortham v. Pemberton, 1 De G. & Sm. 644; 
 Hanson «. Keating, 4 Hare, 1 ; Clark v. Cook, 3 
 De G. & Sm. 333; Hill v. Edmonds, 5 Id. 603. 
 
 3 Beresford v. Hobson, 1 Madd. 362 ; Ruffles v. 
 Alston, L. E. 19 Bq. 539; In re Mellor's Trusts, 
 L. E. 6 Ch. D. 127; Elliott v. Cordell, 5 Madd. 
 149, 166; Carter v. Taggart, 1 De G. M. &, G. 
 286; 5 De G. & Sm. 49; Tidd v. Lister, 3 De G. 
 M. <teG. 857; Scott v. Spashett, 3 Macn. & G. 
 599, 603; Barrow v. Barrow, 5 De G. M. & G. 
 782; Burdon v. Dean, 2 Ves. 607; -Earl of Salis- 
 bury u. Newton, 1 Eden, 370; Macaulay v. 
 Philips, 4 Ves. 15, 19; Wright v. Morley, 11 Id. 
 12, 16; Atchison v. Dixon, L. E. 10 Eq. 589, 
 597, 598; Ex parte Norton, 8 De G. M. & G. 258; 
 Purdew v, Jackson, 1 Euss. 1 ; Stanton v. Hall, 
 2EUSS. & M. 175, 182; Be Duffy's Trusts, 28 
 Beav. 386; AUday v. Fletcher, 1 De G. & J. 83; 
 Widgery v. Tepper, L. R. 7 Ch. D. 423; In re 
 Barber, L. E. 11 Ch. D. 442; Heirs of Holmes, 
 28 Vt. 765; Horsby «. Lee, 2 Madd. 16; Ellison 
 V. Elwin, 13 Sim. 309; Le Vasseurv. Soratton, 
 14 Id. 116; Michelmore v. Mudge, 2 Giff. 183; 
 Dunn V. Sargent, 101 Mass. 336 ; Howard v. Bry- 
 ant, 9 Gray. 239; Bartlett v. Van Zandt, 4 Sandf. 
 Ch. 396; Burr v. Sherwood, Bradf. 85; Lock- 
 hart V. Cameron, 29 Ala. 355; McNeill v. 
 Arnold, 17 Ark. 164; Canby v. McLear, 13 
 Bankr. Eeg. 22; Needles' Ex'r v. Needles, 7 
 Ohio St. 432; Corley v. Corley, 22 Ga. 178; 
 Machem v. Machem, 28 Ala. 374. 
 
 409 
 
§ 34:2 EQUITY JUKISPBUDENCB. [CH. XIX. 
 
 general proposition that the claim to this equity could not be 
 granted, after the husband has made a disposition of his interest in 
 the wife's property, whether by outright sale, or by transfer to the 
 assignee for a valuable consideration.^ So, also, she cannot claim the 
 equity out of her reversionary personal estate; ^ or to the arrears of 
 income, accruing before the claim to the equity is made.' A claim 
 to the equity will also be barred, whenever the wife has made illegal 
 dispositions of her property, even though such dispositions be made 
 for the benefit of the husband.* Any misconduct on the part of the 
 wife,^ or waiver on her part to the right to the equity,' will have the 
 effect of operating as a bar to her claim, except so far as such a claim 
 might still be asserted in behalf of the children. ' No settlement will be 
 made in favor of the wife which would affect in any way the husband's 
 estate by the curtesy.' No particular form is required in the making 
 of the settlement, nor is there any absolute rule for the guidance of 
 the court in this particular. Ordinarily, provision is made for the 
 wife during her life and after her death to the children; and in default 
 of children, it is usually provided for the property to go to the survivor 
 of the husband and wife.' 
 
 § 342. Hnsband's estate by the curtesy in the wife's eqiiitabl& 
 estates. — It was once held that the husband was not entitled to curtesy 
 out of the equitable estates of the wife. But it is now very generally 
 conceded that he has curtesy in all equitable as well as legal estates, 
 and the same rules are applied to the former, which obtain in the latter. 
 For the foundation of the claim of curtesy, the receipt by the wife of 
 the rents and profits is a sufficient seisin." The husband has also 
 
 1 Elliott ». Oordell, 5 Madd. 149 ;Pryor B.Hill, Ball, L. R. 16 Ch. D. 376j Beaumont v. Carter, 
 
 4Bro. Oh. 139; Ex parte Coysegame, 1 Atk. 32BeaT. 586; Dimmoch ». Atkinson, 3 Bro. Ch. 
 
 192; Jacobs v. Amyatt, 1 Madd. 376 nj Squires 195. 
 
 V. Ashford, 23 Beav. 132; see Taunton v. Morris 7 Penner v. Taylor, 2 Euss.& M. 190 j Ex parte 
 
 L. K. 8 Ch. D. 453; Wilkinson v. Charlesworth, Gardner, 2 Ves Sen. 671. 
 
 10 Beav. 324; Koeber®. Sturgis, 22 Beav. 588; 8 Wortham v. Pemberton, 1 De G. <fe Sm. 644; 
 
 Se Ford, 32 Id. 621; per eorara, Vaughan v. Life Associations. Slddal, 3DeG. F. & J. 271; 
 
 Buck, 13 Sim. 404; see Tidd v. Lister, 3 De G. Smith v. Matthews, 3 Id. 139; Buncombe «. 
 
 M. & G. 857, 869, 870; 10 Hare, 140; Wright 0. Greenacre, 2 De 6. P. & J. 509. 
 
 Morley, 11 Ves. 12, 22; Stanton v. Hall, 2 'Murray v. Lord Elibank, 13 Ves. 1; 14 Id. 
 
 Bubs. & M. 175; Re Duffy's Trust, 28 Beav. 386. 496; Johnson v. Johnson, 1 J. & W. 472, 476; 
 
 aosbom v. Morgan, 9 Hare, 432; but see In re Carter V. Taggart, 1 De G. M. & G. 286; Croxton. 
 
 Robinson's Estate, L. K. 12 Ch. D. 188; McCaleb «. May, L. E. 9 Eq. 404; Spirett v. Willows, L. 
 
 V. Crlohfleld, 5 Heisk. 288. B. 1 ch. 520; 4 /d. 40?; In re Suggltt's Trusts, 
 
 a In re Carr's Trusts, L . R. 12 Bq. 609. l. R. 3 Ch. 315 ; Walsh v. Wason, L. R. 8 Ch. 
 
 ^Williams V.Cooke, 9 Jur.,N.B.,658; Tuer». 482; Lloyd ». Williams, 1 Madd. 450; De La 
 
 Turner, 20 Beav. 560. Grade v. Lempriere, 6 Beav. 344; Hodgens v. 
 
 6See77!.r«Lewin'sTrust,20Beav. 378; Greedy Hodgens, 4 CI. & Fin. 323, 372; WaUace v. 
 
 V. Lavender, 13 Beav. 62; Ball v. Montgomery, Auldjo, 1 De G. J. & S. 643; McCaJeb v. Crich- 
 
 3 Ves. 191; see Eedes«. Eedes, 11 Sim. 569; field, 5 Heisk. 288. 
 
 Carrt7. Eastabrooke, 4 Ves. 146; In re Lush's 104 Kent's Com. 31; 1 Washb. on Real Prop. 
 
 Trusts, L. R. 4 Ch. 691; Barnard v. Ford, L. R. 165, 166; Watts v. Ball, 1 P. Wms. 109; Morgan 
 
 4 Ch. 247; Bonner v. Bouner, 17 Beav. 86; and v. Morgan, 5 Madd. 408; Sweetapple v. Bindon, 
 see Knight v. Knight, L. E. 18 Eq. 487. 2 Vern. 537, note 3; Davis v. Mason, 1 Pet. 508; 
 
 « Bibbles v. Jackson, 3 De G. & J. 544; Martin Houghton v. Hapgood, 13 Pick. 154; Robinson 
 
 V. Poster, 7De G. M. & G. 98; Penfold v. Mould, v. Codman, 1 Sumn. 128; Dunsoomb ». Duns- 
 
 L. E. 4 Eq. 562; see Watson v. Marshall, 17 comb, 1 Johns. 508; Clepper o. Llvergood, 5 
 
 Beav. 363; Abraham v. Newcombe, 12 Sim. Watts, 113; Dubst). Dubs, 31 Pa. St. 154; Eawl- 
 
 666; Stubbsc Sargon. 2 Beav. 496; Shipway». ings ». Adams, 7 Md. 54; Forbes ». Smith 6 
 
 410 
 
CH. XIX. J RIGHTS AND POWEKS OF MARRIED WOMEN. § 344 
 
 curtesy in the equity of redemption, where he and his wife joined in 
 the execution of the mortgage.* And this is true, also, even of those 
 equitable estates, wliich are granted to her sole and separate use." 
 But equitable estates will not be subject to the right of curtesy, if 
 the intention of the grantor, to exclude the husband from such equitable 
 estate, is clearly manifested in the deed.' 
 
 § 343. Maintenance. — The power of the court of equity, to pro- 
 vide for the maintenance of a married woman by her husband out of 
 her own property, is somewhat analogous in character to the provision 
 for the wife's equity, but somewhat different. The provision for the 
 maintenance out of her own estate is only made in the case of actual 
 need, and without any regard to any equity to the settlement out of 
 her property; the maintenance is confined to her own property and 
 would not be provided for out of the husband's estate. 
 
 The common cases of the provision for the maintenance of the wife 
 out of her own estate, are those where the husband has deserted the 
 wife, without making provision for her support. In such cases, the 
 court of equity will order a maintenance to be made for her out of her 
 own estate, even though such estate had not been settled but was 
 agreed to be settled, to her own separate use; and even though the 
 express provision of the marriage settlement be that the income of 
 such property should be payable to the husband for his life.* 
 
 § 344. Pin-money and paraphernalia. — ^Pin-money is the annual 
 allowance which a husband is required by the marriage settlement to 
 make to the wife for the purchase of her clothes and ornaments, and 
 in satisfaction of her other personal needs. Of the same general 
 character will be f ovmd to be all gifts by the husband during the mar- 
 riage, and whatever is provided for under the marriage settlement. 
 Pin-money is a settlement, like the wife'g separate estate, independent 
 of her husband's control of such fund, so far as the disposition and 
 expenditure of it is concerned; but it differs from the separate estate, 
 in that it was not her absolute property and remained subject to her 
 husband's right of reducing it to his own possession, in case she did 
 not spend it.^ Pin-money does not include the money given for the 
 
 Ired. Eq. 369; Withers v. Jenkins, 14 S. C. 597; ran v. O'Hem, i Watts & S. 95; Eigler v. Cloud, 
 
 Alexander v. Warrance, 17 Mo. 228. In several 14 Pa. St. 361 ; Clark v. Clark, 24 Barb. 582; Pool 
 
 of the states, notably, Alabama, Kentucky, u. Blaikie, 53 111.495; Hearle «. Greenbank, 3 
 
 Maryland, Mississippi, and Virginia, curtesy Atk. 716; Bennett v. Davis, 2 P. Wms. 316; 1 
 
 is by statute made to attach to equitable Washb. on Real Prop. 165-169. 
 estates. 1 Greenl. Cruise, 157. * Newsome v. Bowyer, 3 P. Wins. 37; Nichols 
 
 > Robinson v. Lakeman, 28 Mo. App. 135; v. Danvers, 2 Vem. 671 ; Dumond v. Magee, 4 
 
 Mettler®. Miller, 129 111. 630. Johns. Ch. 318, 322; Bullock v. Menzies, 4 Ves. 
 
 2 Tillinghast v. Ooggeshall, 7 R. I. 383 ; Night- 798 ; Watkyns v. Watkyns, 2 Atk. 96, 98 ; Cecil v. 
 
 ingale v. Hidden, lb. 115; Sartill v. Robeson, 2 Juxon, 1 Atk. 278 ; Guy v. Pearkes, 18 Ves. 196 ; 
 
 Jones Eq. 510; Carter v. Dale, 3 Lea. 710; 31 Coster o. Coster, 1 Keen, 199; Ibid; Oxendenv. 
 
 Am. Hep. 660; but see Moore ». Webster, L. E. Oxenden, 2 Vem. 493; Williams D. Callow, 
 
 23 Eq. 267; Appleton V. Rowley, L. R. 8 Eq. 139; Vem. 752; Eedes v. Eedes, 11 Sim. 569; Peters 
 
 and see cases cited in note 2; Carson v. Fuhs, v. Grote, 7 Sim. 238. 
 131 Pa. St. 256. » Howard v. Digby, 8 Bligh, n. 8. , 224, 245, 365- 
 
 » Carter*. Dale, 3 Lea. 710; 31 Am. Law Rep. 269;2 Cl. & Fin. 634; and see Eq. Lead, Cas. 
 
 eeO; Stokes v. McKibbln, 13 Pa. St. 207; Coch- 729 (4th Am. ed.). 
 
 411 
 
§ 344 EQUITY JURISPRUDENCE. [CH. Itnc 
 
 purchase of household effects and the maintenance of the household, 
 but was intended to provide for the strictly personal expenses of the 
 wife.^ Where the provision for pin-money is made in the marriage 
 settlement, and the husband fails to perform that obligation, she may 
 make the claim for such pin-money against his estate.^ But if the hus- 
 band has actually provided for aU her personal expenses, without the 
 payment to her of the pin-money, she could not thereafter make any 
 claim for the arrears, since her personal wants have been fully satisfied. ' 
 
 The wife's paraphernalia includes all her apparel and ornaments, 
 which are given to her by her husband for her personal use; thus dif- 
 fering from the pin-money, in that the apparel and ornaments are 
 secured and provided for by the husband instead of giving her the 
 money wherewith to buy them.* The paraphernaKa differs from the 
 wife's separate estate, in that, while she has the right to make use of 
 them, she is not the absolute owner and cannot dispose of them with- 
 out the consent of the husband; on the other hand, her husband may 
 dispose of them and they are liable for his debts.* But the husband 
 cannot bequeath the paraphernalia to others. ° The jewelry and orna- 
 ments, which are held as heir-looms in the husband's family, cannot be 
 claimed by the wife as her paraphernalia.'' And what would be 
 paraphernalia, if given by the husband, would not be so considered but 
 would be her absolute separate property, if it were given to her by 
 anyone else.' So, also, while the gift by the husband of jewels and 
 other ornaments would ordinarily be considered to be a part of her 
 paraphernalia, yet he may make an absolute gift to her of such 
 property so as to become a part of her separate estate.' 
 
 The claims to satisfaction of legatees, whether general or special, 
 cannot be enforced against the vsdfe's paraphernalia; and if the wife's 
 paraphernalia has, during the life of the husband, been subjected to 
 the claims of creditors, she will have her claim for reimbursement 
 against the husband's personal estate." 
 
 Provisions for pin-money and personality are incidents of English 
 marriage settlement and are not found in practice in the United 
 States. In the absence of adjudication, it is believed to be safe to 
 
 iJodrellc. Jodrell, 9BeaT. 45; Howard o. ' Atk. 369jRidout«. Earl of Plymoutli, 2Atk. 
 
 Digby, 8 Bligh, h. b., 224. 104; Boyntun v. Boyntun, 1 Cox, 106. 
 
 2 Lord Townshend v. Windham, 2 Ves. Sen. « Tipping v. Tipping, 1 P. Wms. 729; Seymore 
 
 1, 7; Peacock «. Monk, 2 Id. 190; Aston v. ®. Tresilian, 3 Atk. 358. 
 
 Aston, 1 la. 264, S67; Howard v. Digby, 8 Bligh, ' Jervoise v. Jervoise, 17 Beav. 566, 570; Cal- 
 
 K. 9., 224, 245, 265-269; Eidout ». Lewis, 1 Atk. mady v. Calmady, 11 Vin. Abr. 181. 
 
 269; Foss «. Fosb, 15 Ir. Oil. Bep. 215; Edge- « Graham v. Londonderry, 3 Atli. 393; Lucas 
 
 worth i;. Edgeworth, 16 Id. 348. v. Lucas, 1 Atk. 270. 
 
 apowlert). Fowler, 3P. Wms. 353, 355; Thomas 'Graham®. Londonderry, 3 Atk. 393. 
 
 V. Bennet, 2 Id. 347; Howard v. Digby, 8 Bligh, " Boyntun v. Boyntun, 1 Cox, 106; Incledon 
 
 N. B., 224, 245, 265-269. V. Northcote, 3 Atk. 430, 436; Tynt v. Tynt, 2 P. 
 
 * Graham v. Londonderry, 3 Atk. 393, 394; Wms. 542, 543; but see Ridouts. Earl of Ply- 
 
 Jervolse o. Jervoise, 17 Bear. 666, 571; see mouth, 2 Atli. 104; ProbertB. Clifford, Ambl. 6; 
 
 Whiton V. Snyder, 83 N. Y. 299. Snelson v. Corbet, 3 Atk. 369 ; Tipping ti. Tip- 
 's Sejrmore v. Tresilian, 3 Atk. 358; Campion ping, 1 P. Wms. 729; Aldrioh v. Cooper, 8 Ves. 
 
 «. Cotton, 17 Ves. 264, 273; Snelson v. Corbet, 3 382,397. 
 
 412 
 
CH. XIX.] EIGHTS AND POWEKS OF MAEEIED WOMEN. § 345 
 
 state that gifts of, the kind that would in England be considered to 
 have the peculiar character of paraphernalia, would be considered in 
 this country as an absolute gift to the wife and free from the claim of 
 creditors as well as the husband's subsequent power of control, except 
 where such gifts are considered a fraud upon existing creditors, in 
 consequence of the loss by such creditors of the means of satisfying 
 their claims.' 
 
 § 345. Alimony. — Alimony is an altogether different right of the 
 wife. It is not a separate estate; nor is it any provision for her out 
 of her own estate, but a provision which is made for her maintenance, 
 and which the court requires the husband to make for her mainte- 
 nance, out of his own resources djaring the pendency of the action for 
 divorce. It is, therefore, simply a temporary provision for the sup- 
 port of the wife. The court of equity in England did not assume 
 jurisdiction to provide for alimony. This jurisdiction was exercised 
 in England by the ecclesiastical court, and it is probably free from 
 doubt, that the original jurisdiction of the court of equity did not 
 include the control of the wife's claim for alimony. Such certainly 
 was the rule in the English courts." Such is also the position of a 
 great many of the American courts." But in several of the states, the 
 courts of equity assumed and exercised jurisdiction over the right of 
 the wife to alimony, probably because of the inefficiency of the reme- 
 dies, whereby the wife could otherwise secure alimony, during the 
 pendency of the action for divorce.* 
 
 1 See Whiton v. Snyder, 88 N. T. 299. Paterson v. Paterson, 1 Halst. Ch. 389; Peltier 
 
 " Vandergucht v. De Blaqulere, 8 Sim. 315; 5 ». Peltier, Harring. Oil. 19, 29; Cory v. Cory, 3 
 
 My. & Cr. 229; Ball v. Montgomery, 2 Ves. 191, Stockt. Ch. 400; Helms v. Pranclsous, 2-JBland, 
 
 195. 544, 568; Wallingsford v. Wallingsford, 6 Har. <fc 
 
 a McGee e. MoGee, 10 Ga. 477, 482; Fisehli v. J. 485. 
 Fisohli, 1 Blackf. 360; Doyle v. Doyle, 26 Mo. * Butler ». Butler, 4 Litt. 201 ; Logan «. Logan, 
 
 545, 549; Trotter®. Trotter, 77 m. 510; Parsons 2B.Mon.l42; Graves ». Graves, 36Iowa,310j- 
 
 V. Parsons, 9 N. H. 309; Pomeroy v. Wells, 8 Galland v. Galland, 38 Cal. 265; Prather t). 
 
 Paige, 406; Eees v. Waters, 9 Watte, 90; Shan- Prather, 4 Desau. 33; Khame v. Ehame, 1 Mc- 
 
 nonu. Shannon, 2 Gray, 286; Sheafe v. Sheafe, Cord's Ch. 197; Glover v. Glover, 16 Ala. 440, 
 
 4 Post. 564, 567; Chapman v. Chapman, 13 Ind. 446; Garland v. Garland, 50 Miss. 694; Almond 
 
 396,397; Lawson ». Shotwell, 27 Miss. 630, 633; v. Almond, 4 Band. 682; Puroell ». Puroell, 4 
 
 Yule V. Yule, 2 Stockt. Ch. 138, 143; but see Hen. & Munf. 507. 
 
 413 
 
CHAPTER XX. 
 
 ADMINISTRATION OF DECEDENTS' ESTATES, AND HEREIN OF GIFTS 
 
 CAUSA MORTIS. 
 
 Section 
 
 Foundation for Jurisdiction o£ equity . 347 
 £ffect of establishment of probate courts 
 
 upon the equitable jurisdiction . . 348 
 
 Kinds of legacies 349 
 
 Ademption of specific legacies . . . 350 
 
 General legacies 331 
 
 Demonstrative legacies .... 352 
 
 Annuities 353 
 
 Abatement of legacies 354 
 
 Section 
 Effect of appropriation of funds by ex- 
 ecutor 355 
 
 Lapsed legacies 356 
 
 Gifts causa mortisj distinction from test- 
 amentary disposition . ... 357 
 Equitable jurisdiction over gifts cauta 
 
 mortis 358 
 
 The characteristics of donatio mortis 
 causa 359 
 
 § 347. Foundation for jurisdiction of equity. — Where a court of 
 equity assumes jurisdiction over matters pertaining to the administra- 
 tion of the estate of a deceased person, the court applies to the 
 particular case only the general doctrines which underlie and are 
 enforced in the equitable control of trusts in general; in other words, 
 whether a court assumes charge of or interferes with the administra- 
 tion of the intestate's estate, or whether it is called upon to construe 
 the provisions of the will; in either case the foundation for the 
 assumption of jurisdiction is held to be the theory, that the property 
 of the deceased passes to the executor or administrator, to be held by 
 him in trust for the party to whom the property shall go, under the 
 terms of the will, or under the Statute of Distribution, according to 
 whether the deceased died testate or intestate.^ Inasmuch as the legal 
 title to lands does not vest in the admiriistrator or executor on the death 
 of the owner, but passes directly to the heir or devisee, as the case 
 may be, a court of equity will assume control of the case for the pur- 
 pose of enforcing the administration of the estate in respect to lands, 
 only where there is a will by which the lands have been devised to 
 one to be held in trust for another. But inasmuch as the title to 
 personal property vests in the personal representatives of the deceased 
 owner, whether he died testate or intestate, the representative must 
 receive it, and does receive it in the capacity of a trustee for those who 
 can thereafter claim the property as next of kin, or legatee. The 
 court of equity can assume jurisdiction over the administration of 
 personal estates in every case, on the general ground that it is a case 
 of trust and falls, therefore, under the general jurisdiction of a court 
 
 1 Hurst V. Beach, 5 Madd. 351, 360; Farring- 
 ton V. Knightly, 1 P. Wms. 544, 549, 554; Atkins 
 V. Hill, Cowper, 284, 287; see Adair v. Shaw, 1 
 Seh. <Sc Lef . 843, 262, per Lord Eedesdale j Anony- 
 
 414 
 
 mous, 1 Atk. 491, per LordHardwicke; Franco 
 V. Alvares, 3 Atk. 343, 346; Pratt v. Northam, 
 5 Mason, 95, 105; Prescott o. Morse, 62 Me. 
 447. 
 
CH. XX. J decedents' estates and gifts causa moetis. § 3i7 
 
 of equity over the administration of trusts; and there are some 
 courts which maintain that this is the only foundation for the assump- 
 tion of jurisdiction by a court of equity over the administration of 
 decedents' estates.* " The rule is, that to put a court of equity in 
 motion, there must be an actual limitation in respect to matters which 
 are the proper subjects of the jurisdiction of that court, as distin- 
 guished from a court of law. It is by reason of the jurisdiction of 
 ■courts of chancery over trusts that courts having equitable powers, as 
 an incident of that jurisdiction, take cognizance of and pass upon the 
 interpretation of wills. They do not take jurisdiction of actions 
 brought solely for the construction of instruments of that character, 
 nor when only legal rights are in controversy. It is when the court 
 is moved on behalf of an executor, trustee or cestui que trust, and to 
 insure a correct administi-ation of the power conferred by a will, that 
 jurisdiction is had, to give a construction to a doubtful or disputed 
 clause in a will. The jurisdiction is incidental to that over trusts." * 
 There are, however, some cases which maintain that a court of equity 
 has other grounds upon which to rest its claim to jurisdiction over the 
 administration of decedents' estates, viz. : that a court can assume 
 jurisdiction to construe and enforce a will whenever its terms are real, 
 difficult or doubtful, or the validity of the will is contested, irrespect- 
 ive of the existence therein of any fiduciary relation.' Under the 
 English practice, it was at one time necessary, in many cases, to resort 
 to the court of equity for the purpose of establishing a will; that is, for 
 the purpose of placing upon record the fact that a certain will had been 
 executed and had gone into effect as the decedent's last will and testa- 
 ment, inasmuch as under the old English practice there was no provision 
 made for the probate and filing of the will. In such a case, in order 
 to avoid the effect of the loss of the will and the inability to prove its 
 condition, a court of equity would be appealed to to issue a decree to 
 the effect that a certain will had been proven to be executed and to 
 
 'Bowers J). Smith, 10 Paige, 193; Onderdonki;. 63N. Y.221,230j Dill«. Wlsner, 88N.T. 153, 160; 
 
 Mott, 34 Barb. 106j BlivenD. Seymour, 88 N. Y. Delaney ». McC rmack, N. T. 174j Post V. 
 
 439; Walratli v. Handy,S4 How. Pr. 353; Wager Hover, 33 N. Y. 593, 602; 30 Barb. 312, 324; Sel- 
 
 «. Wager,21Hun.93;Wolf». Scliaeffner, 51Wis. lers ». Sellers, 35 Ala. 235; Cowles ». Pollard, 
 
 53; Eexroad v. Wells, 13 W. Va. 812; Magers V. 51 Ala. 445; Clay s. Gurley, 62 Ala. 14; Clark v. 
 
 Edwards' Adm'r, U. 822; Bussy o. M'Kie, 8 Mc- Clark, 17 Ga. 485; Strubher v. Belsey, 79 111. 
 
 Cord's Ch. 23; Gibbes v. Elliott, 5 Elch. Eq. 307; Bowers©. Smith, 10 Paige, 193; Emmons ». 
 
 327; Appealer SchafEner, 41 Wis. 260; Devereuz Cairns, 2 Sandf. Ch. 369; Whitman v. Fisher, 
 
 ®. Devereux, 81 N. C. 12; Houston ». Howie, 84 74 111. 147; Mallory's Adm'r v. Craige, 2 Mc- 
 
 N. C. 349; Eothgeb ®. Mauck, 35 Ohio St. 503; Cart. 73; Youmans V. Youmans, 26 N. J. Eq. 149; 
 
 Goddard ». Brown, 12K. 1. 31; Ferrandn. How- Benham v. Hendrlokson, 32 N. J. Eq. 441. 
 
 ard, 3 Ired. Eq. 381; Simmons v. Hendricks, 8 '^ Allen, J., in Chipman v. Montgomery, 63 N. 
 
 Ired. Eq. 84, «>, 86; Tayloe v. Bond, Bush Eq. Y. 221, 230. 
 
 5' Marrow*. Marrow, Bush Eq. 148; Walrath 8 Little ». Birdwell, 21 Tex. 597; Gibbsu. Bi- 
 ll. Hardy, 24 How. Pr. 353; Stinde ». Ridgway, Uott, 5 Rich. Eq. S27; Rosenberg «. Frank, 58 
 55 How. Pr. 301 ; Duncan v. Duncan, 4 Abb. N. Cal. 387 ; First Bap. Ch. v. Robberson, 71 Mo. 
 C. 275; Marietta. Marlett, 14 Hun, 313; Powell 326; Benham ». Hendrlokson, 32 N. J. Eq. 441; 
 U.Denning, 22Hun,235; Bullock ». Bullock, 2 Ferris D. Sherrod, 12 Tex. 140; Howzeu. Howze, 
 Dev. Eq. 307; Woodruff v. Cook, 47 Barb. 304; 14 Tex. 232; Sellers v. Sellers, 35 Ala. 235; Trot- 
 Bailey V. Southwick, 6 Lans. S^; Bailey v. ter v. Blocker, 6 Port. (Ala.) 269; Baldwin ». 
 JBrJggs 56 N. Y. 407; Chipman V. Montgomery, Bean, 59 Me. 481. 
 
 415 
 
§ 348 EQUITY JTJEISPBUDENCB. [CH. XX. 
 
 have gone into effect as the will and testament of the decedent, instead 
 of waiting until some other party contested the existence or condition 
 of the alleged wiU. In these cases the suit is in the nature of an 
 action to quiet title.* In England, as well as in this country, the 
 necessity for such a suit has been done away with by statutory 
 provision for the probate and filing of the will. The ordinary cases^ 
 therefore, in which it would be at all necessary to resort to the 
 court of equity, are for the enforcement of legacies and the due per- 
 formance of the duties of an administrator. 
 
 § 348. Effect of establishment of probate courts npon the eqni< 
 table jurisdiction. — At a very early day in this country, separate 
 courts, called probate or surrogate courts, have been established, to 
 which an ordinary jurisdiction over the administration of decedents' 
 estates has been assigned. It is true that, under the old English prac- 
 tice, the ecclesiastical court had jurisdiction over administration; but 
 at best it was a very inefficient court, and in respect to the larger and 
 more important classes of cases pertaining to administration, the 
 ecclesiastical court did not have any jurisdiction at all. Such were 
 legacies given in trust or charged upon lands.'' And so, also, was the 
 court incompetent in many cases to enforce the due administration of 
 the estate, in consequence of the inadequacy of the remedies which it 
 could employ.' The modern probate or surrogate court, however,, 
 has a larger jurisdiction and is more efficient also in respect to the 
 remedies which it might employ; so that, while the exact limitations of 
 the jurisdiction of the probate court in this country are determined 
 by the provisions of the statutes of the different states, yet it is 
 probable that in the great majority of them the probate court 
 has sufficient power to deal with almost every case, which comes 
 up for adjudication in the ordinary administration of decedents' 
 estates. The question would naturally arise, how far the probate 
 court had superseded the court of equity in its jurisdiction over 
 administration? Of course, in the modern practice, in the great 
 majority of the states, there is no separate court of equity, but the one 
 ordinary nisiprvus court, having equitable as well as legal jurisdic- 
 tion; and the contest for jurisdiction in the case under inquiry would 
 arise between the probate court on the one hand, and the ordinary 
 circuit court having equitable jurisdiction. In determining, in gen- 
 
 1 Lovett V. Lovett, 3K. & J. 1; and see Inre Mason, 95, 105; Horrell v. Waldron, 1 Vem. 36; 
 Tayleur, L. E. 6 Ch. 416; Boyse v. Eossborough, see Slanning v. Style, 3 P. Wms. 334; Blake «. 
 Kay,71;3De G. M.&G.817; affd. sub. nom. Blake, 2 Sch. & Le£. 26; Jobnsonu. Mills, 1 Ves. 
 Colclough «. Boyse, 6 H. L. Gas. 1, 80 & 21 Viet. Sen. 282; Phlpps «. Annesley, 3 Atk. 57, 58; 
 Ch. 77. Webber v. Webber, 1 S. & S. 311; and see Ean- 
 
 2 Parrington v. Knightly, 1 P. Wms. 544, 549; dall v. Russell, 3 Meriv. 190, 193; Howe v. Barl 
 Prescott II. Morse, 68 Me. 447; Anonymous, 1 of Dartmouth, 7 Ves. 137; Mills v. Mills, 7 
 Atk. 491; Hill «. Turner, Atk. 515; Eeynlsh v. Sim. 501; Fryer«. Buttar, 8 Sim. 442; Foley o. 
 Martin, 3 Atk. 330, 333; Sherman v. Sherman, 4 Bumell, 1 Bro. Ch. 274, 279; Leeke». Bennett, 1 
 Allen, 398. Atk. 470; Benn v. Dixon, 10 Sim. 636; Cafe v. 
 
 8 Anon., 1 Atk. 491; Hill O.Turner, 1 Atk. 515; Bent, 5 Hare, 24, 36; Hunt v. Scott, 1 De G. <fc 
 Meals V. Meals, 1 Dick. 373; Pratt ». Northam, 5 Sm. 819; Covenhoven v. Shuler, 2Paige, 128, 132. 
 
 416 
 
CH. XX.] decedents' estates and gifts causa mortis. § 348 
 
 eral, how far the court of equity has been superseded by the probate 
 court, in its jurisdiction over the administration of decedents' estates, 
 the fundamental principle must be kept in mind, that equity juris- 
 diction does not necessarily involve the idea of exclusion of all 
 other courts. Two courts may have concurrent jurisdiction over the 
 same character of cases, and exclusive jurisdiction is not acquired by 
 either court, except that the bringing of the action in the one court 
 excludes the jurisdiction of the other court over the same cause of 
 action; but where there are two or more courts of concurrent juris- 
 diction over the same cause of action, the plaintiff can bring his suit in 
 either of the two courts. This is the general principle.' " There is 
 nothing in the nature of jurisdiction, as applied to courts, which 
 renders it exclusive. It is a matter of common experience that two 
 or more courts may have concurrent powers over the same parties and 
 the same subject-matter. Jurisdiction is not a right or privilege 
 belonging to the judge, but an authority or power to do justice in a 
 given case, when it is brought before him. There is, I think, no 
 instance in the whole history of the law where the mere grant of juris- 
 diction to a particular court, without any words of exclusion, has 
 been held to oust any other court of the powers which it before 
 possessed. Creating a new forum with concurrent jurisdiction may 
 have the effect of withdrawing from the courts which before existed a 
 portion of the causes which would otherwise have been brought before 
 them; but it cannot affect the power of the old courts to administer 
 justice when it is demanded at their hands."" The variety of pro- 
 visions in the different states, in respect to the composition of th& 
 probate court and the scope of its jurisdiction, makes the effect of 
 applying this general principle to the different states quite variable;, 
 and in order to determine when, and under what circumstances, and 
 how far the court of equity still retains jurisdiction over the adminis- 
 tration of decedents' estates in any particular state, a special investi- 
 gation of the decisions of the courts of that state, and the terms of the 
 statutes which establish the courts of probate and define their juris- 
 diction, will be necessary. Within the limitations of an elementary 
 treatise, it would be impossible to give detailed statements of the con- 
 dition of the law in all the states in respect to the jurisdiction of the 
 courts of equity over the administration of decedents' estates. An 
 excellent compendium of this branch of the law is to be found in Mr, 
 Pomeroy's work on Equity Jurisprudence.' The most that is possi- 
 
 1 Rosenberg v. Frank, 58 CaL 387; People v. Co., 30 Cal. 573; San Francisco v. Lawton, 
 
 Davidson, 30 Cal. 379; Willie v. Farley, 84 Cal. 18 Cal. 465; Bronson, J., in Delafleld ». State of 
 
 500' see, also, Clarke v. Perry, 5 Cal. 60; Sanford Illinois, 2 Hill, 159, 164; Yolo County v. City of 
 
 V. Head, 5Cal. 298; Deck v. Gerke, 12 Cal. 436; Sacramento, 36 Cal. 195; Caulfield v. Stevens, 88 
 
 Blantons. King, 8 How. (Miss.) 856; Carmicliael Cal. 118; Stoppelkamp«. Mangeot, 42 Cal. 325. 
 
 V. Browder, 3 How. 858; Farve's Heirs v. Graves, " Delafleld v. State of Illinois, 2 Hill, 159, 164, 
 
 4 Sm. <fe Mar. 707; Payne v. Payne, 18CaI. 291; per Bronson, J. 
 
 Story's Eq., §§548, 543, 1065; Gould V. Hayes, 'See Pomeroy's Eq. Jur., Vol. 3, page 96, 
 
 IB Ala. 449; Courtwright v. Bear River, &c. note 8. 
 
 417 
 
 27 *^' 
 
§ 348 
 
 EQUITY JURISPEtJDENCE. 
 
 [CH. XX. 
 
 "ble in this connection, is to state in general terms the general effect of 
 the establishment of the probate courts, and to give liberal citations of 
 authorities to which reference can be made by the reader for a fuller 
 statement of the law as it obtains in any particular state. 
 
 By comparison of these decisions, it will be seen that the states in 
 respect to this question of jurisdiction of equity courts over adminis- 
 tration of the decedent's estates, may be divided into three classes. In 
 the first class, it will be generally found that the equitable jurisdic- 
 tion over administration remains to this day unaffected by the statute, 
 which gave concurrent jurisdiction over such cases to the probate 
 court. The only effect in most of them is, that the will has to be 
 probated and filed in the probate court; but after such probate of the 
 will, either court can entertain jurisdiction over any action which is 
 brought to compel the performance of the duty of administration, 
 or to compel the enforcement of some provision of the will. In this 
 first class are to be included the states of Alabama,^ Illinois, " 
 Iowa,' Kentucky,* Maryland,^ Mississippi," New Jersey,' North Caro- 
 
 'Teague». Corbitt, 57 Ala. 529; Moore d. Le- 
 sueur, 33 Ala. 237; James v. Faulk, 64 Ala. 184; 
 Hill V, Annistead, 56 Ala. 118; Hause v, Hause, 
 57 Ala. 262; Hooper «. Smith, Ala. 557; Whor- 
 ton V. Moragne, 59 Ala. 641 ; Gould ». Hayes, 19 
 Ala. 438; Horton v. Moseley, 17 Ala 794; Weak- 
 ley V. Gurley's Adm'r, 60 Ala. 399; Glenn's 
 Adm'r V. Billingslea, 64 Ala. 345; Eandle v. 
 Carter, 62 Ala. 95; McNeill's Adm'rj). McNeill's 
 Crs., 36 Ala. 109; Park's Dist'ees, -a. Park's 
 Adm'rs, Ala. 138; Hemphill v. Moody, 64 Ala. 
 468; Reaves v. Garrett's Adm'r, 34 Ala. 558; 
 Pharis v. Leachman, 20 Ala. 662; Wilson v. 
 ■Cook, 17 Ala. 59; Hunley v. Hunley, 15 Ala. 
 91 ; Dohbs ^.Distributees of Cockerham, 2 Port. 
 328; Blakey v. Blakey's Heirs, 9 Ala. 391; Ap- 
 person v. Cottrell, 3 Port. 51 ; Draper's Adm'r 
 V. Draper, 64 Ala. 545; Scott v. Abercrombie, 
 14 Ala. 270; and see Harrisons. Harrison, 9 Ala. 
 470; Stallworth's Adm'r v. Farnham, 64 Ala. 
 259; see, also, Chaquette v. Ortet, 9 Pac. C. L. 
 J. 602; Hays v. Cookrell, 41 Ala. 75; Eandle v. 
 Carter, 62 Ala. 95. 
 
 s Freeland v. Dazey, 35 III. 294; Townsend v. 
 Eadcliffe, 44 111. 446; Garvin ». Stewart's Heirs, 
 59 111. 229 ; Harris v. Douglas, 64 111. 466 ; Blanch- 
 ;ard V. Williamson, 70 111. 647; Heustis v. John- 
 son, 84 111. 61; Grain v. Kennedy, 85 111. 340; 
 ■Grattan v. Grattan, 18 111. 167; Mahar v. 
 ■O'Hara, 4 Gilm. 484; Jennings v. McConnell, 
 17 111. 148; Heward v. Slagle, 52 111. 336; Clark 
 •i>. Hogle, 62 111. 487; Pool v. Docker, 92 111. 601 j 
 Hales V. Holland, 98 111. 494j Armstrong v. 
 hooper, 11 111. 560; McGreedy v. Mlei, 64 111. 495. 
 
 8 Waples V. Marsh, 19 Iowa, 381; Havelick v. 
 Havelick, 18 Iowa, 414; Cowin v. Toole, 31 
 Iowa, 513; Hutton v. Laws, 55 Iowa, 710. 
 
 * Moore v. Waller's Heirs, 1 A. K. Marsh. 
 488; Saunder's Heirs v. Saunder's Ex'rs, 2 
 Litt. 314; Blaekerby v. Holton, 5 Dana, 520; 
 Cartmelj). Eench, 8 J. J. Marsh. 118; Stroud's 
 Heirs v. Bamett, 3 Dana, 391; Pilkington's 
 
 418 
 
 Ex'rx V. Gaunt's Adm'x, 5 Dana, 410; Speed's 
 Ex'r V. Nelson's Ex'r, 8 B. Mon. 499, 607; Bell- 
 omy's Adm'r v. Bellomy, 3 Bush, 109; Hunt v. 
 Hamilton, 9 Dana, 90. 
 
 5 Davis V. Clabaugh, 30 Md. 508; Barnes «. 
 Compton's Adm'rs, 8 Gill, 391 ; Lee v. Price, 12 
 Md. 853; Eiohelberger v. Hawthorne, 33 Md. 
 588. 
 
 « Walker v. State, 53 Miss. 532; Bank of 
 Miss. V. Duncan, 52 Miss. 740; Brunini v. Pera, 
 64 Miss. 649; Evans «. Eobertson, Miss. 683; 
 Buie V. Pollock, 55 Miss. 309; Clopton V. 
 Haughton, 57 Miss. 787 ; Hunt v. Potter, 58 Miss. 
 96; Wells V. Smith, 44 Miss. 296; Bemheimer v. 
 Calhoun, Miss. 426; Saxon V. Ames, 47 Miss. 
 565; Troup ». Eice, 49 Miss. 248; Smith v. Ever- 
 ett, 50 Miss. 575; Gildart's Heirs ». Starke, 1 
 How. 450; Blanton v. King, 2 Miss. 856; Ed- 
 mundsons. Roberts, Miss. 828; Carmiohaelu. 
 Browder, 3 Miss. 252; McBea v. Walker, 4 Miss. 
 455; Hamberlin ». Terry, 7 Miss. 143; Farve's 
 Heirs v. Graves, 4 Sim. & Mar. 707; Gaines «. 
 Smiley, 7 Miss. 53; Eagland v. Green, 14 Miss. 
 194; Neylans «. Burge, Miss. 801; Hill o. Mc- 
 Laurin, 28 Miss. 288; Ratliff v. Davis, 38 Miss. 
 107; Hartt). Hart, 39 Miss. 221; Capers?). McCaa, 
 41 Miss. 479; Neylans v. Burge, 14 Sm. <fe Mar. 
 201; Green «. Creighton, 10 Sm. & Mar. 169; 
 Searles v. Scott, 14 Id. 94; Hart ». Hart, 39 
 Miss. 221; Moody V. Harper, 38 Miss. 599; Gil- 
 liam ■». Chancellor, 43 Miss. 437; Eabbj). Griffin, 
 26 Miss. 579 ; Archer v. Jones, Miss. 583; Wood v. 
 Ford, 29 Miss. 57; Manly ti. Kidd, 33 Miss. 141; 
 Hill V. Boyland, 40 Miss. 618; Scott v. Searles, 5 
 Sm. A M. 25; 7 M 498; American, &o. Soc. V. 
 Wade, 8 Id. 610. 
 
 ' King V. Ex'rs of Berry, 2 Green's Ch. 44, 261; 
 Frey v. Demarest, 16 N. J. Eq. 236; Mallory's 
 Adm'r v. Craige, 2 McCart. 73; Salter v. Will- 
 iamson, 1 Green's Ch. 480; Smith v. Ex'r of 
 Moore, Sid. 485; Meeker ii. Marsh, Saxt. 198; 
 Van Mater r. Sickler, 1 Stockt. 483; Clarke v. 
 
CH. XX.] decedents' estates and gifts causa mortis. 
 
 § 348 
 
 lina/ Rhode Island,'' Tennessee/ Virginia/ District of Columbia/ and 
 the United States courts. " In the second class, the equitable jurisdiction 
 has been materially modified by the statute, so far as to deprive the 
 equitable jurisdiction of the character of a concurrent jurisdiction; in 
 other words, it has ceased to be concurrent and is simply auxiliary 
 or ancUary to the main jurisdiction of the probate court; that 
 is, in these states a court of equity will never have the enforce- 
 ment of an administration except in extraordinary cases, where 
 the probate jurisdiction has been limited, or where the character 
 of the remedy which the court of probate may employ is imper- 
 fect and inadequate to secure the end designed. In such cases, 
 the court of equity assumes jurisdiction; but wherever the court 
 of probate is fully competent to perform the duty in the case, 
 it has exclusive jurisdiction and the court of equity cannot take 
 charge of it. In this class are found the states of Arkansas,' 
 California," Greorgia,' Kansas,'" Missouri," New York,'^ Ohio," 
 
 Johnston, 2 Stockt. 287; Search's Adm'r •</. 
 Search's Adm'rs, 27 N. J. Eq. 137; Decker v. 
 Decker's Adm'x, 27 Id. 239; Van Dyke v. Van 
 Dyke, 31 N. J. Eq. 176. 
 
 iHunt o. Sneed, 64 N. C. 176; Brotten 
 ■». Bateman, 2 Dev. Eq. 115; Thompson v. 
 McDonald, 2 Dev. & Bat. Eq. 463; Devereux v. 
 Devereux, 81 N. C. 12; Greer v. Cagle, 84 N. C. 
 383; Pegram ». Armstrong, 82 N. C. 326; Hay- 
 wood V. Haywood, 79 N. C. 42; Finger v. Finger, 
 «4 N. C. 183; Ferrand t>. Howard, 3 Ired. Eq. 
 381; Wilkins v. Finch, Phil. Eq. 355; Wads- 
 worth V. Davis, 63 N. C. 251. 
 
 2 Blake v. Butler, 10 E. 1. 133 ; see, also, the fol- 
 lowing cases in the TJ. S. Circuit Court, which 
 arose in this state : Mallett v. Dexter, 1 Curtis' 
 ■C. C. 178; Pratt v. Northam, 5 Mason, 95. 
 
 3 Eyans v. Evans, 2 Coldw. 143; Bruce v. 
 Bruce, 11 Heisk. 760; Eankin v. Anderson, 8 
 Baxt. 240; Townsend v. Townsend, 4 Coldw. 70. 
 
 ■* Simmons v. Simmons' Adm'r, 33 Gratt. 451 ; 
 Portsmouth Ins. Co. u. Reynolds' Adm'x, 32 
 Gratt. 613; Kent's Adm'r v. Cloyd's Adm'r, 30 
 Gratt. 555; Nelson's Adm'r v. Cornwell, 11 
 Gratt. 724. 
 
 screswellji. Kennedy, 3 McArthur,78; Keefe 
 13. Malone, 3 McArthur, 236. 
 
 6 Pratt V. Northam, 5 Mason, 95; Mallett «. 
 Dexter, 1 Curtis C. C. 178; Case of Broderick's 
 Will, 21 Wall. 504. 
 
 'Martin v. Campbell, 3S Ark. 137; State v. 
 Bottaken, 34 Ark. 144 ; Freeman v. Eeagan, 26 
 Ark. 373; Eeinhardt v. Gartrell, 33 Ark. 727; 
 Shegogg ». Perkins, 34 Ark. 117; Moren «. Mc- 
 Cown, 23 Ark. 93; Mock v. Pleasants, 34 Ark. 
 63; Flash v. Gresham, 36 Ark. 529; Haag v. 
 Sparks, 27 Ark. 594. 
 
 SAuguisola V. Amaz, 51 Cal. 435; Gumee 
 V. Maloney, 38 Cal. 85; Hope v. Jones, 24 
 Cal. 89; Allen r. Tiffany, 53 Cal. 16; Matter 
 of the Will of Bowen, 34 Cal. 682; Pond v. 
 Pond, 10 Cal. 495; Eosenberg ». Vrani., supra; 
 Chaquette ii. Ortet, 9Pac. Law J. 602; 60 Cal.; 
 
 Bush «. Lindsey, 44 Cal. 121 ; Clarke v. Perry, 5 
 Cal. 58; Deck 1). Gerke, 12 Cal. 433; Decks. 
 Gerke, supra; Haverstick v. Trudel, 51 Cal. 
 431; Meyers v. Farquharson, 46 Cal. 190; Willis 
 V. Farley, 24 Cal. 490, 500; Sanford v. Head, 5 
 Cal. 297; but see Griggs v. Clark, 23 Cal. 427; 
 Wilson «. Roach, 4 Cal. 362; Allen V. Tiffany, 
 53 Cal. 16; Castro v. Richardson, 18 Cal. 478. 
 
 »Slade V. Street, 27 Ga. 17; Perkins ». Perkins, 
 21 Ga. 13; Bryan ». Hickson, 40 Ga. 405; Irvine. 
 Crs. of Bond, 41 Ga. 630; Jeter u. Barnard, 42 
 Ga. 43; Mayo v. Keaton, 54 Ga. 496; and see 
 Collins V. Stephens, 58 Ga. 284; Bwing v. Moses, 
 50Ga.864; Sladei). Street, 27 Ga. 17; Perkins®. 
 Perkins, 21 Ga. 13; Moody®. Ellerbie, 36 Ga. 666; 
 Walker v. Morris, 14 Ga. 323; Mills v. Lumpkin, 
 1 Kelly, 511. 
 
 10 Shoemaker ®. Brown, 10 Kans. 383; John- 
 son V. Cain, 15 Kans. 532. 
 
 '1 Butler V. Lawson, 72 Mo. 227; Jones v. 
 Brinker, 20 Mo. 87; Clark®. Henry's Adm'r, 9 
 Mo. 336; Berry®. Robinson, 9 Mo. 273; Miller®. 
 Woodward, 8 Mo. 169; Erwin v. Henry, 5 Mo. 
 469; Graham®. O'Fallon, 3 Mo. 507; Jackson®. 
 Jackson, 4 Mo. 210; Overton ®. McFarland, 15 
 Mo. 312; Chandler v. Dodson, 58 Mo. 128; Pearce 
 V. Calhoun, 59 Mo. 271; Titterington ®. Hooker, 
 58 Mo. 593. 
 
 "Seymour v. Seymour, 4 Johns. Ch. 409; 
 Thompson ®. Brown, Johns. Ch. 619; Whit- 
 ney ®. Monro, 4 Edw. Ch. 5; Rogers ®. King, 
 8 Paige, 210; Christy ®. Libby, 35 How. Pr. 
 119; Chipman ®. Montgomery, 63 N. Y. 221, 
 235, 236; see, also, Peyser ®. Wendt, 87 N. Y. 322; 
 Haddow ®. Lundy, 59 N. Y. 320; Browers ®. 
 Smith, 10 Paige, 193; Du Bussierre v. HoUaday, 
 53 How. Pr. 210; Wright ®. Fleming, 76 N. Y. 517. 
 13 Taylor ®.Huber's Ex'rs, 130hio St. 288; Mc- 
 Donald®. Aten, 1 Ohio St. 293; Piatt ®. Long- 
 worth's Devisees, 27 Ohio St. 159, 186; Cram v. 
 Green, 6 Ohio, 429; Stiver ». Heirs of Stiver, 8 
 Ohio, 217. 
 
 419 
 
§ 348 
 
 EQUITY JUKI8PKUDENCE. 
 
 [CH. XX. 
 
 South Carolina,* Tennessee,* Texas,' Vermont,* Wisconsin. ° In the 
 third class of cases, the jurisdiction of the probate court is almost 
 exclusive; and the only cases, in which the court of equity could 
 assume jurisdiction, in respect to the administration of decedents' 
 estates, are those which relate to matters lying under or outside 
 of the regular course of administration and settlement of such estates, 
 and therefore beyond the scope of the probate jurisdiction. Of this 
 class are to be found the states of Connecticut,' Indiana,' Maine,' 
 Massachusetts, ° Michigan," Nebraska," Nevada, *' New Hampshire," 
 Oregon," Pennsylvania.*^ 
 
 This variance in the jurisdiction of a court of equity over the admin- 
 istration of decedents' estates, in consequence of the establishment of 
 probate' courts, does not, however, affect the principles which are 
 applied in the enforcement of such administration; it only relates to 
 the jurisdiction of the courts over such cases. The fact that a court of 
 equity did once have an almost unlimited jurisdiction over the adminis- 
 tration of decedents' estates, makes the principles, which guide the court 
 of probate at the present time in the enforcement of the administration, 
 equitable in character and origin. And hence, what is to be said in 
 this connection is not devoid of value or changed by the fact, that the 
 probate court, instead of the court of equity, has jurisdiction. In one 
 sense of the term, the probate court might be called a court of equity 
 of limited jurisdiction. 
 
 1 Ragsdale v. Holmes, 1 S. C. 91; Sno v. Cal- 
 der, 14 Blch: Eq. 154; Campbell v. Bank of 
 Charleston, 3 S. C. 384. 
 
 'Evans v, Evans, 2 Coldw. 143; Bruce v. 
 Bruce, 11 Heisk. 760; Eankin «. Anderson, 8 
 Baxt. 240; Townsend v. Townsend, 4 Coldw. 70. 
 
 ' Long V. Wortham, 4 Tex. 381 ; Dobbins v. 
 Bryan, 5 Tex. 276; Newson v Chrisman, 9 Tex. 
 113; Smith ». Smith, ll.Tex. 102; Grains. Grain, 
 17 Tex. 80; Little v. Bidwell, 21 Tex. 597; Atch- 
 ison V. Smith, 25 Tex 228; Gannon v. Mo- 
 Daniel, 46 Tex. 303; Rogers v. Kennard, 54 Tex. 
 30; Patterson v. Allen, 50 Tex. 23. 
 
 * Merriam v. Hemmenway, 26 Vt. 565; Heirs 
 of Adams v. Adams, 23 Vt. 50; Morse v. Slason, 
 13Vt. 296. 
 
 6 Appeal of Schaeffner, 41 Wis. 260; Wolfv. 
 Schaeffner, 51 Wis. 53; Batchelder «. Batch- 
 elder, 20 Wis. 452j Tryon v. Farnsworth, 30 
 Wis. 577; Brook v. Chappell, 34 Wis. 405. 
 
 6 Beach v. Norton, 9 Conn. 182; Pitkin v. Pit- 
 kin, 7 Conn. 315; Bailey v. Strong, 8 Conn. 278; 
 Sheldon ». Sheldon, 2 Root, 512; Gates v. Treat, 
 17 Conn. 388; Mix's Appeal, 35 Conn. 121; 
 Cowles V. Whitman, 10 Conn, 121; Parsons v. 
 Lyman, 32 Conn. 666; Prindle V. Holcomb, 45 
 Conn. 111. 
 
 ' Allen V. Clark, 2 Blaokf. 343; Brackenridge 
 V. Holland, Blackf. 377; Murdook v. Holland's 
 Heirs, 3 Id. 114; Peck v. Braman, 2 Id. 141 ; Ex 
 parte Shockley, 14 Ind. 413; Williams v. Perrin, 
 73 Ind. 57; Ramsey ». Fonts, 67 Id. 78; Heaton 
 V. Knowlton, 65 Id. 255; Noble v. McGinnls, 
 
 420 
 
 55 Id. 528; Alexander v. Alexander, 48 Id. 559. 
 
 8 Richardson v. Knight, 69 Me. 285, 289; Nason 
 V. First, &o. Church, 66 Me. 100; Elder». Elder, 
 50 Me. 535; Morton v. Southgate, 28 Me. 41; 
 Boynton v. Ingalls, 70 Me. 461 ; Caswell v. Gas- 
 well, 28 Me. 232; Fletchers. Holmes, 40 Me. 364. 
 
 » Fairfield «. Fairfield, 15 Gray, 596; Ross v. 
 Ross, 123 Mass. 212; Jennison v. Hapgood, 7 
 Pick. 1; Grinnell v. Baxter, 17 Pick. 383; Sever 
 V. Russell, 4 ( ush. 513; Wilson v. Leishman, 13 
 Met. 316; Hathaway v. Thayer, 8 Allen, 421; 
 Southwick V. Morrell, 131 Mass. 520; Sykes ». 
 Meacham, 103 Mass. 285. 
 
 ii> Winegar u.Newland, Mich. 367; Kellogg*. 
 Aldrich. 39 Mich. 576; Shelden v. Walbridge,44 
 Mich. 251; Holbrooku. Campau, 22 Mich. 388; 
 Dickinson v. Seaver, 44 Mich. 624. 
 
 11 Loosemore v. Smith, 12 Neb. 343. 
 
 " Corbett B.Rice, 3 Nev. 330; Lucich». Medin, 
 3 Nev. 93. 
 
 " Walker v. Gheever, 35 N. H. 339, 349; Hayes 
 V. Hayes, 48 N. H. 219; Wells v. Pierce, 27 N. H. 
 503; Wheeler v. Perry, 18 N. H. 307; Petition of 
 Baptist Church, 61 N. H. 424; Meth. Epis. Soc. 
 ii. Heirs of Harrimftn, 54 N. H. 444. 
 
 » Winkle r. Winkle, 8 Oreg.193; Grange Union 
 V. Burkhart, 8 Greg. 51. 
 
 16 Norris ». Farrell, 33 Leg.Int. 129; 2 W. N. C. 
 433; Wiley's Executors' Appeal, 84 Pa. St. 270; 
 Campbell's Appeal, 80 Pa. St. 298; Dundas' 
 Appeal, 73 Pa. St. 474, 479; Linsenbigler v. 
 GourIey,56 Pa. St. 166, 172; Whiteside*. White- 
 side, 8 Harris, 473, per Black, C. J. 
 
CH. XX. j decedents' estates and gifts causa mortis. § 349 
 
 § 349. Kinds of legacies. — Legacies are divided, in respect to 
 their nature and qualities, into four kinds : specific, general, demon- 
 strative and residuary legacies. In respect to the last legacy, very 
 little by way of explanation need be said; its very name implies what 
 its qualities are. Under a residuary legacy everything of a personal 
 character passes to the legatee which has not been previously disposed 
 of in the will; in other words, only those things pass to the residuary 
 legatee which have not been made the subject of the specific, general, 
 or demonstrative legacies. A specific legacy is» the bequest or gift by 
 will of a specific or particular thing belonging to the testator; and 
 therefore can only be satisfied by the transfer of the one particular 
 thing which was intended by the testator to be given to the legatee, 
 and cannot be satisfied by any other thing of the same kind. The 
 testator gives to the legatee, not a horse or statue or some other 
 chattel of a general description, but he gives a particular horse or piece 
 of plate or other chattel, which is specifically described in some way 
 or other in the will so as to distinguish it from other things of the 
 same kind. Whether the legacy is specific or not depends upon the 
 language of the will. If the language employed in the will, in making 
 the bequest, does not distinctly distinguish the thing bequeathed from 
 the other things of the same kind; the legacy is not specific, although 
 the testator may have had at the time when ho made the will only one 
 thing of the kind described. Ordinarily, the personal pronoun my is 
 sufficient to make the bequest specific, as where the bequest is "of my 
 horse" or "my household goods" and the like, where the testator 
 has only one thing of the kind described in the bequest. Where the 
 testator has other things of the same character which would fall within 
 the description of the bequest or legacy, then there has not been a suf- 
 ficient differentiation of the thing bequeathed, in order to make the 
 legacy specific. The most common illustrations of specific legacies are 
 to be found in the bequests of personal property of a changeable char- 
 acter; such as the furniture of a particular house, a particular horse, 
 and the like; which are so described that they may be differentiated 
 from other property of the same kind.' It is also quite common to have 
 specific legacies in the bequests of the whole or part of the shares of 
 stock or bonds or other securities, so bequeathed that specific bonds or 
 shares of stock are transferred by such bequests and are differentiated 
 from other stocks and bonds of the same kind; as where the testator 
 bequeaths "my" stocks or bonds of a certain corporation. In all such 
 cases, the bequest is specific.^ The fact that the bequest is only of a 
 
 iGolder v. Littlejohn, 30 Wis. 344j Stall v. v. Hayes, 1 Keen, 97; Vincent v. Newcombe, 1 
 
 Wilbur, 77 N. T. 158; Gayre V. Gayre, 2 Vem. Tounge, 599; Jra r« Jeflfery's Trusts, L. E. 2 Bq. 
 
 638; Clark v. Buttler, 1 Merly. 304; Robinson V. 68 (" the pink coupons In the pigeon-hole for 
 
 Webb, 17 Beav. 260; Powell v. Biley, L. E. 2 £3,666"); Sidley B.Perry, 7 Ves. 632,589; Barton 
 
 Bq. 175; Spencer B. Higgins, 22 Conn. 521 ; Lilly o. Cooke, 5 Ves. 461; Miller*. Little, 2 Beav. 
 
 V. Curry's Ex'r, 6 Bush, 590; McGulre v. Evans, 259; Kermode v. Macdonald, L. R. 3 Ch. 584; 1 
 
 5 Ired. Kq. 269. Eq. 457; Humphreys v. Humphreys, 3 Cox, 184; 
 
 sGcrdon v. Duflf, 3 De G. P. A J. 662; Hayes Klrby v. Potter, 4 Ves. 748, 750; Measure «. 
 
 421 
 
§ 350 EQUITY JUKISPKUDENCE. [CH. XX. 
 
 part of the stock whicli is specifically described, does not make the 
 bequest any the less specific. In such a case, the bequest makes the 
 legatee tenant in common, as to the whole block of stock, with the 
 other person who becomes entitled thereto under the terms of the will 
 or the Statute of Distribution.^ But where the bequest constitutes only 
 gifts of money out of stock described, or simply a gift of a certain 
 number of shares of stock or bonds, without words of description 
 indicating the contemplation by the testator of a particular lot of 
 stocks or bonds; as wh«re he bequeathes a certain number of shares of 
 stock, without indicating that he has in mind some stock which he 
 owns at the time; that is, he does not use the words "my stock" 
 or "the stock which I now possess " and the like; then the bequest is 
 not specific, but may be satisfied by the transfer to the legatee of any 
 stock of the kind called for, whether it be owned when the will was 
 made or subsequently. In such cases, the bequest is equivalent to the 
 gift of a sum of money, the amount of which is ascertained by the 
 consideration of the face value of the stock bequeathed.^ So, also, 
 may there be specific bequests of debts due to the testator, where the 
 description of the subject-matter of the bequest is sufficiently specific 
 to distinguish the debts bequeathed from those which are not be- 
 queathed.' A bequest of money is generally not specific; but where 
 the money bequeathed is described as being in a certain bag or box; or 
 deposited in a certain bank, then it becomes a specific legacy instead of 
 a general legacy.* 
 
 The devise of land is always specific; and hence a bequest of a lease 
 or term of years would necessarily be specific* 
 
 § 350. Ademption of- specific legacies. — The peculiarity of a 
 specific legacy is, that the particular thing described as the subject- 
 matter of the legacy can alone be claimed by the legatee. He has a 
 
 Carleton, 30 Beav. 538 ;Shuttleworth«. Greaves, Ves. 410; Melding «. Preston, 1 DeG.&J.438j 
 
 4 My. & Or. 35; Manning v. Craig, 3 Green's Ch. Tiflft v. Porter, 8 N. Y. 516. 
 
 436; McGnire ». Evans, 5 Ired. Eq. 369; In re 'Famum». Bascom, 123 Mass. 383; Titus v. 
 
 Gibson, L. E. 3 Bq. 669; Oliver v! Oliver, L. K. MoLanahan, 2 Del. Ch. 200; Gardners. Printup, 
 
 11 Eq. 606; Bothamley v. Sherson, L. K. 20 Eq. 2 Barb. 83; Stout V. Hart, 2 Halst. 414; Duncan 
 
 304; Loring v. Woodward, 41 N. H. 391; Wal- v. Duncan, 37 Beav. 386; Sidbotham v. Watson, 
 
 lace «. Wallace, 23 N. H. 149; Ford i/. Ford, N. 11 Hare, 170; Walpole v. Apthorp, L. R. 4 Eq. 
 
 H. 212; Davies v. Fowler, L. E. 16 Eq. 308; Pol- 37; Chaworth V. Beecb, 4 Ves. 555; Fryer s. 
 
 look II. Pollock, L.E. 18 Bq. 329; Page «. Young, Morris, 9 Ves. 360; Innes V. Johnson, 4 Ves. 
 
 L. E. 19 Eq. 501; Ludlam's Estate, 3 Pa. Law J. 568; Davies «. Morgan, 1 Beav. 405; Nelson «. 
 
 Eep. 333; Gilmer's Legatees v. Gilmer's Bx'rs, Carter, 5 Sim. 530; Mellon's Appeal, 46 Pa. St. 
 
 42 Ala. 9; Brainerd v. Cowdrey, 16 Conn, 1; 165; Sparks «. Weedon, 21 Md. 156; Howell ». 
 
 Blackstone «. Blackstone, 3 Watts, 335; Alsop's Hooks, 4 Ired. Eq. 188; Le Grice V. Finch, S 
 
 Appeal, 9 Barr. 374. Meriv. 50. 
 
 iKirby u. Potter, 4 Ves. 748; Hill o. Hill, 11 •• Lawson v. Stitch, 1 Atk. 507; Towle v. 
 
 Jur., N. B., 806; Morley v. Bird, 3 Ves. 628: Swasey, 106 Mass. 100; Smiths. MoKitteriek, 51 
 
 Hosking v. NichoUs, 1 Y. & C. Ch. 478. Iowa, 548; Beck v. McGillis, 9 Barb. 35; Cagney 
 
 2 Boys V. Williams, 3 Euss. & M. 689; MuUin D. O'Brien, 83 111. 73. 
 
 «. Smith, 1 Dr. &Sm. 804; Eobinsoni). Addison, ^ porrester D. Lord Leigh, Ambl. 171; Mire- 
 
 8 Beav. 515; Partridge v. Partridge, Cas. temp. house v. Scaife, 3 My. & Cr. 695; Hensman v. 
 
 Talbot, 336; Wilson v. Brownsmlth, 9 Ves. 180; Pryer, L. E. 3 Ch. 420; Long v. Short, 1 P. Wms. 
 
 Lambert v. Lambert, 11 Id. 607; Johnsons. 403; Fielding v. Preston, 1 De G. & J. 438; 
 
 Johnson, 14 Sim. 313; Bp. of Peterborough v. Sampson «. Sampson, L. E. 8 Eq. 479; Farquhar 
 
 Mortlock, 1 Bro. Ch. 565; Webster v. Hale, 8 v. Hadden, L. E. 7 Ch. 1. 
 
 422 
 
CH. XX. J decedents' estates and gifts causa mortis. § 350 
 
 claim not to something that would generally fall within the description 
 of the thing bequeathed, but he can only claim the particular thing 
 that the testator intended him to have; so that if the bequest was of 
 "my white horse," he could not claim any other white horse than 
 that which the testator had at the time when he made the will; for it 
 is that horse alone which the testator intended to give him, and not 
 any white horse which the executor might be able to procure for the 
 legatee. Hence, in the case of specific legacies, if the subject-matter 
 of the legacy has been disposed of by the testator during his life, so 
 that it is not his property when he dies ; there is a complete failure of the 
 legacy, and the executor is under no obligation to replace the particu- 
 lar thing with others of the same kind. In such cases the legacy is 
 completely gone. This is not only true where the thing bequeathed 
 is entirely consumed or sold, but there will be a partial ademption or 
 failure of the legacy, where only a part of the subject-matter of the 
 legacy still remains when the testator dies. To the extent to which 
 the subject-matter of the legacy has been consumed or disposed of, 
 there is a failure of the legacy.^ There will be an ademption and a 
 consequent failure of the specific legacy, whenever the thing is sold 
 or otherwise disposed of during the life of the testator, and the pro- 
 ceeds of sale placed in the general funds of the estate or invested in 
 property of a different kind.^ But so, also, where the proceeds of sale 
 have been invested in other property of the same kind which has been 
 bequeathed by a specific legacy; in such cases, the property of the 
 same kind, which has been subsequently acquired by or with the pro- 
 ceeds of sale with the subject-matter of this specific legacy, can- 
 not be claimed by the legatee in the place of such specific legacy.' 
 So, also, if the specific articles bequeathed have been destroyed by fire, 
 and the insurance money has been procured for such loss and rein- 
 vested, the legatee is not entitled to the insurance money or the 
 property in which it is invested.* There is also an ademption where 
 the property is described as being in a particular place, and the 
 property has been removed from that place by the act or consent 
 
 iNewcomb®. Tr'sof St. Peter'8 Ch., 2 Sandf. 335; Alsop's Appeal, 9 Ban. 374; Whitlookw. 
 
 Ch. 636; Langdon ». Astor's Ex'rs, 16 N. Y. 9, Vaun, 38Ga,562; Macdonald ». Irvine, L. R. 8 
 
 37; Douglas v. Douglas, Kay, 400, 404; Drink- Ch. D. 101; Castle j), Pox, L. E. 11 Eq. 542, 551; 
 
 waters. Palconer,'2Ves. Sen. 623, 625; Partridge Miles v. Miles, L. E. 1 Eq. 462; Douglass. 
 
 V. Partridge, Cas. temp. Talbot, 226; Philson v. Douglas, Kay, 400, 404; Drinkwater ». Falconer, 
 
 Moore, 23 Hun, 152; Blaekstone 7J. Blackstone, 2 Ves. Sen. 623, 625; Partridge v. Partridge, 
 
 3WattB,335; Alsop's Appeal, 9 Barr. 374; Whit- Cas. temp. Talbot, 226; Philson i). Moore, 23 
 
 loekD. Vaun, 38 Ga. 562; Macdonald ». Irvine, Hun, 152. 
 
 L. E. 8 Ch. D. 101; Castle v. Fox, L. E. 11 Eq. = Ludlam's Estate, 3 Pa. Law J. Eep. 332; 1 
 
 542, 551; Miles v. Miles, L. R. 1 Eq. 462; In re Pars. Eq. 116; 1 Harris, 188j Cuthbert v. Cuth- 
 
 Gibson, L. E. 2 Eq. 669; Oliyeri). Oliver, L. E. bert, 3 Yeates, 486; Walton v. Walton, 7 Johns. 
 
 11 Eq. 506; Watts v. Watts, L. E. 17 Eq. 217. Ch. 258; Beck v. McGillis, 9 Barb. 35; Innes v. 
 
 a Newcomb v. Tr's of St. Peter's Ch., 2 Sandf. Johnson, 4 Ves. 568, 574; Gardner v. Hatton, 6 
 
 Cb. 636; Langdon v. Aster's Ex'rs, 16 JJ. Y. 9, Sim. 93; Sidneys. Sidney, L. E. 17 Eq.-65; Har- 
 
 37; In re Gibson, L. E. 2 Eq. 669; Oliver v. rison ». Jackson, L. E. Ch. D. 339; Inre Lane, 
 
 Oliver, L. E. 11 Eq. 506; Watts v. Watts, L. E. L. E. 14 Ch. D. 856. 
 
 17 Eq. 217j Blaokstone v. Blaokstone, 3 Watts, < Durrant v. Friend, 5 De G. & Sm. 343. 
 
 423 
 
§ 350 EQUITT JUKISPBUDENCE. [OH. XX. 
 
 of the testator/ But where the removal is only of a temporary 
 character, either for the purpose of being used by the testator 
 or preserved from fire, with the expectation of its being returned 
 to the same place, in such a case the removal does not operate as 
 an ademption.^ So, also, will there be no ademption where there 
 has been a removal or change in the character of the subject-matter of 
 the bequest, without the procurement or consent of the testator or 
 without his knowledge.' Inasmuch as this question of ademption 
 appears to rest upon the determination or the intention of the testator 
 to effect thereby an implied revocation of the will, it is held that if, at 
 the time that the testator removes or otherwise does acts which 
 operate as an ademption, he is insane, the rights of the specific legatee 
 under the will will not be thereby affected, provided the same things 
 which were bequeathed could be identified and recovered.* 
 
 On the other hand, a mere change in the form of ownership of the 
 thing bequeathed, as where stock which is standing in the name of 
 trustees for the testator, is subsequently transferred to the testator and 
 placed in his name on the books of the company; in such cases, there 
 has been no substantial disposition of the interests of the testator in the 
 thing bequeathed, and hence there is no ademption, notwithstanding 
 the change in the title, which would affect the rights of the legatee to 
 claim such property under the specific legacy. ° For the same reason, a 
 change in the form of an indebtedness, which has been made the subject- 
 matter of a specific legacy, will not operate as an ademption; the orig- 
 inal debt still remains, only in a changed form. It is only when the 
 transaction amounts to an actual payment or discharge of the debt that 
 the subject-matter of the legacy will be considered as having been 
 adeemed; in the other case, the legatee may claim the debt in its 
 changed form.' The efiect of an ademption in consequence of the sale 
 or disposition of the subject-matter of the legacy, may be avoided by a 
 written provision in connection with such specific legacy, that in case 
 of the sale or other disposition of the subject-matter of the legacy the 
 legatee shall have in the place of such legacy the money obtained by 
 such sale of the thing bequeathed. This substitutionary provision 
 would consitutc m fact a contingent legacy of a fund to be acquired in 
 the future.' It wjII be seen in this connection that the term "ademp- 
 tion ' ' IS em]:)Ioyed in the sense of failure of the legacy, in consequence 
 
 • Colleton V Garth, 6 Sim. 19; Spencer v. Knight v. Davis, 3 My. & K. 358; Dingwell v. 
 
 Speuccr. 21 Beav 648; Blagrove V. Coore, 27 Askew, 1 Cox, 427; Lee v. Lee, 27 L. J. Ch. 824; 
 
 Beav. 138; Green i/. Symonds, 1 Bio. Ch. 129 n; Moore v. Moore, 29 Bear. 496; Bothainley». 
 
 Heseltmei Heseltme, 3 Madd 276. Sherson, L. R. 20 Eq. 304; Oakes v. Oakes, S 
 
 Domvilc V. Taylor, 32 Beav, 604; Chapman Hare, 666; Basan v. Brandon, 8 Sim. 171. 
 
 ». Hart, IVes. Sen. 271,273, Land!). Devaynes, « Ford v. Ford, 23 N. H. 212; Havens v. 
 
 4 Bio. Ch. 537; Brooke v. Earl of Warwick, 2 Havens, 1 Sandf. Ch. 324; Gardner v. Printup, 
 
 De G. & Sm. 425. 2 Barb. 83, 88, 93; Morgan v. Thomas, L. R. 6 Ch. 
 
 «Shaftsbury», Shaftsbury, 2Vem.747j Dom- D. 176; Jn re Johnstone's Settlement, L. E. 14 
 
 Vile I 'iaylor, 32 Beav, 601. Ch. D. 162; Doughty v. Stillwell, 1 Bradf. 300, 
 
 'Taylor ti Tayloi, 10 Hare, 475; Jenkins ». 309; Stout ». Hart, 2 Halst. 414, 418. 
 
 Joaes. L. R. 2 Eq. 325. J Spencer v. Higgins, 22 Conn. 521 ; Langdon 
 
 » AsLburnei v. Macguire, 2 Bro. Ch. 108, 113; v. Astor's Ex'rs, 3 Duer, 477; Gardner v. Prlnt- 
 
 424 
 
CH. XX.] decedents' estates and gifts causa mortis. § 361 
 
 of the disposition of the subject-matter of such legacy during the life 
 of the testator, and is not to be confounded with the case of ademption 
 of one or another legacy in the same or different wills, which has 
 already been described in the chapter on Satisfaction. ' 
 
 § 351. General legacies. — A general legacy is one which is not 
 specific; it is a bequest, not of some specific "article or property of the 
 testator, but of things in general of the kind described in the legacy. 
 It would be a general legacy, where the testator bequeaths a white 
 horse or a set of furniture, or a certain number of shares of stock, 
 without specifying what horse, set of furniture or particular block of 
 stock is bequeathed. Such legacies are in effect gifts of money equal 
 in amount to the value of the thing bequeathed; and this legacy will 
 constitute a general legacy, even though the testator may own articles 
 of the kind described in the bequest at the time when he made his 
 will, as long as the terms of the description of the legacy did not 
 require that the particular thing of that kind, which he owned when 
 the will was made, shall go to the legatee. ^ And" it will be a general 
 legacy, although the gift of a specified amount of money is declared 
 to be for purpose of buying something; as, for example, a ring.' 
 If the testator leaves a general legacy, but imposes restrictions upon 
 the amount or upon its use by the legatee, confining its use to certain 
 objects; and there is a failure of such objects; and under the terms of 
 the legacy it cannot be employed for the attainment of any other pur- 
 pose; in such a case, there will be a failure of the legacy, because it is 
 conditional and not absolute; but such a legacy is not any the less a 
 general legacy.* The effect of a general legacy is the creation of the 
 obligation on the part of the estate of the testator to furnish to the 
 legatee property of the kind described in the legacy, or to transfer to 
 such legatee an equivalent in money of the value of such things. And 
 the claim, therefore, can be enforced against the estate, whenever the 
 estate is solvent and sufliciently large to satisfy such demand. On 
 the other hand, the specific legacy can only be enforced, when the 
 particular thing which has been bequeathed is found in the possession 
 of the testator when he dies. For this reason it is an established rule 
 of construction that, where it is doubtful whether the testator 
 intended a specific or a general legacy, it will be presumed to be a 
 
 up, 2 Barb. 83, 88; Earl of Thomond v. Earl of Bibb, 47 Ala. 547; Hawthorn v. Shedden, 2 Sm. 
 
 SuflFolk, 1 P. Wms. 461; Clark v. Browne, 2 Sm. <fc Glf. 293; Fairer v. Park, L. R. 3 Ch. D. 309; 
 
 & Gif. 524; Doughty v. Stlllwell, 1 Bradf. 300, Tifft v. Porter, 8 N. Y. 510 ; Bliven v . Seymour, 
 
 309; Corbini). Mills' Ex'rs, 19 Gratt. 438. 88 N. T. 469; Ashburner «. Maoguire, 2 Eq. 
 
 1 See ante, § 169. Lead. Gas. 605-612, 646-653 (4th Am. ed.) ; Fleld- 
 
 2Scofield«. Adams, 12 Hun, 366; England t). Ingii. Preston, 1 De G. A J. 438; Macdonald v. 
 
 Vestry of Prince George's Parish, 53 Md. 466; Irvine, L. R. 8 Ch. D. 101. 
 
 Osborn v. McAlpine, 4 Eedf. 1 ; Gilmer's Lega- ' Apreece v. Apreeoe, 1 V. <& B. 364; Gibbons 
 
 tees V. Gilmer's Ex'rs, 42 Md. 9; Handler. Car- v. Hill, 1 Dick. 324; Hlnton v. Plnke, 1 P. Wms. 
 
 ter, 62 Md. 95; Brown v. Grimes, 60 Md. 647; 359; Edwards «. Hall, 11 Hare, 1, 23. 
 
 Enders v. Enders, 2 Barb. 362; Corbin v. Mills' * Churchllli). Churchill, L. R. 5 Eq. 44; Palmer 
 
 Ex'rs, 19Gratt.438;Davls». Cain's Ex'r,llred. «. Plower.L. B. 13Eq.250; Lassence*. Tierney, 
 
 Eq. 304; Pearce v. Billings, 10 R. I. 102; Park- 1 Macn. & G. 551, 561, 562, per Lord Cottenham. 
 er's Ex'rs v. Moore, 25 N. J. Eq. 228; Harper v. 
 
 425. 
 
§ 353 EQUITY JURISPEtTDENCE. [CH. XX, 
 
 general legacy, since that construction is held to be more favorable to, 
 the legatee." 
 
 § 352. Demonstratire legacies. — These are a peculiar kind of 
 legacy, partaking somewhat of the character of a specific legacy, and. 
 yet not altogether so. They constitute bequests of sums of money or 
 of quantities of certain property having a pecuniary value and meas- 
 ure, not in such a form as to make such a bequest a specific legacy^ 
 but this bequest is made, by the terms of the will, payable primarily 
 out of a particular fund, or a certain designated piece of property, 
 which is owned by the testator at the time when the will is made. 
 Inasmuch as he has made the legacy primarily payable out of the par- 
 ticular fund or out of a certain piece of property, if this particular 
 fund or piece of property is in existence and belongs to the testator 
 when he dies, the legacy is a specific legacy to the extent that it must 
 be satisfied out of the particular fund or property, and can, therefore, 
 claim precedence in the matter of abatement over the general legacies. 
 On the other hand, if the property out of which the legacy is primarily 
 payable does not exist as a part of the testator's estate at his death, 
 the legacy operates as a general legacy, and, like general legacies, 
 becomes payable out of the general assets of the estate.^ ■ 
 
 § 353. Annnities. — An annuity differs from an ordinary legacy, 
 in that it is a bequest for the periodical payment of a certain sum of 
 money for a certain length of time, which may be for a given number 
 of years, for life, or indefinitely.' But where no special time is stip- 
 ulated during which the annuity is to be paid, it is presumed to be for 
 the Hfe of the legatee, and not perpetual.* An annuity is a general 
 legacy, where it is made payable out of the general assets of the 
 estate, and specific, or rather a demonstrative legacy, where it is 
 provided that it shall be paid out of a particular fund; it is probable 
 
 iTifft V. Porter, 8 N. Y. 516; Morris v. Bx'rs ton v. Acton, 1 Merlv. 178; Paget v. Huish, 1 
 
 of Thompson, 16 N. T. Eq. 222, 642. Hem. & M. 663; Armstrong's Appeal, 63 Pa. St. 
 
 2 Smiths. Fitzgerald, 3 V. & B. 2; Roberts ». 312; Welch's Appeal, 28 Pa, St. 363; Mann «. 
 
 Pocock, i Ves. 150; Savilo v. Blacket, 1 P. Wms. Copland, 2 Madd. 222; Vickers v. Pound, 6 H. 
 
 777; Disney v. Crosse, L. E. 2 Bq. 592; Kirby v. L. Cas. 8a5; MuUins v. Smith, 1 Dr. & Sm. 204, 
 
 Potter,4Ves.748;Attwater».Attwater,18Beav. 210; Newton ». Stanley, 28 N. Y. 61; Wallss. 
 
 330; Sparrow «. Josselyn, 16 Beav. 136; Bevan Stewart, 4 Harris, 275; 281; Giddings ». Sew- 
 
 ». Atty.-Gen.,4Giff. 361; Gillaume ». Adderley, ard, 16 N. Y. 365; Pieirepont «. Edwards, 25 
 
 15 Ves. 384; Eobiuson v. Geldard, 3 Maon. &. N. Y. 128. 
 
 G. 735, 744, 745; Lord Truro, quotation and = Duke of Bolton ». Williams, 4 Bro. Ch. 297; 
 
 definition of Mr. Justice Williams; see, also, Sibley?). Perry, 7 Ves. 522, 534; Swift v. Mash^ 
 
 Tempest*. Tempest, 7 DeG.M. AG. 470, 473, per 2 Keen, 20; MuUins v. Smith, 1 Dr. & Sm. 204» 
 
 Lord Cranworth; Giddings «. Seward, 16 N. Y. 211. 
 
 365; Gallagher ». Gallagher, 6 Watts, 473; Cor- * Acton i. Acton, 1 Merlv. 178; Paget «. 
 
 bin V. Mills' Bx'rs, 19 Gratt. 438; Smith v. Huish, 1 Hem. & M. 663; Armstrong's Appeal^ 
 
 Lampton, 8 Dana, 69; Snow D. Foley, 119 Mass. 63 Pa. St. 312; Welch's Appeal, 28 Pa. St. 
 
 102; see, also, Campbell v. Graham, 1 Huss. & 363; Newton v. Stanley, 28 N. Y. 61; Manlce. 
 
 My. 453; Manices.Manlee, 1 Lans. 348; Enders ^' Manioe, 1 Lans. 348; Mann «. Copland, 2 
 
 ». Enders, 2 Barb. 362; Armstrong's Appeal, 63 Madd. 223; Vickeis ii. Pound, 6 H. L. Cas. 
 
 Pa. St. 312; Kneoht's Appeal, 71 Pa. St. 333; 885; Mullins «. Smith, 1 Dr. &. Sm. 204, 210; 
 
 Vlckera v. Pound, 6 H. L. Cas. 885; Gordon Walls «. Stewart, 4 Harris, 275, 281 ; Giddlngs«. 
 
 V. Duff, 3 De G. F. & J. 862; Hodges «. Grant, Seward, 16 N. Y. 365; Pierrepont j). Edwards» 
 
 L. E. 4 Eq. 140; Mytton v. Mytton, L. B. 19 25 N. Y. 128. 
 Eq. 30; Pierrepont ». Sands, 4 Bedf. 206; Ac- 
 
 426 
 
CH. XX.] decedents' estates and gifts causa MOKTIS. § 364: 
 
 that an annuity would never be treated as a specific legacy strictly so- 
 called, instead of an demonstrative legacy, unless the intention of the 
 testator to make it a strictly specific legacy is clearly manifested. 
 
 § 354. Abatement of legacies. — All legacies are made subject to 
 the claims of creditors; the creditor's claim to satisfaction out of the 
 estate of the deceased debtor is paramount to the claims of every sort 
 of devisee and legatee. But the relative claim of exemption of the 
 devisee and legatee from liability to the debts of the deceased is 
 dependent upon the special rules of law which obtain in the 
 different states. It is not often that the English equitable rules 
 of priority are interfered with by modern statutes; in fact, the 
 general provision obtains that the English rule is enforced without 
 material modification. In a few of the states, like California, all dis- 
 crimination in respect to priority in the matter of liability for 
 testator's debts has been done away with; but, as a general rule, it 
 wiU be found that the order in which the property must be applied to 
 the satisfaction of the debts of the deceased owner is the same as 
 obtains in England, and is as follows: First, all personal property that 
 was not disposed of by the will or only disposed as a part of the resid- 
 uary legacy. Secondly, real estate which is expressly devised to be 
 sold for the satisfaction of debts. Thirdly, real estate which descends 
 to the heir not charged with the payment of debts. Fourthly, real 
 estate and personal property which is especially charged with the pay- 
 ment of debts. Fifthly, general legacies. Sixthly, specific legacies 
 and real estate devised. Seventhly, property which the testator 
 appoints to a volunteer under a general power of appointment.^ It 
 will be seen, therefore, so far as the question applies to legacies, that 
 a specific legacy is not called upon to be abated, until the general lega- 
 cies have been exhausted.' General annuities stand on the same level 
 
 1 See 2 Eq. Lead. Gas. 613-619 (4tli Am. ed.); Pearlins v. Lewis, L. E. 8 Eq. 708; Pearmaln v- 
 Pierrepont v. Edwards, 25 N. Y. 128; Alton v. Twiss, 8 Giflf. 130. As to legacies, see Long v. 
 Madlicot, cited 2 Ves. Sen. 417; Mann c;. Cop- Short, IP. Wms. 403; Tombs*. Rocli, 2Coll. 490; 
 land, 2 Madd. 223; Paget v. Huish, 1 Hem. & M. Gervis v. Gervis, 14 Sim. 654; Youngr. Hassard, 
 663; Attwater v. Attwater, 18 Beav. 330. 1 Jo. & Lat. 466, 473; Fielding v. Preston, 1 De 
 
 2 Davies v. Topp, 1 Bro. Ch. 534, 526; Dulse of G. & J. 438. 
 
 Ancaster v. Mayer, Bro. Cli. 454; see Hoover v. ' Titus' Adm'r v. Titus, 26 N. J. Eq. Ill ; ITni- 
 
 Hoover, 5 Barr. 351; Armstrong's Appeal, 63 versity of Pennsylvania, 97 Pa. St. 187; Os- 
 
 Pa. St. 313; see Lyne's Estate, L. R. 8 Eq. 482; borne ». McAlpine, 4 Eedf. 1; Alsop v. Bowers, 
 
 Bamewell v. Lord Cawdor, 3 Madd. 453; Irvin 76 N. C. 168; Bliven v. Seymour, 88 N. Y. 469j 
 
 V. Ironmonger, 3 Euss. & M. 531; Wood v. Or- see, also. Miller ti. Huddlestone, 3 Maon. & G. 
 
 dish, 3 Sm. & Gif. 125; Harris v. Watkins, Kay, 513; Thwaites v. Foreman, 1 Coll. 409; Brown 
 
 438; Eow v. Eow, L. E. 7 Eq. 414; Lanoy ». Duke v. Brown, 1 Keen, 275; Coore v. Todd, 7 De G. 
 
 of Athol, 2 Atk. 444; Davies v. Topp, 1 Bro. Ch. M. & G. 580; Farrer v. St. Catharine's College, 
 
 524, 537; Harmood v. Oglander, 8 Ves. 106, 134, L. E. 16 Eq. 19; Hensman v. Fryer, L. E. 3 Ch. 
 
 125; Manning ». Spooner, 3 Ves. 114, 117; Phil- 420; Bonhamj). Bonham,33 N. J. Eq. 476; Nash 
 
 lips V. Parry, 38 Beav. 279; Thompson v. Towne, v. Smallwood, 6 Md. 394; Alexander*. Worth- 
 
 2 Vern. 319; Bainton v. Ward, 2 Atk. 172; Flem- ington, 55 Md. 474; Armstrong's Appeal, 63 Pa. 
 
 ing V. Buchanan, 3 De G. M. & G. 976; Haw- St. 313; Longi). Short, 1 P. Wms. 403; Sleechw. 
 
 thorn «. Shedden, 3 Sm. & Gif. 893, 305; Jn re Thorington, 2 Ves. Sen. 560, 561, 664; Page v. 
 
 Davies' Trusts, L. B. 13 Eq. 163; Bateman v. Leapingwell, 18 Ves. 463; Bqnhamt). Bonham, 
 
 Hotchkin, 10 Beav. 426; Hensman ii. Fryer, L. 33 N. J. Eq. 476; Towle V. Swasey, 108 Mass. 
 
 H. 3Ch. 420; 2 Eq. 637; Gibbinsc. Eyden, L. E. 100; Brainerd v. Cowdrey, 16 Conn. 1, 498; Har- 
 
 7Eq. 371; Collins t). Lewis, L. E. 8 Eq. 708; ley ». Moon, 1 Dr. & Sm. 623; Wright w. Weston, 
 
 427 
 
§ 364 EQUITT JURISPEUDENCE. [CH. XX. 
 
 with general legacies, and are abated with them.' In the case of 
 demonstrative legacies, if the particular fund, out of which the legacy 
 is to be paid, is in existence and belongs to the testator when he dies, 
 it is to be treated as a specific legacy, and does not have to abate with 
 the general legacies.' In other words, whenever a legacy is specific, 
 all the general legacies must have been exhausted in satisfying the 
 claims of creditors before the specific legacy may be called upon to 
 answer to the demands of the creditor; and if in the enforcement of 
 his claims against the estate, the creditor should appropriate the prop- 
 erty that was to have gone to the specific legatee, the legatee would 
 have the claim of exoneration against the estate, to the amount of prop- 
 erty held by the estate which would be appropriated to the satisfaction 
 of the general legacies. 
 
 But the abatement of general legacies to their complete exhaustion, 
 before specific legacies become liable, may be overcome by a declara- 
 tion by the testator of a contrary intention;, in other words, the testa- 
 tor may provide that certain specific legacies shall be postponed in 
 matter of abatement to general legacies; and certain general legacies 
 may be expressly exempted from the equality of the abatement with 
 the other general legacies, so that the general legacies in general must 
 first be exhausted, before the particular legacy exempt from this 
 general rule can be called upon to contribute to the satisfaction of 
 the debts. ^ But this intention to control the question of priority 
 must be clear and distinct; any doubt as to the intention of the 
 testator to change the order of priority will make the supposed inten- 
 tion nugatory.* A preference may be acquired by one general leg- 
 acy over the others in the matter of abatement, where in the grant of 
 the legacy the testator stipulates expressly that it "shall be paid in 
 full," or "shall be paid at all events," or the like.^ So, also, may an 
 intention to give preference to one legacy over another be inferred 
 
 26 Beav. 429; Fielding ». Preston, 1 De G. & J. 19; Hensman v. Fryer, L. B 3 Ch. 430; Bonliam 
 
 438; Gilmer's Legatees v. Gilmer's Ex'rs, 48 «. Bonham, 33 N. J. Eq. 476; see, also, Miller o. 
 
 Ala, 9; Lightfoot v. Lightfoot's Bx'r, 37 Ala. Huddlestone, 3 Macn. & G. 513; Thwaites i^. 
 
 351; Bevan v. Cooper, 7 Hun, 117; Walpole v. . Foreman, 1 Coll. 409; Brown v. Brown, 1 Keen, 
 
 Apthorp, L. K. 4 Eq. 37; Powell v. Eiley, L. R. 275; Coore v. Todd, 7 De G. M. & G. 520. 
 
 12 Eq. 175; Jn re Jeffery's Trusts, L. E. 2 Eq. 68. » McLean v. Robertson, 126 Mass. 537; Ban- 
 
 1 University of Pennsylvania, Appeal of crofts. Bancroft, 104 Mass. 226; Appeal of Trust- 
 Trustees, 97 Pa. St. 187; Titus' Adm'r v. Titus, ees of the University of Penn., 97 Pa, St. 187; 
 26 N. J. Eq. Ill; Farrer ». St. Catharine's Col- Lewin v. Lewin, 2 Ves. Sen. 415; Marsh «. 
 lege, L. E. 18 Eq. 19; Hensman v. Fryer, L. R. 3 Evans, 1 P. Wms. 668; Atty.-Gen. v. Eobins, 2P. 
 Ch. 420; Bonham v. Bonham, 33 N. J. Eq. 476; Wms. 23; Brown ». Brown, 1 Keen, 875; Haynes 
 see, also, Milleri). Huddlestone, 3 Macn, & G. v. Haynes, 3 De G. M. & G. 590; Beeston v. 
 613; Thwaites «. Foreman, 1 Coll. 409; Brown Booth, 4 Madd. 161, 170; Stammers ». Halliley, 
 «. Brown, 1 Keen, 275; Coore v. Todd, 7 De G. 12 Sim. 42. 
 
 M. & G. 520; Osborne v. MoAlplne, 4 Redf. 1; * Blower «, Morret, 2 Ves. Sen. 420; Beeston 
 
 Alsop v. Bowers, 76 N. C. 168; BUven a. Sey- v. Booth, 4 Madd. 161, 168; Eavestaff v. Austin, 
 
 mour, 88 N . Y. 469. 19 Beav. 591 ; Appeal of Trustees of the Univer- 
 
 » BUven «. Seymour, 88 N. T. 469; Alsop o. sity of Penn., 97 Pa. St. 187. 
 
 Bowers, 76 N. C. 168; Osborne v. MoAlpine, 4 6 McLean v. Eobertson, 126 Mass. 537; John- 
 
 Eedf. 1; University of Pennsylvania, 97 Pa. St. son v. Johnson, 14 Sim. 313; Marsh v. Evans, 1 
 
 187; Titus' Adm'r r). Titus, 26 N. J. Eq. Ill; P. Wms. 668. 
 Farrer v. St. Catharine's College, L. R. 16 Eq. 
 
 428 
 
CH. XX.] , decedents' estates and gifts causa mortis. § 355 
 
 from the fact that the testator after giving certain legacies, states that 
 "as there will be a surplus" he will give further legacies; these sub- 
 sequent legacies would not stand on an equality with the prior legacies 
 of the same kind, in respect to abatement.' But an intention to 
 exempt from liability to the abatement pro rata with others, will not 
 be inferred from the fact that a particular legacy is directed to be paid 
 at once, or that the testator declares that the legacies shall be paid in 
 the order in which they are given in the will." In all such cases, 
 however, where the equality of liability for abatement has not been 
 destroyed; or where in the change of liability two or more legacies par- 
 ticipate in the change, whenever one or both of them become liable 
 to be extinguished or abated in the satisfaction of the claims of credit- 
 ors, they vnll abate jp^-o rata among themselves, where the amount of 
 the debt to be satisfied does not require the complete exhaustion of 
 both.' This is only a special application of the more general rule, 
 that where the debts to be paid fall in amount below the value of the 
 property covered by the devises or bequests of the same class, in the 
 order of priority of liability for debts, that the debts will then be 
 divided j^r-o rata among these legacies and devises of the same class, so 
 that such devises and legacies will be abated jwo rata to the extent 
 required for the satisfaction of the debts. 
 
 Independently of statute, there is no exception in respect to liability 
 to abatement in favor of legacies, which are given to a wife, child or 
 near relative.* This rule has been changed by statute in several states; 
 but even in the absence of statutory change, the disposition of the 
 court is to give the preference to the widow, or child, or descendant, 
 as far as it can; and an intention to give the preference to such favored 
 legatee will be held by the court to have been established, whenever 
 there is any circumstance in connection with the will, from which the 
 intention may be implied.^ There is but one positive exception to the 
 equality of liability to abatement in the satisfaction of the claims of 
 creditors; and that is, in respect to legacies, which are given for and 
 are based upon a valuable consideration, as where there is a bequest 
 or devise to the widow in the satisfaction of her dower interest, or to a 
 creditor in payment or discharge of his debt; such legacies will not 
 abate with the other legacies, as would be the case if the favored leg- 
 acy were not based upon a valuable consideration." 
 
 § 355. Effect of appropriation of funds by executor.— If in the 
 
 1 stammers v. Halliley, 12 Sim. 42; Brown v. Pa. St. 187; see BUven v. Seymour, 88 N. Y , 469; 
 
 Brown, 1 Keen, 275; Atty.KJen. ». Kobins, 2 P. Blower v. Morret, 2 Ves. Sen. 420; Titus' Adm'r 
 
 Wms. 23. «. Titus, 26N. J. Eq. 111. 
 
 a Blower v. Morret, 2 Ves. Sen. 420; Beeston 6 Lewln v. Lewin, 2 Ves. Sen. 415. ■ 
 
 ». Booth, 4 Madd. 161, 168; Brown v. Brown, 1 e Matter of Dolan, 4 Eedf. 511; McLean v. 
 
 Keen, 875; Thwaltes v. Foreman, 1 Coll. 409; Robertson, 126 Mass. 537; Burrldge V. Bradyl, 1 
 
 Titus' Adm'rt). Titus, 26 N. J. Eq. 111. P. Wms. 127; Blower Morret, 2 Ves. Sen. 420; 
 
 3 Bancroft v. Bancroft, 104 Mass. 226; Atty.- Heath ». Dendy, 1 Rues. 543; Davles v. Bosh, 1 
 
 Gen. V. Robins, 2 P. Wms. 23; Brown v. Brown, Younge, 341 ; Potter v. Brown, 11 R. I. 232; San- 
 
 1 Keen, 275; Stammers v. Halliley, 12 Sim. 42. ford ». Sanford, 4 Hun, 753. 
 
 < Appeal of Trustees of the TJnlv. of Pa., 97 
 
 429 
 
§ 357 EQUITY JUKISPEUDENCE. ,[CH. XX. 
 
 satisfaction or settlement of a legacy the executor has, wich the con- 
 sent of the. legatee, set apart a particular fund for the satisfaction of 
 the legacy, and afterwards through the wrongful act of the executor 
 or in any other way, this fund has become insufficient; then the 
 legatee, who gave his consent to the appropriation of the particular 
 fund to the satisfaction of his legacy, wiU have to bear the loss of such 
 deficit himself, and cannot call for contribution upon the other legatees 
 of the same class. Where, however, the appropriation of the partic- 
 ular fund to the satisfaction of a particular legacy was made without 
 the consent of the legatee, then any deficit in the fund occurring before 
 its acceptance by the legatee, must fall ratably upon all the legatees 
 of the same class, and not upon one legatee, for the payment of whose 
 legacy the particular fund has been set apart.' 
 
 § 356. Lapsed Legacies. — In order that any disposition of prop- 
 erly by will inprcBcenti may go into effect, there must be a donee in 
 being, when the will goes into effect at the death of the testator, who 
 can take such gift. Hence, if the legatee dies during the life of the 
 testator, there is no legatee, when the will goes into effect and the 
 legacy becomes nugatory; it is said to ' ' lapse. "^ But there is no lapse 
 of the legacy, where the one legacy is given to a class of persons, as, 
 for example, to children, and one or more of the children, or other 
 members of the class of legatees, die during the life of the testator. 
 The death of any member of the class has only the effect of enlarging 
 the interests of the surviving members of the class, and there is no 
 lapse of the legacy ^o tanto.^ Where there is a lapsed legacy, the 
 rule is that the property, which would have been acquired by such 
 legatee, will pass into and become a part of the residuary fund, and 
 would go to the residuary legatee. This is now the general rule through- 
 out the American states, as well as in England, except that in most of 
 our states the application of the rule has been limited by statute; 
 which declares that whenever a legatee dies during the life of the testa- 
 tor, leaving issue or descendants, the legacy vests in the children of 
 such legatee, instead of lapsing into the residuary estate.* 
 
 § 35T. Gifts cansa mortis ; distinction from testamentary dispo- 
 sition. — A gift canisa mortis is not a testamentary disposition, for it 
 does not appear in a will; and is, in fact, an act done by the donor during 
 his life, although in apprehension of death. The donor, therefore, 
 acquires the title to the gift directly from the donor, and does not 
 receive it through the personal representative of the donor, hence 
 
 1 Baker v. Farmer, L. R. 3 Ch. 537, reversing Elliott v. Davenport, Id. 83; Aspinall v. Duck- 
 
 B. I,., L. E. 4 Eq. 382; Ex parte Chad win, 3 worth, 35 Beav. 307. 
 
 Swanst. 380; Willmott v. Jenkins, I Beav. 401 j ' Sanders v. Ashford, 28 Beav. 609; Aspinall 
 
 Paget). Leapingwell, 18 Ves. 463, 466; Hum- »• Duckworth,35 Beav. 307; FltzRoyt). Dukeof 
 
 phreya v. Humphreys, 2 Cox, 184; Fonnereau Klchmond, 27 Beav. 186j Philips o. Philips, 3 
 
 i>. Poyntz, 1 Bro. Ch 473 478 ^^^^' ^^'^ Shuttleworth v. Greaves, 4 My. & 
 
 « Appleton .. Rowley, L. B. 8Eq. ,39; Browne ^^jf,' .^/^.^/S' ^ ^''"' ""'' "^^ '"'"' "• 
 
 Bro "rh" ^ ^r "."^^^'w ''^r,V w™°'^'' ' * 'P'°-- «1- J" ^■- S "«i '«« van Beuren*. 
 
 Bro. Ch. 84 J Goodrich «,Wnght, IP. Wms. 397; Dash 30NY 393 
 
 430 
 
CH. XX.] decedents' estates and gifts causa mortis. § 359 
 
 the gift canisa mortis takes effect independently of any testamentary 
 provision or disposition. The gift stands or falls according to its own 
 inherent validity as a gift, and cannot take place or be enforced as a 
 testamentary provision, if it is not valid as a gift comsa mortis. On the 
 other hand, an ineffectual testamentary provision cannot be enforced 
 as a gift coMsa mortis.^ The gift cmisa mortis is, however, so far of 
 the same general character as a testamentary provision as that it is 
 liable for the debts of the testator, in case of a deficiency of assets,^ 
 and may be discussed with propriety in the same connection with 
 legacies. 
 
 § 358. Equitable jurisdiction over gifts causa mortis. — In con- 
 sequence of the difficulty, in the way of exercising the jurisdiction at 
 law over gifts causa m,ortis, the court of equity assumed concurrent 
 jurisdiction over such gifts with the court of law." This concurrent 
 jurisdiction, however, only obtains in the ordinary cases of enforce- 
 ment of gifts caitsa m,ortis. Where the relation of trustee and cesttd 
 que trust obtains between the donor and the donee, as where bonds or 
 negotiable instruments are transferred unindorsed, then the court of 
 equity is alone competent to afford the appropriate remedy, to procure 
 the due endorsement of such instrument to the donee.* So, also, 
 where the gift is made to one person in trust for another, the court of 
 equity assumes exclusive jurisdiction for the purpose of enforcing the 
 trust.* 
 
 § 359. Tlie cliaracteristics of donatio mortis causa. — A gift 
 made in contemplation of the death of the donor is called in the civil 
 law, from which these principles are taken, donatio mortis canisa.^ 
 
 1 Mitchell V. Smith, 4 De G. J. & S. 422; Mc- Taylor, 52 Iowa, 503; Contliu v. Conklln, 20 
 Grath o. Reynolds, 116. Mass. 566; Ward ». Tur- Hun, 278; Sheedy v. Eoach, 124 Masa. 472j 
 ner, 2 Ves. Sen. 431; Grattan «. Appleton, 3 Vandermark ». Vandermark, 55 How. Pr. 408; 
 Story, 755; Edwards ». Jones, 1 My. V. Cr. 226; Coleman v. Parker, 114 Masa. 30; Clough v. 
 Kilby ». Gtoodwin, 2 Del. Ch. 61. Clough, 117 Masa. 83; Pierce «. Boston Say. 
 
 2 Tate V. Leithhead, Kay, 658; Smith ». Caaen, Bank, 129 Masa. 425; Kilby v. Godwin, 2 Del. 
 cited 1 P. Wms. 406; Borneman v. Sidlinger, 15 Oh. 61; McGrath v. Reynolds, 116 Mass. 566; 
 Me. 429; House v. Grant, 4 Lans. 296. Carr«. Silloway, 111 Maaa. 24; Ellis V. Secor, 31 
 
 'Mitchell V. Smith, 4 De G. J. & S. 422; Mich. 185; Fierou. Piero,5T. & C. 151; Caae «. 
 Hewitt V. Kaye, L. R. 6 Eq. 198; In re Bleak's Dennison, 9 E. I. 88; House v. Grant, 4 Lans. 
 Estate, L. E. 15 Eq. 489; Thompson v. Batty, 296; Rhodes v. Childs, 64 Pa. St. 18; Smith v. 
 2 'Str. 777; Staniland v. Willott, 3 Macn. & G. Dorsey, 38 Ind. 451; Baker v. Williams, 34 Ind. 
 «64; Bouttsr.EUis, 4DeG. M. &G.249; Duffield 547; Tillinghast ». Wheaton, 3 E. I. 536; Prick- 
 le. Elwes, IBllgh, K. s.,497; Ward ». Turner, 2 ett v. Priokett's Adm'rs, 20 N. J. Eq. 478; 
 Ves. Sen. 431 ; Miller v. Miller, 3 P. Wms. 356; Turner v. Estabrook, 129 Mass, 425; Conser v. 
 Moore V. Moore, L. R. 18 Eq. 474; RoUa v. Snowden, 54 Md. 175; West ». Gavins, 74 Ind. 
 Pearce, L. E. 5 Ch. D. 730; In >•« Mead, L. R. 15 265; Eobinson V. EIng, 72 Me. 140; Dean v. 
 Ch. D. 651 ; Ellis «. Secor, 31 Mich. 185; Fiero v. Dean's Estate, 43 Vt. 337; Hatch v. Atkinson, 
 Flero, 5 T. & C. 151; Case ». Dennison, 9 E. I. 56 Me. 324; Southerland v. Southerland's 
 88; House v. Grant, 4 Lans. 296; Ehodes u. Adm'r, 5 Bush, 591. 
 
 Childs, 64 Pa. St. 18; Vandermark v. Vander- « Ward v. Turner, 2 Ves. Sen. 431 ; 1 Eq. Lead, 
 
 mark, 55 How. Pr. 408; Coleman ». Parker, 114 Cas. 1205, 1219-1229, 1230-1251 (4th Am. ed.); 
 
 Mass.'sO; Clough ». Clough, 117 Mass. 83; Pierce Hedges «. Hedges, Preo. Chan. 269; Jones u. 
 
 V. Boston Sav. Bank, 129 Mass. 425. Selby, Id. 300; Miller v. Miller, 3 P. Wms. 356; 
 
 « Duffield V. Elwes, 1 Bllgh, n. s., 497, 530, 534; Lawson v. Lawson, 1 td. 441 ; McGrath v. Rey- 
 
 Staniland ». WlUott, 3 Macn. & G. 664, 675, 676. nolds, 116 Mass. 566; Clough v. Clough, 117 
 
 6 See Trorlioht V. Weizenecker, 1 Mo. App. Mass. 83; Carrti. Silloway, HI Mass. 24; Ellis ». 
 
 482- Brooks ti. Brooks, 12 8. C. 422; Darlandi). Secor, 31 Mich. 185; Stevens v. Stevens, 5 
 
 431 
 
§ 359 
 
 EQUITY JUEISPBUDENCE. 
 
 [CH. XX. 
 
 In order that it may take effect in passing the absolute title to the 
 thing donated, the following requisites must concur: (1.) It must be 
 made in immediate apprehension of death; a gift in expectation of the 
 future possibility of death, as where a soldier, on going out to a war, 
 or a sailor, on the eve of a long voyage, makes a gift to take eflfect if 
 he does not return, is not a good donatio mortis causal And it must 
 appear by satisfactory evidence that the gift was made in apprehen- 
 sion of death.* But the length of time before the death is not essen- 
 tial, provided at the time the gift was made there was an immediate 
 apprehension of death.' (2.) The donor should die of the same ail- 
 ment which caused the apprehension of death. The recovery of the 
 donor defeats the gift.* And the donor may revoke the gift at any 
 time before his death. ^ (3.) There must be a delivery, actual or sym- 
 bolical, and, (4) it must be accepted by the donee. The gift may be 
 delivered to the donee, or to some third person for him.' There may 
 
 Thomp. & C. 875 Blount ». Burrow, Ves. 546; 
 Tate V. Hilbert, 2 Ves. Ill, 120; Gardner ». 
 Parker, 3 Madd. 184; Snellgrove v. Bailey, 3 
 Atk. 214; Duffield «. Blwes, 1 S. & S. 239; 1 
 Bligh, H. B., 497, 5S7; Fiero v. Fiero, Thomp. & 
 C. 151; Case v. Dennison, 9 E. 1. 88; TiUinghast 
 ■V. Whe'aton, 8 /d. 536; Smith ». Doraey, 38 Ind. 
 451; Baker u. Williams, 34 Ind. 547; Powell v. 
 Helliear, 26 Bear. 261 ; Cosnahan v, Grice, 16 
 Mo. P. C. 215; Boutts v. Ellis, 4 De G. M. & G. 
 249; Mitchell i>. Smith, 4 De G. J. & S. 428; 
 Bockwood «. Wiggin, 16 Gray, 402; Hatch v. 
 Atkinson, 56 Me. 324; Southerland v. Souther- 
 land's Adm'r, 5 Bush, 591 ; Prlckettii. Prickett's 
 Adm'rs, 20 N. J. Eq. 478; Hewitt v. Kaye, L. R. 
 6 Eq. 198; Inre Beak's Estate, L. B. 13 Eq. 489; 
 Moore v. Moore, L. E. 18 Eq. 474; Bolls «. 
 Pearce, L. B. 5 Ch. D. 730; Dole v. Lincoln, 31 
 Me. 422; Boreman v. Sidlinger, 15 Me. 429; Wes- 
 ton*. Hight, 17 Me. 887, 290; Holley ». Adams, 
 16 Vt. 206, 210, 212; Smith ». Kittridge, 21 Vt. 
 238, 245; Meach v. Meach, 24 Vt. 519; In re Mead, 
 L. B. 16 Ch. D. 651; Eobinson v. Eing, 72 Me. 
 140; Walter v. Ford, 74 Mo. 195; West v. Gavins, 
 74 ind. 265; Pierce v. Boston Sav. Bk., 188 Mass. 
 425; Parish v. Stone, 14 Pick. 198, 203, 204; 
 Grover i». Grover, 24 Pick. 261 ; Sessions v. Mose- 
 ley, 4 Cush. 87; Bates v. Kempton, 7 Gray, 382; 
 Turner 7>. Estabrook, Mass. 425; Conser v. 
 Snowden, 54 Md. 175; Estate of Barclay, 11 
 Phila. 123; Brooks v. Brooks, 18 S. C. 422; Grat- 
 tan V. Appleton, 3 Story, 755, 763; Raymond v. 
 Selllok, 10 Conn. 480; Harris v. Clark, 2 Barb. 94, 
 86; 3 N. Y. 93; Delmotte v. Taylor, 1 Eedl. 417; 
 Ogilvies. Ogilvle, 1 Bradf. 356; Darlandti. Tay- 
 lor, 52 Iowa, 503; Conklin ». Conklin, 20 Hun, 
 278; Sheedy ». Boach, 124 Mass. 472; McCartyt). 
 Kearnan, 86 111. 891; Kllby ». Godwin, 2 Del. 
 Ch. 61 ; Trorllcht V. Welzenecker, 1 Mo. App. 
 482; Westerlo v. De Witt, 35 Barb. 215; Wells v. 
 Tucker, 3 Binn. 366; Nicholas v. Adams, 8 
 Whart. 17; Hebb v. Hebb, 5 Gill,. 506; Bradley v. 
 Hunt, 5 Gill & J. 54; Pennington v. Glttings, 2 
 Gill & J. 208; Miller v. Jeffress, 4 Gratt. 478i 
 Chevalllerv. Wilson, 1 Tex. 161. 
 
 432 
 
 'Gourley «. Linsenblgler, 51 Pa. St. 345; 
 Brickhouse ». Briokhouse, 11 Ired. 404; Irish v. 
 Nutting, 47 Barb. 370; Baker v. Williams, 34 
 Ind. 547; Gass v. Simpson, 4 Coldw. 288; and 
 see Smith v. Dorsey, 38 Ind. 451 ; but see contra, 
 Dexheimer v. Gautier, 5 Bobert. 216; Gourley 
 V. Linsenblgler, 51 Pa. St. 345. 
 
 2 Edwards v. Jones, 1 My. & Cr. 226; Gardner 
 V. Parker, 3 Madd. 184, 185; Tate v. Leithhead, 
 Kay, 658; Ogilvie v. Ogilvie, 1 Bradf. 356; Law- 
 son V. Lawson, 1 P. Wms. 441 First Nat. Bonk 
 V. Balcom, 35 Conn. 381 ; Prickett v. Prickett's. 
 Adm'rs, 20 N. J. Eq. 478; Sheedy v. Eoach, 124 
 Mass. 472; Bockwood ». Wiggin. 16 Gray, 402; 
 Bhodes v. Childs, 64 Pa. St. 18; Dean v. Dean's. 
 Estate, 43 Vt. 337; Hatch v. Atkinson, 56 Me. 
 324; Cosnahan D. Grice, 15 Moo. P. C. 815; Ellis 
 V. Seoor, 31 Mich. 185. Delmotte v. Taylor, 1 
 Eedf. 417; Westerlo v. De Witt, 35 Barb. 215; 
 Conklin v. Conklin, 20 Hun, 278. 
 
 ' Gardner v. Gardner, 82 Wend. 626; Dailand 
 t7. Taylor, 52 Iowa, 603. 
 
 * Stanilandj). Willott, 3 Macn. <fcG. 664; Con- 
 ser V, Snowden, 54 Md. 175; Ward v. Turner, &■ 
 
 Ves. Sen. 431; lEq. Lead. Cas. 1845; Tate V. 
 
 Hilbert, 2 Ves. Ill; 4 Bro. Ch. .886; Bunn v 
 
 Markham, 7 Taunt. 224. 
 6 Parker i». Marston, 27 Me. 196; Stanilands. 
 
 Willott, 3 Macn. & G. 664; and see Fiero v 
 
 Fiero, 5 Thomp. & C. 151; Ellis v. Secor, 31 
 
 Mich. 185. 
 « Ward V. Turner, 8 Ves. Sr. 431; MoKenzie v. 
 
 Doning, 85 Ga. 669; Jones ». Deyer, 16 Ala. 221^ 
 
 Darland ». Taylor, 68 Iowa. 603; Sheedy v. 
 
 Boach, 124 Mass. 472; Pierce v. Boston Sayings. 
 
 Bank, 129 Mass. 486; Kilby v. Godwin, 2 Del. 
 
 Ch. 61 ; Vandermark v. Vandermark, 55 How. 
 
 Pr. 408; Clough v. Clough, 117 Mass. 83 j Mc- 
 
 Grath v. Reynolds, 116 Mass. 666; Stevens «. 
 
 Stevens, 9 Thomp. & C. 87; Fiero v. Fiero, 5 
 
 Thomp. & C. 151 ; Hatch v. Atkinson, 68 Me. 
 
 324; and see, also, Carrv. Sllloway, 111 Mass. 
 
 24; Case of Dennison, 9 E. I. 88; Prickett e. 
 
 Prickett's Adm'rs, 20 N. J. Eq. 478; Conseiv. 
 
 Snowden, 5^ Md. 175; Robinson v. Ring, 78 Me.. 
 
CH. xx.J decedents' estates and gifts causa moetis. § 359 
 
 be a delivery to one person for the benefit of two or more donees.^ 
 In any case, the intention to deliver must be made clear." The third 
 person, to vsrhom it is delivered, must in turn deliver it to the intended 
 donee, at or before the donor's death.* And if the holder refuses to 
 so deliver to the donee, the latter may recover it of him by an appro- 
 priate action.* Or it may be returned to the donor to keep or to col- 
 lect for the donee. ^ The delivery need not be actual and manual. It 
 may be constructive, and implied from acts which indicate clearly the 
 intention to transfer title.' The acceptance of the donee will ordi- 
 narily be implied from the gift being advantageous to him.' 
 
 At first, it was held that only things, which were susceptible 
 of manual delivery, could pass by a cUmatio Tnortis causa; but the 
 rule began immediately to be relaxed and extended in its application, 
 so as to admit of the gift in this way of negotiable bills and notes, 
 either payable to bearer, or indorsed by the donor in blank,' as well 
 as to chattels in general.' It was once doubted whether there could 
 
 140; Ellis V. Secor, 31 Mich. 185; Turner*. Esta- 
 biook, 129 Mass. 425; Champney v. Blanchard, 
 39 N. Y. Ill; Wing o. Merchant, 57 Me. 383; 
 Southerland v. Southerland's Adm'r, 5 Bush, 
 591; Conklin®. Conklln, 20Hun,278; Coleman 
 V. Parker, 114 Mass. 30; Thompson v. Heffernan, 
 4Dr. & War. 285; Tate ». Hllbert,2Ves. Ill, 120; 
 Beddel v. Dobree, 10 Sim. 244; Noble ®. Smith, 
 2 Johns. 52; Harris v. Clark, 3 N. Y. 93; Jackson 
 ■0. Twenty-third St. Ky., 88 N. Y. 520; Ward ». 
 Tnmer, 2 Ves. Sen. 431; 1 Bq. Lead. Cas. 1205; 
 see, also, Dunn v. Markham, 7 Taunt. 224, 227; 
 Irons V. Smallpiece, 2 6. & Aid. 551 ; Craig v. 
 Craig, 3 Barb. Ch. 76, 117; Brinckerhoff v. 
 Lawrence, 2 Sandf. Ch. 400; French v. Rey- 
 nolds, 39 Vt. 623; Dow v. Gould, Ac. Min. Co., 
 31 Cal. 629. 
 
 1 Bomeman v. Sidlinger, 15 Me. 429; Brunson 
 V. Brunson, Meigs, 635. 
 
 2 Dunne v. Boyd, I. R. 8 Eq. 609. 
 
 ' Sessions v. Moseley, 4 Cush. 87; Walter v. 
 Ford, 74 Mo. 195; Drury v. Smith, 1 P. Wms. 
 404; Moore®. Darton, 4De G. <fe Sm. 517; Kem- 
 per V. Kemper's Adm'rs, 1 Duv. 401 ; Baker V. 
 Williams, 34 fnd. 547; Sheedy v. Roach, 124 
 Mass. 472; Kilby v. Godwin, 2 Del. Ch. 61; 
 Trorlicht v. Weizenecker, 1 Mo. App. 482; 
 Clongh V. Clough, 147 Mass. 83; Turner v. Esta- 
 brook, 129 Mass. 425. 
 
 *Coutant V. Schuyler, 1 Paige, 316; Wells v. 
 Tucker, 3 Binn. 386. 
 
 « Grover v. Grover, 24 Pick. 261. 
 
 • A direction to a trustee to give a note, 
 belonging to the donor, to the donee, is a good 
 constructive delivery. Southerland v. South- 
 erland, 4 Bush, 491 ; an attorney's receipt for a 
 bond in his possession at the direction of the 
 donor, Elam v. Keen, 4 Leigh, 333; a wife's 
 direction to her husband to take the money, 
 referring to a note in a bureau drawer, Stev- 
 ens V. Stevens, 2 Hun, 470; the surrender or 
 destruction of the donee's bill or note. Gar- 
 land V. Garland, 22 Wend. 526; Lee v. Boak, 11 
 
 23 
 
 Gratt. 182; Hurst v. Beach, 5 Madd. 351 ; Dar- 
 land -a. Taylor, 52 Iowa, 503. But see Blanch- 
 ard V. Sheldon, 43 Vt. 512; Smith ii. Smith, 2 
 Str. 955; Jones v. Selby, Prec. Chan. 300; Pen- 
 fleld ii. Thayer, 2 E. D. Smith, 305; and see 
 Vandermark v. Vandermark, 55 How. Pr. 408; 
 Cooper V. Burr, 45 Barb. 9; Miller v. Jeffress, 4 
 Gratt. 472, 479; Powell v. Hellicar, 26 Beav. 261; 
 Reddel v. Dobree, 10 Sim. 244; Parquharson v. 
 Cave, 2 Coll. 356; Trimmer v. Danby, 25 L. J. 
 Ch. 424; Hawkins v. Blewitt, 2 Esp. 663; 
 Maguire si. Dodd, 9 Ir. Ch. 452-459; Hatch ». 
 Atkinson, 56 Me. 324. 
 
 'DeLevillian v. Evans, 39 Cal. 120; Darland 
 v. Taylor, 52 Iowa, 503. 
 
 'Rankin u. Wegnellu, 27 Beav. 309; Veal v. 
 Veal, 27 Beav. 303; Drury v. Smith, 1 P. Wms. 
 405; Lawson V. Lawson, 1 P. Wms. 411; Miller 
 V. Miller, P. Wms. 356; Weston v. Hight, 17 Me. 
 287; House v. Grant, 4 Lans. 296; Burke v. 
 . Bishop, 27 La. Ann. 465 (27 Am. Rep. 567) ; Tur- 
 pin V. Thompson, 2 Met. (Ky.) 420; Borneman 
 V, Sidlinger, 15 Me. 429; Caldwell »: Renfrew, 
 33 Vt. 213; Grover v. Grover, 24 Pick. 261 ; Ses- 
 sions v. Moseley, 4 Cush. 87; Stevens®. Stevens, 
 5 Thomp. & C. 87; Bedell v. Carll, 33 N. Y. 581; 
 Coutant «. Schuyler, 1 Paige, 316; Craig v. 
 Craig, 3 Barb. Oh. 76, 117; Chase v. Redding, 13 
 Gray, 418; Brown o. Brown, 18 Conn. 410; Gour- 
 ley V. Linsenbigler, 51 Pa. St. 345; Jones v. 
 Deyer, 16 Ala. 221; Southerland ». Souther- 
 land's Adm'r, 5 Bush, 591; Ashbrook®. Ryon's 
 Adm'r, 2 Bush, 288; Turpin v. Thompson, 8 
 Mete. (Ky.) 420. Where the donor has indorsed 
 the paper, the indorsement only operates as a 
 transfer of the donor's legal title, and does not 
 make his estate liable as an indorsement. 
 Weston V. Hight, 17 Me. 287. 
 
 9 Drury v. Smith, 1 P. Wms. 404; Bunn ». 
 Markham, 7 Taunt. 224; Kilby v. Godwin, 2 
 Del. Ch. 61; Baker ®. Williams, 34 Ind. 547; 
 Ward u. Turner, 2 Ves. Sen. 431 ; Shanley v.. 
 Harvey, 2 Eden, 126; Miller v. Miller, 3 P.. 
 
 433 
 
§ 359 
 
 EQUITY JUEISPKUDENCE. 
 
 [CH. XX. 
 
 be a good donatio mortis ccmsa of an unindorsed negotiable paper,; 
 payable to order. ^ But it is now very generally held that for the 
 purpose of a donatio mxyrtis causa, the indorsement was a mere techni- 
 cality, and that there may be a good gift of the negotiable instrument 
 without indorsement by the donor.* The donee in such a case gets 
 only the equitable title, ^ and must bring suit in the name of the donor's 
 personal representatives, unless the common law rule is regarded to 
 assignment of choses in actions has been repealed, when the donee can 
 sue in his own name;' or he may compel the donor's representatives 
 to indorse the paper to him.° But a donor cannot make a donatio 
 mortis causa of his own biU of exchange, or promissory note, for the 
 reason that it constitutes a contract without a consideration, which 
 cannot be enforced in the courts. ° As a general rule, the gift of the 
 donor's check, which is not presented until after the death of the 
 donor, is held to be an invalid donatio mortis causa.'' But if such a 
 check is paid by the bank, before receiving notice of the drawer's 
 death,' or is certified to by the bank,' or it passes into the hands of a 
 honajide holder before the donor's death," it passes a good title," and 
 
 Wms. 356; Dean t>. Dean's Estate, 43 Vt. 33rj 
 Estate of Barclay, 11 Phila. 123. 
 
 ' Miller v. Miller, 3 P. Wms. 366j 1 Daniel's 
 Negot. Inst., §24. 
 
 2 Veal V. Veal, 27 Beav. 303; Rankin v. Wag- 
 nelin, 27BeaT. 308,309; Bomeman v. Sedllnger, 
 15 Me. 429; Parkers. Marston,27Me. 196; Bates 
 V. Kempton, 7 Gray, 382; Grover ®. Grover, 24 
 Pick. 261 ; Chase v. Eedding, 13Gray, 418; Ken- 
 iston V. Scena, 54 N. H. 24; Brown v. Brown, 18 
 Conn. 409; McConnell v. McConnell, 11 Vt. 290; 
 Tilliughast ». Wheaton, 8 R. I. 536; Stevens v. 
 Stevens, 9 N. Y. S. C. (2 Hun) 472; Coutanta. 
 Schuyler, 1 Paige, 315; Turpin v. Thompson, 2 
 Met. (Ky.) 420; Jones ». Deyer, 16 Ala. 221 ; In 
 re Mead, L. E. 15 Ch. D. 651; Bates «. Kemp- 
 ton, 7 Gray, 3 88; Chase v. Eedding, 13 Gray, 
 418, 420. 
 
 s Ashbrook ». Pyon, 2 Bush, 238. 
 
 < See p08«, §371. 
 
 « Veal V. Veal, 27 Beav. 303; Eankln V. Weg- 
 nelin, 27 Beav. 309; Duffleld v. Elwes, 1 Bligh, 
 N. B., 409. 
 
 6 Fink V. Cox, 18 Johns. 145; Harris ti. Clark, 
 3 N. T. 93, overruling Wright v. Wright, 1 
 Cow. 598; Coppi). Sawyer, 6N. H. 386; Phelps 
 V. Pond, 23 N. T. 69; Hamor v. Moore, 8 Ohio 
 St. 239; Blanchard v. Williamson, 70 111. 647; 
 De Pouilly's Succession, 22 La. Ann. 97; Parish 
 ». Stone, 74 Pick. 198; Warren v. Dnrfee, 186 
 Mass. 338; Flint v. Paltee, 33 N. H. 520; Holly ». 
 Adams, 16 Vt. 206; Smith v. Kettridge, 21 Vt. 
 238; Raymond v. Selliok, 10 Conn. 480; Voor- 
 hees V. WoodhuU, 4 Vroom, 494; Helfenstein's 
 Estate, 77 Pa. St. 328; Hallii. Howard, Rice, 310; 
 Smith t>. Smith, 3 Stew. Eq. 564; Grymesw. Hone, 
 40 N. Y. 17 ; Whitaker v. Whitaker, 52 N. Y. 368 j 
 Johnson v. Spies, 5 Hun, 468; Kenlstons v. 
 Sceva, 56 N. H. 84; Brown v. Moore, 3 Head, 
 671; Harris v. Clark, 3 N. Y. 93, 110; Second 
 
 434 
 
 Nat. Bk. V Williams, 13 Mich. 282; McKenzie 
 V. Downing, 25 Ga. 669; see Walter v. Ford, 74 
 Mo. 195; West II. Gavins, 74 Ind. 265; Flint v. 
 Pattee, 33 3s^. H. 580; Copp v. Sawyer, 6 N. H. 386; 
 Holley «. Adams, 16 Vt. 206; In re Mead, L. 
 E. 15 Ch. D. 651 ; Hewitt v. Kaye, L. R. 6 Eq. 198; 
 In re Beak's Estate, L. R. 13 Eq. 489. But where 
 there is a valuable eonsideration for the note, 
 the transfer will be upheld by the courts. 
 Deauo. Carruth, 108 Mass. 242; Bowers «.Hurd, 
 16 Mass. 127. 
 
 ' Curry v. Powers, 70 N. T. 212; Simmons v. 
 Cincinnati Sav. Soc, 31 Ohio St. 457; Second 
 Nat. Bank v. Williams, 13 Mich. 282; Boutts v. 
 Ellis, 17 Beav. 121; 4 De G. M. & G. 249; Beak 
 V. Beak, L. R. 13 Eq. 489; De Pouilly's Succes- 
 sion, 22 La. Ann. 97; Harris v. Clark, 3 N. Y. 
 93, 110; McKenzie «. Downing, 25 Ga. 669; see 
 Walter ». Foid, 74 Mo. 195; In re Mead, L. R. 15 
 Ch. D. 651; Hewitt i». Kaye, L. R. 6 Eq. 198; In 
 re Beak's Estate, L. R. IS Eq. 489. 
 
 s Tate ». Hilbert, 2 Ves. Jr. Ill; b. i;.,4 Bro. C. 
 C. 280. 
 
 » Rolls V. Pearce, L. E. 5 Ch. D. 730; Bromley 
 1>. Brunton, L. R. 6 Eq. 275; Bouts v. Ellis, 4 De 
 G. M. & G. 249; Rhodes «. Childs, 74 Pa. St. 18; 
 Trorlicht v. Welzenecker, 1 Mo. App. 482. 
 
 10 Rolls V. Pearce, L. E. 5 Ch. D.730; see Law- 
 son V. Lawson, 1 P. Wms. 441. 
 
 » Moore v. Moore, L. E. 18 Eq. 474; Brooks v. 
 Brooks, 12 S. C. 422; Amis v. Witt, 33 Beav. 619; 
 Westerlo v. De Witt, 36 N. Y. 340; Case v. Den- 
 nison, 9 R. I. 88; Dean t>. Dean's Estate, 43 Vt. 
 337; Camp's Appeal, 36 Conn. 88; Penfleld»._ 
 Thayer, 2 E. D. Smith, 305; Sheedy v. Eoach," 
 124 Mass. 472; Pierce v. Boston Sav. Bk., 129 
 Mass. 425; Ashbrook «. Eyon's Adm'r, S Bush, 
 328; Boutts ». Ellis, 4 De G. M. & G. 249; Witt 
 V. Amis, 1 B. <& S. 109; Turner v. Estabrook, 
 Mass. 425; Vandermark v. Vandermark, 55 
 How. Pr. 408;Tlllinghast!). Wheaton,8R. 1.536. 
 
■CH. XX. J decedents' estates and gifts causa moktis. § 359 
 
 may be enforced against the donor's estate. There can also be a good 
 donatio mortis ccmsa of credits and certificates of deposit, and of 
 bonds and other instruments of indebtedness.' 
 
 iWitt V. Amis, 1 B. & S. 109; Moore v. Moore, 
 L. R. 18 Eq. 474; Ward v. Turner, 2 Ves. Sen. 
 431; Waring v. Edmonds, 11 Md. 421; Phipps v. 
 Hope, 16 Ohio St. 586; Connor ». Trawick's 
 Adm'r, 37 Ala. 289, 295; Duffield v. Elwess, 1 
 Bllgh, N. s.,497, 527,542; Gardner v. Parker, 3 
 Madd. 184; Hurst v. Beach, 5 Madd. 351; Claver- 
 Ing V. Yorke, 2 Coll. 363 n; see, also, Ellis v, 
 
 Secor, 31 Mich. 185; Wing v. Merchant, 57 Me. 
 383; Reedu. Spauldiug, 42 N. H. 114; Champney 
 V. Blanchard, 39 N. Y. Ill ; Se Patterson, 10 Jur., 
 N. o., 578; SriellgroTe ». Bally, 3 Atk. 214; and 
 see Conklin v. Conklln, 20 Hun, 278; Hatch v. 
 Atkinson, 56 Me. 324; Lee's Ex'r v. Boak, 11 
 Gratt. 182; Bradley «. Hunt, 5 Gill & J. 84; Pen- 
 nington V. Gittings, 2 Gill & J. 208. 
 
 435 
 
CHAPTER XXI. 
 
 CONTRACTS IN EQUITY. 
 
 Sbctiom 
 A general statement as to contracts In law 
 
 and in equity 361 
 
 Whether a seal imports a consideration . 363 
 Equitable easements arising from cove- 
 nants 363 
 
 Equitable contracts by representation and 
 acts 364 
 
 Sbotioh 
 Contracts for necessaries supplied to 
 
 parties under legal disability . . . 385 
 Liability of the estate of a deceased joint 
 
 debtor in equity 36tt 
 
 Equitable remedies for the enforcement 
 
 of contracts 367 
 
 § 361. A general statement as to contracts in law and in equity. 
 
 — In respect to the general definition of a contract, tliere is no room 
 for difference in law and in equity. Courts of equity substantially 
 agree with the courts of law as to what are the essential elements of 
 a contract, and when a valid contract has been made. There are, 
 however, some cases in which the courts of law will pronounce a con- 
 tract to be valid or invalid, and a court of equity will reach an alto- 
 gether different conclusion. It would be difficult to lay down any 
 general rule, for the purpose of determining just when there will be a 
 departure of the courts of equity from the rulings of the courts of 
 law as to the validity of a particular contract. The nearest approach 
 to a general explanation which can be ventured upon, is that a court 
 of equity will never permit the iron-cast rules of the law, as to what 
 are the essential requisites of a valid contract, to produce a positively 
 inequitable result; that a court of equity will discard these rules of 
 law, whenever the ends of justice, as they are formulated by the 
 principles of equity, cannot otherwise be attained. Perhaps the cases 
 of variation from the courts of law, in respect to what contracts are 
 valid and can be enforced, may be divided into two classes. The one 
 class consists of those contracts in which the parties to them cannot 
 perform the same in its entirety, and relief is asked for on the ground 
 that the impossible condition is not essentia] to the contract,' The 
 second class include a variety of cases in which a court of equity 
 departs from the common law rules and holds the contracts to be valid 
 and binding, although they are void or voidable at law. Some of 
 these cases arise in connection with suits for specific performance. A 
 few of the cases are here referred to with a number of citations 
 in support of them. Thus, part performance of an oral contract is 
 
 iMortlock V. Bnller, 10 Ves. 292, 305, 306; 
 Stewart v. Alliston, 1 Meriy. 86, 32j Dayls v. 
 Hone, 2 Sch. & Lef . 341, 347 j Voorhees v. De 
 
 436 
 
 Meyer, 8 Barb. 37 j Coale v. Barney, 1 Gill & J. 
 324; McCorkle v. Brown, 9 Sm. &, Mar. 167j 
 Shaw V. Llvermore, 8 Greene, (Iowa) 338. 
 
CH. XXI.] CONTKACTS IN EQUITY. § 362 
 
 held in equity to take such contract out of the Statute of Frauds.* 
 Ante-nuptial contracts or agreements, between a man and woman who 
 afterwards marry and whose contracts cannot afterwards be sued on 
 in law, may be enforced in equity.* So, also, contracts to sell lands 
 are enforced in equity after the death of the vendor; ' and, likewise, 
 agreements for the assignment of things in action and possibilities, 
 although such agreements may not be enforced in law.* 
 
 In other chapters, reference is made to liens, which cannot be 
 enforced at law but which are valid in equity;* mortgages which are 
 valid in equity but not enforceable at law; ° so, also, the contracts of 
 married women which are void at law but valid in equity; ' and so, 
 likewise, assignments of choses in action which are only enforceable 
 in equity." In the present chapter, reference will only be made to a 
 few isolated cases of contracts in respect to which the courts of equity 
 do not follow the law. 
 
 § 362. Whether a seal imports a consideration. — ^It is the rule 
 of the common law that a sealed contract is conclusively presumed to 
 be based upon a valuable consideration, and the parties thereto are 
 estopped from denying that the contract is so supported; so that a 
 sealed instrument can be enforced at law, although there is no consid- 
 eration mentioned in it, and none proven, in fact.' But while a court 
 of equity recognizes the doctrine generally, at least so far as presump- 
 tion of a consideration from a seal; '" yet, on the other hand, it will 
 grant no affirmative reUef, such as to aid in any defective conveyance 
 of land," or grant a decree for specific performance of a contract,*" if 
 
 1 Bnckmaster v. Hanop, 7 Ves. 341, 346; ^ See post, Chapt-XXTL 
 Mundy v. Jolliffe, 5 My. & Or. 177j London, 6Seeyo«<, §§416, 417. 
 *c. Ky. «. Winter Cr, & Ph. 57, Earl of Llnd- JSee «»«. g^.^^^ 
 
 sey r. Great Northern By 10 Hare 664. 700j , ^^^^^ ^- ^J.^^ ^ ^^^^^_ ^, ^^^ ^^^^^^_ 
 
 Kirkr. Bromley Union, 2 Phil 640j Gough v. j,^^j^ ^ g^j^^ ^ jl^j^^^ ^. snarington v. 
 
 Crane, 3 Md. Ch. 119; 4 Md. 316; Phillips v. gtratton, 1 Plow. 398, 309j Page v. Trufant,2 
 
 Thompson, 1 Johns. Ch. 131; Lord v. Under- ^^^^^ jgg^ jjg. paiiowes v. Taylor, 7 T. E. 475; 
 
 dunck, 1 Sandf. Ch. 46; Jems v. Smith, HofE. g^Q^^ ^ Goodman, 2 Q. B. 580, Denman, C. J., 
 
 Ch. 470. p. 699; Douglass v. Howland, 24 Wend. 35; 
 
 2 Cannel v. Buckle, 2 P. Wms. 243; Acton v. Burkholderc. Plank, 19 Smith, (Pa.) 225; Mack's 
 Acton, Prec. Chan. 237; Gould v. Womack, 2 Appeal, 18 Smith, (Pa.) 231; Wing v. Peck, 54 
 Ala. 83; Crostwaight v. Hutchinson, 2 Bibb. 407 yj 245; The State v. Gott, 44 Md. 341 . 
 
 sMilnes r. Gery, 14 Ves. 400, 403; Newton v. lo Northern Kansas Town Co. v, Oswald, 18 
 
 Swazey, 8 N. H. 9; Saunders v. Simpson, 2 Har. Kans. 336. 
 
 & J. 81; Glaze v. Drayton, 1 Desau. 109; Wil- n Anonymous, 12 Mod. 603. 
 
 kinson v. Wilkinson, 1 Id. 201. M Lister v. Hodgson, Law Rep. 4 Eq. SO, 36; 
 
 * Wiseman ». Roper, 1 Ch. Rep. 158; Beckley Jeflferys v. Jefferys, Craig & P. 138; KeSeiv. 
 
 V. Newland, 2 P. Wms. 182; Hyde v. White, 5 Grayson, 76 Va. 517; and see James v. Bydder, 
 
 Sim. 524; Lyde v. Mynn, 1 My. & K. 683; Price 4 Beav. 600, 5 Jur. 1076; Hollo way v. Headlng- 
 
 V. Winston, 4 Munf. 63; Clifford v. Turrell.l Y. ton, 8 Sim. 324; Downs v. Porter, 54 Texas, 69; 
 
 & C. Ch. 138; Corbin v. Tracy, 34 Conn. 325; Cochrane v. Willis, 34 Beav. 359; Houghton v. 
 
 Cogent V. Gibson, 33 Beav. 557; Somerby v. Lees, 1 Jur., N. s., 863; Ord V. Johnston, 1 Id. 
 
 Buntin, 118 Mass. 279; Binney v. Annan, 107 1063; Jefferys v. Jefferys, Cr. & Ph. 138; Hervey 
 
 Mass 94; Bly». McKay, 12 Allen,323; Adderley v. Audland, 14 Sim. 531 ; Meek v. Kettlewell, 1 
 
 V Dixon, 1 S. &. S. 607 ; Wright v. Bell, 5 Price, Ph. 342 ; 1 Hare, 464 ; Stone v. Hackett, 12 Gray, 
 325; Cutting v. Dana, 25 N. J. Bq. 265; Tuttle 227; Wason v. Colbum, 99 Mass. 342; Estate of 
 
 V Moore, 16 Minn. 123; Woodward v. Harris, 3 Webb, 49 Cal. 541, 545; Minturn v. Seymour, 4 
 Sandf. 272; Hughes v. Piedmont, &.O. Ins. Co., Johns. Ch. 497; Burling v. King, 66 Barb. 633; 
 55Ga. Ill; Withy ». Cottle, 1 S. <Sc S. 174; Ken- Shepherd r. Shepherd, 1 Md. Ch. 244; Vassere. 
 ney v Wexham, 6 Madd. 355. Vasser, 23 Miss. 378. 
 
 437 
 
§ 363 EQUITY JURISPRUDENCE. [CH. XXL. 
 
 the contract is not, in fact, based upon a consideration. In such 
 cases, a court of equity will look behind the seal, and the presumption 
 based thereon that there is a consideration, and will ascertain for 
 itself what is the fact in respect thereto.^ 
 
 § 363. Equitable easements arising from corenants.— Where, 
 in the conveyance of several parcels of land to diflFerent grantees, the 
 grantor imposes a restriction upon the use and mode of enjoyment of 
 the land so granted, which creates a mutual benefit to the owners of 
 the several parcels; even though the restriction be in the form of a 
 covenant, equity will construe it to have the binding force of an ease- 
 ment, and will sustain an action for its enforcement in favor of any 
 one of the owners. They are covenants running with the land, and 
 can be enforced by anyone in whose possession any one of the parcels 
 should fall.^ 
 
 Such would be the case where, in granting several parcels of land, 
 the conveyances contain covenants that any buildings thereafter 
 erected upon any one of them shall be set back from the street a cer- 
 tain distance. An injunction would be granted at the suit of either 
 of the owners of the several pieces of property restraining another 
 from violating the covenant.' In the same manner, a covenant to 
 build and maintain a party wall will operate as an easement.* But 
 an executory agreement, or covenant to build a party wall, cannot 
 operate as an easement, since such a covenant does not run with the 
 land, and is binding only upon the covenantor.^ But if the covenant 
 as to the use of the land is imposed upon only one of the lots, and 
 omitted in the conveyance of the others, the covenant is held to be 
 
 » But see ante, §§ 258, 299, where It is held Ch. (N. T.) 353; Smyles v. Hastings, 22 N. T. 217;. 
 
 that the acknowledgment of a consideration Wheeler v. Gllsey, 35 How. Pr. (N. T.) 139; 
 
 under seal cannot be inquired into, for the Holmes ». Seeley, 19 Wend. (N. T.) 507; Collins. 
 
 purj)Ose of InTalldating the creation of a use v. Prentice, 15 Conn. 39; s. o., 38 Am. Dec. 61;. 
 
 or trust. See, also, Tiedeman Real Prop., §§783, Brown «. Burkenmeyer, 9 Dana, (Ky.) 159; 
 
 801. Lenning ». Ocean City Asso., 41 N. J. Eq. 608; 
 
 'Martin v. Martin, (Kans. '90) 24 Pac. 418: s. o., 56 Am. Rep.; see, also, White's Bank of 
 
 Clement v. Burtis, (N. T. '90) 24 N. E. 1013; Buffalo v. Nichols, 64 N. T. 65; Poster v. City 
 
 Nye 1). Hoyle, 120 N. Y. 195 (24 N. E. 1); Graves of Buffalo, 64 How. Pr. (N. Y.) 127; In the Mat- 
 
 V. Deteriing, 120 N. Y. 447; Pittsburg, Ac. R. ter of Opening Eleventh Ave., 81 N. Y. 436; 
 
 R. Co. V. Reno, 22 III. App. 470; ». c, 123 HI. 273 Baxter v. Arnold, 114 Mass. 577; a. o., 11 Am. R. 
 
 (14 N. E. 195); Midland By. Co. «. Fisher, (Ind. 335; Bagnall v. Davies, 140 Mass. 76; Atty.-Glen. 
 
 'SO) 24 N. E. 756, 758. ». Williams, 140 Mass. S29 (54 Am. Rep. 468);. 
 
 8 Whatman v. Gibson, 9 Sim. 196; Harrison v. Payson «. Burnham, 141 Mass. 547; Hamlen v. 
 
 Good, L.R. 11 Eq. 338; Parker*. Nightingale, 6 Werner, 144 Mass. 396; Winnepesaukee, &c. 
 
 Allen, 341; Hubbell v. Warren, 8 Allen, 173; Ass'n D.Gordon, 63 N.H. 505; Wobb«. Robbing, 
 
 Greene v. Creighton, 7 R. I. 1; Wolfe v. Frost, 77 Ala. 176; Hull «. C, B. & Q. R. R. Co., 65 
 
 4 .Sandf . Ch. 72; Tallmadge «. East River Bk., Iowa, 713; Coudert v. Sayre, (N. J. '90) 19 Atl. 
 
 26 N. Y. 105; Brewer v. Marshall, 19 N. J. Eq. 19O; Chautauqua Assembly v. Ailing, 46 Hun, 
 
 543; Winfleld ®. Henning, 21 N. J. Eq. 188; 582; Rose v. Hawley, 118 N. Y. 502 (23 N. E. 
 
 Clark V. Martin, 49 Pa. St. 290; St. Andrew's 904); Graves ». Deteriing, 120 N. Y. 447 (24 N. 
 
 ChurohAppeal, 67 Pa. St. 518; New Ipswich W. E. 655); Page v. Murray, (N. J. '90) 19 Atl. 11; 
 
 L. Factory B. Batchelder, 3 N. H. 190; Pingree Mackenzie v. Childers, 43 Ch. Dlv. 865; Poster 
 
 V. McDufBe, 56 N. H. 306; McTavish v. Carroll, v. Poster, 62 N. H. 46; Avery v. N. Y. CJent., &o. 
 
 7 Md. 352; Oliver®. Hook, 47 Md. 301; Bums®. R. R. Co., (N. Y. '90) 24 N. E. 20, 24. 
 Gallagher, 62 Md. 462; Viall v. Carpenter, 14 * Richardson «. Tobey, 121 Mass. 157; 23 Am. 
 
 Gray, (Mass.) 126; Day v. Walden, 46 Mich, 575; Rep. 283. 
 N. Y. Life Ins. & Trust Co. v. Mllnor, IBarb. sColeu. Hughes, 54 N.Y. 444; 13 Am. Rep 61U 
 
 438 
 
CH. XXI.] CONTRACTS IN EQUITY. § 366 
 
 thereby abandoned, even as to the grantee in whose deed the covenant 
 was inserted.^ 
 
 § 364. Equitable contracts by representation and acts. — In order 
 that a valid contract may be made, there must generally be an inten- 
 tional offer on one side, and an intentional acceptance on the other. And 
 while the acceptance is often implied at law, and likewise the obliga- 
 tion to pay for what one receives on the intentional offer of another; 
 yet, the general rule still obtains that, in order to prove a contract 
 which is valid at law, one must show a meeting of the minds of the 
 parties upon the same terms and conditions. But in equity, this 
 agreement of the minds may very often be implied by representations 
 and by the acts of one party — which induce the other party to act in 
 accordance with the wishes of the former — even when there is no man- 
 ifest intention on the party making the representation to make such 
 representations good. For, notwithstanding that fact, a court of 
 equity will imply a contract from a representation, whenever such 
 representation or act assumes in any way a promissory form. There 
 is but one requirement to the implication of a contract from such 
 representation, viz.: that the representation must be absolute and 
 positive, and subject to no uncertainty as to the truth or verity of the 
 representation. Where the expression of intention or representation 
 as to what will follow the desired act of the other party, is uncer- 
 tain and made expressly conditional or subject to the will of the 
 party making them, no contract will be implied from such represen- 
 tation. These cases generally arise in connection with representations 
 and acts relating to one's financial condition and the like, which are 
 made prior to the marriage, for the purpose of inducing the other to 
 accept the offer of marriage; and the cases under this heading are 
 found to be largely, if not altogether, English.^ 
 
 § 365. Contracts for necessaries supplied to parties under legal 
 disabilities — It is a general rule of law, that the husband is liable to 
 provide for the necessaries of the wife, and if he fails to perform that 
 duty, the wife has the power to provide herself with the necessaries 
 and t contract bills in his name; and he is responsible to the parties 
 so furnishing her with the necessaries; and an action at law will lie 
 
 1 Duncan «. Central Pass. R. E. Co., (Ky.) 4 Maw. 3 Id. 592; Prole v. Soady, 3 M. Ij SWd- 
 S. W. Eep. 228j Stuart v. Diplook, 43 Ch. DIv. more v. Bradford, L. E. 8 Eq. 134j Coyerdale », 
 343. Eastwood, 15 Id, 131 ; Eandall ». Morgan, 18 
 
 2 Dashwood «. Jermyn, L. E. 12 Ch. D. 776, Ves. 67; Loxley ». Heath, 27 Beay. 523j 1 De G. 
 781; Maunsell v. White, 4 H. L. Gas. 1039, 1056j F. & J. 489; Jameson v. Stein, 81 Beay. 5; Kay», 
 De Beil v. Thomson, 3 Beay. 469; 12 01. & Fin. Crook, 3 Sim. & Giff. 407; 4 H. L. Cas. 1039; 
 61 nj Hammersley v. De Beil, 12 CI. & Fin. 45; Moneys. Jordan, 15 Beav. 372; 2 De G. M. & G. 
 Saunders v. Cramer, 3 Dr. & W. 87; Moore V. 318; 5 H. L. Cas. 185; Moorehouse v. Colyin, 15 
 Hart, 1 Vern. 110, 201; 8 Ch. Rep. 284; Cokes v. Beay. 341; Lord v. Walpole v. Lord Orford, 3 
 Mascal, 2 Vern. 34, 200; Lauders «. Anstey, 4 Ves. 408; Norton «. Wood, 1 Euss. & M. 178; 
 Ves. 501 ; 5 Id. 213; Crosbie v. McDoual, 13 Id. Cross v. Sprigg, 6 Hare, 558; Viscountess Mon- 
 148; Montgomery J). Eeilly, 1 Bligh, N. s., 364; 1 taoute Ji. Maxwrll, 1 P. Wms. 618; Coldicutt 
 Dow. & CI. 63; Payne v. Mortimer, 1 Giflf. 118; 4 v. Townsend, 28 Beay. 445; Gaton v. Caton, L. 
 De G. <fe J. 447; Alt v. Alt, 4 Giff. 84; Loffus v. E. 2 H. L. 127, 142. 
 
 439 
 
'§ 366 EQUITY JUEISPKUDENCE. [OH. XXI. 
 
 against him for the debt so contracted.* This is likewise the rule in 
 regard to the liability of parents for necessaries supplied to their 
 children, where they have failed to make the proper provision for the 
 children, in accordance with the requirements of the law. So, also, 
 can an infant, or minor, or insane person, or any other party who at 
 the time is not supplied with necessaries and who is incapable of tak- 
 ing care of himself, be held liable in their estates for the necessaries 
 which might be furnished to them. The legal liability, in respect to 
 all of these cases, is so clear that citations of cases in support of these 
 propositions of law are not necessary. But in all of these cases it is 
 necessary, as a foundation to the claim for liability, to determine 
 what is a necessary. The question in general can only be determined 
 by a consideration of the pecuniary situation o;f the particular individ- 
 ual or individuals; but it is the uniform rule of law, that in none of 
 these cases will money be treated as a necessary, so that the lending 
 of money to an infant, or insane person, or wife, will not be treated 
 as a necessary, although the money be loaned for the pui-pose of 
 enabling such parties to supply themselves with the necessaries of 
 life. But the rule in equity is different; there it is held where a third 
 party actually pays out money for necessaries or for the necessary 
 expenses of the party borrowing, it becomes a valid debt in equity, 
 although invalid at law.^ So, also, the debt is enforced in equity, 
 where money is directly loaned to those parties under disability, 
 where it is loaned for the purpose of enabling them to supply them- 
 selves with necessaries, and when the money is actually spent for that 
 purpose.' 
 
 § 866. Liability of the estate of a deceased joint debtor in 
 equity. — The common law rule provided that where a debt was joint 
 instead of being joint and several, the liability of the deceased joint 
 debtor terminated with his death; and any subsequent action for the 
 enforcement of such joint debt could only be brought against the sur- 
 viving joint debtor. But the courts of equity refuse to recognize and 
 enforce this technical rule of the common law. In equity, the joint, 
 debts are treated as joint and several obligations; and in equity the 
 personal representatives of the deceased joint debtor could be joined 
 with the survivors in one action for the recovery of the debt, without 
 first enforcing or exhausting the legal remedies against the survivors. 
 This, at least, is the rule in England and in a few of the American 
 iStates;* but the prevailing American rule is somewhat different. 
 
 1 GUman v. Andrus, 28 Vt. 241; Walker v. phant, 2 Sandf. (Sup. Ct. N. Y.) 306; Harris*. 
 
 T/aighton, 31N. H. Ill; Rumneyi). Keyes, 7/d. Lee, 1 P. Wms. 482; Marlowe. Pitfleld, 1 P. 
 
 Bri ; Kimball tJ. Keyes, 11 Wend. 33. Wms. 558; see Watson u. Cross, 2 Duv. (Ky.) 
 
 s Randal v. Sweet, 1 Den. (N. Y.) 460; and see 147; Darby v. Boucher, 1 Salk. 279. 
 
 Walker v. Simpson, 7 W. & S. (Pa.) 83; Bradley * Wilkinson v. Henderson, 1 My. & K. 58S; 
 
 V. Pratt, 23 Vt. 386; Smith v. Oliphant, 2 Sandf. Braithwaite v. Britain, 1 Keen, 206, 219; Brown 
 
 306; Clark v. Leslie, 5 Esp. 28; Swift v. Ben- v. Weatherby, 12 Sim. 6, 11 ; Devaynes v. Noble, 
 
 nett, 10 Cush. (Mass.) 436, citing Ellis v. Ellis, 2 Russ. & My. 495; Thorpe v. Jackson, 2 Y. <& C. 
 
 5 Mod. 368; Earl v. Peake, 1 Salk. 38?. Ex. Ch. 553, 561 ; Freeman v. Stewart, 41 Miss. 
 
 3 Price V. Sanders, 60 Ind. 310; Smith v. Oli- 138. 
 
 440 
 
OH. XXI.] 
 
 CONTRACTS IN EQUITT. 
 
 § 366 
 
 While in equity the liability of the estate of the deceased joint debtor 
 is universally recognized, yet the American courts, generally, will 
 not permit of a resort to this equitable remedy against the personal 
 representatives of the deceased joint debtor, until the legal remedies 
 against the survivor or survivors have been exhausted, or proof is 
 shown that through the insolvency of the survivors, prosecution of 
 the action at law against them would be fruitless.* In several of the 
 states, however, in which the Eef ormed Procedure has been adopted, 
 it is held, that this equitable jurisdiction has been completely abroga- 
 ted, and now a legal action can be brought against the surviving joint 
 debtor and the personal representatives of the deceased debtor.^ But 
 in many of the states, in which the Eeformed Procedure has been 
 adopted, this distinction between the equitable and legal remedies is 
 held still to obtain.' But the equitable recognition of the liability of 
 a deceased joint debtor did not apply where the deceased joint debtor 
 was a surety. The liability of a surety, who was jointly bound by the 
 contract with the principal debtor, is completely terminated by his 
 death; and his estate, after his decease, could be made liable on such 
 debt, neither at law nor in equity.* But it must be observed, how- 
 
 1 Hasten v. Blaokwell, 8 Hun, 313; Maples v. 
 Geller, 1 NeT. 833, 237, 239; Fowler ». Houston, 
 
 I Id. 469, 472; Lanier v. Irvine, 24 Minn. 116; 
 Caims v. O'Bleness,40 Wis. 469; Jones v. Estate 
 of Keep, 23 Id. 45; People v. Jenkins, 17 CaL 
 500; Humphreys v. Crane, 5 Id. 173; May v. 
 Hanson, 6 Id. 642; Voorhis v. Childs' Ex'r, 17 
 N. Y. 354; Eichter v. Poppenhausen, 42 7d. 373; 
 Pope V. Cole, 55 Id. 124; Scholey v. Halsey, 72 
 Id. 578; Lane v. Doty, 4 Barb. 530,534; More- 
 house V. Ballou, 16 Id. 289; Bentz v. Thurber, 1 
 T. & 0. 645; Livermore i>. Bushnell, 5 Hun, 
 285; Yates v. Hoffman, 5 Id. 113; but see Bank 
 of Stockton V. Howland, 42 Cal. 129; Barlow v. 
 Scott's Adm'rs, 12 Iowa, 63; Pecker v. Cannon, 
 
 II Id. 20; Marsh ». Goodrell, 11 J(J.474; Williams 
 V. Scott's Adm'rs, 11 Id. 475: County of Wapello 
 V. Bigham, 10 Id. 39; Childs v. Hyde, 10 Id. 
 SOi. 
 
 ^Burgoyne v. Ohio Life Ins. and Trust Co., 5 
 Ohio St. 586, 58r; Braxton v. The State, 25 Ind. 
 82; Eaton v. Bums, 31 Id. 390; Voris v. The 
 State «a!r««. Davis, 47 Id. 345, 349; Myers v. The 
 State ex rel. McCray, 47 M. 293, 297; Haysti. 
 Crutcher, 54 Id. 260; Hudelson v. Armstrong, 
 70 Id. 99; Owen v. State, 25 Id. 107; Klussmau v. 
 Copeland, 18 Id. 306. 
 
 'Hasten v. Blackwell, 8 Hun, 313; Maples v. 
 Geller, 1 Nev. 233, 237, 839; Fowler v. Houston, 
 \Id.'^t&,^t^\ Lanier ». Irvine, 24 Minn. 116; 
 Caims v. O'Bleness, 40 Wis. 369 ; Jones v. Estate 
 of Keep, 23 Id. 4S>; People v. Jenkins, 17 Cal. 
 600; Humphreys v. Crane, 5 Id. 173; Voorhis v. 
 Childs' Ex'r, 17 N. Y. 354; Eichter v. Poppen- 
 hausen, 43 Id. 373; Pope v. Cole, 55 Id. 124; 
 Scholey ». Halsey, 72 Id. 578; Lane v. Doty, 4 
 Barb. 530, 534; Morehouse v. Ballou, 16 Id, 889; 
 Bentz u. Thurber, 1 T. & C 645; Livermore v. 
 
 Bushnell, 5 Hun, 885; Yates v. Hoffman, 5 Id. 
 113; May v. Hanson, 6 Cal. 648; but see Bank of 
 Stockton V. Howland, 42 Id. 129; Barlow i». 
 Scott's Adm'rs, 12 Iowa, 63; Pecker v. Cannon, 
 11 Id. 20; Marsh ». Goodrell, 11 Id. 474; Will- 
 iams v. Scott's Adm'rs, 11 Id. i75; County of 
 Wapello V. Bigham, 10 Id. 39; Childs v. Hyde, 
 10 Id. 294. But the decisions in New York, 
 here given and the rule as set forth in them, 
 have been abrogated by the new Code of Civil 
 Procedure, § 758. And similar results have 
 been attained by express provision of the 
 codes id Iowa, Kentucky, Missouri, Kansas, 
 and Georgia. Iowa, Code 1860, § 2764; Eevision 
 of 1873, § 2550; Sellon v. Braden, 13 Iowa, 365; 
 Ky. Code, § 39; Mo. Code, Art. 1, § 7; Kans. 
 Gen. Stat. (1868), Ch. 21, §§ 1-4; N. Y. Code of 
 Civil Procedure (New Code), § 758; Anderson 
 V. Pollard, 62 Ga. 46. 
 
 * Eandall v. Sackett, 77 N. Y. 4S0; Hudelson v. 
 Armstrong, 70 Ind. 99; Voris v. The State, 47 
 Id. 345, 349, 350; see, also, Eoyal Ins. Co. ». 
 Davis, 40 Iowa, 469; Towers v. Moor, 2 Vern. 
 98; Simpson v. Vaughan, 2 Atk. 31; Bradley v. 
 Burwell, 3 Denlo, 61; U. S. v. Price, 9 How. (U. 
 S.) 83, 92; Harrison v. Field, 2 Wash. (Va.) 136; 
 Pickersgill v. Lahens, 15 Wall. 140; Weaver v. 
 Shryock, 6 Serg. & E. 268, 864; Waters' Eep's v. 
 Eiley's Adm'r, 2 Har. & G. 305, 310; Simpson v. 
 Field, 2 Ch. Cas. 22; Sumner v. Powell, 8 Meriv. 
 30 T. <fe R. 423; Other v. Iveson, 3 Drew. 177; 
 Richardson v. Horton, 6 Beav. 185; Jones v. 
 Beach, 8 De G. M. & G. 886; Wilmer v. Currey, 
 2 De G. & Sm. 347; Getty v. Binsse, 49 N. Y. 
 385; Wood v. Pisk, 63 Id. 845; Elsley v. Brown, 
 e7 Id. 160; Hauckii. Craighead, Id. 438; Davis 
 V. Van Buren, 72 Id. SSr,58S, 589; Eandall v. 
 Sackett, 77 Id. 480. 
 
 441 ' 
 
'§ 367 EQUITY JUKISPEUDENCE. [CH. XXX. 
 
 ever, that this question as to the liability of a deceased joint debtor, 
 at law and in equity, can only arise when the obligation is strictly 
 joint. Whenever the contract is joint and several, the principles here 
 laid down as to the termination of the liability of the sureties at their 
 death did not apply; the sureties in such cases are all liable, notwith- 
 standing their death, and the obligation can be enforced against their 
 estates,* So, also, where there are two or more co-sureties, the death 
 of one of them would not relieve him or his estate from liability for 
 contribution to the other co-sureties, who may be called upon to pay 
 the debt, although a deceased co-surety could not be made directly 
 liable for the debt.^ In a very large number of the states, it is also 
 now provided by statute, that all joint debts shall be treated as joint 
 and several obligations. Of course, in such cases, the principles, as to 
 joint obligations, would have no application whatever. 
 
 § 367. Eqnitable remedies for the enforcement of contracts. — 
 Another ground for distinction between law and equity, in respect to 
 contracts, is the difference in the character of the remedies which the 
 two courts respectively employ for the enforcement of contracts; but 
 this will constitute the subjects of subsequent chapters.* The matter 
 is only incidentally referred to in this connection. 
 
 > TJ. S. ti. Price, 9 How. (0. S.) 83, 92. 
 
 > Dussol V. Bruguieie, SO Cal. 456. 
 
 » See poet, Chapters XXVII, XXVIII, XXXI. 
 
 442 
 
CHAPTER XXII. 
 
 EQUITABLE ASSIGNMENT. 
 
 Section 
 Assignments ofchosesin action at law and 
 
 in equity. — Present state of the law in 
 
 respect to the same 371 
 
 What things in action are not assignable? 372 
 Assignments of mere possibilities and 
 
 expectancies 
 
 Assignments of property to be acquired 
 
 in the future.— The rule in law 
 The rule in equity ... . . 
 
 Requisites of an assignment of after- 
 
 373 
 
 374 
 375 
 
 Section 
 acquired property.— The extent of the 
 
 doctrine 376 
 
 Rationale of the doctrine . , . . 377 
 Equitable assignment of a fund by order 
 
 or otherwise. — General doctrine , , 378 
 The effect of a bill of exchange . . .379 
 Bill of exchange for a part of fund . . 380 
 Bill of exchange for whole of fund . . 381 
 The right of check-holder to sue the 
 bank 382 
 
 § 371. Assignment of choses in action at law and in equity. — 
 Present state of tlie law in respect to the same. — The common law 
 expressly prohibited the assignment of all things in action, expect- 
 ancies, and possibilities, and refused to recognize any rights in and to 
 the same on the part of an assignee. Lord Coke considered this pro- 
 hibition to be the embodiment of the highest wisdom: "The great 
 wisdom and policy of the sages and founders of our law, have pro- 
 vided that no possibility, right, title, nor thing in action, shall be 
 granted or assigned to strangers; for that would be the occasion of 
 multiplying of contentions and suits, of great oppression of the people, 
 and the subversion of the due and equal execution of justice! " * But 
 the court of equity refused to be bound by this common law prohibi- 
 tion, in many cases of assignments of the kind described, and particu- 
 larly in respect to the assignment of choses in action. While at 
 common law the choses in action and expectancies or possibilities could 
 not be assigned, the assignment of them in equity would, with a few 
 exceptions, be sustained, and the assignee be treated as the true owner 
 of the same, and his rights therein vigorously enforced. In the case 
 of the assignment of choses in action, the court of equity would ordi- 
 narily by injunction compel the assignor to enforce the chose in action 
 in the courts of law, and turn over to the assignee what he recovered 
 in the action at law.^ Under the influence of this equitable proceed- 
 ing, the courts of law gradually took notice of the rights of the 
 assignee, until they permitted the assignee to take active charge of the 
 actions at law for the enforcement of the claims which had been 
 assigned. Although they required that the actions should be brought 
 in the name of the assignor, they treated the assignee as the real party ^ 
 in interest, and at the same time prevented the assignor from doing 
 
 1 Lampet's Case, 10 Coke's Rep. 46 b, 48 a. 
 > Kow V. Dawson, 1 Ves. Sen. 331 j 2 Eq. Lead. 
 
 Cas.lBSl (4th Am. ed.); Wright v. Wright, 1 Ves. 
 Sen. 409, 411 ; Sq nib v. Wyn, 1 P. Wms. 378 ,381. 
 
 443 
 
§ 372 EQUITT JURISPRUDENCE. [CH. XXlt. 
 
 anyliiing to frustrate the assignee's prosecution of the claim. The 
 assignor would be held, as an implication from the assignment of 
 the chose vn action, to have authorized the assignee to use his name in 
 the prosecution of the claim.* Under the later statutory modifications 
 of the law of procedure, the necessity of suing in the name of the 
 assignor no longer exists; particularly in the states in which the 
 reformed procedure has been adopted. It is now provided that 
 "every action must be prosecuted in the name of the real party in 
 interest, except as otherwise provided in this statute." But this stat- 
 utory provision for actions at law by the assignee, did not in any way 
 affect the question, as to what things in action are assignable and what 
 are not; it simply provided for the removal of what had ultimately 
 become a mere technical objection to suits at law by the assignee of a 
 legal cause of action. Wherever the assignment of thing in action 
 remains impossible at law; whether becaue the assignment itself is 
 invalid, or because the thing in action is of an equitable nature, and 
 cannot therefore be recognized in a legal action; in such cases a court 
 of law cannot enforce the assignment, and as to such causes of action 
 the equitable jurisdiction still prevails. But in respect to assignment 
 of a legal thing in action, the legal remedy is ordinarily adequate and 
 a court of equity will refuse to assume jurisdiction of such suits.* 
 
 § 3T2. What things in action are not assignable? — There are two 
 subdivisions of this question. Under one subdivision will be found 
 distinctions in respect to the assignability and non-assignability of things 
 in action, on account of the peculiar character of the rights of action, 
 so far as the obligee is concerned. Thus, all actions, which are of so 
 personal a nature as that they will not pass to the personal representa- 
 tives of the party who could originally bring the action, cannot be 
 assigned. These actions would embrace all actions for damages to the 
 person or character of the individual, where the injury or damage 
 affected only one's body or feelings; as well as to actions ex contractUf 
 whether express or implied, the breach of which produces only direct 
 injury or damage to the feelings or body of the person seeking a 
 remedy, such as promises to marry, or injuries resulting from the 
 want of skill of a physician, and the like. In all these classes of cases, 
 the right of action will not survive the death of the party injured and 
 cannot be assigned by Jiim to another.' It has been held, generally, 
 that contracts which provide for the rendition of personal service, 
 
 1 Hammond v. Messenger, 9 Sim. 327j Keys 539; Rogers v. Traders' Ins. Co., 6 Id. 583; Adalt 
 
 V. Williams, 3 Y. & C. Ex. 462, 466, 467. v. Wincliester, 7 Gill & J. 114 ; Moseley v. Boush, 
 
 "Hammond v. Messenger, 9 Sim. 327, 332; 4 Rand. 392; Lenox «. Roberts, 2 Wheat. 373. 
 
 Rose V. Clarice, 1 Y. & C. Ch. 534; Keys v. Will- a Wade ». Kalbfleisch, 58 N. Y. 282; Smith ».. 
 
 iams, 3 Y. & C. Ex. 462, 466, 467; Ontario BJi. Sherman, 4 Gush. 408; Rice v. Stone, 1 Allen, 
 
 V. Mumford, S Barb. Ch. 596, 615, Walworth 566; Lattimore w. Simmons, 13 Serg. A R. 183, 
 
 Chan.;WaIker».Broolcs, 125 Mass. 241; see, also, 186; Zabriskie ». Smith, 13 N. T. 322, 333, /iw 
 
 Hager v. Buck, 44 Vt. 285, 290; Chicago, &o. Ry. Denio, J. ; Chamberlain v. Williamson, 2 M. & 
 
 V. Nichols, 57 111. 464; Carter v. United Ins. S. 408; Meech e. Stoner, 19 N. T. 26, 29, per 
 
 Co., 1 Johns. Ch. 463; Field v. Maghee, 5 Paige, Comstock, J. 
 
 444 
 
CH. XXn.J EQUITABLE ASSIGNMENT. § 372 
 
 involving or calling for the peculiar skill or knowledge of the contract- 
 ing party, cannot be assigned as long as they remain executOTy.^ 
 But this prohibition of assignments only obtains where the service is 
 necessarily personal, and involves the requirement of the special skiU 
 or knowledge of the particular contracting party. Where that is hot 
 the case, and the service can be performed by someone else, it has 
 then been held that the party obliged to perform the service may 
 assign his claim for compensation, even while his contract remains exec- 
 utory, subject of course to the implied provision that the contract is 
 subsequently performed, either by the assignor or assignee.^ But it 
 would not be possible at law to assign a contract or assign one's claim 
 for compensation in a service or contract which has not yet been made. * 
 And it must be fully borne in mind, in no action can a party assign his 
 contract where his own special skill and knowledge is contracted for, 
 where the purpose of the assignment is to substitute the assignee for 
 himself in the performance of the service; this can only be done with 
 the consent of the party who had contracted for the service.^ So, on 
 the other hand, where the services were of a nature personal to the 
 party who had contracted for them, it is impossible for such contract- 
 ing party to assign to another the claim for the service without the 
 consent of the party who had agreed to render them. His contract 
 was to render these services to that particular individual, and he alone 
 could enforce the performance or receive the benefit of them.' But 
 causes of action are assignable, where they are based upon rights of 
 property, instead of relating to per sonal'ser vice or to tort against the 
 person. Thus, causes of action, for fraudulent representation con- 
 cerning the value of certain property, may be assigned." In the 
 second subdivision of the subject are to be found classes of things in 
 action, whose assignment is forbidden by the law, and which are non- 
 assignable both at law and in equity on account of public policy. In 
 England the prohibition is universal, so far as it relates to the assign- 
 ment of official salaries for all kinds of public service. ' But, probably, 
 
 1 Devlin v. The Mayor, 63 N. T. 8; Wheeloek ' Mulhall v. Quinn, 1 Gray, 105, 107, ^e?- Shaw, 
 
 c. Lee, 64 /(i. 242; Hoyt o. Thompson, 5 /(i. 320, C. J.; Farnsworth u. Jackson, 32 Me. 419; 
 
 347; Halghtr. Hay t, 19 d. 464, 467; Byxble v. Jermyn v. Moffitt, 65 Pa. St. 399; Skipper v. 
 
 Wood, 24 Id. 607, 611 ; Graves v. Spier, 58 Barb. Stokes, 42 Ala. 255. 
 
 349, 386; Butler v. N. Y. & B. R. K., 22 Id. 110, i Lansden v. McCarty, 45 Mo. 106; Stevens v. 
 
 112; Bk. of California ». Collins, 5 Hun, 209; Benning, 6 De G. M. & G. 223; Flanders v. 
 
 Weire v. Davenport, 11 Iowa, 49, 52j Tyson v. Lamphear, 9 N. H. 201 ; Bethlehem v. Annis, 40 
 
 McGuineas, ^ Wis. 656. ja. 34, 40; Burger v. Rioe, 3 Ind. 125. 
 
 ^Wetmorei!. San Francisco, 44 Cal. 294; Phila- 6 Bethlehem «. Annis, 40 N. H. 34; Davenport 
 delphia». Lockhardt, 73 Pa. St. 211; Brackett v. ^ Gentry's Adm'r, 9 B. Mon. 427, 429. 
 Blake, 7 Met. 335; Hawley*. Bristol, 39 Conn. 6 Byxbie v. Wood, 24 Id. 607, 611; Bond v. 
 26; Field V. The Mayor, 6N. Y. 179; Devlin V g^jj^ ^ ^ 48 ^^^^^ ^_ Ludlow's Adm'r, 8 
 The Mayor 63 Id 8; Parsons r Woodward, 2 Beckham v. Drake, 8 M. & W. 
 Zabr. 196; St. Louisa Clemens, 42 Mo^69iCoch- Harrington, 
 ran®. Collms,29Cal. 129 Auguru.N.Y. Belting, i: ' „ .^ „ „ ... _, „ ^„„ t^j 
 &c Co., 39 Conn. 836; Taylor v. Lynch, 5 Gray, 51 N- H. 409; Conway v. Cutting, 51 Id. 407; Ed- 
 49- Hartley o. Tapley, 2 Id. 565; Wallace v. Hey- -"^ards v. Parkhurst, 21 Vt. 572; Rice v. Stone, 1 
 wood, &0. Co., 16 Id. 209; Emery ». Lawrence, 8 Allen, 566; Zabrisklet). Smith, 13 N. Y. 322, 333. 
 Cash.'l51; Tripp?;. Brownell, 12/<?. 376;Boylen iArbuthnotv.Norton,5Moo.P.C.219; Green- 
 V. Leonard, 2 Allen, 407; Garland v. Barring- field v. Dean of Windsor, 2 Beav. 544, 549; Tun- 
 ton 51 N. H. 409. stall V . Boothby , 10 Sim. 542 ; Cooper t>. Rlelly, 3 
 
 445 
 
§ 373 EQUITY JUEISPEUDENOE. [CH. XXH. 
 
 in America the prohibition is confined to those cases, where a statute 
 expressly prohibits the assignment of the salaries of the officials 
 named in the statute.' All assignments, which violate the law in 
 respect to champerty and maintenance, are void and will not be 
 enforced in equity, even though they may not constitute in a strict 
 sense of the term the criminal oflfense of champerty or maintenance.' 
 
 § 373. Assignments of mere possibilities and expectancies.^ 
 While the common law prohibition extends to all kinds of expectant 
 cies and possibilities, a court of equity has invariably recognized the 
 validity of such assignments, whether they relate to real or personal 
 property, provided they are based upon a valuable consideration.' 
 But in order to understand in this connection the line of distinction 
 between those assignments which will be valid at law and those which 
 will be valid only in equity, one must clearly distinguish between 
 merely contingent interests in property, and what are properly called 
 expectancies, or mere possibilities. Thus, for example, future estates 
 or interests in lands more or less definitely described and limited, 
 whether they be vested or contingent, would be sufficiently in existence 
 as to be capable of assignment. Thus, contingent remainders, execu- 
 tory devises, and other future and contingent interests in lands and in 
 personal property, are all capable of being assigned.* Where the 
 remainder-man is uncertain, no grant or devise can be made before 
 the happening of the contingency which will have any effect, either in 
 law or equity.^ This arose from the practical inability of a convey- 
 ance, when it is not ascertained who is the remainder-man. But if a 
 certain individual made a conveyance of the land by a warranty deed, 
 and he subsequently became the vested remainder-man, his deed would 
 certainly operate by way of an estoppel to bar him of any claim to 
 the remainder, as against his grantee.' Mr. Washburne states that 
 
 Id. 560; Collyer «. Fallon, T. & R. 459j Calisher Gas. 1530; Goring v. Biekeretaflf, 1 Ch. Gas. 4, 8; 
 
 i>. Forbes, L. E. Id. 7 Ch. 109; Addison v. Cox, Jewson v. Moulson, 3 Atk. 417, 481; Wright v. 
 
 L. K. 8 Ch. 76; Davis v. Duke of Marlborough, Wright, 1 Ves. Sen. 409, 411; Spragg v. Binkes, 
 
 1 Swanst. 79; Pridy v. Rose, 3 Meriv. 86, 102; 5 Ves. 583, 588; Stokes v. Holden, 1 Keen, 145, 
 
 McCarthys;. Goold, 1 Ball & B. 387; Stone®. 152, 153; Hobson ». Treyor, 2 P. Wms. 191. 
 
 Lidderdttle, 2 Anstr. 533. * 1 Prest. Est. 76; 2 Cruise Dig. 333; Pearne 
 
 1 Wanless«. U. S., eCt.of CI. 123; Batesc. TJ. Cont. Rem. 551; Robertson ». Wilson, 38 N. H. 
 
 S., 4 Id. 569; Burke ». U. S., 13 Id. 231; Spofford 48; Loring v. Eliot, 16 Gray, 674; Knight v. 
 
 V. Kirk, 70tto, 484; Billings«. O'Brien, 45 How. Paxton, 124 TJ. S. 552; Doe v. Oliver, 10 B. & C. 
 
 Pr.393;14Abb.Pr.,ii. B.,238;Heirsof Emerson 181; Roe ». Dawson, 3 Ld. Gas. Eq. 651; Roe». 
 
 V. Hall, 13 Pet. 409. Jones, 1 H. Bl. 33; Roe v. Griffiths, 1 W. Bl. 60& 
 
 2Reynell v. Sprye, 1 De G. M. & G 660; This matter Is now regulated by statute in New 
 
 Strange ». Brennan, 15 Sim. 346; Knight v. Jersey and other states. Wilkinson ». Sherman, 
 
 Bowyer,8 DeG.&J.421; Hilton ». Woods, L. 45 N. J. Eq. 413; Morses. Proper, 83 Ga. 13; Tay- 
 
 R. 4 Eq. 432; Dorwin v. Smith, 35 Vt. 69; Thurs- lor «. Stewart, 45 N. J. — ; Griffin v. Shepaid, 40 
 
 ton V. Peroival, 1 Pick. 415; Arden v. Patter- Hun, 355. 
 
 son, 5 Johns. Ch. 44; Thalimer «. Brinkerhoff, 6 g Washb. on Real Prop. 562. 
 
 20 Johns. 386; Slade J). Rhodes, 2 Dev. & Bat. « Walton v. Foliansgee, (111. '90) 23 N. E. 332; 
 
 Bq. 24; Coqulllard's Adm'ri;. Bearss, 21 Ind. Purefoy «. Rogers, 2 Wm. Saund. 388; Wright 
 
 479; Martin v. Veeder, 20 Wis. 466. v. Wright, 1 Ves. Sr. 409; Jones v. Roe, 3 T. R. 
 
 swindi!. Jekyl, 1 P. Wms. 572; Trevor's 88; Proprietors Brattle Sq. Church o. Grant, 3 
 
 Case, 2 P. Wms. 191 ; Lindsay v. Gibbs, 82 Beav. Gray, 161 ; Hall v. Chaffee, 14 N. H. S15; Edwards 
 
 522; Bennett®. Cooper, 9 Beav. 252; Warmstrey ■<>. Varwick, 5 Denio, 664; Stover v. Eycleshl- 
 
 V. Lady Tanfield, 1 Ch. Rep. 89; 3 Eq. Lead. mer, 46 Barb. 87; Den *. Manners, 1 Spence, 
 
 446 
 
CH. XXII.] EQUITABLE ASSIGNMENT; § 374 
 
 executory devises are alienable only when the devisee is an ascertaine4 
 person;^ and this seems to be the generally accepted doctrine. But, 
 as has been stated in respect to the ahenability of contingent remain- 
 ders, since the conveyance of a future contingent interest only operates 
 in equity by way of estoppel, if a grant of the executory devise, is 
 made by one who, although not yet ascertained to be the devisee, 
 becomes the devisee subsequently by the happening of the contingency 
 by which the devisee is to be ascertained, his grant would, by estoppel, 
 convey to his grantee the interest which he thus subsequently acquires. " 
 But where the thing assigned does not partake of the character of ^ 
 fixed interest, and the title to which is merely a possibility of acquir-^ 
 ing the estate to which there is at present not even a contingent right,, 
 then the common law does not permit of the assignment of it; 'and if 
 an attempt is made to so assign such a possibility, it will only be valid 
 in equity. Equity does not object to enforce such assignments, as 
 long as they are not assignments which are deemed to be against public 
 policy.* Thus, for example, an expectant heir may, during the life of 
 his ancestor, make an equitable assignment of his possible interest in 
 the estate of his ancestor.* So, also, has it been held that one may 
 make an equitable assignment of what one expects to take under the 
 will of another, who is still living.* But, on the other hand, it has 
 been held, that a court of equity will not enforce an assignment of the 
 expected proceedings of a fair, which is intended to be held in the 
 future. ° In these cases, a court of equity enforces the assignment 
 ■of the expectancy, whenever that expectancy is changed into a fixed 
 interest or possession; and until this change takes place, the assign- 
 ment is to be treated as an executory contract for an assignment. ' 
 
 § 374. Assignments of property to be acquired in the future. — 
 The rule in law. — ^For the same reason, there can be no actual sale, 
 i. e., an executed contract of sale, at law, where the thing sold does 
 not yet exist, or is not yet acquired by the vendor.* In most of the 
 
 143; Kean v. HofiPecker, 2 Harr. 103; Hall v. s Bennett v. Cooper, 9 Beav. 252; In reWii- 
 
 Eoblnson, 3 Jones Eq. 348. son's Estate, 2 Barr 325. 
 
 1 2 Washb. on Real Prop. 681. « Hurling ». Cabell, 9 W. Va. 522; and see 
 
 2 See Tiedeman Real Prop., §§ 727-730, incl. Skipper v. Stokes, 42 Ala. 255. 
 
 3 Varick ». Edwards, Hofif. Ch. 382; 11 Paige, ' In East Lewisburg, &o. Co. v. Marsh, 91 Pa. 
 ^89; 5 Denio, 664; McWilliams v. Nisly, 2 Serg, St. 96, 99, the court said: " Equity will support 
 &R. 507;Bayler». Comm.,40Pa. St. 37;Mimmo assignments of contingent interests and ex- 
 V. Dayis, 7 Tex. 26; Graham v. Henry, 17 Id. pectancies, things which have no present 
 164; Horst V. Dague, 34 Ohio St. 371; Patton v. actual existence, but rest In mere possibility, 
 Coe'n, &c. Co., 3 Col. 265; The Edward Lee, 3 not indeed as a present positive transfer oper- 
 Ben. 114; Sedam v. Cincinnati, Ac. Canal Co., atlng in prmsenti, for that can only be of a 
 3 Disney, 309; In re Irving, L. R. 7 Ch. D. 419; thing in esse, but as a present contract to take 
 Warmstrey v. Lady Tanfield, 1 Ch. Rep. 29; 2 effect and attach as soon as the thing comes m 
 Eq Lead. Oas. 1530, 1559, 1605 (4th Am. ed.); esse." 
 
 Wright V. Wright, 1 Ves. Sen. 409; Beckley v. « Reed v. Blades, 5 Taunt. 212, 223; Lunn V. 
 Wewland, 2P. Wms. 182. Thornton, 1 C. P. 379; Brown v. Bateman, L. 
 4Hobso'n'».Trevor, 2 P. Wms. 191; Stover ». E. 2 C. P. 272; Gettings ti. Nelson, 86 111. 591; 
 Eyoleshimer, 4 Abb. App. Dec. 309; 46 Barb. 84; Chesley d. Joselyn, 7 Gray, 489; Jones v. Rich- 
 McDonald V. McDonald, 5 Jones Eq. 211 ; Fitz- ardson, 10 Met. 481 ; Moody v. Wright, 13 Met. 
 gerald v. Vestal, 4 Sneed, 258; but see, contra, 17; Head v. Goodwin, 37 Me. 182; Emerson v. 
 JJeedles v Needles, 7 Ohio St. 432. European, &c. R. R. Co. , 67 Me. 387 ; Cressy v. 
 
 447 
 
§ 376 EQUITT JURISPKUDENCB. [OH. XXIL 
 
 cases, in which the question arises, there is a contest between the 
 vendee and some attaching creditor or mortgagee of the vendor. But, 
 although there are a few authorities which maintain that, as between 
 the parties, the sale is complete, and the title passes at law to the 
 vendee, as soon as the subject of the sale comes into being or is 
 acquired by the vendor, ' the better opinion is, that no title passes in 
 any such case, unless the executory contract of sale becomes executed 
 by the subsequent acquisition of the possession by the vendee, and 
 before the rights of third persons have intervened. In that case, the 
 title is good against third persons, as well as against the vendor him- 
 self.'' This is in conformity with the general rule, that the non- 
 existence of the thing does not affect the sale, as an executory contract, 
 and that the executory contract may be enforced as soon as the thing 
 sold comes into being or is acquired by the vendor.' But it has 
 been very generally held that where a thing is in potential existence, 
 as, for example, all the wool from a flock of sheep, or a growing crop, 
 a present sale with present transfer of title may be made of it, even as 
 to third persons, having claims against the vendor.* There are many 
 authorities which hold that the title can pass, even as to third persons, 
 especially where possession is taken before the rights of third persons 
 can intervene; and where the sale was made of a crop, before it was 
 even sown.^ So, also, it has been held that the sale of the unborn 
 young of animals is valid, although made before pregnancy.* 
 
 § 375. The rule in equity. — ^But in the court of equity, as long as 
 the thing may be identified by the description contained in the bill of 
 
 Sabre, 17 Hun, 120; Barnard v. Eaton, 2 Cush. Fisher, 34 Md. 551. Whether such contracts 
 
 295; Codman v. Freeman, 3 Cush. 30«j Chapin are void as wagers, see Tiedeman on Sales, 
 
 ti. Cram, 40 Me. 581 ; Gale v. Bumell, 7 Q. B. 850; §§ 301, 308. 
 
 Hope V. Hayley, 5 B. <fc B. 830; 25 L. J. Q. B. *14Viner's Abr., Tit. Grant, p. 50;Grantham. 
 
 15B; Carr v. AUatt, 27 L. J. Ex. 385; Congreve v. v. Hawley, Hob. 132; Itobinson v. Macdonnel, & 
 
 Evetts, 10 Ex. 898;!.. J. Ex. 273; Chidell v. Galls- M. & S. 828; Wood and Foster's Case, 1 Leon, 
 
 worthy, 6 C. B., N. s., 471; Noakes v. Nichol- 42; CottouB. WlUoughby, 83 N. C. To; Sanborn 
 
 son, 34 L. J. C. P. 273; 19 C. B., N. s., 290; Otis v. Benedict, 78; III. 309; Hansen v. Dennison, 7 
 
 ». liill, SBarb. 102; Gardner ». McEwen, 19 N. Bradw. 73; Stephens v. Tucker, 65 Ga. 543; 
 
 Y. 123; Mllliman v. Neber, 20 Barb. 37; Klce v. Wilkinson v. Ketler, 69 Ala. 435. See Tiede- 
 
 Stone, 1 Allen, 589; Williams v. Briggs, HE. I. man's Eeal Property, § 799, for a discussion of 
 
 476; Hunter «. Bosworth,43Wis. B83; Hamilton the question, whether the sale of a growing 
 
 V. Rogers, 8 Md. 301 ; Wright v. Bircher, 5 Mo. crop is the sale of real or personal property. 
 
 App. 327; see poet, § 230. See, also, Tiedeman on Sales, § 69. 
 
 1 Allen V. Goodnow, 71 Me. 420; Frazler v. 'Bawlings v. Hunt, 90 N. C. 270; Watkins V. 
 Hilliard, 2 Strobh. 309; Deering s. Cobb, 74 Me. Wyatt, 9 Baxt. 2,50; Conderman v. Smith, 41 
 334. Barb. 404; Heald v. Builders' Ins. Co., Ill Mass. 
 
 2 Cook V. Gorthell, 11 R. I. 482; Rowley v. 88; Arques v. Wasson, 51 Cal. 620; Moore «. 
 Rice, 11 Met. 833; Rowan v. Sharp's Rifle Co., Byram, 10 S. C. 452; Parker v. Jacobs, 14 S. C. 
 29Conu. 283; ChynowethB. Tenny,10Wis.397; 118; Hurst ». Bell, 72 Ala. 336 ; Van Hoozer ». 
 Chase v. Denny, 130 Mass. 566; Chapman v. Cory, 34 Barb. 9; Smith v. Atkins, 18 Vt. 481; 
 Weiner, 4 Ohio St. 481 ; Walker v. Vaughan, 33 Headrick v. Brattain, 63Ind. 438; but see, core- 
 Conn. 577. tra, Hutchinson v. Ford, 9 Bush, 318; Milliman 
 
 8 Stanton v. Small, 3 Sandf. 230; Casard v. v. Nahm, SO Barb. 38 (overruled) ; Comstook v. 
 
 Hinman, 1 Bosw. 807; Tyler v. Barrows, 6 Rob- Scales, 7 Wis. 159; Collier «. Faulk, 69 Ala. 68- 
 
 erts, 104; Clarke t>. Foss, 7 Biss. 541; Reed v. (overruled); Eedd ®. Burrus, 58 Ga. 574; Glt- 
 
 Blades, 5 Taunt. 812, 228; Lunn v. Thornton, 1 tings v. Nelson, 86 111. 591. 
 
 C. B. 379; Hibblewhite v. Morlne, 5 M. & W. "Hall v. Hall, 48 Conn. 2B0; Fonville «. Casey, 
 
 462; Mortimers. McCallan, 8 M. & W. 58; Phil- 1 Murphy, (N. C.) 389; McCarty v. Blevins, b. 
 
 lips ». Oomulgee Mills, 56 Ga. 633; Appleman v, Yerg. 195; Sawyer v. Gerrish, 70 Me. 254. 
 
 448 
 
CH. XXII.] EQUITABLE ASSIGNMENT. § 376 
 
 sale, the contract is valid, although the thing sold may not be even in 
 potential existence or in potential possession of the vendor. In equity, 
 the title will pass to the vendee, as soon as the property comes into exist- 
 ence or into the possession of the vendor.^ Examples of such assign- 
 ments in equity would be of a future cargo or freight of a vessel,^ or of 
 the subsequently acquired rolling-stock of a railroad, where such stock 
 is not held to be a fixture and, as such, a part of the realty; ' assign- 
 ments of future wages,* payments to become due on existing accounts,^ 
 assignments of future accounts and demands,^ and of future dividends 
 and profits in general.' 
 
 Since these contracts only operate as sales in equity, it is well under- 
 stood that they cannot prevail against third parties who have acquired 
 rights in the property, before the possession has been acquired by the 
 vendee, and without notice of the equitable sale. But in England, by 
 a late statute, the equity rule is now applied in law, as well as in equity.* 
 As already stated, in all such cases of equitable sales, the thing sold 
 must be capable of identification by the description of it in the contract 
 of sale." This question of the right of assignment of things not yet in 
 existence .or acquired, more frequently arises in connection with chattel 
 mortgages which are made to cover after-acquired goods, and in that 
 connection, also, the question is more fully discussed." 
 
 § 376. Requisites of an assignment of after-acquired property. 
 — The extent of tlie doctrine. — In order that an agreement will 
 operate as the equitable assignment of after-acquired property, it must 
 
 1 Holroyd v. Marshall, 10 H . L. C. 191 j Eeeve * Murphy v. Murphy, 121 Mass. 167 ; Sullivan 
 
 «. Whitmore, 4 De G. & J. & S. 1; 33 L. J. Oh. v. Sweeney, 111 Id. 366; Knowlton v. Cooley, 
 
 63;Boldmgo. Eeed, 3H. A. C. 955;34L. J. Ex. 102 /A 233; Harrop v. Landers, &c. Co., 45 
 
 212; Mitchell v. Winslow, S Story, 630; Pen- Conn. 561; Augur v. N. Y. Belting, Ac. Co., 
 
 nocku. Coe, 23 How. 117; Benjamin v. Elmira 39 Id. 536; Garland v. Harrington, 51 N. H. 
 
 E. E. Co., 49 Barb. 441; Phillips «;. Winslow, 18 409. 
 
 B. Mon. 431 ; Pierce v. Milwaukee E. E. Co., 24 ' Herbert v. Bronsou, 125 Mass. 475; Huling 
 
 Wis. 551; Smithurst v. Edmunds, 14 N. J. Eq. »• Cabell, 9 W. Va. 522; Jermyn v. Moffitt, 75 
 
 408; Williams v. Wlnsor, 12 E. I. 9; Apperson Pa. St. 399 Skipper v. Stokes, 42 Ala. 255; Euple 
 
 V Moore, 30 Ark. 56; Brett v. Carter, 2 Ubw. «■ Bindley, 91 Pa. St. 296; Clafin v. Kimball, 52 
 458; Morrill V. Noyes, 56 Me. 458; Philadelphia, Vt. 6; Schreyer v. Mayor of New York, 8 J. & 
 Ac. Co. V. Woelpper, 64 Pa. St. 366; Sillers v. S. 255; Hall v. Buffalo, 2 Abb. App. Deo. 301j 
 Lester, 48 Miss. 513; Barnard v. Norwich, &o. Hawley v. Bristol, 39 Conn. 26. 
 
 E E Co 4 CliflF. 351 ; McCaflfrey v. Woodin, 65 "East Lewisburg, &c. Co. v. Marsh, 91 Pa. St. 
 
 N Y 459; Butt v. EUett, 19 Wall. 544; but see, 96; Guthrie & Byles' Appeal, 92 Id. 269; Sedam 
 
 contra, Phelps -b. Murray, 2 Tenn. Ch. 746; v. Cincinnati, Ac. Canal Co., 2 Disney, 309; 
 
 Hunter o. Bosworth, 43 Wis. 583; Case V. Fish, but see Skipper o. Stokes, 42 Ala. 255, and 
 
 58 Wis 56 White «. Coleman, 130 Mass. 316. 
 
 sCurtis'j; Auber, 1 J. A W. 506, 512; In re 'Patten v. Coen, Ac. Co., 3 Col. 265; People 
 
 Ship Warre, 8 Price, 269, n. 273 h; Lindsay v. v. Dayton, 60 How. Pr. 143; The Edward Lee, 3 
 
 Gibbs, 22 Beav. 522; Douglas v. Eussell, 4 Sim. Ben. 114; McClure v. McDearmon, 26 Ark. 66; 
 
 524- IMy &K 488; Langtoni;. Horton, 1 Hare, Brown «. Tanner, L. E. 2 Eq. 806; 3 Ch. 697; In 
 
 549' Mitchell u. Winslow, 2 Story, 630; Leslie r« Irving, L. E. 7 Ch. D. 419; Swift r. Eailway, 
 
 V Guthrie, 1 Bing. ^N. C. 697, 708. &o. Ass'n, 96 ni. 309; Gwin v. Biel, 70 Ind. 505; 
 '3 pennock v. Coe, 23 How. (U. S.) 117; Phila., Horst v. Dague, 34 Ohio St. 371. 
 
 Ac. E. E. V. Woelpper, 64 Pa. St. 366; Morrill o. «See Lazarus v.. Audrade, 5 C. B. Div. 318. 
 
 Noyes, 56 Me. 458; Pierce v. Emery, 32 N. H. Leatham v. Amor, 47 L. J. Q. B. 581; 38 L. T 
 
 484- Farmers' Loan, Ac. Co. v. Hendrickson, 25 E. 785. 
 
 Barb. 4SA; Seymour*. Canandaigua, Ac. E. E., ^ In re Count De Epinevill, 20 Ch. Div. 758; 
 
 25 Id 284, 303; Phillips v. Winslow, 18 B. Mon. Pennington v. Jones, 57 Iowa, 37. 
 
 431 • Clay V. East Tenn., Ac. E. E., 6 Heisk. 421. " See post, §§ 465, 466. 
 
 449 
 
 29 
 
§ 377 EQUITY JUKISPEUDENCE. [CH. XXII. 
 
 be something more than an executory agreement to deliver such prop- ' 
 erty in the future, or to transfer to another the power of control over 
 such property; it must, in other words, be an attempt to assign to the 
 other whatever interest the assignor has therein, either present or 
 future, which is not now capable of assignment. Where, therefore, 
 as in the case of a chattel mortgage, the mortgage does not make a 
 direct assignment of the after-acquired property, but only gives to the 
 mortgagee the power to sell such after-acquired property in the 
 enforcement of the payment of the debt, the acquisition of the property 
 by the mortgagor does not, under the theory of an equitable assign- 
 ment, transfer to the mortgagee any fixed interest in such property; he 
 only acquires the power to sell the same. There is in such a case, 
 therefore, no equitable assignment of the title to the property. "^ Not 
 only will the provision for the assignment of property to be acquired 
 in the future vest in the assignee an equitable right to the thing itself, 
 but, also, where the property has been sold or exchanged by the 
 owner, the hen thus created by the equitable assignment will extend 
 to the resulting fund or the substituted goods.'' So, also, will the 
 doctrine of the equitable assignment of after-acquired goods be 
 enforced, not only against the assignor himself, but also against all 
 judgment creditors, assignees in bankruptcy and against subsequent 
 purchasers, who take with notice of the assignment so made.' 
 
 § 377. Rationale of the doctrine. — In the attempted assignment of 
 future possibilities and after-acquired property, the objection to the 
 recognition of those as valid at law is the inability of making a present 
 grant to a thing not in existence. It is required that the thing should 
 be in existence, or under the control of the assignor, in order that the 
 title to the thing might be assigned.* But in equity a different view is 
 entertained; and it is permitted of one to make an assignment of prop- 
 erty which is not in existence at the time or which is not yet acquired 
 by him, which will operate in equity. It is not, however, as a present 
 assignment of a present title that such an assignment will be recognized 
 in equity as valid; but rather as an executory agreement, which is to 
 
 1 Oudworth V. Scott, 41 N. H. 476s Walker v. 3 De G. F. & J. 596; and see Reeve v. Whitmore, 
 Vaughn, 33 Conn. 577j Eowan «. Sharps', Ac. 4 DeG. J. & S. 1; In re Ship Wane, 8 Price, 
 Co., 29 M 282 iHenshawc.Bk. of Bellows Palls, 269, n. 273; Mitchell v. Winslow, 2 Story, 630; 
 lOGray, 568, 571, 572; Reeve v. Whitmore, 4 De Seymour v. Canandaigua, &c. E. K., 25 Barb. 
 G. J. & S. 1, 16-18, ^er Lord Westbury; and see 284, 303; Phlla., &c. E. E. v. Woelpper, 64 Pa. 
 Gardner v. MoEwen, 19 N. T. 123; Head v. St. 366, 372; Baxter v. Bush. 29 Vt. 465, 469; 
 ■Goodwin, 37 Me. 181; Chapin v. Cram, 40 Id. Page v. Gardner, 20 Mo. 507; Smithurst ». Ed- 
 561; Eose V. Bevan 10 Md. 466; Chapman v. munds, 1 McCarter, 408; Williams v. Winsor, 
 Weimer, 4 Ohio St. 481; Oliver v. Eaton, 7 12 E. I. 9; Clay -u. East Tenn., Ac. R. R., 6 
 Mich. 108; Person v. Oberteuffer, 59 How. Pr. Heisk. 421. 
 
 339; Williams v. Winsor, 12 E. 1. 9. 4 Moody ii. Wright, 13 Met. 17, 32; Pettis v. 
 
 2 Abbott V. Goodwin, 20 Me. 408; Legard v. Kellogg, 7 Cush. 456; Calkins v. Lockwood, 16 
 Hodges, 1 Ves. 477; Collyer v. Fallon, T. & R. Conn. 276; Otis v. Sill, 8 Barb. lOS; Hamilton!). 
 469; Fletcher v. Morey, 2 Story, 55.% 566; and Eogers, 8 Md. 301 ; Chapman v. Weimer, 4 Ohio 
 ,see Davis v. Marx, 55 Miss. 376; Ball v. Vason, St. 481 ; Lunn v. Thornton, 1 0. B. 379; Gale V. 
 56 Ga. 264; Arnold v. Morris, 7 Daly, 498. Con- Burnell, 7 Q. B. 860; Mogg v. Baker, 3 M, & W. 
 iTO, Cowart ». Cowart, 3 Lea. 57. 195; Head i>. Goodwin, 37 Me. 181; Jones j>. 
 
 a Holroyd v. Marshall, 10 H. L. Cas. 191; s. u., Richardson, 10 Met. 481. 
 
 450 
 
OH. XXII.J EQUITABLE ASSIGNMENT. § 377 
 
 be enforced in the future whenever the thing, which is now only a pos- 
 sibility, becomes a fact. And, according to the majority of the authori- 
 ties, the enforcement' of an equitable assignment of the kind here 
 described differs very little, if at all, from a specific performance of an 
 executory contract — except that prior to the enforcement of such con- 
 tract a lien upon the after-acquired property is recognized in favor of 
 the assignee — so that the same principle might be considered as furnish- 
 ing the justification for the recognition in equity of the validity of these 
 assignments of possibilities and expectancies; and such is the ordinary 
 view which is adopted by the authorities in general.* But this dis- 
 tinction must be observed between ordinary causes of action for specific 
 performance of purely executory contracts and the enforcement of exec- 
 utory assignments of property to be acquired in the future or other 
 possibilities and expectancies, viz. : that in the latter class of cases the 
 assignment will be enforced in respect to property which would not 
 justify a court of equity in decreeing specific performances where the 
 contract was purely an executory contract of sale. In contracts for 
 the sale of personal property, specific performance will not be decreed, 
 unless, on account of the peculiar character of the property to be sold, 
 the common law action for damages will be inadequate.^ But where 
 there is an attempted assignment of such property, which is to be 
 acquired in the future, if the property to be acquired in the future is 
 at all specifically described, the assignment will be enforced; notwith- 
 standing the fact that an executory contract for the sale of the same 
 kinds of goods would not support a decree for specific performance. 
 The doctrine of an equitable assignment of property to be acquired in 
 the future may at times be the only effective remedy for the enforce- 
 ment of the claims of the assignee and the protection of his interests, 
 and the action at law for damages prove altogether inadequate; «. e., 
 where the assignor at the time is insolvent and the conflicting claims of 
 
 1 " It is quite true tliat a deed which professes this be so, then immediately on the acquisi- 
 
 to convey property wliich is not in existence at tion of the property described, the vendor or 
 
 the time, is as a conveyance void at law, mortgagee would hold it in trust for the pur- 
 
 simply because there is nothing to convey. chaser or mortgagee, according to the terms of 
 
 So in equity, a contract which engages to trans- the contract. For, if a contract be in other 
 
 fer property which is not in existence, cannot respects good and fit to be performed, and the 
 
 operate as an immediate alienation, merely oonsiderationhasbeenreoeived, incapacity to 
 
 because there is nothing to transfer. But if perform it at the time of its execution will be 
 
 the vendor or mortgagor agrees to sell or mort- no answer, when the means of doing so are 
 
 gage property, real or personal, of which he is afterwards obtained." Opinion of Lord West- 
 
 not possessed at the time, and he receives the bury, in Holroyd v. Marshall, 10 H. L. Cas. 191; 
 
 consideration for the contract, and afterwards In re Ship Warre, 8 Price, 269, n. S73j Mitchell 
 
 becomes possessed of property answering v. Wlnslow, 2 Story, 630; Seymour v. Canan- 
 
 the description in the contract, there is no daigua, &o. R. E. 25 Barb. 284, 303; Phila., <fcc. 
 
 doubt that a court of equity would compel him E. E. v. Woelpper, 64 Pa. St. 366, 372 ; Baxter v. 
 
 to perform the contract, and that the contract Bush, 29 Vt. 465, 469; Page v. Gardner, 20 Mo. 
 
 would in equity transfer the beneficial inter- 507; Smithurst v. Edmunds, 1 McCarter, 408; 
 
 est to themortgagee or purchaser Immediately Williams d. Winsor, 12 E. I. 9; Clay ®. East 
 
 on the property being acquired. This, of Tenn,, &c. E.R., 6Heisk.421; s. c, 2DeG. P. & 
 
 course, assumes that the supposed contract is J. 596 ; and see Eeeve v. Whitmore, 4 De G. J. & 
 
 one of that class of which the court of equity S. 1. 
 
 would decree the specific performance. If 2 See post, § 493. 
 
 451 
 
§ 378 EQUITY JUKISPKUDENCE, [OH. XXn. 
 
 creditors have to be reconciled. In consequence of the variance, as to 
 the grounds for equitable intervention, between ordinary actions for 
 specific performance and cases of equitable assignment of the possibili- 
 ties and expectancies, has led to a criticism of the comparison of such 
 assignments with the claims for specific performance. And Mr. Pome- 
 roy lays down the contrary proposition that the equitable assignment 
 can only find a satisfactory explanation in the theory of an assignment 
 of the present possibility which is subsequently to be converted into an 
 absolute property, whenever the property comes into existence, or i& 
 acquired. In truth, although a sale or mortgage of property to be 
 acquired in future, does not operate as an immediate alienation at law, 
 it operates as an equitable assignment of the present possibility, which 
 changes into an assignment of the equitable title as soon as the prop- 
 erty is acquired by the vendor or mortgagor; and because his owner- 
 ship thus transferred to the assignee is equitable and not legal, the 
 jurisdiction by which the assignment is enforced, and is turned into a 
 legal property accompanied by the possession, must be exclusively 
 equitable; a court of law has no jurisdiction to enforce a right which ia 
 purely equitable. This, in my opinion, is the only correct and suffi- 
 cient rationale of one of the most distinctively eqmtable doctrines in. 
 the whole scope of the equity jurisprudence.* 
 
 § 378. Eqnitable assignment of a fund by order or otherwise. — 
 General doctrine. — Apart from the common law prohibition of an 
 assignment of choses in action in general, another difficulty is rec- 
 ognized in conceding the character of an assignment to the order, 
 given by a creditor on his debtor, to pay the amount of his indebted- 
 ness to the third person. It is the difficulty of recognizing in equity 
 such an order as having the characteristics of an assignment; it ia 
 rather an objection as to form than as to contents. If, instead of 
 writing an order on the debtor to pay the amount of his indebtedness 
 to the third person, the creditor should give to these third persons a 
 formal transfer of his claim against his debtor, there would be no 
 question as to the validity of such a transfer of the claim in a court of 
 equity, and at present in a court of law. But, inasmuch as the cred- 
 itor simply orders the amount to be paid, instead of transferring his 
 claim against the debtor, in the transaction the ordinary words of 
 assignment are not employed, and it is doubtful on the face of the 
 transaction whether the parties intended to make a present transfer of 
 the claim against the debtor, or simply to provide for a settlement of 
 that debt by the payment of it to the third person designated in the 
 order. For that reason, such orders are not treated in law as having 
 the effect of an assignment; but inasmuch as equity looks rather at the 
 substance of a thing than at the form, and recognizes in the transaction 
 the general intent of the creditor, that the third person shall derive all 
 of the benefits accruing from the enforcement of the claim against the 
 
 1 Pomeroy Eq. Jur., Vol. 3, § 1888. 
 
 452 
 
en. XXII.] 
 
 EQUITABLE ASSIGNMENT. 
 
 § 378 
 
 debtor, that intent will be considered by a court of equity as being 
 the equivalent of the formal assignment of such a claim, and the third 
 person will be treated, after his acceptance of the order, as an assignee 
 of the debt; and, as such assignee, he could enforce the payment of it 
 to him after duly notifying the debtor of the assignment. The obli- 
 gation of the debtor to pay the sum of money to the third person 
 would not depend at all upon his agreement to honor the order; he 
 would be obliged to pay that sum of money to the payee of the order, 
 if he had not made payment of the same to his own creditor, before 
 receiving notice of the issue of the order. The general proposition, 
 as here laid down, is fully supported by the cases, as long as there is 
 an order for the whole of a particular fund.* There are, however, 
 certain requirements which seem to limit, as a general proposition, 
 the application to such an order of the doctrine of an equitable assign- 
 ment. In the first place, it is required that there should be a specific 
 sum of money, or fund, or debt, either existing or to become due in 
 the future, and which is specifically described in the order. ^ And 
 while at common law it is necessary, in order that the giving of an 
 order on a fund may operate as an assignment, that it should call for 
 the payment of the whole of the fund; ' yet, where it is strictly a 
 question of equitable assignment, an order will be a valid assignment, 
 although it only calls for the payment of a part of the designated 
 amount.* 
 
 1 " There can be no doubt as to the rule that 
 "When, for a valuable consideration from the 
 payee, an order is drawn upon a third party 
 and made payable out of a particular fund, 
 then due or to become due from him to the 
 drawer, the delivery of the order to the payee 
 operates as an assignment pro tanto of the 
 fund, and the drawee is bound, after notice of 
 such assignment, to apply the fund as It ac- 
 crues to the pa3rment of the order and to no 
 other purpose ; and the payee may, by action, 
 compel such application." Opinion of Eapallo, 
 judge in the case of Brill v. Tuttle, 81 N. Y. 
 454, 467; see, also, Row v. Dawson, 1 Ves. Sen. 
 331; 2 Eq. Lead. Gas. 1531, 1563-1565, 1641-1660 
 (4th Am. ed.) ; Wheatley ». Strobe, 12. Cal. 92, 98 ; 
 Spain V. Hamilton, 1 Wall. 604; Tiernan v. Jack- 
 son, 5 Pet. 580, 598; MandeviUe v. Welch, 5 
 Wheat. 277, 286; and see, also, Papineau V. 
 Naumkeag, <fec. Co., 136 Mass. 372; Patten v. 
 Wilson, 31 Pa. St. 299; Nesmith v. Drum, 8 
 Watts & S. 9; Gibson v. Finley, 4 Md. Ch. 75; 
 U. S. Bk. V. Huth, 4 B. Men. 423 ; Newby u. Hill, 
 2 Met. (Ky.) 530; McWilliams v. Webb, 33 Iowa, 
 577; Walker v. Mauro, 18 Mo. 564; Phillips v. 
 Stagg, 2 Edw. Ch. 108; Superintendent, &c. v. 
 Heath, 2 McCarter, 32; Caldwell v. Hartupee, 70 
 Pa. St. 74; Lightner's Appeal, 82 Id. (1 Norris) 
 301; Chase v. Petroleum Bk., 66 Id. 169; McLel- 
 lan V. Walker, 26 Me. 114; Legro ». Staples, 16 
 Id. 252; Robbins v. Bacon, 3 Id. 346; Conway ». 
 Cutting, 51 N. H. 40T, Blin v. Pierce, 20 Vt. 25; 
 Cutis J). Perkins, 12 Mass. 206; Lowery -o. Stew- 
 
 ard 25 N. Y. 339; Lewis V. Berry, 64 Barb. 593; 
 Hall V. Buffalo, 2 Abb. App. Dec. 301; Clark v. 
 Mauran, 3 Paige, 373; Richardson v. Rust, 9 Id, 
 243; Morton v. Naylor, 1 Hill, 583; Luff v. Pope, 
 5 Id. 413; Kingman i>. Perkins, 105 Mass 111; 
 Taylor ». Lynch, 5 Gray, 49; Ehrichs v, De Mill, 
 75 N. Y. 370; Risley v. Smith, 64/(«. 576; Munger 
 «. Shannon, 61 Id. 251 ; Alger v. Scott, 64 Id. 14; 
 Parker II. Syracuse, 31 Id. 376; Hydraulic, &c. 
 Co. V. Saville. 1 Mo. App. 96; Farmers, iStc. Bk. 
 ». Kansas, Ac. Co., 3 Dillon, 287; Belden v. 
 Meeker, 47 N. Y. 307; Danklessen«. Braynard, 
 
 3 Daly, 183; Clafin v. Kimball, 52 Vt. 6; Adams 
 V. Willimantic, &c. Co. , 30 N. J. Eq. 171 ; White- 
 head V. Pitzpatrick, 58 Ga. 348; Kahnweilera. 
 Anderson, 78 N. C. 133. 
 
 ^ Ex parte Carruthers, 3 De G. & Sm. 570; 
 Malcolms. Scott, 3 Hare, 39; Kelley ». Mayor, 
 &c., 4Hill, 263; Brill v. Tuttle, 81 N. Y. 464, 457; 
 Shaver i>. West. U. Tel. Co., 57 N. Y. 459, 464; 
 Lowery v. Steward, Parker v. Syracuse, Alger 
 V. Scott, and Ehrichs v. DeMi'l, cited in the 
 previous note. See, also, Hutter ». Ellwanger, 
 
 4 Lans. 8; Lunt v. Bk. of North America, 49 
 Barb. 231. 
 
 3 Mandevllle v. Welch, 5 Wheat. 277, 286; 
 Palmer v. Merrill, 6 Cuah. 382, 287, per Shaw, C. 
 J.; Buliard». Randall, 1 Gray, 605; Buck V. 
 Swazey, 35 Me. 41 ; Hopkins v. Beebe, 86 Pa. St. 
 85, 88; Moore v. Gravelot, 3 111. App. 442; Bur- 
 nett V. Crandall, 63 Mo. 410; Lindsay V. Price, 
 33 Tex. 280. 
 
 < Superintendent, Ac, v. Heath, 2 McCarter' 
 
 453 
 
§ 379 EQUITY JUEI8PKUDENCE. [CH. XXH. 
 
 Another requirement of the theory of an assignment is, that 
 the assignee must be notified and such order must be accepted by 
 him expressly or by implicatijn, in order that he may claim the 
 absolute rights of an assignee; until such notice is given and the 
 assignment assented to by the assignee, the order could be revoked.^ 
 Therefore, a secret communication to one's debtor to pay the amount 
 of money owing, or any part of it, will not operate as an assignment, 
 and can be withdrawn or revoked any time before the instructions 
 have been complied with.^ As long as the fund is sufficiently described 
 in the order, the fact that it is not yet in existence will not interfere 
 with the application to the case of the doctrine of equitable assign- 
 ment.' This general proposition finds a special application in the case 
 of bills of exchange and checks; and in respect to them, a special dis- 
 cussion will follow in the succeeding paragraphs. 
 
 § 379. The effect of a Mil of exchange. — It is the common 
 understanding, and usually it is the fact, that when one person draws 
 a bill of exchange upon another in favor of a third party, the drawee 
 has funds belonging to the drawer, or he is indebted to the drawer, 
 in amount sufficient to cover the sum of money called for by the bill. 
 The bill is received by the payee in reliance upon the supposed fact, 
 although it is not necessary to the validity of the bill and the obliga- 
 tion of the drawee, if the drawee has accepted it. When the drawee has 
 accepted unconditionally, his obligation to pay is absolute and not at 
 all dependent upon the possession of funds belonging to the drawer. 
 But cases may and often do arise, in consequence of the insolvency of 
 the drawer or drawee, or of both, the only available remedy for the 
 payee or holder of the bill is to seize hold of the funds or debt, 
 against which the bill was supposed to have been drawn, and secure 
 its appropriation to the satisfaction of the bill. But in order that this 
 end may be attained, it is necessary to show that a bill of exchange 
 operates as an assignment j?ro tamto of the fund or debt against which 
 it was drawn. Until very lately modified by statute, it has been 
 the invariable common law rule that no chose in action may be 
 
 22jRisleyti.PhoenixBk.,llHun,484;Etheridge White v. Coleman, 127 Mass. 34; MoEweu 0. 
 
 j;. Vernoy, 74 N. C. 800; Lapping v. Duffy, 47 Brewster, 17 Hun, 223. 
 
 Ind. 51; Gardner v. Smith, 5 Heisk. 256; Raines ' Exparte Shellard, L. E. 17 Eq. 109; Tooth v. 
 
 V. V. S., 11 Ct. of 01. 648; Watson v. Duke of Hallett, L. B. 4 Ch. 242; Papineau v. Naum- 
 
 Welllngton, 1 Buss. <feM. 602, 605; Lett ». Mor- keag, &o. Co., 126 Mass. 372; Llghtbody ». 
 
 Tis, 4 Sim. 607; Smith v. Everett, 4 Bro. Ch. 64; Smith, 125 Id. 51 ; White*. Coleman, 130 Id. 316; 
 
 Morton v. Naylor, 1 Hill, 583; Grain v. Aldrioh, Adams v. Willimantic, &0. Co., 46 Conn. 320; 
 
 38Cal. 514 Hutter v. EUwanger, 4 Lans. 9; Sohreyer e. 
 
 1 Garrard ». Lord Lauderdale, 2 Euss. & M. Mayor, 8 J. & S. 255; Dickinson «. Marrow, 14 
 451; Morrell v. Wootten, 16 Beav. 197; Glegg v. M. & W. 715; Brill v. Tuttle, 15 Hun, 289; s. c, 
 Eees, L. B. 7 Ch. 71 ; Scott v. Porcher, 3 Meriv. 81 N. T. 454, 457; Garland v. Harrington, 51 N. 
 653; Wallwyn v. Coutts, 3 Id. 707, 708; 3 Sim. 14; H. 409; Tripp v. Brownell, 12 Cush. 376; Taylor 
 Acton ». Woodgate, 2 My. &, K. 492. v. Lynch, 5 Gray, 49: Maeomber v. Doane, 2 
 
 2 Bum V. Carvalho, 7 Sim. 109; 4 My. & Cr. Allen, 641; St. Johns v. Charles, 105 Mass. 262; 
 690;Carvalho».Burn,4B.& Adol.383;l A.&E. Augur «. N. Y. Belting, &c. Co., 39 Conn. 536; 
 883; Malcolms. Scott, 3 Macn. &G. 29; Mxparte Hawleyi). Bristol, 39 Id. 26; Harropu. Landers, 
 Shellard, L. E. 17 Eq. 109; Tooth v. Hallett, L. &e. Co., 45 Id. .561 ; Buple v. Bindley, 91 Pa. St. 
 E. 4 Ch. S42; Exparte Hall, L. B. 10 Ch. D. 515; 296; Brooks ». Hatch, 6 Leigh, 534. 
 
 454 
 
CH. XXII.] EQUITABLE ASSIGNMENT. § 380 
 
 assigned, it being supposed to be contrary to public policy to permit 
 such assignments. ^ And this rule has in form been strictly enforced in 
 all courts of law, wherever it has not been repealed by statute, up to 
 the present day. But courts of equity have for a long time disre- 
 garded the rule in its application to cases over which they could 
 acquire jurisdiction, recognized the right of the assignee of a chose m, 
 action to sue on it in his own name, whenever the action could be 
 maintained in an equity court, and compel the assignor by injunction 
 to permit the assignee to bring in the former's name whatever suit at 
 law may be necessary for the attainment of his rights. In conse- 
 quence of this common law prohibition, which still prevails wherever 
 it has not been changed by statute,^ it would be impossible to show that 
 the bill of exchange operated as a legal assignment of the indebtedness, 
 against which it was drawn.' The most that can be claimed for it, in 
 those states in which the common law rule has not been abrogated, is 
 that it is an equitable assignment of. the fund or debt. 
 
 § 380. Bill of exchange for a part of fund. — All the cases agree 
 in stating that a bill of exchange, drawn for the part of a debt due to 
 the drawer by the drawee, vrill not operate as an equitable assignment 
 fro tanto of that debt, at least as against the drawee, unless he has 
 accepted; the principal reason for the conclusion being, that a different 
 rule would enable a creditor to harass and increase the burden upon 
 the debtor, by splitting up one indebtedness into many distinct debts, 
 with independent rights of action; and this the law does not permit, 
 except with the consent of the debtor. By accepting the bill of 
 exchange for a part of the debt, the drawee gives his assent to this 
 increase of the burden.* But if this be the only objection to the con- 
 struction that an unaccepted bill of exchange for a part of the debt or 
 fund operates as an equitable assignment j!?ro tcmto, the objection only 
 holds good in favor of, and as against, the drawee; and if the entire 
 debt or fund is brought into court in an equitable proceeding, to 
 
 1 See ante, % 371. decline any legal or equitable assignments to 
 
 2 See ante, % 371. which it may be broken into fragments. When 
 ' " It is clearly settled that no action at law he undertakes to pay an integral sum to his 
 
 will lie in favor of the holder of a bill of ex- creditors, it is no part of his contract that he 
 change against the drawer, unless he accepts shall be obliged to pay in fragments to any 
 the bill." Euggles, J., In Harris v. Clark, 3 other persons. So that, if the plaintiff could 
 Comst. 117. "There is no such privity be- show a partial assignment to the extent of the 
 tween him (the drawee) and the holder as can bills, it would not avail him in support of the 
 entitle the latter to maintain an action against present suit." Story, J., in MandevlUe v. 
 him." Duer, J., in N. Y. & Va. State Bk. v. Welch, 5 Wheat. 277; see, to same eflfect, Harris 
 Gibson, 5 Duer, 574; see, also, Tiernan ». Jack- V. Comstock, 3 N. Y. 115, 116; Robins v. Bacon, 
 son, 5 Pet. 580; Yates v. Bell, 3 B. & Aid. 643; 3 Greenleaf, 346; Gibson v. Cooke, 20 Pick. 15; 
 Williams v. Everett, 14 East, 582. Cowperthwaite v. Sheffield, 1 Saudf. 416; Glb- 
 4 "The reason of the principle is plain. A son ». Finley, 5 Md. Ch. 75; Hopkins 1). Beebe, 
 creditor shall not be permitted to split up a 2 Casey, 85; Poydras v. Delamere, 13 La. (0. S. 
 single cause of action into many actions, with- 1838) 98; Weinstook v. Bellwood, 12 Bush, 139; 
 out the consent of his debtor, since It may Christmas v. Russell, 14 Wall. 84; Noe v. Chris- 
 subject him to many embarrassments and re- tie, 51 N. Y. 273; Shavers. West. U. Tel. Co., 57 
 sponsibilities not contemplated in his original N. Y. 461; Atty.-Gen. ». Continental Life Ins. 
 contract. He has a right to stand upon the Co., 71 N. Y. 325; Bull v. Tuttle, 81 N. Y. 457;. 
 singleness of his original contract, and to Chase o. Alexander, 6 Mo. App. 506. 
 
 455 
 
§ 381 
 
 EQUITY JURISPRUDENCE. 
 
 [cH. xxn. 
 
 which all persons interested have been made parties, there can be no 
 reason why the bill should not be declared to be an equitable assign- 
 ment ^o tomto of the fund or debt, as against the drawer and his 
 privies.^ 
 
 § 381 .Bill of exchange for whole of fond. — So, also, if there be 
 no other objection to the assignment theory, it must be concluded, 
 that an unaccepted bill of exchange for the whole of the fund or debt, 
 makes an equitable assignment of the fund or debt, not only against 
 the drawer, but also as against the drawee, and such is the conclusion 
 of many of the courts." But there are very many cases to the con- 
 trary. Some of them rest their objection to the theory on the ground 
 that the bill of exchange does not necessarily contemplate the assign- 
 ment of the drawer's claim against the drawee, although the acceptance 
 and payment of the bill by the drawee will extinguish his indebted- 
 ness to the drawer.'' But it is conceded that a bill of exchange may 
 
 1 Mr. Daniel says that Buoh a bill or order 
 "for a part of a fund does not operate as an 
 equitable assignment jjro tanto as between the 
 drawer and payee, because obviously so in- 
 tended. But as between drawer and payee on 
 the one side, and the drawee on the other, it 
 creates no obligation on the latter to pay it, as 
 he has a right to insist on an integral dis- 
 charge of his debt. And if the creditor give a 
 subsequent order for the whole amount, he 
 may pay it with impunity, as he thus discharges 
 his whole debt in its entirety at once. But if 
 the payee or indorsee goes into equity,' or the 
 parties are brought therein by any proceeding, 
 so that all of them are before the court, the 
 holder of the order may enforce it as an 
 equitable assignment against all subsequent 
 Claimants, whether by assignment from the 
 drawer, or by legal process served upon the 
 drawee." 1 Daniel Negot. Inst. 86; see, to 
 same effect. Story Eq. Jur., § 1044; 3 Lead. Cas. 
 in Equity, 356; Field v. Mayor of N. Y. 2 Seld. 
 179; Poydras ». Delamere, 13 La. 98. 
 
 2 " It seems to be equally well settled that a 
 draft by the creditor on his debtor in the form 
 of a bill of exchange for the amount of the 
 debt, or the whole fund in his hands, is a good 
 and valid assignment of the debt or fund." 
 Dewey, J., in Gibson v. Cooke, SO Pick. 15. " If 
 the drawee refuses to accept and pay the bill, 
 therightof theholderto the debt once assigned 
 to him is not thereby impaired; although 
 he may not be entitled to recover the same in 
 his own name, for the want of a promise to 
 pay. But he may sue the drawer, or the 
 drawee in the name of the drawer, for the debt 
 originally due, in consequence of the implied 
 contract of the assignor of a cAos« m acMoa that 
 the debtor shall pay, and on failure, that the 
 assignor will. The bill being retained after 
 protest, by the assignee, is evidence that the 
 amount has not been paid by the drawer or by 
 any of the indorsers. I see no possible mis- 
 chief which can result from this doctrine. 
 
 456 
 
 Forif afterpayment refused and protest made, 
 the drawee should pay over the funds in his 
 hands to the drawer or to his order, without 
 notice from the first assignee, that he should 
 retain the bill, and look to him for the amount, 
 so far as he was bound to pay; this would be a 
 good defense against a suit brought in the 
 name of the drawer." Washington, J., In 
 Corser o. Craig, 1 Wash. C. C. 426, in which suit 
 was brought against the drawee by the payee 
 and drawer, for the benefit of the indorsee. In 
 Wheatley v. Strobe, 12 Cal. 9?, the right of the 
 holder of a bill to the fund, against which the 
 bill was drawn, was asserted and recognized as 
 against the attaching creditors of the drawer. 
 Field, J., said: " The want of a written ac- 
 ceptance does not affect the right of Howell 
 (the holder) to the money due, but only the 
 mode of enforcing it. With the acceptance he 
 could have sustained an action upon the order; 
 without it he must recover upon the original 
 demand by force of the assignment. Under 
 the old c <mmon law practice, the action could 
 only be maintained in the name of the as- 
 signor for the benefit of the assignee, but under 
 our system it may be brought in the name of 
 the assignee as the party beneficially Inter- 
 ested. Courts of law, equally with courts of 
 equity gave effect to the assignments like the 
 one under consideration, by controlling the 
 proceeds of the judgment recovered for the 
 benefit of the assignee . " See, also, Roberts v. 
 Austin, 26 Iowa, 315; Robins v. Bacon, 3 Green- 
 leaf, 349; Kahnweiler ii. Anderson, 78 N. C. 137. 
 *" It is certainly new to me to hear that a 
 bill of exchange in an ordinary mercantile 
 transaction, in the shape in which this ap- 
 pears, can amount to an equitable assignment 
 of the debt. The note might have been in- 
 dorsed by any individual, or to any number of 
 people, who might have indorsed it in succes- 
 sion. A mercantile instrument it is in Its 
 original, and in that shape it remains and has 
 no other validity or effect; and to call it an 
 
CH. XXII. J EQUITABLE ASSIGNMENT. § 381 
 
 bo received as evidence of an intention to make an assisnment, and it 
 will be permitted to operate as such, if the intention is clearly proven.* 
 It has been said that "a proper bill of exchange does not of itself 
 operate as an assignment to the payee of funds of the drawer, in the 
 hands of the drawee, and even after an unconditional acceptance, it 
 cannot in strictness be held to have that effect, since the drawee 
 becomes bound by reason of the contract of acceptance, irrespective of 
 the funds on his hands. "^ But the courts, and law writers generally, 
 maintain that the bill of exchange does operate as an assignment of 
 the fund, as soon as it is accepted by the drawee." 
 
 There is some historical authority for the position that the parties to 
 the bill of exchange do not contemplate an assignment of the fund or 
 debt, against which the bill is drawn, in the fact that for many years, 
 after the legal recognition of bills of exchange, assignments of choses 
 in action were illegal in equity, as well as in law. There can be no 
 doubt that at that time the bill must have been considered inchoate 
 until it was accepted, and when accepted it partook of the character of 
 a novation. The drawee was released pro tcmto of his indebtedness to 
 the drawer upon his acceptance of the bill, which obligated him to 
 pay a like sum to the holder of the bill. In some respects, an accepted 
 bill of exchange is a novation, a mercantile transaction that was ancient 
 when bills of exchange first came into use. The new and neces- 
 sary additional characteristics of the bill were its assignability and 
 negotiability. In all innovations upon existing rules of law, the con- 
 servatism of jurisprudence compels a conformity of the new rule to 
 the established rules, as nearly as this is possible. It is therefore 
 unreasonable to claim that originally bills of exchange could have been 
 looked upon as equitable assignments of the fund or debt against 
 which they were drawn. And it is, without doubt, the influence of 
 the common law rule against the assignment of choses in action, which 
 more than anything else militates against the present application of 
 the theory of assignment to accepted bills of exchange drawn from the 
 whole of the fund or debt, although that rule has been very generally 
 repealed by statute or nullified by the rules of equity.* But this his- 
 torical reason does not furnish any substantial objection to the theory 
 
 assignment of a debt would be to call it not Mon. 754 j First Nat. Bk. v. Dubuque S. E. R., 
 
 byits right name." Bacon, V. C, in Sband «. 52 Iowa, 378 (35 Am. Rep. 281); Lambert v. 
 
 De Buisson, L. R. 18 Bq. 883; see, to same ef- Jones, 3 Patton <& H. 144; 8 Parsons' N. & B. 
 
 feet. Bank of Commerce v. Bogy, 44 Mo. 17; 330, 381; Story on Bills, § 13. 
 
 First N. B. V. Dubuque S. R. R. Co., 52 Iowa, * In Johnson v. Collins, 1 East, 104, which 
 
 378 (35 Am. Rep. 281) ; Harrison v. Williamson, was an action brought by the indorsee of a bill 
 
 a Edw. Ch. 438. of exchange drawn on the promise of a debtor 
 
 'First Nat. Bk. •». Dubuque S. R. R., 52 Iowa, to accept It, Kenyon, J., said: "If we were to 
 
 378 (35 Am. Eep. 281); Bank of Commerce v. suffer the plaintiff to recover on the general 
 
 Bogy, 44 Mo. 17. counts, we must say that a chose in action is as 
 
 2 Hurlbut, J., in Cowperthwaite ». Shefaeld, signable— a doctrine to which I never will sub- 
 
 3 Comst. 243; see, also, Marine & Fire Ins. Bk. scribe. " In the same case. Gross, J., said that 
 
 11. Jauncey, 3 Sandf. 258; Wheeler v. Stone, 4 "to permit the plaintiff to recover, would yir- 
 
 Ql]l^ 47, tually be making all choses in action assign- 
 
 «Mandeville v. Welch, 5 Wheat. 277; Harris able." 
 V. Clark, 3 Const. 243; Buckuer v. Sayre, 17 B. 
 
 45r 
 
§ 382 EQUITY JURISPRUDENCE. [CH. XXH. 
 
 at the present time. Since the common law rule which constituted 
 the obstacle to its adoption has been abrogated, the manifest value of 
 the theory, in protecting the just rights of the payee or holder of the 
 bill, is a sufficient justification for its adoption by the courts. 
 
 § 382. The right of check-holder to sue the bank. — ^It has just 
 been explained* why the holder of an unaccepted bill of exchange can- 
 not sue the drawee for his refusal to honor the bill. It was there 
 explained " that there is but one way to establish privity between the 
 payee or holder and the drawee of an unaccepted bill, and that was on 
 the theory that the bill operated as an assignment pro tamto of the 
 fund against which it was drawn. This was shown to be inapplicable 
 to bills of exchange, which were drawn for a part of the fund,^ because 
 creditors are prohibited from splitting up a single indebtedness into 
 many, without the consent of the debtor; and even where the bill was 
 drawn for the whole of the fund, the further objection was to be met, 
 that because it was not drawn against a particular fund there was not 
 in the biU a sufficient description of the fund, to enable the bill to oper- 
 ate as an assignment.* 
 
 In this place, we raise the question whether a cheek-holder can sue 
 the bank, before it has certified the check or agreed to pay it; or, in 
 other words, does the check operate as an assignment fro tcmto of the 
 fund or deposit, against which it was drawn. And we ascertain from 
 a discussion of the same question, in reference to unaccepted bills of 
 exchange, that two things must be shown, in order to establish the 
 doctrine that the check operates as an assignment as against the bank, 
 on which it is drawn, viz. : First, that the bank or banker on whom the 
 check is drawn had consented to the drawer's division of his one debt, 
 in the shape of a deposit, into as many checks as the depositor is pleased 
 to draw; and, secondly, that there was a sufficient description of the 
 fund to enable an identification of the thing assigned. 
 
 The first proposition is very easily established. When the deposit 
 is made at a bank, the bank impliedly promises to honor any and all 
 checks which the depositor might draw against the deposit, and for any 
 amount as long as the deposit has not been exhausted; and even those 
 cases, which deny that the check operates as an assignment, so as to 
 enable the holder to sue the bank, admit that the bank has broken its 
 contract with the drawer, in not honoring the cheek, and is liable in 
 damages to the drawer for its breach.' 
 
 iSee ante, §§ 37S-38I. E. b. & Eq. 5S3; Chapman v. White, 2 Seld. 412; 
 
 2 See § 379. Planters' Bank v. Merrit, 7 Heisk. 117; Plant- 
 
 3 See ante, % 380. ers' Bank v. Kesse, 7 Heisk. 200, BuUard v. 
 <See ante, § 281. Eandall, 1 Gray, 605; Puroell v. Allemong, 22 
 5 Bank of the Eepublic v. Millard, 10 Wall. Gratt. 742; Case v. Henderson, 23 La. Ann. 49, 
 
 152; Carr v. Nat. Security Bank, 107 Mass. 45; overruling Van Bibber v. La. Bank, 14 La. 
 
 ..Etna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. Ann. 481; Rosenthal v. Martin Bank, TJ. S. C. C. 
 
 82; Tyler v. Gonld, 48 N. Y. 682; Van Alen v. (1879) 34 Am. Rep. 238; Dickinson v. Coates, 79 
 
 Am. Nat. Bank, 69 Ind 579; Essex Bank v. Mo. 250; Merchants' Nat. Bank v. Coates, 79 
 
 Bankof Montreal, 7 Biss. 193, Moses «. Frank- Mo. 258 (overruling Senter v. Continental 
 
 linBank,34Md 580; Bellamy i>. Majoribanks, 8 Bank, 7 Mo. App. 532; McGrade v. German. 
 
 458 
 
CH. XXII. J EQUITABLE ASSIGNMENT. § 382 
 
 The bank, therefore, has consented to the drawing of the checks in 
 any amount; and since the checks are to be made payable to whomso- 
 ever the drawer selects, it is not a wide stretch of legal principles to 
 claim that, if the check can operate as an assignment^)? ta/nto of the 
 deposit, as to any person or for any purpose, this obligation to honor 
 the check will pass to the check -holder as an incident of the assignment. 
 The drawer's interest in the deposit is a chose in action against the 
 bank, coupled with the right to divide it up into as many choses in 
 action as may suit him best, that interest pro tanto would pass into 
 the hands of the check-holder, and invest him with the right of action 
 against the bank to enforce payment, if there are funds in its posses- 
 sion and under its control, at the time of presentment and demand. 
 An indorsement on the check by the payee, to pay to the holder of 
 another, works an assignment of the payee's interest in the check. 
 If such an indorsement assigns the indorser's interest in the check, 
 what reasons can be urged why the check does not assign the drawer's 
 interest j?ro tanto in the deposit of the payee? When a depositor 
 draws a check on the bank, it is evidently his intention to transfer to 
 the check-holder his interest in the deposit to the amount of the check. 
 The words which are generally employed, "pay to the order of," 
 " pay to the bearer," are sufficient to manifest that intention. More- 
 over, it is unquestionably the general understanding of the business 
 world that such is the effect of the check, whatever opinion may pre- 
 vail in respect to the right of the holder to sue the bank. 
 
 The most serious objection which has been raised to the assignment 
 theory, is that to constitute an equitable assignment of money, by 
 means of an order, the order must direct.the payment out of a particu- 
 lar fund and not generally out of any to be received.^ 
 
 In equity an assignment will be valid, whenever the thing assigned 
 is so described as that it can be identified. It matters not whether it 
 be in existence at the time of assignment, or it is only a future possi- 
 bility or expectancy." So, whether the funds drawn against be in 
 possession of the bank at the time that the check is issued, or they are 
 to be received subsequently, the fact that the check is drawn against a 
 
 SaT. Inst., i Mo. App. 330; Zelle it. German Sav. Harrison v. WilliamBon, 8 Edw. Ch. 530; Chap- 
 Inst., 4 Mo. App. 401) ; Mayer v. Chattacooohie man v. White, 6 N. Y. 413. 
 Nat. Bank, 51 Ga. 325; Harrison v. Wright, 100 ^ " To mal£e an assignment valid at law, the 
 Ind. 515; First Nat. Bank v. Gish, 72 Pa. St. 13; thing which is the subject of it must have 
 Atty.-Gen v. Continental L. Ins. Co., 71 N. Y. actual or potential existence at the time of 
 330; Simmons v. Cincinnati Sav. Soc, 31 Ohio the grantor assignment. But courtsof equity 
 St. 457. ' will support assignments, not only of choses 
 1 In Lord et al. v. McGaffrey, 46 Pa. St. 410, in action and of contingent interests and ex- 
 Strong, J., said: "It cannot be maintained pectancies, but also of things which have no 
 that Taylor's check, without more, amounted actual or potential existence, and rest In mere 
 to any equitable appropriation of the funds in possibility; not indeed as a present positiye 
 the hands of the banker to whom it was ad- transfer, operative in prcesenti, for that can 
 dressed. To make an order or draft of an only be a thing in esse, but as a present con- 
 equitable assignment, it must designate the tract to take effect as soon as the thing comes 
 fund upon which it is drawn. " See, to the in esse. " Story's Eq. Jur., § 1040; see ante, 
 same effect, Phillips v. Stagg, 2 Edw. Ch. 108; §§ 373-376. 
 
 459 
 
§ 382 EQUITY JUEISPEUDENCE. [CH. XXn. 
 
 particular bank or banker, would seem to be a sufficient particulariza- 
 tion of the fund, in order to work an equitable assignment ^ro tomto 
 of the fund on deposit. It is probably rare that there is a more particu- 
 lar description of the fund in a general assignment for the benefit of 
 creditors; and yet no one would question the right of such an assignee 
 to draw out the money, so far as the bank is concerned. 
 
 The liability of the bank is, of course, restricted only to such cases 
 where the check has not been countermanded. The agreement of the 
 bank or banker, which forms a part of the contract of deposit, and 
 which is claimed to pass with the check to the check-holder, is to pay 
 the check, if there are sufficient funds in its possession and under its 
 control at the time of presentment and demand. For this reason, the 
 bank cannot be compelled to pay when payment has been counter- 
 manded by the drawer before presentment of the check by the holder; 
 because countermanding is, as far as the bank is concerned, equivalent 
 to another disposition of the money, which, having taken place before 
 presentment, takes precedence; and whether the check-holder still has 
 any interest in the fund depends upon the question whether the check 
 works an assignment as against the drawer. This is but the natural 
 consequence of the leading proposition. If the check works an assign- 
 ment in respect to the drawee, it must have the same effect against the 
 drawer and his privies. The holder of the check, therefore, can 
 claim the right to appropriate the funds, even against other creditors 
 and a general assignee for the benefit of creditors; for creditors and 
 general assignees can only claim what belongs to the debtor. It 
 being, however, an equitable assignment, and the thing assigned being 
 identified simply as the indebtedness of the drawee to the drawer, it 
 can only be enforced while the fund remains in a condition to be 
 identified. Should the fund be innocently {i. e., as to the drawee) 
 paid over' to the drawer or to his assigns, it loses its identity, unless 
 the identical sum can be traced and discovered in the hands of the 
 drawer or assignee, and the check is consequently deprived of its 
 value as an assignment. Whether the check is such a complete 
 assignment of the drawer's interest as that, after presentment, where 
 the check has been previously countermanded, the drawee pays the 
 money to the drawer at his peril, has never been determined by any 
 adjudication. It is settled that he can refuse to honor the check; but 
 does the countermand relieve him of all obligations to the holder, 
 or does it place him in the position of a stake-holder, and compel 
 him to retain the fund for the benefit of whichever of the two 
 shows himself entitled thereto? It would be hard to expect a bank 
 in each case of countermanded checks to hold the funds, and become 
 
 1 This Is conceded in very many cases wliicli v. Adae, 8 Fed. Eep. 106 ; Matter of Brown, 2 
 deny that the check holder cannot sue the Story, 502; Morrison i>. Bailey, 5 Ohio St. 13. 
 ban]£. See Bank of Republic v. Millard, 10 a See Row v. Dawson, 1 Ves. Sr. 331; Cow- 
 Wall. 152; Robinson «. Hawkes, 9 Q. B. 52j Bell perthwaite v. Sheffield, 3 Comst. 243. 
 ». Alexander, 21 Gratt. 6j German Sav. Inst. 
 
 460 
 
CH. XXII.] EQUITABLE ASSIGNMENT. § 382 
 
 a party to suits on the same. It is likely that this position would not 
 be assumed even by those courts which are inclined to push the assign- 
 ment theory to the utmost limit. 
 
 The cases which deny the right of the check-holder to sue the bank 
 are by far more numerous than those which recognize his right. ^ 
 And, although it is not difficult to demonstrate that the ruling of the 
 minority of the courts is more rational and more consistent with the 
 general principles of the law, in order to secure the much desired 
 uniformity of rules throughout the United States, in respect to the 
 commercial law, it may be best for the minority to yield to the 
 majority, on the ground that commv/nis error facit jus. 
 
 1 FogartiesB. state Bank, 12 Eicli.lj. 518; CM- Burch, 25111. 35; Union Nat. Bk. u. Oceanic Co. 
 cago Marine, &o. Ins. Co. v. Stanford, 28 111. Bk., 80 111. 212; Eoberts v. Austin, 26 Iowa, 316; 
 168; Brown ■». Leckie, 43 111. 500; Munn ». Lester s. Given, 8 Bush, 368. 
 
 461 
 
CHAPTEE XXIII. 
 
 EQUITABLE LIENS. 
 
 SBCTI02T 
 
 . 384 
 
 385 
 
 387 
 
 393 
 
 394 
 
 395 
 
 Section 
 Vendor's aaid grantor's Hens distin- 
 guished 397 
 
 Characteristics of the vendor's lien 398 
 
 Grantor's lien 399 
 
 Continued— Discharge of waiver of the 
 
 lien 400 
 
 Continued — ^In whose favor raised . 401 
 
 Vendee's lien 402 
 
 Grantor's lien by express reservation . 403 
 Enforcement of grantor's, vendor's and 
 
 vendee's lien 404 
 
 Liens arising from charges by -will or by 
 
 deed .405 
 
 Liens by express charges . . . 406 
 
 Liens arising from the Implied charges 407 
 Mechanics' and maritime liens. — Statutory 
 liens 408 
 
 Their general nature and definition . 
 
 Liens arising from express contract . 
 
 Equitable lien on property to be ac- 
 quired in the future 
 
 Form and nature of the agreement . 
 
 Lien or mortgage by deposit of title deeds 
 
 Continued— Notice to subsequent pur- 
 chasers 
 
 Continued— Their recognition in this 
 country ... . . 
 
 Continued.— Foreclosure 
 
 Liens arising from Implied contracts 
 
 Liens upon joint owners and co-tenants . 
 
 Expenditure by a life-tenant 
 
 Improvements made upon the land of an- 
 other. — ^Betterment laws .... 
 
 Equitable lien on life insurance policies 
 
 § 384. Their general nature and deJSnition. — The purpose of a 
 lien is to secure the performance of some obligation by giving a remedy 
 to the dbligee, whereby to secure satisfaction out of certain property, 
 in case the obhgation is broken or not performed. The common law 
 remedy for the breach of a contract is an action for damages; and 
 under the very early common law, the result was the imprisonment of 
 the debtor until he made satisfaction. But in modern times, the claim 
 for damages is satisfied by a sale of sufficient property of the debtor, 
 under execution, to satisfy the judgment for damages obtained for the 
 breach of the contract. But in all such cases, the judgment creditor 
 has only a general claim for satisfaction of the judgment against the 
 •property of the debtor in general, which may be found to be in the 
 possession of the debtor when the execution is issued, and when the 
 levy is made. Where the creditor desired at common law to obtain 
 some special security for the payment of his debt, he could only resort 
 to one of two methods: either to obtain a mortgage of the real or per- 
 sonal property of the debtor, or a pledge; and in both instances, the 
 transaction arises out of the express agreement of the party and a 
 transfer to the creditor of the right of possession of the property. 
 The modification of the common law in respect to these securities wiU 
 be treated in subsequent chapters. It is also possible at common law, 
 in peculiar cases, for the creditor to assert his claim to a lien over 
 specific property for the satisfaction of a debt or the performance of 
 an obligation; and that claim was called a lien. But the peculiarity of 
 the lien at common law was, that possession by the creditor was indis- 
 pensable to the validity of the lien. If the debtor retained possession, 
 462 
 
CH. XXni.J EQUITABLE LIENS. § 385 
 
 the creditor had no evidence of any claim against the property, which 
 was supposed to exist in the lien for the satisfaction of a claim or 
 debt. In consequence of the necessity of transferring the possession 
 to the creditor in order to create a lien at common law, it was not of 
 any special value except in a very few cases of bailments; for the gen- 
 eral purpose of securing a satisfaction of debts in general, the common 
 law lien was not at all efficacious. Equity, however, sees no obstacle 
 to the existence of a lien in the retention of the possession by the 
 debtor. So it is the doctrine of equity that a lien may exist and be 
 asserted against the property of the debtor, although the debtor retains 
 the possession.^ The equitable lien is not an estate or property in the 
 thing itself; nor is it a right to recover such property; to use the Latin 
 phrase, it is neither a jus ad rem nor a jus in re. It constitutes noth- 
 ing more than a claim against specific property to the satisfaction out 
 of such property of some debt or obligation, which the owner of such 
 property has assumed and has not performed. Until the time arrives 
 for the enforcement of a claim of satisfaction against the property, 
 the lien constitutes an incumbrance on the debtor's title to such prop- 
 erty. The property is transferable! subject to the enforcement of the 
 lien, as long as it does not come into the hands of a Iotm fide purchaser 
 without notice of the lien.^ 
 
 § 385. Liens arising from express contract. — The equitable 
 lien, explained and defined in the preceding paragraph, may arise 
 from express contract; and it may be stated, in general terms, that an 
 equitable Ken vrill arise whenever there is an express agreement in 
 writing or a verbal agreement, whereby the obligor or contracting 
 party indicates his intention to subject certain specific property, 
 whether real or personal, to the obligation of serving as a security for 
 a debt or other obligation; or whereby such.contracting party promises 
 that such specific property shall constitute a security for such debt or 
 obligation. Such an equitable lien may be enforced against the prop- 
 erty, not only in the hands of the original contracting party, but like- 
 wise in the hands of his assigns and personal representatives, except 
 where the property is transferred to a hona fide purchaser for value 
 and without notice.' In order, however, that any express agreement 
 
 1 Brace u. Duchess of Marlborough, 2 P. v. Tompkins, 45 Barb. 308, 316; Williams v. 
 Wms. 491; Sx parte Knott, 11 Ves. 609, 617; IngersoU, 33 Hun, S84; Burdick v. Jackson, 7 
 Heywood «. Waring, 4 Camp. S91, 295, jjcr Lord Id. 488; Arnold ». Morris, 7 Daly, 498; In re 
 EUenborougb; Hammonds v. Barclay, 3 East, Howe, 1 Paige, 125; Mitchell v, Winslow, 2 
 227,235;^a;j)art«Heywood,2Rose, 355, 357; see Story, 630; Bennington ». Evans, 3 Y. & C. Ex. 
 Oxenham«. Esdalle,2 You. & J. 493; Gladstone 384, 392; Collyero. Fallon, T. & R. 459, 475, 476; 
 V. Birley, 2 Merlv. 401, 404. Countess of Mornington v. Kearne, 2 De G. <fc 
 
 2 See Peck v. Jenness, 7 How. (tJ. S.) 613, 620, J. 292, 313; Gibson v. May, 4 De G. M. & G. 512; 
 per Grier, J. Ha.e v. Omaha Nat. Bk., 49 N. Y. 626; 64 Id. 
 
 8 Bank of Washington v. Nock, 9 Wall. 373; 550; Payne «. Wilson, 74 Id. 348 ; Chase v. Peck, 
 
 Skiddy «. Atlantic, <fec. B. R., 3 Hughes, 320; 21 Id. 581; Stevens v. Watson, 4 Abb. App. 
 
 Pinch B. Anthony, 8 Allen, 536; ExparteVHWa, Dec. 302; Meyers 1). United, &0. Co.; 7 De G. 
 
 1 Ves. 162; 3 Cox, 233j Browns. Heathcote, 1 M. <fc G. 112; Twynam». Hudson, 4 De G. F. & 
 
 Atk. 160, 162; Bussel V. Russel, 1 Bro. Ch. 269; J. 462; Hastie v. Hastie, L. R. 2 Ch. D. 304, 
 
 Card V. Jaflfray, 2 Soh. <fc Lef . 374, 379; Lanning Husted ». Ingraham, 75 N. Y. 251, 257; GUssa ». 
 
 463 
 
§ 386 EQUITY JUKISPKUDENCE. [CH. XXm. 
 
 of the sort indicated may operate to create an equitable lien, it must 
 refer to some specific property which is sufficiently described in the 
 agreement to be capable of differentiation from the other property 
 of the contracting party. A general agreement that the obligor's 
 property shall be liable for his debts will not serve to create an equi- 
 table lien,^ except in the-one case of a charge by will upon property 
 for the payment of debts; ^ the equitable presumption of a vested 
 interest in the property, in the nature of a lien, arising from such 
 an executory agreement is an application of the equitable maxim, 
 " Equity regards as done that which ought to be done.'" 
 
 § 386. Equitable lien on property to be acquired in the future. — 
 As long as the property is sufficiently described to be identified, 
 equity does not require that the property should be either in the 
 possession of or belonging to the obligor, or to be in existence at all, 
 at the time when the contract is made for the lien. And if, when the 
 lien is contracted for, the contracting party did not own the property, 
 or the property itself was not in either actual or potential existence; 
 in these cases, equity will hold the agreement for a lien in suspension, 
 until the property to be covered by such lien comes into existence and 
 becomes the property of the party providing for the lien. Then the 
 lien will attach to the property, in conformity with the provisions 
 therefor contained in the prior agreement of the party.* This is in 
 violation of the common law rules, in respect to liens and transfers of 
 interests in property,^ but it is an exception which finds a common 
 application in equity, not only in the case of liens, but likewise in the 
 case of assignments." The most common application of the doctrine 
 is to be found in connection with chattel mortgages, and in connection 
 with that subject a fuller discussion of the power to create an equita- 
 ble lien over after-acquired property is given.' 
 
 GUson, 8 N. T. 115; Love ». sierra Nevada Co., * Lewis «. Madooks, 17 Tes. 48; Tooke v. 
 
 32Cal.639, 652; Daggett u. Rankin, 31 Cal.321; Hastings, 2 Vein. 97; Curtis o. Auber, IJ. & W. 
 
 Adams v. Johnson, 41 Miss. 858; Petrie v. 586; Douglas v. Eussell, 4 Sim. 584; 1 My. & K. 
 
 Wright, 6 Sm. & Mar. 647; Morrow v. Turney's 488; Alexander «. Duke of Wellington, 2 Russ. 
 
 Adm'r, 35Ala. 131; Kirksey «. Means, 42 Ala. & jjy, 35^ cited 1 My. & Or. 556; Williams ». 
 
 486; Delaire v. Keenan, 3 Desau. 74; Boorman winsor, 18 E. I. 9; Clay v. East Tenn., &0. E. 
 
 «^ Wisconsin, &0. Co., 36 Wis. 807; Monticello jj., 6 Heisk. 421; MeClure v. McDearmon, 2S 
 
 Hydraulic Co « Loughry, 73 Ind. 562; Cotter- ^^j^ Marshall, 10 H. L. Cas. 91; 
 
 ell V. Long, 80 Ohio, 464; Muskingum v. Car- _, , ,' _^ ,, , . -.^ \^ „\.L -_„ 
 
 penter's Adm'rs. 7 OMo. 81. ^'^''^Z "' 7 l/J' tf^' t "^ uf^'f-^' ^f 
 
 iWilliams ,;. Lueas, 8 Cox, 160; Adams .. ^°^^ °°??t™i!^ .-I .Ja' f . ' J° ' 
 Johnson, 41 Miss. 858; Countess of Mornlngton ® ^™- 22*! 1 My. & Cr. 547, 556; Lyde v. Mynn, 
 V. Keame, 8 De G. & J. 892, 313; and see ante, § * ^""- ^^' ^ ^y. & K. 683. 
 583; and see Roundell v. Breary, 2 Vem. 488; ° Smith v. Atkins, 18 Vt. 461 ; Van Hoozer V. 
 Pinch V. Anthony, 8 Allen, 536, 539; Person v. C^oiT. 34Barb. 9, 18; Conderman «. Smith, 41 Id. 
 Oberteufifer, 59 How. Pr. 339; Chamberlain v. 404; Arques «. Wasson, 51 Cal. 680; Phila., &e. 
 Peltz, 1 Mo. App. 183; Bk. of Washington V. E. E. 1'. Woelpper, 64 Pa. St. 366, 371; Forman 
 Nook, 9 Wall. 373; Goembel v. Arnett, 100 111. v. Proctor, 9 B. Mon. 124; Otis v. Sill, 8 Barb. 
 34; Cook V. Black, 54 Iowa, 693; Fremoult v. 102; Andrew v. Newoomb, 33 N. Y. 417, 420; 
 Debire, 1 P. Wms. 429; Eavenshaw v. Hollier, 7 Grantham v. Hawley, Hob. 132; Trull ». Ease- 
 Sim. 3; Wellesley v. Wellesley, 4 My. & Cr. 561 ; man, 3 Met. 121 ; Jones V. EichardsoD, 10 Id. 
 Adams v. Johnson, 41 Miss. 258. 481 4gg. 
 
 s See i)0«<, § 405. 6 see § 374. 
 
 3 Daggett V. Eankln, 31 Cal. 331, 326, per Cur- 7 See post, §§ 465, 466. 
 rey, C, J. 
 
 464 
 
CH. XXIII.] EQUITABLE LIENS. § 387 
 
 § 387. Form and nature of the agreement. — As may be surmised, 
 the form of the agreement which shall create a lien is not of any par- 
 ticular importance; for equity will caiTy out the intent of the parties 
 whatever form may be given to the contract, provided there is in the 
 contract sufficient description to identify the security and the debt to 
 be secured. Equitable liens may be said, therefore, to arise from any 
 form or kind of an executory agreement which, instead of conveying 
 a positive estate or interest in specific property, simply indicates the 
 intention that such property shall serve as a security for the payment 
 of a specific debt or debts.' Not only will an executory agreement 
 for a mortgage create an equitable lien; but also where a mortgage is 
 incomplete and invalid as a mortgage, on account of some informality 
 or defect in its terms or mode of execution, a court of equity will 
 treat such defective mortgage as an executory agreement for an equi- 
 table lien, and it will be enforced in equity as a valid and effective lien.^ 
 So, also, may there be an equitable lien arising from the assignments 
 of executory agreements of various sorts: such, for example, as the 
 assignment of a lease, ^ of all the rents and profits of land;* the assign- 
 ment of a contract or bond of the parties for the sale of land; ^ the 
 assignment of certificates of entry of public lands, issued to a purchaser 
 by a state or by the United States; ° of certificates of stock in a joint 
 stock company where the property of the company consists of lands.'' 
 And in all these cases, a lien may be created by the assignment of a 
 partial interest under the executory contract, to the extent of such 
 interest.' But the lien in every such case is acquired by the assignee, 
 
 iHusted «. Ingraham, 75 N. Y. 251; Hale «. Id. 167, 170; Delaire v. Keenan, 3 Desau. 74; 
 
 Omaha Nat. Bk., 49 Id. 626; 64 /ti. 550: Boorman Eead v. Gillard, 2 Id. 552; Payne v. Wilson, 74 
 
 V. Wisconsin, <Seo. Co., 36 Wis. 207; Montlcello, N. Y. 348; Daggett v. Eantin, 31 Cal. 321; Rem- 
 
 &0. V. Loughry, 71 Ind. 563; Ohaaer. Peck, 21 N. mington v. Higgins, 54 Id. 620; Newlin v. Mo- 
 
 T. 585; Gilson v. Gilson; 2 Allen, 115; Kirksey Af ee, 64 Ala. 357; Lewis v. Small, 71 Me. 652. 
 
 V. Means, 42 Ala. 426; Whiting ». Eichelberger, 3 Barroilhet v. Battelle, 7 Cal. 450. 
 
 16 Iowa, 422; Lynch v. trtica Ins. Co., 18 Wend. » Exparte Wills, 1 Ves. 162; Jackson v. Green, 
 
 236; Skiddy v. Atlantic, <fec. R. E., 3 Hughes, 4 Johns. 186; Smith V. Patton, 12 W. Va. 541. 
 
 320; Arnold ». Morris, 7 Daly, 498; Williams?). s Rockway d. Wells, 1 Paige, 617; Fessler'S 
 
 Ingersoll, 23Hun, 884; Stewart «i. Hutchins, 8 Appeal, 75 Pa. St. 483; Fitzhugh «. Smith, 63 
 
 H1I],143; Jackson v. Carswell, 34 Ga. 279; Mo- III. 486; Purdy v. Bullard, 41 Cal. 444; Dwen v. 
 
 bile, &c. E. R. v. Talman, 15 Ala. 478; Raoouil- Blake, 44 111. 135; Alden v. Garver, 32 III. 32; 
 
 lat ®. Sansevain, 32 Cal. 376; De Leon !). Lewis ». Boskins, 87 Ark. 61 ; Shall ». Bisooe, 18 
 
 Hignera, 15 Id. 483; Barroilhet v. Battelle, 7 Id. 142; Graham «. McCampbell, Meigs, 62; 
 
 7<i.460;Peckham».Haddock, 36111. 38; and see Tanner «. Hicks, 4 Sm. & Mar. 294; Button v. 
 
 Chadwick v. Clapp, 69 Id. 119; Blackburn v. Schroyer, 5 Wis. 698; Sinclair v. Armitage, 1 
 
 Tweedie,60Mo. 505. Beasl. 174; Neligh ». Michenor, 3 Stockt. 539; 
 
 SLovec. Sierra Nevada Co., 32 Cal.639, 652, 653, Alderson ». Ames, 6 Md. 52; Fenno «. Say re, 3 
 
 per Shaf ter, J. ; McQuie ji.Peay, 58 Mo. 56 ; Bum- Ala. 458 ; Newhouse v. Hill, 7 Blackf . 584 ; Baker 
 
 side®. Wayman, 49/d. 356; Abbott ». Godfrey's v. Bishop Hill Colony, 45111. 264; Bull ». Sykes, 
 
 Heirs, 1 Mich. 178; Lake ». Doud, 10 Ohio, 415; 7 Wis. 449; Jones v. Lapham, 15 Kans. 640; 
 
 Jones V. Brewington, 58 Mo. 210; McClurg v. Christy ». Dana, 34 Cal. 548. 
 
 Phillips, 49 Mo. 315; 57 M. 214; Dunn ». Raley, « Wright «. Shumway, 1 Biss. 23; Heirs V. 
 
 mid. 134; Harrington v. Fortner, 58 7d. 468; Stover v. Heirs of Bounds, 1 Ohio St. 107; 
 
 Gill!). Clark,54I(?. 415; JftreHowe, IPaige, 185; Dodger. Silverthorne, 12 Wis. 644; Mowrys. 
 
 Bk. of Muskingum v. Carpenter's Adm'rs, 7 Wood, 12 7(i. 413 ; Jarvis ». Dutoher, 16 M. 307; 
 
 Ohio, 21 ; Nelson v. Hagerstown Bk., 87 Md. 51, Hill v. Eldred, 49 Cal. 398. 
 
 76; Dow V. Ker, 1 SpeerBq. 414, 417; Massey v. 7 Durkee v. Stringham, 8 Wis. 1. 
 
 Mcllwain, 2 Hill Ch. 421, 428; Welsh v. Usher, 2 a Northrup v. Cross, Seld. Notes, 111. 
 
 30 
 
 465 
 
§ 389 EQUITY JUEISPEUDENCE. [CH. XXID. 
 
 subject to the performance by the assignor of his part of the obligation.* 
 § 388. Lien or mortgage by deposit of title deeds. — ^This is an 
 ancient security for debt, which at one time was in general use in- 
 England, and even now is employed there to some extent. The deposit 
 of the title deeds of a tract of land with the creditor secured to him in 
 equity a lien upon the land for the amount of the debt. It was looked 
 upon in equity as an agreement to execute a mortgage which would 
 be enforced against the depositor and all other persons claiming under 
 him, except subsequent purchasers and incumbrancers for value and 
 without notice.^ Although it has been strongly objected to, as violat- 
 ing the Statute of Frauds, it is now definitely settled in England that 
 the mortgage by deposit of the title deeds does not come within the oper- 
 ation of the statute.^ The mere possession by the creditor of the 
 debtor's muniments of title will not raise for the former a lien upon 
 the land. They must have been deposited with him with the express 
 intention of providing a lien, in order that the possession may have 
 that effect.* But it is not necessary that all the title deeds in the 
 chain of title should be deposited. A single title deed would be suffi- 
 cient as against the depositor, and it would only be invalid as to those, 
 who were fairly misled by the fact that the mortgagor or depositor 
 was in possession of 'the other deeds. ^ And as against the mortgagor 
 and all others claiming under him with notice, the mere agreement to 
 deposit the title deeds as security would suffice to make the debt an 
 equitable charge upon the estate, if it be evidenced by some writing.' 
 § 389. Continaed. — Notice to subsequent purchasers. — If the 
 subsequent purchaser for value has received no notice of the existence 
 of this equitable mortgage, it cannot be enforced against him and the 
 land in his hands. What will be sufficient notice to such a purchaser 
 would depend upon the circumstances of each particular case. In 
 England, where there is no registration law, and the purchaser is 
 accustomed to depend upon the original title deeds in investigating the 
 title to lands, the absence of these deeds or of any of them would con- 
 
 1 Dodges. Silverthome, 12 Wis. 644. iNorris v. Wilkinson, 18 Ves. 163 j Bozonjj. 
 
 "Story's Eq. Jur., § 1030; 2 Washb. on Real Williams, 3 Y. & J. 150; James v. Rice, 23 Eng. 
 
 Prob. 83 ; 4 Kent's Com. 150, 151 ; Russell v. Rub- L. &, E. 567 ; Chapman v. Chapman, 3 Eng. L. & 
 
 sell, 1 Bro. C. C. 269; Exparte Laugston, 17 E. 70; s. c, 13 Bear. 308; Ex parte Bruce, 1 
 
 Ves. 230; Pain v. Smith, 3 Myl. & K. 417; Man- Rose, 374; Ex parte Wright, 19 Ves. 258; Ex 
 
 deville v. Welch, 5 Wheat. 277; Roberts u. ^jortc Langston, 17 Ves. 327; Lucas ». Darren, 7 
 
 Craft, 84 Beav. 833 ; Edge v. Worthington, Cox, Taunt. 278 ; Maudeville ». Welch, 5 Wheat. 277 ; 
 
 311: .Ea; ;)art«Coming, 9Ves. Jr. 115; Carey*. Story's Eq. Jur., § 1020. If the Intention la 
 
 Rawson, 8 Mass. 159; Jarvis v. Butcher, 16 declared by a memorandum in writing, it can- 
 
 Wis. 307 not be controlled by parol evidence. Ex parte 
 
 3 Whitbread, ex parte, 19 Ves. 309; Haigh, ex Coombe, 17 Ves. 369; Baynard .;. WooUey, 20 
 
 parte, 11 Ves. 403; Ex parte Hooper, 19 Ves. Beav. 583. 
 
 477; Norris v. Wilkinson, 19 Ves. 192; Rus- '.E5c Jjart« Chippendale, 3 Mont. & A. 299; fi! 
 
 sell V. Russell, 1 Bro. C. C. 369. In Pennsyl- parte Wetherall, UVes. 398; Laconw. Allen, 3 
 
 vania, a written agreement must accompany Drew. 582; Roberts r. Crofty,24Beav. 853; s. c, 
 
 the deposit of the title deeds, in order that the 2 De G. & J. 1. 
 
 transaction may create o, mortgage. Luch's ' Edwards, ex parte, 1 Deao. 611 ; 4 Kent's 
 
 Appeal, 44 Pa. St. 519; Edwards v. Trumbull, 50 Com. 151. 
 Pa. St. 509. 
 
 466 
 
CH. XXIII.J EQUITABLE LIENS. § 391 
 
 stitute sufficient notice to put the purchaser on his inquiry; But the 
 burden of proof is on the equitable mortgagee to show that the pur- 
 chaser has received notice of the mortgage. * In this country, however, 
 where all deeds of conveyance are required to be recorded, in order to 
 give constructive notice to subsequent purchasers, actual notice of the 
 deposit of the deeds must be brought to such purchasers, in order to 
 bind the land in their hands. The purchaser in this country is not 
 Required to look beyond the record for the evidences of title. ^ 
 
 § 390. Continned. — Their recognition in this country. — The 
 equitable mortgage by deposit of title deeds is recognized in some of 
 the states of this country, but in view of the general prevalence of the 
 recording law, it is at best a very inefficacious kind of security. It can 
 never be relied upon, and is rarely, if ever at the present day, met 
 with in practice. Its value as a security is destroyed, as soon as the 
 land has been sold or mortgaged to one having no actual notice of the 
 deposit. And it being a purely equitable interest, not even an equitable 
 estate, the mortgagee cannot have an instrument of notice recorded 
 for the purpose of giving constructive notice of its existence. The 
 mortgage is, however, recognized in Maine, Rhode Island, New York, 
 New Jersey, South Carolina, Georgia, Wisconsin, and in the United 
 States Courts.' While in Pennsylvania, Vermont, Kentucky, Ohio 
 and Tennessee, the docti'ine has been repudiated.* 
 
 § 391. Continued. — Foreclosure. — Since the mortgage by deposit 
 of title deeds is only an equitable lien, it can be enforced only in a 
 court of equity, and it is a matter of doubt in the English courts, 
 whether the decree should be for foreclosure, or simply direct a sale of 
 the premises, and the application of the proceeds to the liquidation of 
 
 'Herrlck o. Atwood, 25 Beav. 212; Colyeri). 523: Stoddard «. Hart, 23 N. T. 261 ; Mounce ». 
 
 I'meh, 5 H. L. Gas. 924; Bxparte Hardy, Deac. Byars, 16 Ga. 469; Jarrls v. Dutcher, 16 Wis. 
 
 A C. 363; Hiern v. Mill, 13 Ves. 114; Hewitt v. 307; Mandeville V. Welch, 5 Wheat. 277; Chase 
 
 Loosemore, 9 Eng. L. & E. 35; Head v. Eger- v. Peck, 21 N. Y. 681; Williams v. Stratton, 
 
 ton, 3 P. Wms. 279; Adam's Eq. 123; Story's Bq. 10 Sm. <fc Mar. 418, 426; Gothard v. Flynn, 25 
 
 Jur., § 1020; Jones, Mortg., § 179; Ex parte Miss. 58; Griffin v. Griffin, 18 N. J. Eq. 104; 
 
 Kensington, 2 V. &. B. 79, 84; Sx parte Lang- Welsh v. Usher, 2 Hill Ch. 167, 170, per Harper, 
 
 ston, 17 Ves. 227 ; Baynard v. WooUey, 20 Beav. J. ; Williams v. Stratton, 10 Sm. & Mar. 418, 426; 
 
 S83;Parker». Housefleld, 2My. &K. 419;Pryce Mowry ». Wood, 12 Wis. 413; First Nat. Bk. 
 
 ». Bury, 2 Drew. 41, 42 ; Lacon v. Allen, 2 Drew. v. Caldwell, 4 Dillon, 314. 
 579; Whitbread v. Jordan, 1 Y. & C. Ex. 303; * Shitz ». Dieffenback, 3 Pa. St. 233; Bowers 
 
 National Bank of Austr. V. Cherry, L. E. 3 P. «. Oyster, 3 Pa. St. 233; Strauss' Appeal, 49 Pa. 
 
 C. 299; Eussell B. Russell, 1 Bro. Ch. 289; 1 Eq. St. 258; Kauffelt v. Bower, 7 Serg. & E. 64; 
 
 Lead. Cas. 931 (4th Am. ed.); Pye «. Daubuz, 2 Bicknell v. Bloknell, 31 Vt. 498; Van Meter v. 
 
 Dick. 759; ^3! parte Whitbread, 19 Ves 209; .ffa; MoPaddin, 8 B. Mon. 435, 438; Meador o. 
 
 parte Wright, 19 Ves. 255; Ex parte Hooper, 1 Meador, 3 Heisk. 562; Probasco v. Johnson, 2 
 
 Merlv. 7. Disney, 96; Bloom v. Noggle, 4 Ohio St. 45, 56; 
 
 2 Story's Eq. Jur., § 1020; Jones, Mortg., § 179; Gothard v. Plynn, 25 Miss. 58; but oomp. per 
 
 Halli). McDuff, 24 Me. 311; Whitworth «. Gan- co««ra, Williams ». Stratton, 10 Sm. & Mar. 418; 
 
 gain, 3 Hare, 416; Berry ». Mutual Ins. Co., 2 Thomas' Appeal, 30 Pa. St. 378; Edwards' 
 
 Johns. Ch. 604; Lueh's Appeal, 44 Pa. St. 532; Ex'rs v. Trumbull, 50 Pa. St. 509; Bowers v. 
 
 Edwards v. Trumbull, 50 Pa. St. 612; Probasco Oyster, 3 P. A W. 239. But in Pennsylvania, if 
 
 V. Johnson, 2 Disney, 96; Walker Am. Law, 315. the deposit is accompanied by an Instrument, 
 
 "Hall V. MoDufE, 24 Me. 311; Hackett v. declaring the purpose of the deposit, it will 
 
 Reynolds, 4 R. I. 512; Rockwell v. Hobby, 2 be a good, equitable mortgage. Lueh's Appeal, 
 
 Sandf Ch. 9; Robinson v. Urquhart, 1 Deas. 44Pa.St.522; Edwards ».Trumbull,56 Pa. St.512. 
 
 467 
 
§ 393 EQUITT JUEISPKUDENCE. [CH. XXIU. 
 
 the debt. But the later English cases hold that the mortgagee of such 
 a mortgage has the same rights of foreclosure as any other mortgagee.* 
 
 § 392. Liens arising from implied contracts. — As Mr. Pomeroy 
 has justly stated, the term wwpUed contract is a fiction indulged in for 
 the purpose of accounting for the obligation imposed by law, under 
 the iron-cast rule of the common law, which is itself a fiction, that the 
 action at law must arise ex contractu and ex delicto^ so that when the 
 dictates of justice reqxiired the imposition of an obligation, where 
 there is no actual contract, the law is said to imply the contract, as a 
 foundation for the just imposition of the obligation. But the full 
 explanation of the whole doctrine is, that the obligation is imposed by 
 the court, and usually by the court of equity, for the purpose of doing 
 justice between man and man, and the satisfaction of some righteous 
 claim; it is reaUy an obligation imposed by law and not at all dependent 
 upon any agreement of the parties, express or implied. It is upon 
 these general principles of justice and right that the equitable lien is 
 said to arise by implication, and be enforced against the parties who 
 would otherwise have acquired the property which they could not 
 justly claim, and by whose acquisition of the property some other 
 party would have suffered an injustice. The cases of liens, arising by 
 implied contracts, so-called, are quite numerous, but the same general 
 principle rules over them all, that the lien is impKed, whenever it is 
 just that the one party should have a special claim against the property 
 of another to secure the performance of some obligation. Some 
 examples of this implied lien will be given. 
 
 § 393. Liens upon joint owners and co-tenants. — Where two or 
 more persons are joint owners or purchasers of property, and one of 
 them acting in good faith makes the necessary repairs upon the 
 property, he has a lien upon the interest of the other party for his 
 share of the expense of such repairs, which enables him to secure an 
 enforcement of his demand for contribution.^ Of the same character 
 is the so-caUed partnership lien which enables each partner, by the 
 assertion of the lien upon the interest of the other partners in the 
 partnership property, to secure an application of the entire property 
 of the firm to the full satisfaction of the firm's debts, or the exhaustion 
 of the firm's assets. Until the debts of the firm have been fully 
 satisfied, no partner can acquire an absolute right to any part of the 
 partnership property; nor can any person claiming under such partner 
 
 1 Adams Eq. 125; Pain v. Smltli, 2 M. & K. that the decree should be for a sale of the 
 
 417; Parker v, Housefleld, Id. 419; Brockle- premises. See', to same effect, Hackett ». 
 
 hurst V. Jessop, t Sim. 438 ; Moores v. Cheat, 8 Reynolds, 4 E. I. 512; Mowry v. Wood. 18 Wis. 
 
 Id. 508; Price ». Carver, 3 M. & C. 157; Lister v. 413. 
 
 Turner, 5 Hare, 281 ; Tuckley v. Thompson, 1 ^ Swan v. Swan, 8 Price, 518 ; Eathburn v. 
 
 Johns. & H. 126; James v. James, L. E. 16 Bq. Col ton, 15 Pick. 471; Lake v. Gibson, 1 Eq. Cas. 
 
 153;Eedmagne».Eorster,L.E.2Eq. 467; Back- Abr. 290, pi. 3; Lake v. Craddook, 3 P. Wms. 
 
 house II. Charlton, L. R. 8 Ch. D. 444; Carter ». 158; 1 Eq. Lead Cas. 264, 268 (4th Am. ed.); 
 
 Wake, L. E. 4 Ch. D. 605; James v. James, L. E. Gladstone v. Birley, 2 Merlv. 401, 403; Scott ». 
 
 16 Bq. 153; Pryce v. Bury, L. E. 16 Eq. 153 n. Nesbitt, 14 Ves. 437, 444. 
 In Jarris v. Dutcher, 16 Wis. 307, it was held 
 
 468 
 
CH. XXIII.] EQUITABLE LIENS. § 396 
 
 acquire such rights as against the other partners who have been called 
 upon to satisfy partnership debts for the protection of their own 
 private property.' 
 
 § 394. Expenditure by a life-tenant. — ^As a general rule, a life- 
 tenant is charged with the making of repairs of the property, and has 
 no claim against the reversioner or remainder-man for contribution 
 toward the expense of keeping up the estate; and if he makes improve- 
 ments upon the land beyond what he may remove before the termina- 
 tion of the tenancy, he has no claim for such improvements against the 
 reversioner or remainder -man.* But if the tenant for life acquires 
 property under a will upon which beneficial permanent improvements 
 had been begun, he can then complete these improvements and claim 
 of the reversioner's right of contribution towards this extraordinary 
 expense, and equity will concede to him a lien upon the interest of the 
 reversioner as a security for such contribution.' 
 
 § 395. Improvements made upon the land of another. — Better- 
 ment laws. — ^The common law rule is, that where one enters into 
 possession of land belonging to another, under the mistaken belief that 
 the true title to the property has been acquired by him; and in reliance 
 upon this belief he makes improvements upon such land; and subse- 
 quently the true owner should assert his title to the land in an action 
 of ejectment; it is impossible for the person in possession, who has 
 made these improvements, to obtain any redress or claim of contribu- 
 tion for such improvements, when he is obliged to deliver up the pos- 
 session to the holder of the true title. He loses the improvements, 
 as well as the consideration he paid for the land.* But if the true 
 owner cannot recover his property by a common law action of eject- 
 ment, and is obliged to resort to equity or to equitable remedies for 
 the recovery of his property, equity will compel him to do equity before 
 he can obtain the equitable aid sought for.^ The court of equity vrill 
 consider it inequitable for the true owner to claim the benefit of the 
 improvements, which have been made by the party in possession, under 
 the mistaken belief that the land belonged to him, and will compel 
 him to pay for such improvements as a condition precedent to the 
 employment of the equitable remedies for the recovery of the prop- 
 erty. Equity recognizes in favor of the party in possession a lien 
 upon the title of the true owner, as a security for the reimbursement 
 of the expenses of the improvements, which may be enforced as a 
 defence, not only against the original owner, but likewise against any 
 
 1 See West v. Skip, 1 Ves. Sen. 239, 456; Lake L. R. 19 Eq. 69j Hibbert v. Cooke, 1 S. & S. 552; 
 
 r. Gibson. 1 Eq. Lead Cas. 264, 268 (4th Am. Dent t). Dent, 30 Beav. 363; Dunne u. Dunne, 3 
 
 ed.); Mycook v. Beatson, L. B. 13 Ch. D. 384; Sm. & Gif. 22. 
 
 Nicboll V. Mumford, 4 Johns. Ch. 522. * Bright j). Boyd, 1 Story, 478, 494; Putnam v. 
 
 2SeeTiedeman EealProp., §68. Ritchie, 6 Paige, 390, 403; Green v. Winter, 1 
 
 8 J» re Leigh's Estate, L. E. 6 Oh. 887; Sohier Johns. Ch. 26, 39; Moore v. Cable, 1 Johns. Ch. 
 
 V. Eldredge, 103 Mass. 345; see Ployer v. 385; 8eearei!«, §§807, 821. 
 
 Bankes, L. E. 8 Eq. 115; Taylor v. Foster's ' Appeal of Cross &, Gault, 97 Pa. St. 471. 
 
 Adm'r, 22 Ohio St. 255; and Todd v. Moorhouse, 
 
 469 
 
§ 397 EQUITY JUEISPKUDENCB. [CH. XXni. 
 
 assignee or purchaser from him.' The claim for reimbursement for 
 the expenses of the improvements in equity becomes still stronger, 
 where the true owner has permitted the party in possession to make 
 these extensive improvements while he remained silent, and failed to 
 assert his title until the improvements have been completed. In such 
 a case, the claim for reimbursement operates with the full force and 
 effect of an estoppel upon the true owner.'' But in all of these 
 cases the element of good faith and want of notice of the defect of 
 one's title, on the part of the person making the improvements, is 
 absolutely essential. If the improvements have been made with full 
 knowledge of the defective title, a claim to reimbursement is never 
 recognized by a court of equity, and hence no lien for the protection 
 of such a claim.' It is proper to add that this equitable doctrine, con- 
 ceding the right to reimbursement :where one makes improvements 
 upon land under the mistaken beUef that the land belonged to him, has 
 now been commonly adopted as a legal rule, and applied to all cases 
 for the recovery of land from those who have acquired possession 
 under color of title and in good faith, and who have, in reliance upon 
 such apparent good title, made improvements upon the land. The 
 general statutory rule ordinarily subjects the true owner to the alter- 
 native of, either paying for the improvements, or selling the land to the 
 party making them, at a fair valuation. 
 
 § 396. Equitable lien on life insurance policies. — It is also held 
 that where one, not the owner of a policy of life insurance, nor in any 
 way bound to pay the premium, pays such premium for the benefit of 
 the person to whom the insurance is payable, he has an equitable lien 
 upon the proceeds of the policy, as a security for the repayment to him 
 of the premiums thus paid.' 
 
 § 397. Tendor's and grantor's liens distinguished. — The distinc- 
 tion between a vendor's lien and a grantor's lien is not commonly 
 made, although the distinction is very important; and perhaps a failure 
 to make the distinction may have been the occasion for all the confusion 
 which prevails among the authorities concerning the nature and char- 
 acteristics of the grantor's lien. Some of the cases have even held that 
 the vendor's lien may arise both before and after the performance of 
 the executory contract of sale; that is, before or after the formal con- 
 veyance of the title to the land to the purchaser.^ "While it is true that 
 
 1 Eobinson «. Bldley, 6 Madd. 2; Atty.-Gen. oases cited; Shine v. Qough, 1 Ball & B. 436, 
 
 V. Baliol Coll., 9 Mod. 407,411; Bright v. Boyd, 444. 
 
 1 Story, 478; 2 Id. 605; Rathburn «. Colton, 15 » Rennie v. Young, 2 De G. & J. 136; Ramsden 
 Pick. 471; Miner v. Beekman, 50 N. T. 337; v. Dyson, L. R. 1 H. L. 129; Cook v. Kraft, 3 
 Smith «. Drake, 23 N. J. Eq. 302; McLaughlin Lans. 512j Davidson v. Barclay, 63 Pa. St. 406; 
 V. Bamum, 31 Md. 425; Sale v. Crutchfleld, 8 Dart v. Hercules, 57 ni. 446; Cannon v. Cope- 
 Bush, 630; and see Preston v. Brown, 35 Ohio land, 43 Ala. 252. 
 
 St. 18. * Todd V. Moorhouse, L. R. 19 Eq. 69; Norris 
 
 • 2 Cawdor v. Lewis, 1 Y. & C, Ex. 427; Pres- v. Caledonian Ins. Co., L. R. 8 Eq. 127; GIL v. 
 
 ton V. Brown, 35 Ohio St. 18; Green v. Bid- Downing, L. R. 17 Eq. 316. 
 
 die, 8 Wheat. 1, 77, 78; Bright «. Boyd, 1 ' SeeDixon"».Gayfere, IDeG. & J.655; Atty.- 
 
 Story, 478, 493; see ante, Vol. II, §§ 807, 821, and Gen. v. Sittiugbourne, &c. Ry., L. R. 1 Eq. 636; 
 
 470 
 
CH. XXin.] EQUITABLE LIENS. § 397 
 
 a lien may be considered as existing, both before and after the convey- 
 ance, the character of the lien is essentially different in the two cases, 
 and for the purpose of distinguishing between the two liens, it is 
 proper to speak of the vendor's lien in connection with the subject of 
 the transfer of property, only where the title to the property is not yet 
 transferred to the vendee and is still retained by the vendor, while the 
 term grantor's lien is that which the grantor of lands has upon the title 
 of the lands in the vendee, for the purpose of securing the pajonent of 
 the purchase money. Under the circumstances, as a general security ' 
 for the payment of the purchase money, the vendor's lien differs in 
 every respect from his legal rights as an owner of the property; he 
 still has the legal title, and hence cannot be said to have any equitable 
 lien on such property, for the possession of the legal title ig a more per- 
 fect security to him than any equitable lien could be. ^ But there is, 
 perhaps, some ground or necessity for the application of the principles 
 of a lien to the case of the vendor under an executory contract for the 
 sale of lands for the purpose of giving to him a Ken, not upon the land, 
 but upon the consideration in the executory contract; that is, under 
 the doctrine of equitable conversion, the vendor is treated as a trustee 
 in respect to the land for the vendee, and the vendee trustee for the 
 vendor in respect to the consideration of the contract, so that the 
 vendor wiU have a right to the specific performance of the contract, 
 and therefore a specific claim to a recovery of the consideration. 
 Where, therefore, the contract for the sale of the land is made upon 
 the consideration of a transfer to the vendor of some specific property 
 instead of merely a sum of money, it would be an advantage to the 
 vendor to claim a lien upon the property which he is to acquire by the 
 full or specific performance of his contract. In that respect, he may be 
 said to have a lien upon the consideration of the contract of sale. Such 
 is, in fact, and can only be, the nature of the vendor's lien; that is, prior 
 to the formal conveyance of the legal title of his property to the 
 vendee." 
 
 Earl of Jersey ». Briton, &c. Dock Co., L. R. 7 21 Md. 439j Yancey v. Mauck, 15 Gratt. 300; 
 
 Eq.409; Wearec.Linnell, 29 Mich. 824; Willis ». Neel v. Clay, 48 Ala. 252; Smiths. Hibbard, 2 
 
 Searcy, ,49 Ala. 222; Willard i>. Reas, 26 Wis. Dick. 730; Smiths. Evans, 28 Beav. 59; White- 
 
 540; Gotten v. McGehee, 54 Miss. 510; Prentice burst v. Yandall, 7 Baxt. 828; Bizzell v. Nix, 60 
 
 V. Nutter, 25 Minn. 484; Jobnson v. Godden, 33 Ala. 281; Johnson v. Nunnerly, 30 Ark. 153. 
 
 Ark. 600; Martin v. O'Bannon, 35 Id. 62; ' Vail v. Drexel, 9 111.. App. 439; Morgan v. 
 
 Stephenson v. Rice, 13 W. Va. 275; Day v. Hale, Swansea, &c. Authority, L. E. 9 Ch. D. 582, 
 
 22 Gratt. 146; Vail v, Drexel, 9 111. App. 439; 584; Lj-saght v. Edwards, L. R. 2 Ob. D. 499, 
 
 In re Patent Carriage Co., L. E. 2 Eq. 349; 606, 507; Wall v. Bright, 1 J. &W. 494, 508; Rose 
 
 Lycett ». Stafford, Ac. Ey., L. E. 13 Eq. 261; v. Watson, 10 H. L. Cas. 672, 678; Shaw v. 
 
 Earl St.. GermainsD. Crystal Palace Ey., L. R. Foster, L. E.5H.L,321; MoCreight d. Foster, 
 
 11 Eq. 568; Wing v. Tottenham, &c. Ey., L. E. L. E. 5 Ch. 604, 610; see, also, McCaslln v. The 
 
 3Ch. 740; Morgan v. Swansea, &0. Authority, State, 44 Ind. 151; Moore!). Anders, 14 Ark. 628, 
 
 L. E. 9 Ch. D. 582; Nives v. Nlves, L. E. 15 Ch. 634; Button v. Moore, 86 Ark. 382; Pitts v. 
 
 D. 649; Fry v. Prewett, 56 Miss. 783; Servis ». Parker, 44 Miss. 247; Wells v. Smith, ^ M. 296; 
 
 Beatty, 32 Miss. 52; English v. Russell, 1 Driver ». Hudspeth, 16 Ala. 348 ; Eeese ». Burts, 
 
 Hempst. 35; Amoryjj.EeiUy, 9 Ind. 490; Stevens 39 Ga. 565; Hines ». Perkins, 2 Heisk. 395; 
 
 «. Chadwick, 10 Kans. 406; Smith v. Rowland, Sparks «. Hess, 15 Cal. 186, 194, per Field, J. ; 
 
 ISKans. 245; Hill t;. Grigsby, 38Ca]. 55;Haugh- Church i'. Smith, 39 Wis. 492,496, i)«r Lyon, J. 
 
 wout V. Murphy, 22 N. J. Eq. 531 ; Hall v. Jones, '^ Roberts v. Francis, 8 Heisk. 127 ; Carter v. 
 
 471 
 
399 
 
 EQUITY JUKI8PEUDENCE. 
 
 [CH. xxin. 
 
 § 398. Characteristics of the vendor's lien. — The vendor's lien, 
 as just described, has many points in common with the grantor's lien, 
 which will be more specifically explained in a subsequent paragraph; 
 on the other hand, it differs from such grantor's lien in one or two 
 respects. Thus, for example, it is not in general waived by the tak- 
 ing of any additional security.^ The vendor's lien will have priority 
 over any subsequent judgment which might be recovered against the 
 vendee.^ * It is also held that the right to the enforcement of the lien 
 will be passed to the assignee, where the rights of the vendor under 
 the contract have been assigned.^ 
 
 § 399. Grantor's lien. — This is also an equitable lien recognized 
 in favor of the grantor as a security for the purchase money. It is 
 founded on4;he equitable theory that, until the payment of the pur- 
 chase money, the grantee holds the land as trustee of the grantor for 
 the purpose of a security. No agreement is necessary for its creation; 
 it is presumed to exist, until the contrary is shown.* This lien has 
 been generally recognized in the states of this country, Alabama, Cali- 
 fornia, Colorado, District of Columbia, Florida, Illinois, Indiana, Iowa, 
 Kentucky, Maryland, Michigan, Minnesota, Mississippi, Missouri, 
 New Jersey, New York, Ohio, Oregon, Tennessee, Texas, Wisconsin, 
 Arkansas, Dakota, Rhode Island,^ but has been denied or left in doubt 
 
 Sims, 2 Id. 166; Cleveland v. Martin, 2 Head, 
 138; Sitz V. Delhi, 55 Mo. 17j Seitz v. Union 
 Pac. Ey., 16 Kans. 133; Smith «. Moore, 26 HI. 
 392j Greene D. Cook, 29 7d. 186; Groves. Miles, 
 58 Id. 338; 71 Id. 376; Buttons. Sohroyer, 5 Wis. 
 598; Merritti). Judd, 14 Cal. 69; Purdy v. Bul- 
 lard, 41 Id. 444; see ante. Vol. I, §§368, 372; Lewis 
 1). Hawliins, 23 Wall. 119; Linganti. Henderson, 
 1 Bland, Ch. 236; Tuck v. Calvert, 33 Md. 209; 
 Sichards v. Fisher, 8 W. Va. 55; Hadley v. 
 Nash, 69 N. C. 162; Harvill v. Lowe, 47 Ga. 214; 
 Taylor v. Eckford, 11 Sm. & Mar. 21; Money 
 V. Dorsey, 7 Sim. &. Mar. 15, 22; Cochran v. 
 Wimberly, 44 Miss. 503; Holman «. Patterson's 
 Heirs, 29 Ark. 357; Lewis v. Boskius, 27 Id. 61; 
 Shinn v. Taylor, 28 Id. 523; Eelfe v. Eelfe, 34 
 Ala. 500, 604; Scroggins v. Hoadley, 56 Ga. 165. 
 
 1 Sehorn v. McWhlrter, 6 Baxt. 311, 313; War- 
 ren V. Branch, 15 W. Va. SI ; Bozeman v. Ivey, 
 49 Ala. 75; McCaslin ». The State, 44 Ind. 151; 
 Day V. Hale, 22 Gratt. 146; but see Hollls v. 
 Hollis, 4 Baxt. 524. 
 
 2 Grubbs v. Wysors, 32 Gratt. 127; Shipe v. Ee- 
 ■pass, 28/(f. 716; Wooten v. Bellinger, 17 Elor. 
 289; Paris Exoh. Blc. v. Beard, 49 Tex. 358; 
 Jones v. Sackett, 36 Mich. 192. 
 
 'Martini). O'Bannon, 35 Ark. 62; McMillenj). 
 Eose, 54 Iowa, 522. 
 
 * Walker Am. Law, 366 n ; Mackreth v. Sym- 
 mons, 15 Ves. 339; Chapman «. Tanner, 1 Vern. 
 267; Blackburn ■;;. Gregson, 1 Bro. C. C. 420; 
 Payne v. Atterbury, Harr. (Mich.) 414; Warren 
 ». Fenn, 28 Barb. 334; Wilson u. Lyon, 51 lU. 
 166; Truebody v. Jacobson, 2 Cal. 269; Dodge v. 
 Evans, 43 Miss. 570; Sohnebly v. Eagan, 7 Gill 
 ■& J. 120; Ahrend v. Odiorne, 118 Mass. 266; 
 
 472 
 
 Kauffelt V. Bower, 7 Serg. & E. 64; Moreton v. 
 Harrison, 1 Bland Ch. 491 ; Iglehart v. Armiger, 
 1 Bland Ch. 519, 524, 525; 2 Story's Eq. Jur., 
 §§ 1218, et seg. ; Snell's Eq., p. 136 (5th ed.) ; 
 Perry on Trusts, §§ 231, 232; Blackburn ». Greg- 
 son, 1 Bro. Ch. 420, per Lord Loughdorough; 
 Mackreth v. Symmons, 15 Ves. 339, per Lord 
 Eldon; Einggold v. Bryan, 3 Md. Ch. 488. 
 
 6 Haley v. Bennett, 5 Port. 452; Pylant v. 
 Beeves, 53 Ala. 132; Thames v. Caldwell, 60 Id. 
 644; Blankhead v. Owen, 60 Id. 457; Bizzell 
 V. Nix, 60 7(2. 281; Simpson ti. McAllister, 56 
 Id. 238; Moore v. Worthy, 56 Id. 163; Bryant 
 V. Stephens, 68 Id. 636; Dugger v. Tayloe, 60 
 Id. 504; Terry v. Keaton, 58 Id. 667; Plinn «. 
 Barber, 61 Id. 530; Gordon v. Bell, 60 Id. 213; 
 Dennis v. Williams, 40 Id. 633; GriflSu v. Ca- 
 mack, 36 Id. 695; Bradford v. Harper, 25 M. 337; 
 Burns v. Taylor, 23 Id. 255; Eoper v, MoCook, 7 
 Ala. 318; Bamett v. Eiser's Ex'rs, 63 Id. 347 
 Thurmau v. Stoddard, 63 Id. 336; Chapman v. 
 Lee, 64 Id. 483; Burgess v. Greene, 64 Id. 509; 
 Shorten!. Frazer, 64 Id. 74; Carver*. Eads, 65 
 Id. 190; Walker v. Carroll, 65 Id. 61 ; Shall v. Bis- 
 ooe, 18 Ark. 142; Lavender v. Abbott, 30 Ark. 
 192, 173; Neal v. Speigle, 33 Id. 63; Mayers v. 
 Hendry, 33 ja. 240; Swan v. Benson, 31 Id. 738; 
 Blevins v. Rogers, 32 Id. 258; Johnson v. Nun- 
 nerly, 5o Id. 153; Linthicum v. Tapscott, 28 
 Id. 267; Holman v. Patterson's Heirs, 39 Id. 357; 
 Stroud V. Pace, 35 Id. 100; Young ». Harris, 36 
 Id. 162; Harris v. Hanie, 37 Id. 348; English v. 
 Eussell, 1 Hempst. 35 ; Scott v . Orbison, 31 Ark. 
 202; Harris «. Hanks, 25 Id. 510, 517; Refeld v. 
 Ferrell, 37 lA 534; Campbell v. Eankin, 38 Id. 
 401; Turner v. Horner, 39 Id. 440; Salmon v. 
 
CH. xxm.j 
 
 EQUITABLE LIENS. 
 
 § 399 
 
 in some. Denied and repudiated in Kansas, Maine, Massachusetts, 
 
 Hoffman, S Cal. 138; Gallagher v. Mars, 50 Id. 
 23; Wells V. Barter, 56 Id. 342; Truebody ». 
 Jacobson, 2 Cal. 269; Gaboon v. Robinson, 6 Id. 
 2^j Walker e. Sedgwick, 8 Id. 398; Sparks v. 
 Hess, 15 Id. 186; Williams v. Young, 17 Id. 403 j 
 Taylor v. McKinney, 20 W. 618; Baum v. Grlsby, 
 21 Id. 172; Burt v. Wilson, 28 Id. 632; Francis 
 V. Wells, 2 Col. 660; Ford v. Smitb, 1 Mo Arthur, 
 592; Bradford v. Marvin, 2 Flor. 463; Woods v. 
 Bailey, 3 Id. 41; Keith?;. Homer, 32 III. 524; 
 Dyer v. Martin, 4 Scam. 146; Trustees t>. Wright, 
 11 111. 603; McLaurie v. Thomas, 39 Id. 291; 
 Boyuton v. Champlin, 42 Id. 67; Wilson v. 
 Lyon, 51 Id. 166; Kirkham v. Boston, 67 Id. 599; 
 Wing II. Goodman, 75 Jd. 159; Moshiers. Meek, 
 SO Id. 79; Andrus v. Coleman, 82 M. 26; Henson 
 V. Westtott, 82 Id. 224; Small v. Stagg,95 Id. 39; 
 Manning v. Frazier, 96 Id. 279; Taryan v. Shri- 
 ner; 26Ind. 364; Anderson v. Donnell, 66 Id. 
 150; Haskell®. Scott, 56 Id. 564; Fouoh C.Wil- 
 son, 60 Id. 64; Nichols v. Glover, 41 Id. 24; Mar- 
 tin !7. Cauble, 72 Id. 67; Higgins v. Kendall, 73 
 Id. 522; Richards v. McPherson, 74 Id. 158; 
 Carty ». Pruett, 4 Id. 226; Merritt v. Wells, 18 Id. 
 171; Mattix v. Weand, 19 Id. 151; Cox's Adm'r 
 r. Wood, 20 Id. 54; Lagow v. BadoUet, 1 Blackf. 
 416; Evans v. Goodlet, 1 Id. 246; Deibler v. Bar- 
 wick, 4 Id. 339; Johnson v. McGrew, 42 Jowa, 55; 
 Tinsleys;. Tlnsley, 52 Iowa, 14; Stuarts. Harri- 
 son, 52 Id. 511; Allen v. Loring, 34 Id. 499; 
 Eschar ». Simmons, 54 7d. 269; Pierson v. David, 
 4Iowa,23;Grapengether». Fejervary, 9/d. 163; 
 Hays V. Horine, 12 Id. 61 ; Rakestraw v. Hamil- 
 ton, 14 Id. 147; Patterson i;. Llnder, 14 7d. 414; 
 Tupple V. Viers, 14 Id. 515; PolerB. Dubuque, 
 20 Id. 440; McDole v. Purdy, 23 Id. 277; Tleman 
 V. Thurman, 14 B. Mon. 277, 284; Gritton v. Mc- 
 Donald, 3 Meto. 252; Burrus v. Roulhac's 
 Adm'x, 2 Bush, 39; Maupin v. McCormiok, 2 Id. 
 206; Ledford v. Smith, 6 Id. 129; Bmison v. 
 Risque, 9 7d. 24 j Gen. Stat. (1873) p. 589 ; Phillips 
 «. Skinner, 6 Bush, 662; Fowleru. Heirs of Rust, 
 2A. K. Marsh. 294; Thornton v. Knox's Ex'r, 6 
 B. Mon. 74; Muir v. Cross, 10 Id. 277 ; Magruder 
 V. Peter, 11 Gill & J. 217; Repp v. Repp, 12 Id. 
 341; Carr v. Hobbs, 11 Md. 285; Hummer v. 
 Schott, 21 7d. 30r; Hall v. Jones, 21 Id. 439; Bratt 
 r. Bratt, 21 Id. 578; Carrico «. Farmers, &c. Bk., 
 33 Id. 235; Gen. Laws, Art. 16, § 130; Moreton v. 
 Harrison, 1 Bland Ch. 491 ; Iglehart v. Armiger, 
 1 Id. 519; Ringgold v. Bryan, 3 Md. Ch. 488; 
 White V. Casenave's Heirs, 1 Har. & J. 106; 
 Ghiselin v. Fergusson, 4 7d. 522 ; Pratt v. Van- 
 wyck's Ex'rs, 6 Gill & J. 495; Carroll v. 
 Tan Rensselaer, Harr. (Mich.) 225; Payne v. 
 Avery, 21 Mich. 524; Merrill v. Allen, 38 7d. 
 487; Palmer o. Sterling, 41 Id. 218; Clark v. Stil- 
 son, 36 Id. 482; Hiscock v. Norton, 48 iS. 320; 
 Brown v. Porter, 2 Mich. N. P. 12; Carroll v. 
 Van Rensselaer, Harring. Ch. 225; Sears v. 
 Smith, 2 Mich. 243; Converse v. Blnmrich, 14 
 Id. 109; Daughaday v. Paine, 6 Minn. 306; Selby 
 V. Stanley, 4 Id. 65 ; Dawson v. Girard L. Ins. Co. , 
 37 Minn. 411; Duke v. Balme, 16 Minn. 306; 
 Dodge V Evans, 43 Miss. 570; Davidson v. Allen, 
 
 36 Miss. 419; Perkins v. Gibson, 51 Miss. 699; 
 Tucker v. Hadley, 52 Id. 414; MoLaln v. Thomp- 
 son, 52 Id. 418; Walton v. Hargroves, 42 M. 18; 
 Lindsey v. Bates, 42 7d. 397; Richardson v. 
 Bowman, 40 7d. 782; Harvy V, Kelly, 41 Id. 490; 
 Russell V. Watt, 41 Id. 602; Dodge v. Evans, 43 
 Id. 570; Pitts v. Parker, 44 Id. 247; Rutland v. 
 Brister, 53 7d. 683 ; Stewart v. Ives, 1 Sm. <fc Mar. 
 197; Tanner v. Hicks, 4 Id. 294; Dunlap v. Bur- 
 nett, B 7d. 702; Upshaws. Hargrove, 6 Id. 286; 
 Trotter®. Erwin, 27 Miss. 772; Servis v. Beatty, 
 32 Id. 52 ; Little j ohn B. Gordon, 32 Id. 235 ; March 
 V. Turner, 4 Mo. 253; Stevens v. Rainwater, 4 
 Mo. App. 292; Davenport v. Murray, 68 Mo. 198; 
 Pearl i;. Hervey, 70 7d. 160; McKnight v. Brady, 
 
 2 Mo. 110; Marsh v. Turner, 4 Mo. 253; Delas- 
 sus V. Poston, 19 Id. 4SB; Davis v. Lamb, 
 30 7d. 441; Bledsoe v. Games, 30 Id. 448; 
 Pratt V. Clark, 57 Id. 189; Armstrong v. 
 Ross, 20 N. J. Eq. 109; Corlies v. Howland, 26 
 7d. 311; Graves v. Coutant, 31 7d. 763; 0|den v. 
 Thornton, 30 Id. 569; Vandoren v. Todd, 2 
 Green Ch. (N. J.) 397; Brinkerhofif u. Tansciven, 
 
 3 Id. 251; Herbert v. Scofield, 1 Stockt. Ch. 492; 
 Dudley v. Matlack, 1 McCarter, 252; Shirley®. 
 Sugar Ref. Co.,8Edw. Ch. 505; Warren ». Eenn, 
 28 Barb. 333; Dubois v. Hull, 43 Id. 26j Smith v. 
 Smith, 9 Abb. Pr., u. s., 420; Chase v. Peck, 21 
 N. Y. 581; Hazeltine v. Moore, 21 Hun, 355; 
 Lamberton v. Van Voorhls, 15 Id. 336; Gayloid 
 V. Knapp, 15 Id. 87; Champion v. Brown, 6 
 Johns. Ch. 398, 402; Garson v. Green, 1 Id. 308; 
 Stafford®. Van Rensselaer, 9 Cow. 316; White 
 ®. Williams,! Paige, 502; Pish ». Howland, 1 
 Id. 20; Warner®. Van Alstyue, 3 Id. 513; May- 
 ham V. Coombs, 14 Ohio, 428; Neil ®. Kinney, 
 UOhio St. 58; Anketel v. Converse, 17 Id. 11; 
 Whetsel v. Roberts, 31 Id. 503 ; Tiernan v. Beam, 
 
 2 Ohio, 383; Williams ®. Roberts, 5 Id. 35; Brush 
 V. Kinsley, 14 Id. 80; Pease v. Kelly, 3 Oreg. 417; 
 Brown V. Vanlier, 7 Humph. 239; Ellis ®. 
 Temple, 4 Coldw. 315; Choate v. Tighe, 10 
 Heisk. 621; Durant v. Davis, 10 Id. 522; Irvine 
 ®. Muse, 10 Id. 477; Russell ®. Dodson, 6 Baxt. 
 16; tJzzell ®. Mack, 4 Id. 319; Medeley ®. Davis, 
 5 Id. 387; Norvell ®. Johnson, 5 Id. 489; Taylor 
 ®. Hunter, 5 Id. 569; Eskridge ®. McClure, 2 
 Yerg. 84; Ross ®. Whitson, 6 Id. 50; Campbell®. 
 Baldwin, 2 Humph. 248; Marshall v. Christmas, 
 
 3 Id. 616; Burgess «. Millican, 50 Tex. 397; Ball 
 V. Hill, 48 Id. 634; Irvin ®. Garner, 50 Id. 48; 
 Wasson ®. Davis, 34 Id. 159; De Brnhl ®. Maas, 
 54 Id. 464; Waldrom v. Zacharie, 54 Id. 503; 
 Burford ®. Eosenfleld, 37 Id. 42; White ®. 
 Downs, 40 Id. 285; Yarborough ». Wood, 42 Id. 
 91 ; Robinson ®. MeWhirter, 52 Id. 201 ; Baker v. 
 Compton, 52 Id. 252; Dibrell v. Smith, 49 Id. 474; 
 Briscoe ®. Bronaugh, 1 Tex. 326; Pinchain ®. 
 CoUard, 13 Id. 333; Glasscock «. Glasscock's 
 Adm'r, 17 Id. 480; Wheeler v. Love, 21 Id. 583) 
 McAlpine ®. Burnett, 83 Id. 649; Tobey v. Mc- 
 Allister, 9 Wis. 643, 663; Williard «. Reas, 26 
 Wis. 540; Madden v. Barnes, 45 Id. 135; De For- 
 est o. Holum, 38 Id. 516; Lavender ». Abbott, 30 
 Ark. 172; Neal ®. Speigle, 33 Id. 63; Mayes®. 
 
 473 
 
§ 399 
 
 EQUITY JUKISPEUDENCE. 
 
 [cH. xxm. 
 
 North Carolina, Pennsylvania and South Carolina/ and left in doubt 
 in Connecticut, New Hampshire and Rhode Island,^ while in Georgia, 
 Vermont, Virginia and West Virginia, although upheld judicially, it 
 is now abolished by statute, except that in the last two states, it may 
 be reserved on the face of the deed of conveyance.' The decisions 
 differ as to details, but agree in respect to the general features of such 
 a lien. The grantor's lien is binding upon the grantee, and all per- 
 sons claiming under him who had notice of the hen or who are not 
 purchasers for value. A volunteer to whom the land is conveyed 
 without consideration, a vridow with respect to her dower, and the 
 heirs and devisees, cannot plead the want of notice as a defence.* 
 The decisions, however, are not uniform in determining to what extent 
 
 Hendry, 33 Id. 840; Swan v. Benson, 31 Id. 738; 
 Blevinsi'. Rogers, 32 J<2. S58; Johnson v. Nun- 
 nerlJ^30 Id. 153; English v. Russell, Hempst. 
 35; Scott V. Orbison, 31 Ark. 202; Shall v. Bris- 
 coe, 18 Id, 142; Harris v. Hanks, 25 Id. 510, 517; 
 Linthicuin v. Tapscott, SB Id. 267; Holman v. 
 Patterson's Heirs, 29 Id. 357; Stroud v. Pace, 35 
 Id. 100; Young v. Harris, 36 Id. 162; Harris v. 
 Hanie, 37 Id. 348; Refeld v. Ferrell, 87 Id. 634; 
 Campbell v. Rankin, 28 Id, 401; Turner v. Hor- 
 ner, 89 Id. 440; Kent«. Gerhard, 18 R. I. 92. 
 
 1 Simpson v. Mundee, 3 Kans. 172; Brown «. 
 Simpson, 4 Id. 76; Smith v. Rowland, 13 Id. 345; 
 Greene v. Barnard, 18 Id. 518; Oilman v. Brown, 
 1 Mason, 191, 192, 210; Philbrook v. Delano, 89 
 Me. 410, 415; Oilman v. Brown, supra; Ahrend 
 V. Odiorue, 118 Mass. 816; Wrights. Dame, 5 
 Mete. 603; MaGehee v. Sneed, 1 Dev. & Bat. Bq. 
 '333; Womble v. Battle, 3 Ired. Eq. 182; Hen- 
 derson v. Burton's Ex'r, 3 Id. 359; Cameron v. 
 Mason, 7 Id. 180; see Mast v. Raper, 81 N. C. 
 330; McKay J). Gilliam, 65 Id. 130; Zentmeyer«. 
 Mittower, 5 Pa. St. 403; Kauffelt u. Bower, 7 S. 
 & R. 64 ; Semple v. Burd, 7 Id. 386 ; Megargel v. 
 Saul, 3 Whart. 19; Bear v. Whistler, 7 Watts, 
 144, 147; Cook v. Trimble, 9 Id. 15; Hepburn v. 
 Snyder, 3 Barr. 73; Springer v. Walters, 34 Pa. 
 St. 388; Steyen's Ex'rs' Appeal, 38 Id. 9; Heister 
 V. Green, 48 Id. 96; Heist v. Baker, 49 Id. 9; 
 Strauss' Appeal, 49 Id. 353; Wragg v. Comp- 
 troller-Gen., 2 Desau. 509, 520. 
 
 2 Watson V. Wells, 5 Conn. 468; Dean v. Dean, 
 6 Id. 285; Megis v. Dimook, 6 Id. 458, 464; At- 
 wood V. Vincent, 17 Conn. 575; Chapman v. 
 Beardsley, 31 Conn. 115; Buntin v. French, 16 
 N. H. 592; Arlin v. Brown, 44 Id. 103; Perry s;. 
 Grant, 10 R. I. 334; KentiJ. Gerhard, 12 R. I. 92. 
 sGa. Code, 1873, § 1997; Jones v. Jones, 56 Ga. 
 325; but see Drinkwater v. Moreman, 61 Id. 395; 
 Mims V. Macon, &c. R. B., 3 Id. 333; Mounce v. 
 Byars, 16 Ga. 469; Mims v. Lockett, 23 Id. 237; 
 Chance v. MoWhorter, 25 Id. 315; Still v. Mayor, 
 Ac. 27 Id. 502, 504; Stat. Laws of 1851, Oh. 47; 
 Gen. Stat. (1863) Ch. 65, J 33; Manly v. Slason, 21 
 Vt. 271, per Eedfleld, C. J. ; Code Va. 1873, Ch. 
 115, § 1; Wade v. Greenwood, 2 Robt. 475; Yan- 
 cey V. Mauck, 15 Gratt. 300; Cole ». Scott, 2 
 Wash. 141 J Tomkius v, Mitchell, 8 Rand. 428; 
 
 4Y4 
 
 Bedford v. Gibson, 12 Leigh, 332; Kyles v. 
 Tait's Adm'r, 6 Gratt. 44; W. Va. Code, 1870, Ch. 
 75, § 1; Hempfield R. R. o. Thornburg, 1 W. Va. 
 261 ; see, also, Bayley v. Greenleaf , 7 Wheat. 
 46; Chilton v. Braiden, 2 Black, 458; McLeans). 
 McLean, 10 Pet. 625 ; Oilman v. Brown, 4 Wheat. 
 254; s. 0., 1 TAason, 191; McLean v. Wallace, 10 
 Pet. 626, 640; Galloway v. Finley,-12 Id. 264 j 
 Bush V. Marshall, 6 How. (U. S.) 284; Chilton v. 
 Braiden's Adm'x, 2 Black, 458; Cordova ». 
 Hood, 17 Wall. 1, 5. 
 
 *PintardD. Goodloe, 1 Hempst. 537; Webbw. 
 Robinson, 14 Ga. 216; Carson v. Green, 1 Johns. 
 Ch. 308; Amors V. Reilley, 91 Ind. 490; TJpshaw 
 ■u. Hargrove, 8 Smed. & M. 286; Fisher v. John- 
 son, 5 Ind. 492; Crane v. Palmer, 8 Blackf. 12; 
 Williams ». Wood, 1 Humph. 408; Besland v. 
 Hewitt, 11 Smed. & M. 164; Nazareth ». Lowe> 
 1 B. Mou. 857; EUicott v. Welch, 3 Bland, 242; 
 Warner v. Van Alstyne, 3 Paige Ch. 513; New- 
 ton V. McLean, 41 Barb. 285; Cole ». Scott, 2 
 Wash. (Va.) 141 ; Bayley v. Greenleaf, 7 Wheat. 
 46; Duval D. Bibb, 4 Hen. &, M. 113; Shirley?;. 
 Sugar Refln. Co., 8 Edw. Ch. 505; Maokreth v. 
 Symmons, 15 Ves. 39; Simpson v. McAllister, 56 
 Ala. 228; Bankhead v. Owen, 60 Id. 457; Shorter 
 V. Prazer, 64 Id. 74; Walton v. Hargroves, 40 
 Miss. 18; McHendryt). Reilly, 13CaJ. 75; 1 Eq. 
 Lead Cas, 477-481 ; Graves v. Coutant, 31 N. J. 
 Eq. 763; Simpson v. McAllister, 56 Ala. 228; 
 Gordon v. Bell, 50 Id. 213; Stafford v. Van 
 
 Rensselaer, 9 Cow. 316; Magruder ». Peter, 11 
 Gill & J. 217; Grant v. Mills, 2 V. <fc B. 306; 
 Frail v. Ellis, 16 Beav. 350; Tucker v. Hadley, 
 
 52 Miss. 414; McLainti. Thompson, 52 Id. 418; 
 
 Pylant v. Reeves, 53 Ala. 132; Carver v. 
 
 Eads, 65 Id. 190; Higgius v. Kendall, 73 Ind. 
 
 622; Hughes v. Kearney, 1 Soh. & Lef. 132; 
 
 Norrls v. Chambers, 29 Beav. 246; Mast v. 
 
 Rapgr, 81 N. C. 330; Whetsel ®. Roberts, 31 Ohio. 
 
 St. 503; Swan v. Benson, 31 Ark. 728; Cator«. 
 
 Earl of Pembroke, 1 Bro. Ch. 302; Dagger v. 
 
 Taylor, 60 Ala. 504 ; Burgess «. Green, 64 M 509 ; 
 
 Thurman v. Stoddard, 63 Id. 336; Russell v. 
 
 Dodson, 6 Baxt. 16; Robinson v. McWhirter, 52 
 
 Tex. 201 ; Dngger v. Tayloe, 60 Ala. 504; Flsk v. 
 
 Potter, 2 Abb. App. Dec. 138; Lench v. Lench^ 
 
 10 Ves. 511. 
 
CH. XXm.J EQtriTABLE LIENS. § 400 
 
 the grantor's lien will be enforced against creditors of the purchaser, 
 who are not charged with notice. It is certain that it will prevail 
 against the assignment for the benefit of creditors, if the vendor 
 enforces his lien by filing a bill in equity, before the assignee executes 
 the trust. ^ But where the conveyance is direct to the creditor, or the 
 land is attached under levy of execution, issued upon a judgment 
 against the vendee, the courts generally hold that the lien will not pre- 
 vail.^ It is also very doubtful whether a subsequent judgment cred- 
 itor of the grantee can claim priority for his lien over the purchased 
 land, or whether the grantor's lien can be enforced against such judg- 
 ment creditor. The courts differ on this question, some holding that 
 the judgment lien has priority,' while other courts give the priority to 
 the grantor's lien.* In respect to what constitutes notice of the 
 grantor's lien, it may be stated that any notice, which is suflicient to 
 put a reasonable man upon his inquiry, will charge the purchaser with 
 knowledge of the existence of the lien. Thus the grantor's possession, 
 or a recital in the deed that the consideration has not been paid, would 
 be sufficient notice to bind the land in the purchaser's hands. ^ 
 
 § 400. Continned — Discharge of waiver of the lien. — Since this 
 lien is raised in favor of the grantor, on the theory that he is without 
 remedy in a court of law, and the lien is necessary to prevent his 
 incurring the loss of both the land and the purchase money, if the 
 grantor shows by any act that he does not rely upon the grantor's lien 
 for protection, the land will vest in the grantee, discharged of the 
 hen. The reservation of the hen depends upon the intention of the 
 parties. In the absence of any evidence to the contrary, the law pre- 
 sumes that it was their intention to reserve the lien. This presumption 
 may, however, be rebutted. An express agreement, that the lien 
 shall not be reserved, will, of course, have that effect; and the general 
 
 1 Brown v. Vanlier, 7 Hnmph. 239; Shirley v. Wheat. 46; Dugger v. Tayloe, 60 Ala. 504; Bur- 
 Sugar Eefinery, 3 Edw. Ch. 505; Repp v. Eepp, gess v. Greene, 64 Id. 509. 
 
 IS Gill & J. 341 ; Truebody v. Jacobson, 2 Gal. * Lamberton v. Van Voorhis, 15 Hun, 336} 
 
 269; Peareeu. Foreman, 29 Ark. 563; Green ». Tucker «. Hedley, 52 Miss. 414; Walton u. Har- 
 
 Demoss, 10 Humph. 371; Walton v. Hargroves, groves, 43 Id. 18; Parker v. Kelly, 10 Sim. & 
 
 42Miss. 18; Warren ». Fenn, 28 Barb. 333; Cor- Mar. 184; Thompson v. McGill, Freem. Ch. 
 
 lies V. Howland, 26 N. J. Eq. 311; Bowles v. (Miss.) 401; Lewis v. Caperton's Ex'r, 8 Gratt. 
 
 Rogers, 6 Ves. 95. 1*8; Aldrldge v. Dunn, 7 Blackf. 249. 
 
 »Bay'ley v. Greenleaf, 7 Wheat. 46; Aldrldge « McRimmons v. Martin, 14 Texas, 318; Tier- 
 
 V. Dunn, 7 Blackf. 249; Taylor v. Baldwin, 10 nan v. Thurman, 14 B. & Mon. 277; Honore v. 
 
 Barb. 626; Webbs. Robinson, 14 Ga. 216; Gaun Bakewell, 6 B. Mon. 67; Daughady v. Paine, 6 
 
 V. Chester, 5 Yerg. 205; Roberts v. Rose, 2 Minn. 452; Hopkins v. Garrard, 6 B. Mon. 66j 
 
 Humph. 145; Roberts v. Salisbury, 3 Gill & J. Thorpe v. Dunlap, 4 Helsk. 674; Briscoe v. 
 
 425; Cook v. Banker, 50 N. Y. 655; Johnson v. Bronaugh, 1 Tex. 326; Frail v. Ellis, 17 Eng. L. 
 
 Cawthome, 1 Dev. & B. Bq. 33; Adams ■„. & Eq. 457; Hamilton v. Fowlkes, 16 Ark. 340j 
 
 Buchanan, 49 Mo. 64; Allen v. Loring, 34 Iowa, Manly v. Glason, 21 Vt. 271 ; Wilson v. Lyon, 61 
 
 499; Porter v. City of Dubuque, 20 Iowa, 440. HI. 166 ; Baum v. Grisby, 21 Cal. 176 ; Thornton 
 
 s Thurman v. Stoddard, 63 Ala. 336; Shorter v. Knox, 6 B. Mon. 74; Woodward v. Wood- 
 
 V. Frazer, 64 Id. 74;. Simpson v. McAllister, 56 ward, 7 B. Mon. 116; Kilpatrick v. Kllpatrick, 
 
 Id. 228; Bankhead v. Owen, 60 Id. 457; Gordon 23 Miss. 124; Parker v. Foy, 43 Miss. 260; Mc- 
 
 V. Bell, 50 Id. 213; Euasell v. Dodson, 6 Baxt. Alpine v. Burnett, 23 Texas, 649; Melross v. 
 
 16; HlgginsD. Hargrores, 43Miss. 18; Hlggins Scott, 18 Ind. 250; Mounce r. Byars, 11 Ga. 180j 
 
 V. Kendall, 73 Ind. 523; Cator v. Earl of Pern- Cordova v. Hood, 17 Wall. 1 ; Masich v. Shearer, 
 
 tlioke, 1 Bro. Ch. 302; Bayley v. Greenleaf, 7 49 Ala. 226. 
 
 475 
 
§401 
 
 EQUITY JUEISPKUDENCE. 
 
 [oh. xxm. 
 
 rule in all other cases is, that nothing less than the acceptance of some 
 other security will constitute a waiver of the lien.' Such would be a 
 mortgage or pledge of the same or of other property/ or a note with 
 surety or indorser.' The execution of an inyalid mortgage on the 
 same land would not discharge the lien.* Nor would a mere change 
 in the form of the vendee's indebtedness, such as the acceptance of 
 the vendee's bond, note, or check,* unless the parties expressly agree 
 that such change in the form of the indebtedness will operate as an 
 actual payment of the consideration.' And, on the other hand, if 
 the parties expressly agree or did not intend that the grantor's lien 
 shall be retained notwithstanding additional security is given, the Uen 
 will not be discharged by the receipt of such security.' 
 
 § 401. Continued — In whose favor raised. — It is doubtful if any- 
 one but the grantor and his heirs can claim the benefit of this Men. It 
 certainly does not enure to a third person, who pays the consideration 
 at the request of the purchaser.' And whether it is assignable with 
 
 1 Anderson v. Donnell, 66 Ind. 150; Clark v. 
 Stilson, 36 Mich. 482; Perry v. Grant, 10 E. I. 
 334; Walker v. Carroll, 65 Ala. 61; Brown v. 
 Gilman, 4 Wheat. 255, 290; Pisliu Howland, 1 
 Paige, 20, 30; Maokreth v. Symmons, 15 Ves. 
 329; Nairn v. Prowse, 6 Ves. 752, 760; Bond v. 
 Kent, 2 Yern. 281 ; Hughes v. Kearney, 1 Sch. & 
 Lef. 132, 135; 1 Bq. Lea* Cas. 471, 472. 
 
 ' Burgess v. Millioan, 50 Tex. 397; see contra, 
 Wassonu. Davis, 34 Id. 159; DeBruhl». Maas, 
 54 la. 464; Tlnsley v. Tinsley, 52 Iowa, 14j 
 Stuart V. Harrison, 52 Id. 511 ; Escher v. Sim- 
 mons, 54 Id. 269; Neal v. Speigle, 33 Ark. 63; 
 Gaylords. Knapp, 15 Hun, 87; Pease v. Kelly, 
 SOreg 417; Wells ».Harter, 56 Gal. 342; Camden 
 ■». Vail, 23 Cal. 633; Richards v. MoPlierson, 74 
 Ind. 158; Littler. Brown, 2 Leigh, 353; Young 
 V. Wood, 11 B. Mon. 123; Johnson v. Sugg, 13 
 Sm. & Mar. 346; see contra, Armstrong v. Boss, 
 20 N. J. Eq. 109; De Forest v. Holum, 38 Wis. 
 516; Anketel v. Converse, 17 Ohio St. 11; Boos 
 V. Ewing, 17 Ohio, 500; Linville v. Savage, 58 
 Mo. 248; Morris v. Pate, 31 Id. 315. 
 
 ^Carrico k. Farmers, &o. Bk. 33 Md. 235; 
 McGonigal v. Plummer, 30 Id. 422; Campbell 
 «. Henry, 45 Miss. 326; Sanders v. MoAffee, 41 
 Ga. 684; Baum v. Grisby, 21 Oal. 172; Hazeltine 
 V. Moore, 21 Hun, 355; Vail v. Foster, 4S. Y. 
 312; Stevens v. Eainwater, 4 Mo. App. 292; 
 Durette v. Briggs. 47 Mo. 356: Durham v. Heirs 
 of Daugherty, 30 La. Ann. pt. 2, 1255; Haskell 
 V. Scott, 56 Ind. 564. 
 
 *Fouch 17. Wilson, 60 Ind. 64; Camden v. Vail, 
 23 Cal. 633; Kent v. Gerhard, 12 B. I. 92; Martin 
 r. Cauble, 72 Ind. 67. 
 
 5 Brinkerhoil v. Vansciven, 3 Green Ch. 251 ; 
 Thornton v. Knox's Ex'r, 6 B. Mon. 74; Denny 
 V. Steakly, 2 Heisk. 156; Aldridge v. Dunn, 7 
 Blacltf. ai9; Tobey v. McAllister, 9 Wis. 463; 
 Baum V. Grigsby, 21 Cal. 172; Grant v. Mills, 2 
 V. <fcB.306; Winters. Lord Anson, 3 Russ. 488; 
 1 S. & S. 434 ; Maokreth v. Symmons, 15 Ves. 3S9 ; 
 Tardiffe v. Sorughan, cited 1 Bro. Ch. 422; 
 
 476 
 
 White V. Williams, 1 Paige, 502; Garson v. 
 Green, 1 Johns. Ch. 308; Warren v. Feun, 28 
 Barb. 333; Vandoren v. Todd, 2 Green Ch. 397; 
 Hughes*. Kearney, 1 Sch. & Lef. 132; Clarke 
 ». Royle, 3 Sim. 499; Matthew v. Bowler, 6 Hare, 
 110; Collins?). Collins, 31 Beav. 346; lEq. Lead. 
 Cas. 464, 485 (4th Am. ed.); Flinn v. Barber, 61 
 Ala. 530; Bizzello. Nix, 60 Id. 231; Chapman «. 
 Lee, 64 M.483; Shorter r. Prater, 64 7(i. 74; con- 
 tra, Linthicum v. Tapsoott, 28 Arli. 267 ; Ogdenti. 
 Thornton, 30 N. J. Bq. 569; Simpsons. McAllis- 
 ter, 56 Ala. 228; Banliheadii. Owen, 60 Id. 457; 
 Holman v. Patterson's Heirs, 29 Ark. 357; Dav- 
 enport V. Murray, 68 Mo. 198; Lavender v. Ab- 
 bott, 30 Ark. 172 ; Corlies v. Howland, 26 N. J. Eq. 
 311; Nichols?). Glover, 41 Ind. 24; Brown v. Por- 
 ter, 2 Mich. N. P. 12; Walton?). Hargroves,42 
 Miss.18; Dodge ?). Evans, 43 M. 570; Kent?). Ger- 
 hard, 12 B. L 92 ; Dibrell v. Smith, 49 Tex. 474 ; Ir- 
 vin !). Garner, 50 Id. 48; Madden v. Barnes, 45 
 Wis. 135; Moore v. Worthy, 56 Ala. 163; Graves 
 ®. Coutant, 31 N. J. Eq. 763; Ball v. Hill, 48 Tex. 
 634; Waldrom v. Zacharle, 54 Id. 503. 
 
 6 1 Eq. Lead. Cas. 466-470 (4th Am. ed.); Par- 
 rott V. Sweetland, 33 My. & K. 655; Buckland 
 V. Pocknell, 13 Sim. 406; Dixon v. Gayfere, 21 
 Beav. 118; 1 DeG. & J. 655; Dyke v. Randall, 
 2 De G. M. & G. 209; Keith v. Wolf, 5 Bush, 
 646; Thames v. Caldwell, 60 Ala. 644; Moshier 
 !). Meek, 80 III. 79. 
 
 ' Mayes v. Hendry, 33 Ark. 240; Stroud v. 
 Pace, 35 Id. 100; Lavender v. Abbott, 30 Id. 172; 
 De Forest v. Holum, 38 Wis. 516; Fonda v. 
 Jones, 42 Miss. 792; Sanders v. McAffee, 41 Ga. 
 684; Irvine v. Muse, 10 Heisk. 477; Durette v. 
 Briggs, 47 Mo. 356. 
 
 8 Stansell v. Roberts, 3 Ohio, 148; Skaggs v. 
 Nelson, 25 Miss. 88; Crane v. Caldwell, 14 111. 
 468; Nolte's Appeal, 45 Pa. St. 361; Brown v. 
 Budd, 8 Ind. 442. But see contra, where this is 
 done by agreement of all the parties, and a 
 note is given by the grantee to a third person 
 who pays the purchase money to the grantor. 
 
CH. xxni.] 
 
 EQUITABLE LIENS. 
 
 § 402 
 
 the grantor's claim for the purchase money, is a matter of great 
 doubt. There are decisions in support of both positions, but the better 
 opinion is, that the lien is personal to the vendor and cannot be 
 assigned, unless the right is expressly reserved by the parties, when it 
 will have all the characteristics of an express lien, and will pass with 
 the assignment. It is held to be non-assignable in Arkansas, Califor- 
 nia, Georgia, Elinois, Iowa, Maryland, Mississippi, Missouri, New 
 York, North Carolina, Ohio and Tennessee.^ While in Alabama, 
 Indiana, Kentucky and Texas, the lien is held to be assignable.^ And 
 in some of the states, where it is generally held that the lien is not 
 assignable with the debt, a distinction is made between a transfer by 
 sale of the debt and a deposit of the debt as security for the grantor's 
 indebtedness. In the latter case, it is held that__the pledgee may assert 
 the grantor's lien in his own behalf.' The assignment of the note or 
 other instrument of indebtedness of the vendee does not discharge the 
 lien, although the lien does not pass to the assignee, as long as the vendor 
 is liable as indorser or grantor. He may enforce it for his own 
 benefit.* 
 
 § 402. Yendee's lien. — Where the vendee has paid any part of 
 the purchase money on the faith of the contract of sale, before a 
 conveyance has been made to him, equity gives him a lien upon 
 the title of the vendor for the amount so advanced, which has all 
 the characteristics of the vendor's lien, and is enforceable in the 
 
 Campbell v. Roach, 45 Ala. 667; Hamilton v. 
 Gilbert, 2 Heisk. 680; Mitchell v. Butt, 45 Ga. 
 162; Francis v. Wells, 2 Col. 660; Perkins ». 
 Gibson, 51 Miss. 699; Nichols v. Glover, 41 Ind. 
 24; Latham v. Staples, 46 Ala. 462. 
 
 1 Carlton ». Buckner, 28 Ark. 66; Button v. 
 Moore, 26 Ark. 382, 396; Baum v. Grigsby, 21 Gal. 
 172; Ross v. Heintzen, 36 Cal. 313; Webbi). Rob- 
 inson, 14 Ga. 216; Welbom v. Williams, 9 Ga. 86; 
 Keith V. Homer, 32 111. 524; Dickenson v. 
 Chase, 1 Morris, 492; Crow v. Vance, 4 Iowa, 
 436; Moshiem. Meek, 80111. 79; Dixon «. Dixon, 
 1 Md. Oh. 220; Inglehart v. Anniger, 1 Bland, 
 519; Pitts V. Parker, 44 Miss. 247; Walker ii. 
 Williams, 30 Miss. 165; Adams v. Cowherd, 30 
 Mo. 458; White v. Williams, 1 Paige, 502; 
 Smith V. Smith, 9 Abb. Pr., n. s., 420; Green v. 
 Crockett, 8 Dev. <fc. B. Eq. 390; Jackman v. Hal- 
 lock, 1 Ohio, 318; Brush v. Kingsley, 14 Ohio, 
 20; Thorpe v. Dunlap, 4 Heisk. 674; Green v. De 
 Moss, 10 Humph. 371 ; Hallock v. Smith, SBarb. 
 267; Graham v. McCampbell, Meigs, 52; Tanner 
 V. Hicks, 4 Smed. & M. 294 ; Norvell v. Johnson, 5 
 Humph. 489; Eskridge v. MoClure, 2 Yerg. 84; 
 Gann v. Chester, 5 Yerg. 205; Sheratz v. Nico- 
 demus, 7 Yerg. 9; Briggs v. Hill, 6 How. (Miss.) 
 362; Moreton v. Harrison, 1 Bland, 491; Shall i;. 
 Biscoe, 18 Ark. 162 ; Horton D . Homer, 14 Ohio, 
 437; Durant v. Davis, 10 Heisk. 522; Williams 
 V. Christian, 23 Ark. 255; Jones v. Doss, 27 
 Id. 518; Blevins v. Rogers, 32 Id. 268; Craw- 
 ley V. Riggs, 24 Id. 563; Williams i;. Young, 
 
 21 Cal. 227; Smalls. Stagg, 95 111. 39; Wingi). 
 Goodman, 75 1(i.l59; Carpenters. Mitchell, 54 Id. 
 126; Rutland V. Brister, 53 Miss. 683; Lindsay «. 
 Bates, 42 Id. 397; Stratton v. Gold, 40 Id. 778; see 
 Perkins, V. Gibson, 51 Id. 699 ; Pearl v. Hervey, 
 70 Mo. 160; White v. Williams, 1 Paige, 502. 
 
 2 Griggsby v. Hair, 25 Ala. 327; Simpson v. 
 McAllister, 56 Ala. 228; Wells v. Morrow, 38 Id. 
 125; White v. Stover, 10 Id. 441; Bankhead v. 
 Owen, 60 Ala. 457; Bamett v. Riser's Ex'rs, 6J 
 Id. 347; Walker v. Carroll, 65 Id. 61; Fisher v. 
 Johnson, 5 Ind. 492; Nichols v. Glover, 41 Ind. 
 24; Johns v. Sewell, S3 Id. 1; Wiseman v. 
 Hutchinson, 20 Id. 40; Kern v. Hazlerigg, 11 Id. 
 443; Honore v. Bakewell, 6 B. Mon. 67; Ripper- 
 don V. Cozlne, 8 B. Mon. 465; White V. Downs, 
 40 Texas, 225; Moore v. Raymond, 15 Texas, 
 654; Watt D.White, 33 Id. 421; De Bruhl v. 
 Maas, 54 Id. 464; Broadwell v. King, 3 B. Mon. 
 449. 
 
 ' Carlton v. Buckner, 28 Ark. 66; Hallock v. 
 Smith, 3 Barb. 272 ; Crowley v. Riggs, 24 Ark. 563. 
 
 4 Kelly D. Payne, 18 Ala. 371; White ji. Will- 
 iams, 1 Paige, 502; Lindsey v. Bates, 42 Miss. 
 397; Turner v. Horner, 29 Ark. 440; Smith v. 
 Smith, 9 Abb. Pr., n. s., 420. In Missouri, it is 
 held that the assignment of note for purchase 
 money will pass the vendor's lien to the as- 
 signee, where the vendor retains the legal title 
 and has only conditioned for the execution of 
 a deed upon payment of the purchase money. 
 Adams v. Cowherd, 30 Mo. 458. 
 
 477 
 
§ 403 EQUITY JUKISPEUDENCE. [CH. XXIH. 
 
 same way against the yendor and all his privies who have notice.* 
 § 403. Grantor's lien by express reservation. — The grantor's 
 lien, which has been already explained, is one which arises by impli- 
 cation of law, and therefore does not rest upon any agreement of the 
 parties; but it is possible for the grantor to expressly stipulate in his 
 conveyance that he reserves for himself a lien upon the property as 
 security for the payment of the purchase money, and, of course, this 
 express reservation of the lien takes the place of the implied lien already 
 explained; and even in those states where the implied gi'antor's lien 
 has been abolished, this express lien would be recognized as a valid 
 lien.^ No particular form of reservation is needed in order to create 
 this lien; any language which indicates such intention will have this 
 effect. The more common forms of reservation of the Men are those 
 in which it is expressly declared that the title to the property is 
 acquired by the purchaser subject to the payment of the consideration; 
 or that the conveyance will be void, unless the consideration is paid; 
 or that the title to the property of the grantee shall become abso- 
 lute, only upon payment of the consideration, and the like.' These 
 grantor's liens are in fact nothing more than a mortgage of the prop- 
 erty, as a mortgage is conceived and permitted to operate; in fact, it 
 is in other words an express lien upon the property so acquired, that 
 it may be enforced against the property as fully and effectively as the 
 formal mortgage.* The liens, which arise by express reservation, sub- 
 ject the title of the property to a positive incumbrance, which may be 
 enforced against the property into whosoever hands the property might 
 
 1 Burgess v. Wheate, 1 W. Bl. 150; Maokreth 386 j Heist v. Baker, 49 Pa. St. 9; Stratton o. 
 
 V. Symmons, 15 Ves. 353; Payne v. Atterbury, Gould, 40 Miss. 778, 781; Davis v. Hamilton, 50 
 
 HaiT. Ch. 414; JEtna Ins. Co. v. Tyler, 16 Wend. J<*- 313; Pugh v. Holt, W Id. 461; Campbell v. 
 
 385; Lowell o. Middlesex Ins. Co., 8 Gush. IZT; Bankiu, 38 Ark. 401; Cordova v. Hood, 17 Wall. 
 
 Shirley i>. Shirley, 7 Blackf. 452; Cbasej;. Peck, ^i Caldwell v. Fraim, 32 Tex. 310; White v. 
 
 21 N. Y. 585; Hope o. Stone, 10 Minn. 151 ; TafEt». Downs, 40 Id. 225; Carpenter v. Mitchell, 54 ni. 
 
 Kessel, 16 Wis. 273; Wiokman v. Eobinson, 14 ?^^' ,*^f ,^°« „'';/^?''^'' ^ "t^'fl^" "' ^"t 
 
 Wis. 493; Stewart v. Wood, 63 Mo. 252; Brown,;. ^™°V Tr^f' ""'^4^'' "' ,^V! I^". ?'^ ^ 
 
 ■n » c ^T jr^ T T J.1 ^L , n.„ Gal. 467 ; Talicf crro ». Bamott, 37 Aifc. 511. 
 
 East, 5 Mon. 407 ; Lane v Ludlow, 6 Paige, 316, , g^j^; ^ 3^^. ^g p^ gt. 9 Pagh v. Holt, OT 
 
 note; 2 Story Eq. Jur., § 1216; Cator v. Earl of jjiss. 461; Garr v. Holbrook, 1 Mo. 340; Harvey 
 
 Pembroke, 1 Bro. Ch. 301 ; Wythess. Lee, 3 Drew. „ . Kelley, 41 Miss. 490 ; Tallef erro v. Bamett, 37 
 
 396,406; Anderson v. Spencer, 51 Miss. 869; Ark. 511; Ledfordi;. Smith, 6 Bush, 129; Kaus- 
 
 Hughes B. Hatchett, 65 Ala. 639; Lane «. Lud- ler v. Ford, 47 Miss. 289; Moore v. Lackey, 
 
 low, 2 Paine, 591 ; Chase u. Peck, 31 N. Y. 681 ; 63 Miss. 85; Patton v. Hoge, 82 Gratt. 443; 
 
 Clark V. Jacobs, 56 How. Pr. 519; Wright v. BlaiBdell «. Smith, 3 III. App. 150; and see, 
 
 Dufleld, 2 Baxt. 218; Elinn v. Barber, 64 Ala. also, Garr v. Thompson, 67 Mo.4 72; Pillows. 
 
 193; Stewart v. Wood, 63 Mo. 2S2; Cooper v. Helm, 7 Baxt. 545; Hobson v. Edwards, ST 
 
 Merritt, 30 Ark. 686; Shirleyi). Shirley, 7 Blaokf. Mis=. 128; Osborne v. Eoyer, 1 Lea. 317; French 
 
 452; Ewing v. Osbaldiston; 2 My. & Gr. 53, v. Dickey, 3 Tenn. Ch. 302; Dingley v. Bk. of 
 
 88; Dinn v. Grant, 6 DeG. & Sm. 451; Rose v. Ventura, 67 Gal. 467; Baker v. Compton, 52 
 
 Watson, 10 H. L. Gas. 673; Turner v. Marriott, Tex. 852. 
 
 L. R. 3Eq. 744; Torrance v. Bolton, L. K. 14 *Klng». Young Men's Ass'n, 1 Woods, 386; 
 
 Eq. 134; Aberaman Ironworks v. Wickens, L. Markoe v. Andras, 67 111. 34; Carpenter o. 
 
 B. 4 Gh. 101; 5 Eq. 485. Mitchell, 54 111. 126; Tallef erro v. Barnett, 37 
 
 «Kausler ». Ford, 47 Miss. 389; Moore v. Ark. 511 ; Coles ». Withers, 33 Gratt. 186 ; Peters 
 
 Lackey, 53 Id. 86 ; Blaisdell v. Smith, 3 111. App. »■ Clements, 46 Tex. 114 ; Masterson v. Cohen, 
 
 150; Osborne v. Eoyer, 1 Lea, 217; Collins v. 46 Tex. 680; Robinson v. Woodson, 33 Ark. 307; 
 
 Richart, 14 Bush, 621; Garr v. Thompson, 67 Collins v. Eichart, 14 Bush, 681; White v. 
 
 Mo. 478; King v. Young Men's Ass'n, 1 Woods, Downs, 40 Tex. 225, Gray, J. 
 
 478 
 
CH. XXin.J EQUITABLE LIENS. § 404 
 
 come, where the deed containing the reservation is duly recorded and 
 any subsequent purchaser takes the property charged with the notice of 
 the existence of the lien.* The lien is also held to take precedence over 
 the prior judgment against the grantee, in the same manner as the 
 mortgage for the purchase money is given precedence.^ The grantor 
 may waive this lien, but such waiver must appear by express provision, 
 or by acts which are inconsistent with the continued existence of the 
 lien.' Thus, the express lien so acquired would not be waived by his 
 taking additional security upon the land or otherwise, as would be the 
 case in respect to an implied grantor' s lien. * So, also, will the continued 
 existence of the lien not be in anywise affected by the change in the 
 form of the indebtedness, as long as the debt for the purchase money 
 remains unsatisfied by the change in its form.* It has also been held 
 that this grantor's lien is not personal to the grantor when expressly 
 reserved; but it may be transferred to the assignee with the note, bond 
 or other instrument of indebtedness given for the purchase money, and 
 may be enforced by such assignee.' 
 
 § 404. Enforcement of grantor's, vendor's and vendee's lien. — 
 All of these liens are enforced by a bill in equity; and if the debt can- 
 not be liquidated in any other way, the court will order the property to 
 be sold, or so much of it as is necessary, and the proceeds of sale 
 applied to the satisfaction of the debt. But in order that the property 
 might be subjected to the lien, the action must be brought directly for 
 that purpose. It cannot be enforced in any collateral suit.' In some 
 of the states, the lien-holder must exhaust his remedy at law before he 
 can file a suit in equity to enforce his lien.' But the contrary rule is 
 
 1 Stratton v. Gold, 40 Miss. 7?8; Thompson v. Tord, 47 Miss. 289j French v. Dlokey, 3 Teun. 
 Heffner's Ex'rs, 11 Bush, 353; Collins v. Eich- Ch. 302. 
 
 art, 14 Id. 621; Eoosevelt v. Davis, 49 Tex. 463; " Summers v. Kilgus, 14 Bush, 449; Koblnson 
 
 Peters v. Clements, 46 Id. 114; Caldwell v. «. Woodson, 33 Ark. 307; Campbell ». Rankin, 
 
 Praim, 32 Id. 310j Masteison v. Cohen, 46 Id. 28 Ark. 401 ; Kausler v. Ford, 47 Miss. 289 ; Ding- 
 
 620; Moore v. Lackey, 53 Miss. 85; Cardova v. ley v. Bk. of Ventura, 57 Cal. 467; Talleferro v. 
 
 Hood, 17 Wall. 1; Ledford v. Smith, 6 Bush, Bamett, 37 Ark. 511; but see Pillow u. Helm, 7 
 
 129; Dingley V. Bk, of Ventura, ST Cal. 467; Baxt. 545; Carpenter v. Mitchell, 54 III. 126; 
 
 Talleferro ». Bamett, 37 Ark. 511. Markoe v. Andras, 67 Id. 34; Hobson v. Ed- 
 
 2 See Parsons v. Hoyt, 24 Iowa, 154. wards, 57 Miss. 128; Osborne v. Eoyer, 1 Lea. 
 «Coles V. Withers, 33 Gratt. 186; Butler v. 217; Blaisdellr. Smith, 3 111. App. 150; Moore 
 
 Williams, 5 Heisk. 241 ; French v. Diokey, 3 v. Lackey, 53 Miss. 85. 
 
 Tenn. Ch. 302. ' Wilson v. Davison, 2 Eobt. 384; MuUikin ». 
 
 * Hatcher's Adm'r v. Hatcher's Ex'rs, lltand. MuUikin, 1 Bland, 538; Eskridge v. McClure, 2 
 
 63; Luddingtonti. Gabbert, 5 W. Va. 330; Con- Yerg. 84; Clarki;. Bell,2 B. Men. 1; Wllliamsw. 
 
 ner v. Banks, 18 Ala. 42; Bradford v. Harper, 25 Young, 17 Cal. 406; Converse v. Blumriok, 14 
 
 Id. 337; Bozeman v. Ivey, 49 Id. 75; Carr v. Mich. 124; Payne «. Harrell, 40 Miss. 498; Clark 
 
 Thompson, 67 Mo. 472; Strickland v.. Summer- ». Hunt, 3 J. J. Marsh. 558; Jones v. Conde, 6 
 
 Tille, 55 Id. 164; Adams v. Cowherd, 30 Jc?. 458; Johns. Ch. 77; Ely «. Ely, 6 Gray, 439; Codwise 
 
 Price ii. Lauve, 49 Tex. 74; Foggr. Eogers, 2 ». Taylor, 4 Sneed, 346; Burger i;. Potter, 32 111. 
 
 Coldw. 290j Hines v. Perkins, 2 Heisk. 395; 66; Milner v. Eamsey, 48 Ala. 287; Emison ». 
 
 Magruder e. Peter, 11 Gill & J. 217; Schwartz Eisque, 9 Bush, 24; Edwards a. Edwards, t 
 
 V. stein, 29 Md. 112, 119; Hurley v. HoUyday, 35 Heisk. 123. 
 
 Id. 469; Knisley ti. Williams, 3 Gratt, 265; Car- « Eoper v. McCook, 7 Ala. 318; Battorf v. 
 
 penter'W. Mitchell, 54 III. 136; McCaslin u. The Conner, 1 Blackf. 287; Ford v. Smith, 1 Mc- 
 
 State, 44 Ind. 151; Lusk v. Hopper, 3 Bush, 179; Arthur, 592; Pratt v. Van Wyck,-5 Gill & J. 495. 
 
 Lewis V. Pursey, 8 Id. 615. In Maryland, it has now been charged by 
 
 6 Coles V, Withers, 33 Gratt. 186; Kausler i>. statute. Gen. Laws, Md. (1860) p. 99. 
 
 479 
 
§ 405 EQUITY JUEISPEUDENCE. [CH. XXIH. 
 
 maintained in some states, where the vendor or vendee may enforce 
 his lien, although he may have a complete remedy at law. ^ 
 
 § 405. Liens ari^ug from charges by will or by deed. — Another 
 kind of equitable lien, which does not depend upon any express con- 
 tract of the parties, is held by equity to exist, when specific property 
 or property in general, included in a residuary devise, is conveyed or 
 disposed of by will, subject to or charged with the payment of debts, 
 legacies, or annuities in favor of some third party. The legal title to 
 the property is conveyed or devised to the grantee or devisee, subject 
 to a lien in favor of the person to whom the legacy, debt, or annuity 
 is to be paid. This lien can be enforced against the property subject 
 to it or in favor of the intended beneficiary. These equitable liens 
 may appear in deeds, as in the case of marriage settlements and the 
 hke, but it is more common to find them in wills, and in this country 
 they are rarely found elsewhere.^ This lien may be enforced, not only 
 against the devisee, but also against the grantee, mortgagee and 
 other subsequent purchasers, who take it with notice.' And the 
 record and probate of the will, in which the charge is made, is notice 
 to a subsequent purchaser of the equitable lien arising therefrom.* 
 At one time this was the only way in which land could be subjected to 
 liability for the debts of the decedent owner; and therefore the 
 charge of the land by the will with the payment of the debts was a 
 provision of the greatest importance to creditors. But, now, all lands 
 as well as personal property are made generally liable for the satis- 
 faction of the debts; and it is now of value to creditors, only so far as 
 the charge of specific property with the payment of specific debts 
 gives to the particular creditors a special exclusive hen for the satis- 
 faction of their claims. 
 
 In order that any property may be subject to an equitable lien in 
 favor of the payment of debts or legacies, the intention of the testa- 
 tor to so charge the property must either be expressly stated in the 
 will, so as to create an express charge upon the property; or the charge 
 upon the property must be implied from' the provisions of the will, or 
 from the circumstances surrounding the parties, and the disposition of 
 the property by will. The lien may arise from express and implied 
 charges, wherever the intention of the testator to so charge the prop- 
 
 1 Bradley D. Bosley, 1 Barb. Ch. 125; Dubois Pearson v. Helliwell, L. E. 18 Bq. 411; Metcalf 
 V. Hull, 43 Barb. 26 ; Stewart v. Caldwell, B4 Mo. v. Hutchinson, L. E. 1 Ch. D. B91 ; Hoyt v. Hoyt, 
 636; Pratt v. Clark, 57 Mo. 189; Campbell V. 85 N. Y. 142; Finch o. Hull, 24 Hun, 826- Dills. 
 Eoach, 45 Ala. 667; Eichardson v. Baker, 5 J. J. Wlsner, 23 Id. 123; Ferris v. Van Vechteu 9 Id.. 
 Marsh. 323; Vail r. Drexel, 9111. App. 439; Mc- 12; Loder v. Hatfield, 4 Id. 36; Horning o. 
 Caslin V. The State, 44 Ind. 151 ; Sehorn v. Mc- Wiederspalen, 28 N. J. Eq. 387; Grode v. Van 
 Whirter, 6 Baxt. 311, 313; Church v. Smith, 39 Valen, 25 Id. 95; Gardenville, &o. Ass'n «. 
 Wis. 492; see Seats. Knight, 3 Tenn. Ch. 262; Walker, 62 Md. 452; Siron v. Euleman's Ex'r 
 Bruce s. Tilson, 25 N. Y. 194. 32 Gratt, 216; Bnroh o. Buroh, 52 Ind. 136- 
 
 2 King V. Denison, V. & B. 260, 272, 276; Hill Ehoades v. Ehoades, 88 111. 139. " * 
 ■». Bk. of London, 1 Atk. 618, 620; Graves v. ^ perkins v. Emory, 55 Md. 27; Donnelly v. 
 Graves, 8 Sim. 43; Bright v. Laroher, 4 De G. & Edelen, 40 Id. 117; Blauvelt v. Van Winkle gft 
 J. 608; Makings v. Makings, 1 De G. !p. & J. N. J. 111. " ' 
 365; Eichardson u. Morton, L. E. 13 Eq. 123; * Wilson ». Piper, 77 Ind 437 
 
 480 
 
CH. XXin.] EQUITABLE LIENS. § 407 
 
 erty can be clearly deduced from all the circumstances of the case.^ 
 § 406. Liens by express charges. — The testator may, of course, by 
 express terms charge the payment of his debts and legacies or any one of 
 them, either upon a particular piece of land, or upon the land contained 
 in the residuary devise. These charges could be made upon both real 
 and personal property, as well as upon the residue of personal prop- 
 erty, which is given to the residuary legatee. No particular language 
 is required to be used in creating the express charge, provided the 
 intention to so charge the property with the payment of the legacy or 
 debt is manifest in the will. The express charges of property with 
 the payment of debts and legacies may be divided into two classes. In 
 the first class wiU be found all those cases, where the testator devises the 
 lands or funds subject to the payment of one or more specific debts 
 or legacies. In such a case, the property devised, or funds bequeathed, 
 will be expressly charged with the payment of the specified debts or 
 legacies; but the devisee or legatee wiU not be personally liable for 
 the payment of such debts or legacies. The only remedy in such a 
 case for the beneficiaries of the charge will be against the property,, 
 which has been charged with the payment of the debts or legacies. The 
 second class of cases will include all those where the language employed 
 charges the devisee or legatee with the payment of a debt or legacy, 
 in consideration of a devise or bequest to him; and in such a case, the. 
 charge created not only a lien upon the property devised or bequeathed, 
 but likewise imposed a personal liability upon the devisee or legatee; 
 and the beneficiary of the charge can proceed against the devisee per- 
 sonally, as well as against the subject-matter of the devise.^, 
 
 § 407. Liens arising from the implied charges. — The intention 
 of the testator, to charge debts and legacies upon the real property 
 devised by his will, may also be implied from the circumstances sur- 
 rounding the parties and the subject-matter of the will, as well as from 
 the general disposition of such property by the will; but the implication 
 of a charge must be more or less a necessary one. The authorities in 
 England and America are not agreed in the statement of the cases, in 
 which there will be an implied charge of the debts and legacies upon 
 the property devised. The authorities in both countries agree that 
 there vdll be an implied charge upon land devised, where the devise 
 is made expressly "after pajrment of" the debts and legacies, or 
 where the provision is that the debts and legacies must be paid. 
 
 1 Hoyt V. Hoyt. 85 N. Y. 142; Taylor v. Dodd, In re Hill's Trusts, L. E. 16 Oh. D. 173; Mannox 
 
 58 Id. 33b; Owens v. Claytor, 66 Md. 189; Steele v. Greener, L. K. 14 Eq. 456; Taylor v. Taylor, 
 
 V. Steele's Adm'r, 64 Ala. 438; Taylor ». Harwell, L. R. 17Bq. 324; Earl of Potarlington v. Darner, 
 
 65 Id. 1; Heslop V. Gatton, 71 111. 528; Kirk- 4 De G. J. & S. 161; Brook v. Beadley, L. E. 4 
 
 patriokJ). Chestnut, 5 S.C. 216. Eq. 106; 3Ch.672; Phillips «. Gutterldge, 3 De 
 
 ' Gardenvllle, Ac. Ass'n v. Walker, 52 Md. G. J. & S. 332; In re Cooper's Trusts, 4 De G. M. 
 
 452j Donnelly B. Edelen, 40 Id. 117; Frampton v. & G. 757; Kempe v, Kempe, 5 Id. 346; Makings 
 
 Blume, 129 Mass. 162; Birch v. Sherratt, L. R. V. Makings, 1 De G. P. & J. 355; Maskell v. 
 
 2 Ch. 644; Kermode v. Macdonald, L. E. 3 Oh. Farrington, 3 De G. J. & S. 338. 
 584; Metcalf v. Hutchinson, L. R. 1 Ch. D. 591; 
 
 31 
 
 481 
 
§ 40Y EQUITY JUKISPEUDENCE. [CH. XXIII. 
 
 Any general direction of the will indicating the intention to pay 
 debts and legacies, followed by the disposition of land by will, will 
 create by implication a charge upon such lands of the payment of the 
 debts and legacies, both in England and in this country.^ So, also, do 
 the cases in England and in this country generally hold that there will 
 be an implied charge, where lands are devised, either to executors or 
 to third persons, accompanied by a direction to them to pay the debts 
 or legacies, or some specific number of them, without any express 
 charge upon the land so devised in favor of the debts and legacies. The 
 personal obligation, imposed upon the devisees to pay such debts and 
 legacies, is held to support the implication of an intention to charge 
 the payment of such debts and legacies upon the land devised to them.* 
 But this doctrine is repudiated by some of the American courts, who 
 hold that nothing but express charges of the debts and legacies upon 
 the land will be sufficient to create a lien in favor of the creditors or 
 legatees.' But where in the will, after making specific legacies without 
 any declaration in the will as to the payment of the debts, there should 
 follow a general residuary disposition of all the property, both real and 
 personal, or the residue of the real property alone; the authorities are 
 completely at variance as to whether there are sufficient facts in the 
 case, on which the intention to charge the property with the payment 
 of the debts and legacies, or any part of them, may be implied. The 
 English rule, which is supported by the majority of the American 
 courts, including the United States Supreme Court, is to the effect 
 that where legacies are given generally, and the residuary devise is 
 made of the rest or residue of the real and personal property, the leg- 
 ;acies are charged upon the residue of real and personal property by 
 implication.* Where the will contains a direction to convert aU the 
 
 1 Shalleross ». Finden, 3 Ves. 738; Graves i). 24 Hun, 238; Stoddard ». Johnson, 13 M. 606; 
 
 tjraves, 8 Sim. 43, 55; Cook v. Dawson, 29 Beav. Turner v. Turner, 57 Miss. 775. 
 123; Harris v. Watkins, Kay, 438, 447; Harding « Starke v. Wilson, 65 Ala. 576; Kirkpatrlck v. 
 
 «. Grady, 1 Dr. <& War. 430j Ronalds B.Feltham, Chesnut, 6 S. C. 216; Cable's Appeal, 91 Pa. St. 
 
 T. & R. 418; Douce V. Lady Torrington, 2 My. & 327; Owens v. Claytor, 56 Md. 129. 
 K. 600; Taylor B. Taylor, 6 Sim. 248; Jones i». < Cole v. Turner, 4 Euss. 376; Greville v. 
 
 Williams, 1 Coll. 156; Coxe v. Basset, 3 Ves. 155; Browne, H. L. Gas. 889; Wheeler v. Howell, 3 
 
 Tuohy V. Martin, 2 McArthnr, 572; Smith v. K. & J. 198; Gyett v. Williams, 2J. &H. 429; 
 
 Fellows, 131 Mass. 20; O'Donnell v. Barbey, 129 In re Bellis' Trusts, L. E. 5 Ch. D. 504; Bray v. 
 
 Jd. 453; Hill V. Jones, 65 Ala. 214. Stevens, L. E. 12 Ch. D. 162; In re Booke, L. B. 
 
 = Ogle«. Tayloe,49Md. 158; Homing^. Wie- 3Ch, D. 630; Lapham v. Clapp, 10 R.I. 543; 
 
 .derspalen, 28 N. ,7. Bq. 387; Merrill ». Biekford, Derby*. Derby, 4 E, L 414, 431; Corwinei». Cor- 
 
 65 Me. 118; Wilson v. Piper, 77Ind. 437; Markil- wine, 24 N. J. Eq. 579; and see Hall v. Thomp- 
 
 lie«. Ragland, 77111. 98;Henvill». Whitaker, 3 son, 23 Hun, 334; Forster i), Civill, 20 Irf. 282; 
 
 Russ.343; Cross ». Kennington, 9 Beav. 150; Ragan ». Allen, 7 M. 537; Buckley*. Buckley, 
 
 Gailimorer. Gill, 2Sm. & GiflF. 158; 8 De G. M. n Barb. 43, 77; Wertz's Appeal, 69 Pa. St. 173; 
 
 &G. 567; Preston s. Preston, 2 Jur., n. s., 1040; Brisben's Appeal, 70 Id. 405; Robinson «. Mc- 
 
 Dormay v. Dorradalle, 10 Beav. 263; Hartland v. Iver, 63 N. 0. 645, 649; Hart v. Williams, 77 Id. 
 
 Murrell, 27 Id. 204; In re Tanqueray-Willaume, 426; Moore v. Beckwith's Ex'r, 14 Ohio St 129, 
 
 L. R. 20 Ch. D. 465; In re Bailey, L. R. 12 Ch. D. 136; Clyde v. Simpson, 4 Id. 445, 459; Knotts v. 
 
 268 ! Parker v. Fearnley, 2 S. & S. 592, contra, is Bailey, 54 Miss. 235 ; Smith v. Fellows, 131 Mass. 
 
 overruled; see, also, Chapinu. Waters, 116 Mass. 20; Gallagher's Appeal, 48 Pa. St. 121; Becker o. 
 
 140; Lapham v. Clapp, 10 E. 1. 543; Hoyt «. Hoyt, Kehr, 49 Id. 223; MoGIaughlin v. McGIaughlln, 
 
 85N. T. 142, 146, 149;Guellch».Clark, 3T. &C. 12 Harris, 20; Davis' Appeal, 83 Pa. St. 348; 
 
 315; Corwineo. Corwine, 24N. J, Eq. 579;23Iii. Lewis u. Darling, 16 How. (U. S.) 1; Hays ». 
 
 568; Bynumw.Hill, 71 N. C. 319; Finch ». Hull, Jackson, 6 Mass. 149; Adams v. Brackett, 5 
 
 482 
 
CH. XXni.] EQUITABLE LIENS. § 408 
 
 real property into personal, and in this converted form to go to the 
 residuary legatee, the intention to charge the residuary estate with the 
 debts and legacies is established beyond a doubt. ^ But in no case will 
 such a general charge of legacies on the residue of the realty and per- 
 sonalty operate to charge property specifically devised or bequeathed.^ 
 
 In a few of the states, the courts have laid down a rule different 
 from that which has been established by the English courts, and 
 generally adopted by the American courts. In New York and Con- 
 necticut, it has been held, that there will be no implied charge of 
 legacies upon the residue of the estate, unless the circumstances, as 
 they appear from the provisions of the will, show that the testator 
 must have contemplated the necessity of resorting to the real estate 
 for the satisfaction of the legacy, from the fact that he must have 
 known, that his personal estate was not sufficient to satisfy all of the 
 legacies which he had made.^ In New Jersey, it is held that the 
 intention to charge legacies upon the real estate, given with the per- 
 sonal property under a residuary clause, may be implied from facts and 
 circumstances outside of the will; as, for example, that the personal 
 property is insufficient, or that the legacies are given to children and 
 the like.* Additional cases are added in the note below, in which the 
 coui'ts have held that there was not sufficient language employed in 
 the will, from which to imply an intention to charge the real property 
 with the payment of the debts and legacies.^ 
 
 § 408. Mechanics' statutory and maritime liens. — Statutory 
 liens. — In the United States, it is not uncommon to provide by stat- 
 ute for the creation of a variety of liens against property, both real 
 and personal, but more particularly against real property, in favor 
 of the persons who have done work upon such property, or who 
 have supplied materials with which to do such work, enabling such 
 persons thereby to enforce a special lien upon such property to the 
 exclusion of other creditors. These liens are generally known as 
 mechanics' liens, and their characteristics depend necessarily upon the 
 express provisions of the statute creating them. These mechanics' 
 liens are, of course, legal in character and therefore are not strictly 
 equitable Uens. The equitable character, however, is given to these 
 
 Met. 280, 282; Wilcox v. Wilcox, 13 Allen, 252. contra, Forster v. Civill, 20 Hun, 282; Hall v. 
 
 1 Field V. Peckett, 29 Beav. 568. Thompson, WId. 334; Bagan v. Allen,? Id. 537; 
 
 2 Castle V. Gillett, L. R. 16 Eq. 530; Spong v. Buckleyu. Buckley, 11 Barb. 43, 77. 
 
 Spong, SBligli, N. s., 84; Conron ». Conron, 7 * Van Winkle ji. Van Houten, 2 Green Ch. 172, 
 
 H. L. Cas. 168. 187; Leigh v. Savidge, 1 McCart. 124; Dey v, 
 
 sCanfield v. Bostwiok, 21 Conn. 550; Gridley Dey's Adm'r, 19 N. J. Eq. 137; Corwine v. Cor- 
 
 V. Andrews, 8 Id. 1; Hoyt, 85 N. Y. 142, 146, 149; wine's Ex'rs,-23 Id. 568; Massaker ». Massaker, 
 
 Bevan v. Cooper, 72 N. T. 317; Le Fevre v. 2 Beasl. 264; Johnson t). Poulson, 32 N. J. Eq. 
 
 Toole, 84 N. Y. 95; Kalbfleisoh v. Kalbfleisoh, 390 ; but see Corwine ». Corwine, 84 N. J. Eq. 579, 
 
 67 Id. mi; Taylor v. Dodd, 58 Id. 335; Reynolds 5 power v. Davis, 3 MaoArthur, 153; Steele V. 
 
 V. Reynolds, 16 Id. 257; Lupton V. Lupton, 2 Steele's Adm'r, 64 Ala. 438; Taylor ii. Harwell, 
 
 Johns. Ch. 614; Myers v. Eddy, 47 Barb. 263; 65 Id. 1; Chase®. Davis, 65 Me. 102; Gilder v. 
 
 Shulters v. Johnson, 38 Id. 80; Goddard v. Gilder, 1 Del. Ch. 331; Whitehead ii. Thompson, 
 
 Pomeroy, 36Id. 546, 556; Finchi). Hull, 24 Hun, 79 N. C. 460. 
 226; Stoddard u. Johnson, 13 Id. 606; but see 
 
 483 
 
§ 408 EQUITY JURISPKUDENCE. [CH. XXni. 
 
 liens by statute; and while in many, and perhaps in most of the states 
 where such statutory liens prevail, the statute provides for a sufficient 
 remedy without resorting to the equitable remedy for the enforcement 
 of the equitable lien; yet, wherever the statute did not make provision 
 for a specific remedy, the parties would have to resort to the ordinary 
 equitable remedy for the enforcement of liens. So far as these 
 mechanics' liens rely upon a resort to equitable foreclosure for their 
 enforcement, they constitute a part of equity jurisprudence. Th& 
 cases cited are those in which resort had to be made to the equitable 
 remedies.' 
 
 There are also several maritime liens, which bear a close resemblance 
 to equitable liens, inasmuch as the possession of the property in the 
 lien-holder is not necessary to the validity of the lien; but the enforce- 
 ment of this lien is generally, perhaps universally, attained in the 
 courts of admiralty, and, therefore, nothing but a passing reference to 
 them can be required in the present connection.^ 
 
 1 Winslow V. Urquhart, 39 Wis. 260; Ogg v. 721 ; Burroughs v. Tostevan, 75 N. Y. 567; Keal- 
 
 Tate, 52 Ind. 159; Ball v. Vason, 56 Ga. 264; ing ii. Voss, 61 Ind. 466. 
 
 Watson ». Columbia Bridge Co., 13 S. C. 433; ^ Aurora, 1 Wheat. 96, 105; The General 
 
 GaskiU ». Davis, 63 Ga. 645; Lawton v. Case, Smith, 4 Jd. 438, see Doddington v. Hallet, 1 
 
 73 Ind. 60; Cummlngs v. Halsted, 26 Minn. 151; Ves. Sen. 497, per Lord Hardwicke; Ex parte 
 
 Wilier V. Bergenthal, 50 Wis. 474; Spink v. Mo- Young, 2 V. & B. 242, per Lord Eldon ; NichoU 
 
 Call, 52 Iowa, 432; Phillips v. Gilbert, 11 Otto, v. Mumford, 4 Johns. Ob. 522; 20 Johns. 611. 
 
 484 
 
CHAPTER XXIV. 
 
 MORTGAGES OF KEAL ESTATE AS AFFECTED BY EQUITT. 
 
 Section 
 
 Mortgage at common law . . . 411 
 
 Equity of redemption . . 412 
 
 Tlie mortgage in equity . 413 
 
 Influence of equity upon tlie law . 414 
 Tlie form of a mortgage . . . .415 
 
 The defeasance clause in equity . . 416 
 
 The admissibility of parol evidence . 417 
 
 The mortgagor's interest . . . 418 
 
 The mortgagee's interest . . 419 
 
 Devise of the mortgage . . . 420 
 
 Merger of interests 421 
 
 Possession of the mortgaged premises . 422 
 Special agreements in respect to posses- 
 sion . . ■ 423 
 
 Bents and profits .... . 424 
 
 Mortgagee's liability for rents received 425 
 
 Insurance of the mortgaged premises 426 
 
 Assignment of the mortgage . . . 427 
 
 Assignment under the lien theory . . 428 
 
 Assignment of the mortgagor's interest . 429 
 The effect of a discharge . . . .430 
 
 When payment will work an assign- 
 ment . ... . . 431 
 
 Action for waste . , . . 432 
 
 Process to redeem 433 
 
 Who may redeem 434 
 
 Accounting by the' mortgagee . . .435 
 
 ■Continued— What are lawful debits? . 436 
 
 Continued— What are lawful credits? . 437 
 
 Making rests 438 
 
 Sbotiow 
 
 Balance due 439 
 
 Foreclosure.— Nature and kinds of . . 440 
 
 Continued— Who should be made parties? 441 
 
 Parties to foreclosure — Continued . . 442 
 Effect of decree in foreclosure upon the 
 
 land 443 
 
 The eflfeot of foreclosure upon the debt . 444 
 
 Mortgages with power of sale . . . 445 
 Character of the mortgagee in relation to 
 
 the power 446 
 
 Purchase by mortgagee at his own sale . 
 
 Extinguishment of the power 
 
 Application of the purchase money . 
 
 Deeds of trust . . . . . 
 
 Contribution to redeem. — General state- 
 ment .... ... 
 
 Mortgagor v. his assignees .... 
 
 Contribution between the assignees of the 
 mortgagor.— Effect of release of one of 
 them .... ... 
 
 Contribution between the surety and the 
 mortgagor 
 
 Between heirs, widow, and devisees of 
 the mortgagor 
 
 Between the mortgaged property and the 
 mortgagor's personal estate 
 
 Special agreements affecting the rights of 
 contribution and exoneration 
 
 Marshalling of assets between successive 
 mortgagees . . . . 
 
 447 
 448 
 449 
 450 
 
 451 
 452 
 
 453 
 
 454 
 
 455 
 
 457 
 
 458 
 
 § 411. Mortgage at common law. — ^A common law mortgage is a 
 conveyance of an estate in lands upon condition that it will be defeated 
 by the payment of the debt or the performance of the obligation, to 
 secure which the conveyance was made. The conveyance is a security 
 and for that purpose the mortgage is given a defeasible estate, which 
 is to become absolute upon the failure of the mortgagor to perform 
 the condition. It is a species of estate upon condition subsequent, 
 and grew out of the doctrine of those estates.' The common law 
 mortgage is to be distinguished from two kinds of securities, which 
 once were used quite extensively in Great Britian, viz. : mvum vadium 
 and the Welsh mortgage, which do not require any explanation in 
 this connection as they have long since fallen into innocuous desuetude.^ 
 
 laWashb. on Real Prop. 34; 4 Kent's Com. 
 136; Jones on Mortg., § 4; Williams on Real 
 Prop. 422; Erskine v. Townsend, 2 Mass. 493; 
 
 Mitchell V. Burnham, 44 Me. 299; Wing v. 
 Cooper, 37 Vt. 179; Lund v. Lund, 1 N. H. 39. 
 2 See Tiedeman, Real Prop., §§ 297, 298. 
 
 485 
 
§ 4:13 EQUITY JURISPRUDENCE. [CH. XXIV. 
 
 § 412. Equity of redemption. — If the mortgagor in a common 
 law mortgage failed to perform the condition at the time stipulated, 
 the estate became absolute in the mortgagee, even though the estate 
 may have been worth much more than the mortgage debt.' There 
 was no remedy by which the mortgagor could enforce the acceptance 
 of payment after the breach of the condition, even where his failure 
 arose from some accident or unavoidable delay, or where the payment 
 of the debt with interest to date of the tender of payment would do 
 no injury to the mortgagee. This rigorous rule of the common law 
 did not fail to be productive of great injustice in many instances, and 
 like all cases of hardships resulting from the technicality of the com- 
 mon law it attracted the attention of the court of chancery. A long 
 contest ensued between these courts from the time of the Magna 
 Cha/rta until the reign of James I., when chancery acquried jurisdic- 
 tion over questions arising out of mortgages, and decreed that the 
 mortgagor may become entitled to redeem his estate from the mort- 
 gagee, after condition broken, by the payment of the debt and interest; 
 and in the reign of Charles I. the law of mortgages was firmly estab- 
 lished as a breach of equity jurisprudence.^ This right of the mort- 
 gagor to redeem the estate after the breach of the condition was recog- 
 nized only in a court of equity. The legal estate, as viewed from the 
 legal stand-point, was still considered to be absolute in the mortgagee, 
 but discharged of all rights of the mortgagor. The right to redeem 
 was therefore no estate in the land. It was simply an equity, and 
 hence was called the equity of redemption. 
 
 § 413. The mortgage in equity. — As a result of this equitable 
 jurisdiction, mortgages assumed in equity a different character from 
 what they had in law. Equity seized hold of the real intention 
 of the parties, and construed the mortgage to have only the 
 efiect of a lien, instead of vesting a defeasible estate in the 
 land. This equitable construction ccmforms more nearly to the pur- 
 poses and desired effect of a mortgage. It is given only to secure 
 the payment of a debt, or the performance of some obligation, and 
 its ends are satisfied, if after condition broken means are provided to 
 the mortgagee for satisfying his claim by an appropriation of the 
 land, while in the interim his interests are protected against any 
 subsequent conveyance of the land. All this is attained by a lien. 
 Equity, therefore, held the mortgage to be a lien upon the land, and 
 not an estate in it.' 
 
 i3Washb. on Real Prop. 35; 4 Kent's Com. 217; Casborne ». Soarfe, 1 Atk. 603; WlUett t>. 
 
 140; Fay v. Cheney, 14 Pick. 399; Brigham v. Winnelly, 1 Vein. 488; Price v. Perrie, 2 Preem. 
 
 Winchester, 1 Mete. 390; Wood v. Trask, 7 Wis. 258. 
 
 566; Goodall's Case, 5 Kep. 96; Wade's Case, 5 > Headley v. Goundray, 41 Barb. 288; Jack- 
 Hep. 115; Jones on Mortg., § 11. sons. Willard, 4 Johns. 41; Green v. Hart, 1 
 
 2 1 Spence Eq, Jur. 603; Jones on Mortg., Johns. 580; Kinna ». Smith, 2 Green. Ch. 14; 
 
 S 6; How V. Vigures, 1 Eep. in Ch. 33; Emanuel Hughes v. Edwards, 9 Wheat. 500; Ruuyan v. 
 
 College II. Evans, 16. 18; 2 Washb. on Keal Mersereau,ll Johns. 534; Deedly v. Cadwell, 
 
 Prop. 39; Eoscarriek v. Barton, 1 Ca. in Ch. 19 Conn. 218; Eaton v. Whiting, 3 Pick. 484; 
 
 486 
 
CH. XXIV.] MORTGAGES AS AFFECTED BY EQUITY. § 414: 
 
 § 414. Influence of equity upon the law. — As soon as equity 
 assumed jurisdiction over mortgages, it began to exert a potent 
 influence over the law in respect to that class of interests, and has in 
 the course of time almost entirely superseded the courts of law in 
 their jurisdiction. This is specially true in regard to the foreclosure 
 of mortgages. Although in some of the states the common law fore- 
 closure still prevails in a modified form, yet in most of them, and in 
 England, it has given way to the more practicable and just foreclosure 
 inequity.* 
 
 Not only has equity supplanted the jurisdiction of courts of law in 
 respect to foreclosure, but it has everywhere, in England and in this 
 country, produced, through a legislation judicial and statutory, 
 greater or less influence upon the legal theories in regard to the 
 interests of the mortgagor and the mortgagee. In some of the states 
 the modifications effected by equity are but slight and pertain only to 
 minor details, while the mortgage is still held to be a conveyance of 
 an estate in the land. Such is the law in Maine, Massachusetts, New~ 
 Hampshire, Connecticut, Rhode Island, Vermont, North Carolina, 
 Mississippi, Alabama, Missouri, Indiana, and Minnesota. In others 
 the mortgage is still considered a conveyance of an interest corre- 
 sponding to an estate, while the mortgagee possesses in the estate only 
 such rights and remedies as are recognized in a court of equity. The 
 ordinary legal rights of ownership do not attach. Such will be found 
 to be the law in Pennsylvania, South Carolina, Texas, Kentucky, 
 Ohio, Illinois, Iowa, and Wisconsin. This class approximates so 
 nearly to the next class to be mentioned, that in the subsequent dis- 
 cussion of the rights of the mortgagor and mortgagee, they will be 
 treated as constituting one subdivision; so far at least as general 
 rules are concerned. In the last class of states, namely, in New 
 York, Georgia and California, the whole common law theory has 
 been repudiated, and the mortgage is construed to be simply a lien 
 upon the land conveying no legal estate, not even after condition 
 broken.^ In South Carolina it has been held lately that the mortgage 
 is so far not an alienation or conveyance of land as that the word 
 " heirs " is not required to give a mortgage in fee, although words of 
 limitation are still required in that state in conveyances inter vi/vos.^ 
 This general statement of the change which the law of mortgages has 
 undergone, and is still undergoing, for in most of the states it is still 
 in a state of transition, will serve to explain why, in the presentation 
 of the law, so much difficulty is experienced in attaining perspicuity 
 
 Ellison V. Daniels, 11 N. H. 280; Anderson v. ^2 Washb. on Eeal Prop. 98j 4 Kent's Com. 
 
 Baumgartner, 27 Mo. 80; Whitney v. French, 181; see post, §440. 
 
 25 Vt. 663; Kagland v. Justices, 10 Ga. 65; Myers ^ 2 Washb. on Eeal Prop. 100-108; Jones on 
 
 B.White, 1 Kawle, 3.53; Hanna v, Carrington, Mortg., § 17-60. 
 
 18 Art. 85; McMillan v. Richards, 9 Cal. 366; ' Bredenburg v. Landrum, (S. C. 1890) 10 .s E. 
 
 Matthews v. Wallwyn, 4 Ves. 118; Timms v. 956. 
 
 Shannon, 19 Md. 296; 4 Kent's Com. 138. 
 
 487 
 
§ 416 EQUITY JTJRISPEUDEKCE. [CH. XXIV. 
 
 of statement and a reconcilement of authorities. This fact must ever 
 be borne in mind, that, although in all the states the law is developing 
 into the lien theory so-called, yet the development in some is not as 
 advanced as in others. In the consultation of authorities, therefore, 
 in order to ascertain the law in any particular state, only such cases 
 may be referred to with safety, as are found in those states which 
 are in the same stage of development. It is to be further remem- 
 bered that even the decisions from these states can only be relied 
 upon as furnishing general rules of analogy. The details of the law 
 of mortgages must be sought for in the reports of the state in which 
 the question arises. 
 
 § 415. The form of a mortgage. — The mortgage consists of a 
 deed, similar in terms to the ordinary deed of conveyance, conveying 
 the estate to the mortgagee, but qualified by a defeasance clause, in 
 which it is provided that the conveyance shall be void, when the con- 
 dition, usually the payment of money, is performed, and shall become 
 absolute in the mortgagee upon breach of the condition. Generally, 
 any deed which appears upon its face to have been intended as a 
 security for the payment of money, will be construed as a mortgage.' 
 If the instrument does not conform to the legal requirements for the 
 execution of a deed, as where the seal has been neglected, or the 
 proper number of attesting witnesses is not obtained, the deed will 
 be inoperative as a mortgage at law, and it is believed generally in 
 equity. But in some of the states, such an imperfect mortgage has 
 been treated in equity as imposing a lien upon the land for the benefit 
 of the creditor, which partakes of the same nature as a mortgage by 
 deposit of title deed.^ And it has been held that a written agreement 
 for security on certain property will in equity, under the doctrine of 
 equitable conversion, operate as a lien on such property against every 
 one interested therein, who has notice of the agreement.' 
 
 § 416. The defeasance clanse in equity. — If the instrument 
 
 1 Co. Lit. 805 a, Butler's note, 96; Hughes ». Cal. g03; Wilson 1!. Drumrite, SI Mo. 325; Cot- 
 Edwards, 9 Wheat. 489 j Morris ». Nixon, 1 terellji. Long, 20 Ohio, 464; English ». Lane, 1 
 How. 118; Russell v. Southard, 12 How. 139; Port. 328; Chownings. Cox, 1 Rand. 306; Eogan 
 Bigelow V. Topliff, 25 Vt. 273; Steel v. Steel, 4 v. Walker, 1 Wis. 527; Burnside v. Terry, 45 Ga. 
 Allen, 419; Gllson ». Glleon, 2 Allen, 116; Parks 621; Mason v. Moody, 26 Miss. 184; 4 Kent's 
 V. Hall, 2 Pick. 211 ; Nugent ». Riley, 1 Mete. Com. 461; Newman ». Samuels, 17 Iowa, 528. 
 117; Vanderhalze v. Hughes, 13 N. J. 244; ^ Coe v. Columbia, &o. R. E. Co., 10 Ohio St. 
 James D. Morey, 2 Cow. 246; Hodges v. Tenn. 372; Price v. Cutts, 29 Ga. 142-148; McQule v. 
 Marine, &o. Ins. Co., 8 N. J. 416; Conway ». Rag, 58 Mo. 56; Daggett v. Rankin, 31 Cal, 381j 
 Alexander, 7 Cranoh, 218; Howe v. Russell, McClurg v. Phillips, 49 Mo. 315; Burnside v. 
 36 Me. 115; Stoever «. Stoever, 9 Serg. & R. Wayman, 48 Mo. 356; Harrington ». Eortner, 58 
 434; Bk. of Westminster v. Whyte, 1 Md. Ch. Mo. 468; Dunn v. Raley, 58 Mo. 134; Lake®. 
 636; s. c.,3 Md. Ch. 508; Mende v. Delalre, 2 Doud, 10 Ohio, 515; Abbott «. Godfroy, 1 Mann. 
 Desau. 564; Tarborough v. Newell, 10 Yerg. 376; (Mich.) 198; Jones «. Brewington, 68 Mo. 565; 
 Delabay v. McConnell, 4 Scam. 156; Flagg v. Black v. Gregg, 58 Mo. 505; Brown v. Brown, 
 Mann, 2 Sumn. 386; Edington v. Ea,Tper, 3 J. J. 103 Ind. 23; Bullock ®. Whipp, 15 R. D. 195; 
 Marsh. 353; Davis v. Stonestreet, 4 Ind. 101 j Watkinsii. Vrooman, 51 Hun, 175; Bellf. Pelt, 
 Gibson v. EUer, 13 Ind. 124; Henrys. Dayis, 7 51 Ark. 433; Westerly Say. Bank v. Stillmau 
 Johns. Ch. 40; McBrayer v. Roberts, 2 Dev. Eq. Mfg. Co., (R. I. 1889) 17 Atl. Rep. 918. 
 75; Hauser v. Lash, 2 Dev. & B. Eq. 212; Clark s Gest v. Packwood, 39 Fed. Rep. 525; Wat- 
 V. Henry, 2 Cow. 324; Wood worth v. Guzman, 1 kins v. Vrooman, 51 Hun, 175 
 
 488 
 
■CH. XXrV.J MORTGAGES AS AFFECTED BT EQUITY. 
 
 §417 
 
 containing the defeasance does not fulfill all the legal requirements of 
 a. deed, it will not in a court of law have the effect of converting 
 an absolute conveyance into a mortgage. But it will be good in 
 «quity, and in that court the conveyance will be treated and enforced 
 as a mortgage against all having actual notice of its real character. 
 Thus, the want of a seal, the absence of the requisite number of wit- 
 nesses, an improper acknowledgment of the deed, would invalidate 
 the defeasance in law, but it would be enforced in equity.^ Courts of 
 equity have not only gone thus far in correcting and supplementing 
 the common law, but they have, also, in cases where the defeasance 
 was not put to writing, sustained 
 
 § 417. The admissibility of parol evidence,— To prove that a 
 ■deed, absolute on its face, was intended to be a mortgage. The 
 authorities are not uniform as to how far, or in what cases, such evi- 
 dence is admissible. Some have held that in any case parol evidence 
 can be introduced to prove a deed to be a mortgage, thus ignoring com- 
 pletely the application to mortgages of the rule that parol evidence is 
 inadmissible to vary or control a written instrument,* while others 
 •either deny the right altogether,' or limit its admissibility to such 
 
 'Story Eq. Jur., § 1018; Kelleran v. Brown, 4 
 Mass 444 j Eaton v. Green, 22 Pick. 526; Delalre 
 ti. Keenan, 3 Desau. 74 ; Woods v . Wallace, 22 
 Pa. St. 171; Flagg v. Mann, 14 Pick. 467; Cutter 
 •B. Dickinson, 8 Pick. 386; Jewett v. Bailey, 5 
 Me. 87; Warren v. Louis, 53 Me. 463; Murphy v. 
 Calley, 1 Allen, 107; GilUs v. Martin, 2 Dev. 
 JEq. 470; see 2 Washb. 59. 
 
 2 Russell II. Southard, 12 How. 139; Babcock 
 •V. Wyman, 19 How. 239; Sprigg v. Bk. of Mt. 
 Pleasant, 14 Pet. 201; Jordon v. Fenno, 13 Ark. 
 593; Anthony v. Anthony, 23 Ark. 479; Pierce v. 
 Bobinson, 13 CaL 116; Farmer v. Grose, 42 Cal. 
 169; Kuhn v. Rumpp, 46 Cal. 299; Klock». Wal- 
 ter, 70 111. 416; Wyiioop v. Cowing, 21 III. 570; 
 Sutphen v. Cushman, 35 111. 186; Conwell v. 
 Evill, 4 Ind. 67; Heath v. WiUiams, 30 Ind. 495; 
 Roberts v. MoMahan, 4 Green, (Iowa) 34; John- 
 son V. Smith, 39 Iowa, 549; Zuver v. Lyons, 40 
 Iowa, 570; Moore v. Wade, 8 Kans. 381 ; Richard- 
 son V. Woodbury, 43 Me. 206; Whitney v. 
 Batchelder, 32 Me. 313; Campbell v. Dearborn, 
 109 Mass. 130; 12 Am. Kep. 371; Hassam v. Bar- 
 rett, 115 Mass. 24; McDonough v. Squire, 111 
 Mass. 256; Flagg v. Mann, 14 Pick. 467, 478; 
 Glass®. Hulbert, 102 Mass. 24; Emerson v. At- 
 water, 7 Mich. 12; Swetland v. Swetland, 3 
 Mich. 482; Wadswortho. Loranger, Har. (Mieh.) 
 113; Belate v. Morrison, 8 Minn. 87; Weide v. 
 Gehl, 21 Minn. 449; Freemanu. Wilson,51 Miss. 
 329; Littlewort v. Davis, 50 Miss. 403; O'Neill v. 
 Capelle, 62 Mo. 202; Hogel v. Lindell, 10 Mo. 
 483; Slowey v. McMurry, 27 Mo. 116; Sohade v. 
 Bessenger, 3 Neb. 140; Cookes v. Culbertson, 9 
 Ney. 199; Sweet v. Parker, 22 N. J. Eq. 453; 
 Crane v. Bonnell, 1 Green Ch. 264; Strong v. 
 Stewart, 4 Johns. IW; Horn v. Keteltas, 46 N. 
 Y. 605; Carr v. Carr, 52 N. Y. 258; Fielder v. 
 Darien, 50 N. Y. 437; Murry v. Walker, 31 N. Y. 
 399; Miami £x. Co. v. V. S. Bank, Wright, 249; 
 
 Cottrell V. Long, 20 Ohio, 464; Kerr v. Gilmore, 
 6 Watts, 405; Rhines v. Baird, 41 Pa. St 256; 
 Palmer D.Guthrie, 76 Pa. St. 441; Taylor v. 
 Luther, 3 Sumn. 228; Nichols v. Reynolds, 1 R. 
 I. 30; Nichols v. McCabe, 3 Head, 93; Haynes v. 
 Swan, 6 Heisk. 560; Ruggles i/. WiUiams, 1 
 Head, 141; Mead v. Randolph, 8 Texas, 191; 
 Carter v. Carter, 5 Texas, 93; Gibbs v. Penny, 
 43 Texas, 560; Wright v. Bates, 13 Vt. 248; Hills 
 V. Loomis, 42 Vt. 562; Ross v. Norvell, 1 Wash. 
 (Va.) 14; Bird v. Wilkinson, 4 Leigh, 266; 
 Klinck V. Price, 4 W. Va. 4; 6 Am. Rep. 268; 
 Rogan V. Walker, 1 Wis. 527; Wilcox v. Bates, 
 26 Wis. 465; Cadman v. Peter, 118 U. S. 731; 
 Lance's Appeal, 112 Pa. St. 456; Matheny v. 
 Sandford, 26 W. Va. 385; Workman «. Greening, 
 115 111. 477; Bailey ». Bailey, 115111. 551; Jones 
 V. Blake, 33 Minn. 362; Miller v. Ausenig, 8 
 Wash. 22; McMillon v. Blssell, 63 Mich. 66; 
 Murdocka. Clark, (Cal. 1890) 24 Pac. 272; Gil- 
 christ V. Boswick, 33 W. Va. 168; Broughton v. 
 Vasqnez, 73 Cal. 325; Ashton v. Shepherd, 120 
 Ind. 64; McPherson, v. Haywood, 81 Me. 329j 
 Hart V. Epstein, 71 Tex. 752; Hanks v. Rhodes, 
 128 111. 404; Tower v. Fetz, 26 Neb. 706; Hall ». 
 Arnott, 80 Cal. 348; Jackson v. Jones, 74 Tex. 
 104. 
 
 ' Bassett V. Bassett, 10 N. H. 64; Porter v. 
 Nelson, 4 N. H. 130; Boody v. Davis, 20 N. H. 
 140. By statute, in Georgia, the admissibility 
 of parol evidence is limited to cases of fraud 
 in the procurement of the absolute deed. Code 
 Ga. (1873) p. 669; Spence v. Steadman, 49 Ga. 133; 
 Broach v. Barfleld, 57 Ga. 601; Mitchell v. Ful- 
 lington, 83 Ga. 301. In Pennsylvania, a similar 
 statute has been enacted. Smolly v. Ulrlch, 
 (Pa. 1890) 19 Atl. 305. In Connecticut, it has 
 been lately held to he a doubtful question. 
 Osgood V. Thompson Bk., 30 Conn. 27. 
 
 489 
 
§ 418 EQUITY JUBISPBUDENCE. [CH. XXTV. 
 
 cases as fall within the ordinary equitable jurisdiction of fraud, acci- 
 dent or mistake, *'. e., where the failure to reduce the defeasance to 
 writing arose out of some fraud, accident or mistake.* As a general 
 rule, such evidence will be received only in a court of equity, and 
 although perhaps the majority of the courts apply the rule in every 
 case, irrespective of any question of fraud, yet, upon a closer analysis 
 Of the cases, it will be found that in no case does the court of equity 
 interfere and permit the introduction of parol evidence, unless the 
 circumstances of the case are such as would make the vendee guilty 
 of at least constructive fraud in insisting upon the deed being treated 
 as an absolute conveyance.^ In any case, the evidence must be clear 
 and free from doubt as to the intention to execute a mortgage in order 
 that a deed absolute on its face may, by parol evidence, be converted 
 into a mortgage.' It is to be understood, however, that the deed 
 cannot be shown to be a mortgage, so as to disturb the title of a pur- 
 chaser from the grantee, in reliance upon his apparent absolute title.* 
 § 418. The mortgagor's interest. — Whatever may be the view 
 taken in any particular state of the character of a mortgage, whether 
 it is construed as a conveyance of an estate in lands, or only the grant 
 of a lien, the mortgagor's interest hefore condition hroTcen is a legal 
 estate, the only difference being, that under the common law theory 
 of the mortgage, it is an estate in reversion, or more strictly a possi- 
 bility of reverter, while under the lien theory it is a present vested 
 estate, only liable to be destroyed by the enforcement of the lien. It 
 is subject to the same rules of conveyance and descends to the heirs as 
 
 1 Washburn v. Merrills, 1 Day, 139; Collins v. Under this theory, the extreme doctrine, that 
 TUlon, 26 Conn. 368; Brainerd «. Brainerd, 15 parol evidence is admissible to show an abso- 
 Conn. 575; French v. Burns, 35 Conn, 359; lute deed to be a mortgage, does not conflict 
 Chaires ». Brady, 19 Fla. 133; Spence v. Stead- with the ordinary construction of the Statute 
 man, 49 Ga. 133; Blggars v. Bird, 55 Ga. 650; of Frauds. But the statute is thus subjected 
 Skinnerc. Miller, 5Litt. 86; Blauchardu. Ken- to a very strained construction, whatever 
 ton, 4 Bibb, 451 ; Green v. Sherrod, 105 N. C. 197 ; theory may be applied to the solution of this. 
 Coutcher v. Muir's Ex'r, (Ky. 1890) 13 S. W. question, 
 
 435. And if the deed is made absolute so as to a Cadman v. Peters, 118 Pa. St. 73; Lance's, 
 
 cover up a usurious contract, it will be such a Appeal, 112 Va. St. 456; Matheney ». Sandford, 
 
 ground of fraud in Kentucky as will admit 26 W. Va. 386; Bentley v. O'Bryne, 111 HI. 53; 
 
 parol evidence. Murphy d. Trigg, 1 Mon. 72; Parmer's Adm'rsj. Parmer, 88 Ala. 545; Fisher's 
 
 Cooko. Coyler, 2B. Mon. 71; Bk. of Westmin- Appeal, 132 Pa. St. 488; Langes ■!>. Muservey, 
 
 BterB. Whyte, 1 Md. Oh. 536; ». u., 3 Id. 508; (Iowa, 1890) 45 N. W. 732; Armor v. Spalding, 
 
 Artz V. Grove, 21 Md. 474; Price v. Grover, 40 (Colo. 1890) 23 Pac. 789; Franklin v. Ayers, 22; 
 
 Md. 102; Kelly r. Bryan, 6 Ired.Bq. 283; Broth- Fla. ftM; McMillan v. Bissell, 63 Mich. 66; 
 
 crs ». Harrill, 2 Jones Eq. 209; Glisson ». Hill, Jameson u. Emerson, 83 Me. 359; Sanborn ». 
 
 Id. 256; Arnolds. Mattison, 3 Rich. Eq. 153. Magee, (Iowa, 1890) 44 N. W. 720; Sherrer ». 
 
 2 In most of the states where the rule is broad, Harris, (Ark. 1890) 13 S. W. 730; Jones «. Pierce, 
 as above stated, it is held, to employ the Ian- (Pa. 1890) 19 Atl. 689; Winston D.,Burrell, (Kans. 
 guage of Mr. Jones, that " fraud in the use of 1890) 24 Pac. 477; Strong v. Strong, 27 111. App. 
 the deed is as much a ground for the interposi- 148; s. c, 126 111. 301; Shattuck b. Bascom, 55 
 tion of equity as fraud in its creation." Jones Hun, 14; Null r. Fries, 110 Pa. St. 521; Munger 
 onMortg., §288;Pierce!;.Boblnson,13Cal.ll6; «. Casey, (Pa. St. 1889) 17 Atl. 36; Townsend o. 
 Conwall ». Bvill, 4 Ind. 67; O'Neill u. Capelle, Peterson, 12 Colo. 491; Jackson v. Jones, 74 
 62 Mo. 202; Moreland v. Bernhart, 44 Texas, Tex. 104. 
 
 275, 283; Wright v. Bates, 13 Vt. 348; Eogan v. * Jackson v. Lawrence, 117 D. S. 679; Parrott 
 
 Walker, 1 Wis. 52; Strong v. Stewart, 4 Johns. ji. Baker, 82 Ga. 364. 
 Ch. 167. See generally the cases cited eupra, 
 
 490 
 
CH. XXIV. j MORTGAGES AS AFFECTED BY EQmTT 
 
 § 418 
 
 any other kind of real estate.' And it may be stated as a general 
 proposition that, except as against tlje mortgagee, he is clothed with 
 all the rights and liabilities which are usually incident to an estate in 
 lands.* Upon the breach of the condition, under the common law 
 theory that the mortgage conveyed a defeasible estate, the estate 
 became absolute in the mortgagee, leaving nothing in the mortgagor 
 but the equitable right to redeem the estate. This was called the 
 equity of redemption. It was no estate in the land, simply an equi- 
 table right to regain the legal estate. At common law, therefore, the 
 interest of the mortgagor after condition broken, although still con- 
 sidered real estate and descendible to the heirs of the mortgagor, and 
 capable of alienation by the usual methods, could not be levied upon 
 by creditors. But in this country at the present day the equity of 
 redemption is generally held to have all the characteristics and quali- 
 ties of a legal estate, and this too in those states whose courts still 
 Tiling to the common law theory of mortgages. The equity is now 
 generally subject to levy and sale under execution.' 
 
 1 Co. Lit. 805 a, Butler's note, 96; Thome v. 
 Thome, 1 Vem. 141; Cashborne v. Scarfe, 1 
 Atk. 606; Ledyard v. Butler, 9 Paige Ch. 132; 
 Chamberlain v. Thompson, 10 Conn. 243 ; Bax- 
 ter V. Dyer, 5 Ves. 656 ; McTaggart v. Thompson, 
 14 Pa. St. 149; Wilkins v. French, 20 Me. Ill; 
 White V. Whitney, 3 Mete. 81; Huckins v. 
 straw, 34 Me. 166; Bird v. Decker, 64 Me. 550; 
 Orr V. Hadley, 36 N. H. 575; Kennett v. Plum- 
 mer, 28 Mo. 142; White v. Eitteumeyer, 30 
 Iowa, 272; Wright ». Rose, 2 Sim. & S. 323; 
 Glass®. Ellison, 9 N. H. 69; Bourne v. Bourne, 
 2 Hare, 35; Bigelow v. Wilson, 1 Pick. 485. 
 
 2 Willington ■o. Gale, 7 Mass. 138; Taylor u. 
 Porter, 7 Mass. 355; Blaney v. Pearce, 2 Greenl. 
 132; Wilkins v. French, 20 Me. Ill; Felch v. 
 Taylor, 13 Pick. 133; Savage v. Dooley, 28 Conn. 
 411; Birdr. Decker, 64 Me. 550; Collins ». Torry, 
 7 Johns. 278; Orr v. Hadley, 36 N. H. 575; 
 Schuykill Co. i/. Thobum, 7 Serg. & E. 411; 
 Hitchcock V. Harrington, 6 Johns. 290; Assay j>. 
 Hoover, 5 Pa. St. 21 ; Clark v. Eeyburn, 1 Kans. 
 281 ; Trustees of Donations v. Streeter, 64 N. H. 
 106; Tilden v. Greenwood, 149 Mass. 667. Ex- 
 cept as against the mortgagee and his privies, 
 the mortgagor may maintain actions to recover 
 possession or to recover damages for waste. 
 Huckins v. Straw, 54 Me. 166; Stinson v. Eoss, 
 51 Me. 556; Ellison v. Daniels, U N. H. 274; 
 Den V. Dimon, 5 Halst. 166; Doe v. McLoskey, 
 1 Ala. 708; Brown v. Snell, 6 Fla. 745; Ballard 
 V. Ballardvale Co., 5 Gray, 468; Bird v. Decker, 
 64 Me. 550; Hall v. Lance, 25 111. 277; Glass v. 
 Ellison, 9 N. H. 69; Woods v. Hildebrand, 46 
 Mo. 284; 2 Am. Eep. 513; Pueblo, Ac. Valley E. 
 E. Co. ■». Beshoar, 8 Col. 32. In Meyer v. 
 Campbell, 12 Mo. 603, it was held that eject- 
 ment will not He by the mortgagor after the 
 breach of the condition. And where the mort- 
 gagee has taken possession, an action for waste 
 cannot be maintained by ihe mortgagor, unless 
 the inheritance has been injured by the tres- 
 
 pass. Sparhawk v. Bagg, 16 Gray, 583. And an 
 action by the mortgagee for trespass is a bar 
 to a similar action for the same offense by the 
 mortgagor. James v. Worcester, 141 Mass. 361. 
 The mortgagor's widow has dower in the 
 equity, if she has released her dower in the 
 land, and may redeem the land from the mort- 
 gagee. Titus V. Neilson, 5 Johns. Ch. 452; Van 
 Duyne v. Thayre, 14 Wend. 233; Hawley ». 
 Bradford, 9 Paige Ch. 200; Snow v. Stevens, 15 
 Mass, 278; Eaton v. SlmondB, 14 Pick. 98; Mc- 
 Cabe V. Bellows, 7 Gray, 148; see post, § 334. 
 
 3 It is liable for debts. Gushing v. Hurd, i 
 Pick. 253; Febeiger v. Craighead, 4D all. 151; 
 Perrin v. Read, 35 Vt. 2; Dunbar v. Starkey, 19 
 N. H. 160; Dadmun v. Lamson, 9 Allen, 85; 
 Smith -0. Sweetser, 33 Me. 246; Clinton Nat. 
 Bank ». Manwaring, 39 Iowa, 281 ; Fox ». Hard- 
 ing, 21 Me. 104; White v. Whitney, 3 Meto. 81; 
 Curtis «. Root, 20 111. 53; Grace v. Mercer, 10 B. 
 Mon. 157; Crow ». Tinsley, 16 Dana, 402; Waters 
 V. Stewart, 1 Caines' Cas. 47; Gotten u. Blocker, 
 6 Fla. 1; Femald v. Linscott, 6 Greenl. 234; 
 Huntington V. Cotton, 31 Miss. 253; Wiggin 
 V. Heyward, 118 Mass. 514; Hall v. Tunnell, 1 
 Houst. 320; Van Ness «. Hyatt, 13 Pet. 294; Pen- 
 derson v. Brown, 1 Day, 93; Slate v. Laval, 4 
 McCord, 336; Jackson ». Willard, 4 Johns. 41; 
 Bosse V. Johnson, 73 Tex. 608. At common 
 law, it was not subject to levy and sale under 
 execution, although perhaps always liable in 
 equity. Pluukett v. Penson, 2 Atk. 290; Forth 
 V. Norfolk, 5 Madd. 504; Van Ness v. Hyatt, 13 
 Pet. 294; Hill v. Smith, 2 McLean, 446. But in 
 most of the states the courts have either by 
 their adjudications assumed that it was a 
 common law right, or the right has been ex- 
 pressly given by statute. Statutes have been 
 passed in Alabama, Connecticut, Florida, Illi- 
 nois, Massachusetts, Mississippi, Maine, North 
 Carolina, South Carolina and several other 
 states. 2 Washb. on Real Prop. 163. But the 
 
 491 
 
§ 421 EQUITY JURISPRUDENCE. [CH. XXTV. 
 
 § 419. The mortgagee's interest. — Under the common law theory, 
 the mortgagee has the freehold estate both before and after the breach 
 of the condition. Before, it is a defeasible estate, and after, an abso- 
 lute estate. His interest, therefore, was a legal estate, it descended 
 to his heirs, and required the same formalities of conveyance.^ But 
 under the lien theory he is said to have only a chattel interest until 
 foreclosure. The mortgage is not real estate, it is personal property, 
 ■which descends with the debt to the personal representatives. And 
 now the equity rule substantially prevails, whether the mortgagee's 
 interest is considered real estate or personal property, and after his 
 death the mortgagee's personal representatives exercise all his rights 
 tinder the mortgage, a release or conveyance by the heir having no 
 effect upon the rights of the personal representatives. The heir takes 
 the mortgage as trustee for. the personal representives.^ If a statute 
 prohibits foreign corporations from lending money within the state, 
 such corporations cannot acquire any valid interest in a mortgage, as* 
 a mortgagee. Such a mortgage would be void.' 
 
 § 420. Devise of the mortgage. — It has been held that a general 
 devise in terms of lands, tenements and hereditaments, in the absence 
 of any other evidence of intention, will be construed to cover the 
 mortgages owned by the devisor.* But those decisions are from the 
 English courts, which sustain the common law theory of mortgages, 
 and it is to be supposed that in the states, in which the lien theory 
 has been more or less followed, a different conclusion would be 
 reached.^ 
 
 § 421. Merger of interests. — Inasmuch as the whole subject of 
 merger, as it appears in the light of equity, is fully discussed else- 
 mortgagee cannot reduce the mortgage debt to ' 2 Waslib. on Real Prop. 96, 97 ; Co . Lit. 805 a, 
 judgment, and levy upon the equity of redemp- Butler's note, 96; Jones on Mortg., §§ 11-69; see 
 tion. Lyster ». Dolland, 1 Ves. 431 ; Washburn (mte, §411; Williams on Real Prop. 422. 
 V. Goodwin, 17 Pick. 137; Atkins v. Sawyer, 1 ' Connor v. Whitmore, 52 Me. 185; Collamer 
 Pick. 351; Palmer v. Foote, 7 Paige Oh. 437; 2 ' v. Langdon, 29 Vt. 32; Taft v. Stevens, 3 Gray, 
 N.Y. Eev. Stat. 368; Goring ». Shreve, 7 J)ana, 504; Wilkins v. French, 20 Me. 11: Burt v. 
 67; Deaver «. Parker, 2 Ired. Eq. 40; Camp v. Kicker, 6 Allen, 78; Douglas v. Darin, 57 Me. 
 Co'xe, 1 Dev. & B. 52; Tioe v. Annin, 8 Johns. 121; Einnav. Smith, 2 Green Ch. 14; Dewey t). 
 Ch. 125; Powell v. Williams, 14Ala. 476; Parker Van Deusen, 4Pick. 19; Jackson v. De Lancey, 
 V. Bell, 37 Ala. 358; Duck «. Sherman, 2 Dougl. 11 Johns. 365; s. c, 13 Johns. 635; Great Falls 
 (Mich.) 176; ThorntonD.Pigg,24Mo.S49; Bald- Co. u. Worster, 15N. H. 412; Chases. Locker- 
 win ». Jenkins, 23 Miss. 206; Waller «. Tate, 4 man, 11 Gill <fc J. 185; Barnes u. Lee, 1 Bibb, 
 B. Mon. 639; Hill ». Smith, 2 McLean, 446. Con- 526; White j). Rittenmeyer, 30 Iowa, 272; Nor- 
 tra, Porter v. King, 1 Me. 297; Trimm v. Marsh, wick v, Hubbard, 22 Conn. 587; Richardson v. 
 68 N. Y. 599; 13 Am. Rep. 623; Crocker v. Hildreth, 8 Cush. 225; Webster ii. Calden, 56 
 Frazier, 52 Me. 406; Freeby v. Tupper, 15 Ohio, Me. 204. 
 
 467; Pierce v. Potter, 7 Watts, 476. But if the ' Farrlor v. New Eng. Mortgage, &c. Co., 88 
 
 mortgage debt has been assigned to a bona fide Ala. 275. 
 
 holder, without the mortgage, such assignee < Jackson v. Delancey, 13 Johns. B53, 559; 
 
 may levy upon the equity of redemption. Winn tj. Littleton, IVern. 4; Galliersc. Moss, 9 
 Crane «. Marsh, 4 Pick. 131 ; Andrewsu. Fisk, B.&C.267; Braybroke d. Inskip, 8 Ves. 417 n ; 
 101 Mass. 424; Waller v. Tate, 4 B. Mon. 529. Co. Lit. 205 a, Butler's note, 96; contra, Cash- 
 And it has also been held that the first mort- borne ». Scarfe, lAtk.605;Atty.-Gen.». Vigor, 
 gageemay levy upon the equity of redemption 8Ves.276; Strode ». Russell, 3 Vern. 625; Wil- 
 from the second mortgage. Johnson v. Ste- kinsr. French, 20 Me. 111. 
 Tens, 1 Cush. 431. " Moore i). Cornell, 69 Pa. St. 3. 
 
 492 
 
CH. XXIV.] MORTGAGES AS AFFECTED BY EQUITY. 
 
 § 422 
 
 where,' and special reference is there given to the matter of merger 
 of incumbrances," it will be unnecessary in this connection to add 
 anything more. 
 
 § 422. Possession of the mortgaged premises. — It is a general . 
 custom in this country, for the mortgagor to i-etain possession until 
 the breach of the condition, and even afterwards it is not usual for the 
 mortgagee to enter into possession until the land has been decreed to 
 him by foreclosure. But in those states where the common law 
 theory prevails in its full foi-ce, the mortgagee may enter into pos- 
 session at any time after the delivery of the mortgage. He possesses 
 the freehold, and can exercise all the rights of ownership over the 
 land. And if the mortgagor should resist his demand for possession 
 he may bring an action of ejectment for its recovery.* But in some 
 of the states, where the common law has been modified in this respect 
 by statute or judicial legislation, the mortgagor is entitled to posses- 
 sion until condition broken, but after condition broken the mortgagee 
 has the right of possession, the same as at common law.* In other 
 states where the lien theory has met with more or less favor, the mort- 
 gagee is not entitled to possession until the mortgage is foreclosed 
 and the estate made absolute in the mortgagee.^ And it has been 
 
 1 See Chapt. VII. 
 
 2 See §§ 119, 130. 
 
 3 Erskine v. Townsend, 2 Mass. 493; Goodwin 
 V. Bichardson. 11 Mass. 473: Duval v. McClos- 
 key, 1 Ala. 708; Knox v. Easton, 38 Ala. 345; 
 Bradley v. Fuller, 23 Pick. 1 ; Page v. Robinson, 
 10 Cush. 99; Wales v. Miller, 1 Gray, 512; Cham- 
 berlain I/. Thompson, 10 Conn. 243; Middle- 
 town Sav. Bk. -v. Bates, 11 Conn. 519; Blaney «. 
 Bearce, 2 Greenl. 138; Ferbish v. Goodwin, 29 
 N. H. 321 ; Harper v. Ely, 10 111. 581 ; Delahay v. 
 Clement, 3 Scam. 202; Karnes v. Lloyd, 52 111. 
 113; Chellls v. Stearns, 22 N. H. 312; Howard v. 
 Houghton, 64 Me. 445; Stewart v. Barrow, 7 
 Bush, 368; Sedman v. Sanders, 2 Dana, 68; Eev. 
 Stat. Me. (1871) Oh. 90, § 2; Treat v. Pierce, 63 
 Me. 77; Brown ». Stewart, 1 Md. Ch. 87; Sum- 
 wait V. Tucker, 34 Md. 89; Annapolis, &c. E. K. 
 V. Ganlt, 39 Md. 115; Hemphill ». Ross, 66 N. C. 
 477; Jackson v. Dubois, 4 Johns. 216; Jackson 
 V. Hull, 10 Johns. 481; Ellis v. Hussey, 66 N. C. 
 501; Tryon i>. Munson, 77 Pa. St. 260; Young- 
 man V. R. R. Co., 65 Pa. St. 278; Den v. Stock- 
 ton, 12 N. J. L. 322; Shute v. Grimes, 7 Blackf. 
 1; Elyu. McGuire, 20hio,223; Carpenters. Cas- 
 per, 6 R. I. 542; Waterman v. Matteson, 4 R. I. 
 539; HenshawB. Wells, 9 Humph. 568; Vance v. 
 Johnson, 10 Humph. 214; Faulkner v. Broken- 
 borough, 4 Rand. 245; Tripe v. Marcey, 39 N. H. 
 439; Trustees v. Dickson, 1 Freem. Ch. 474; May 
 «. Fletcher, 14 Pick. 525; Clark v. Beach, 6 
 Conn. 142. And he may likewise have tres- 
 pass against the mortgagor, even before con- 
 dition broken, for waste, or for resisting hie 
 entry. Smith v. Johns, 3 Gray, 517; Northamp- 
 ton Mills V. Ames, 8 Meto. 1 ; Page v. Robinson, 
 10 Cush. 99; Newall v. Wright, 3 Mass. 138; Fur- 
 
 bish V. Goodwin, 29 N. H. 321; Clark «. Bench, 
 supra. 
 
 * Cheever v. Rutland & B. R. R., 39 Vt. 653; 
 Wilson V. Hooper, 13 Vt. 653; Walcop u. Mc- 
 Kinney, 10 Mo. 239; Sutton v. Mason, 38 Mo. 120; 
 Mclntyre v. Whitfield, 13 Smed. & M. 88; 
 Eannady v. McCarron, 18 Ark. 166; Doe v. Pen- 
 dleton, 15 Ohio, 735; Frisohe v. Cramer, 16 Ohio, 
 125; Watson ■b. Dickson, 13 Smed. <fe M. 608; 
 Reynolds v. Canal & Banking Co. of N. O., 30 
 Ark. 520; Hall v. Tennell, 1 Houst. 320; New- 
 bold V. Newbold, 1 Del. Ch. 310; Hillu. Robert- 
 son, 24 Miss. 368; Johnson v. Houston, 47 Mo. 
 237; Reddick v. Gressman, 49 Mo. 389; Pease ». 
 Pilot Knob Iron Co., 49 Mo. 124j Sanderson 
 i;. Price, 1 Zab. 646; Shields v. Lozear, 34 N. J. 
 L. 496; 3Am. Rep. 356; Hagar». Brainerd, 44 Vt. 
 294; Walker v. King, 44 Vt. 601 ; Allen v. Everly, 
 24 Ohio St. 602; Rands v. Kendall, 15 Ohio, 671. 
 
 sCivil Code Cal., § 2927; Nagle v. Macy,9Cal. 
 426; Dutton v. Warschauer, 21 Cal. 609; Grattan 
 V. Wiggins, 23 Cal. 26; Drake v. Root, 2 Col. 
 685; Bush Dig. of Stat. (Fla.) 1872, p. 611 ; Vasoji 
 V. Ball, 56 Ga. 268; Elfe v. Cole, 36 Ga. 197; Davis 
 V. Anderson, 1 Ga. 176; Iowa Code, (1873) 357; 2 
 G. & H. Stat. 335 (Ind.) ; Smith v. Parks, 32Ind. 
 61 ; Chase v. Abbott, 20 Iowa, 158 ; Dassler's Stat. 
 Kans. (18761 Ch. 68, § 1; Ducland v. Rousseau, 2 
 La. An. 168; Comp. Laws Mich. (1871)1775; Gor- 
 ham V. Arnold, 22 Mich. 247; Adams v. Corris- 
 ton, 7 Minn. 456; Berthold v. Fox, 13 Minn. 501; 
 Kyger v. Eyley, 2 Neb, 30; Webb v. Hoselton, 4 
 Neb. 308; 2 Eev. Stat. N. Y., p. 312, § 57; Mur- ' 
 ray v. Walker, 31 N. Y. 396; Trimm v. Marsh, 
 54 N. Y. 604; Besser v. Hawthorne, 3 Oreg. 129; 
 Thayer v. Crammer, 1 McCord Ch. 396; Nixon 
 V. Bynum, 1 Bailey, 148; Hughes v. Edwards, 9 
 
 493 
 
§ 424 EQUITY JUEISPKUDENCE. [CH. XXIV. 
 
 held in some of the last class of cases, that although the mortgagor 
 is lawfully in possession, and cannot be ejected even after the con- 
 dition has been broken, yet if he delivers the possession to the mort- 
 gagee, he cannot by any action regain it as long as the mortgage is 
 not satisfied. His only remedy is to redeem the mortgage.* 
 
 § 423. Special agreements in respect to possession. — But the 
 right to possession before foreclosure may be changed by agreement of 
 the parties. If, according to the law, the mortgagor is entitled to 
 possession, by agreement the mortgagee may be given a right of entry 
 at any time before foreclosure; and if the mortgagee has by law the 
 right of possession, his right of entry may be restrained until con- 
 dition broken, or taken away altogether. If the purposes and the 
 object of the mortgage require the possession to be given to the party 
 not entitled thereto by law, the agreement to vest it in him will be 
 implied from those circumstances. The implication must, however, 
 be a necessary one; otherwise nothing but an express agreement will 
 have that effect.'^ The mortgagor may also agree to pay rent for his 
 occupation of the land during the continuance of the mortgage. In 
 which case the relation of landlord and tenant arises between the mort- 
 gagee and mortgagor, and on default in the payment of the rent, the 
 mortgagee could recover the possession.' 
 
 §424. Rents and profits. — Whoever is in actual possession is 
 entitled to the rents and profits issuing from the mortgaged premises. 
 If it be the mortgagor, he takes them free from any claim on the part 
 of the mortgagee, even where he is in possession by sufferance only, 
 and where the property is not sufficient to satisfy the mortgage debt.* 
 
 Wheat. 489; Durand v. Isaacks, i MoCord, 54; Brown v. Leach, 35 Me. 39; Duval «. McLoB- 
 
 Wrightr. Henderson, 12 Texas, 43; Walker v. key, 1 Ala. 708; Knox v. Easton, 38 Ala. 345; 
 
 Johnson, 37 Texas, 127; Word v. Trask, 7 Wis. Fogarty v. Sawyer, 17 Cal. 589; Carroll o. Bal- 
 
 566. But where the common law rule has been lance, 26111. 9jChicksl«. Willetts, 2Kans. 384; 
 
 changed by statute, the statute win not affect Stewart v. Barrow, 7 Bush, 368; Redman v. 
 
 the mortgagee's right of possession under the Sanders, 2 Dana, 68; Browne. Stewart, 1 Md. 
 
 mortgages already in existence. The statute Ch. 87; Leighton v. Preston, 9 Gill, 201; 
 
 will only apply to future mortgages. Black- George's Creed Coal, &o. Co. 17. Detmold, 1 Md. 
 
 wood V. Van Fleet, 11 Mich. 252; Morgan 0. 237; O'Neill v. Gray, 39 Hun, 566; Brysou v. 
 
 Woodward, 1 Ind. 381; Shaw 11. Hoadley, 8 June, 55 N. J. Super. Ct. 374. But the right 
 
 Blackf. 165. will not be implied from a silent acquiescence 
 
 iHubbellu. Moulson, 53N. Y. 225; Micklesv. in the mortgagor's possession, or inferred 
 
 Townsend, 18 N. Y. 584; Watson v. Spence, SO from a clause in the mortgage that the mort- 
 
 Wend. 260; Den D. Wright, 7 N.J. L. 175; Mitch- gagee shall take possession upon default. 
 
 elliJ. Bogan, llEloh. L. 681;Hennesy«. Farrell, Stowell d. Pike, 2 Greenl.3S7; Brown t>. Cram, 
 
 20 Wis. 42; Stark v. Brown, 12 Wis. 572; Roberts IN. H. 169; Rogers v. Grazebrook, Q. B. 898; 
 
 V. Sutherlin, 4 Greg. 219; Pace v. Chadderdon, but see Jackson v. Hopkins, 18 Johns. 487. 
 
 4 Minn. 49; Prink v. Le Roy, 49 Cal. 314; Dut- Nor would a patol agreement change the law 
 
 ton V. Warsohauer, 21 Cal. 609; Eyster v. Gaff, in reference to the right of possession. Col- 
 
 2 Col. 228; Ayery v. Judd, 22 Wis. 262; Newton man v. Packard, 16 Mass. 39. 
 
 V. McKay, 30 Mich. 380; Cook v. Cooper, 18 » Murray u. Riley, 140 Mass. 490. 
 
 Oreg. 142; Rodriguez II. Hayes, 76 Tex. 225. * Boston Bk. v. Reed, 8 Pick. 459; Mayo». 
 
 ^FlaggD. Flagg, 11 Pick. 475; Hartshorn si. Fletcher,14Pick. 525; Eunkleu.Wolfersberger, 
 
 Hubbard, 2 N. H. 453; Smith v. Parks, 22 Ind. 6 Watts, 131; Noyes v. Rich. 52 Me. 115; Gilman 
 
 61; Brown u. Cram, 1 N. H. 169; Chase ti. Ab- ». 111. & Miss. Tel. Co., 91 TJ. S. 603; Johnsonu. 
 
 bott, 20 Iowa, 158; Wales v. Mellen, 1 Gray, 512; Miller, 1 Wills, 416; Gelston v. Burr, 11 Johns. 
 
 Dearborn i). Dearborn, 9 N. H. 117; Clay u. 482; Astor tj. Turner, 11 Paige, 436; Mitchell ». 
 
 Wren, 34 Me. 187; Norton i;. Webb, 36 Me. 218; Bartlett, 52 Barb. 319; Clason«.C0rley,5Sandf. 
 
 494 
 
OH. XXIV.] 
 
 MORTGAGES AS AFFECTED BY EQUITY. 
 
 § 424 
 
 And even where the mortgagor is in possession bj lawful right, if 
 the property is an insufficient security, the mortgagee may apply for 
 the appointment of a receiver, and the rents and profits accruing there- 
 after will be applied to the liquidation of the debt. ^ But to entitle 
 the mortgagee to the appointment of a receiver, special equitable 
 grounds must be alleged; for example, that the mortgagor is insolvent, 
 and the security insufficient. If the mortgagor is insolvent, or the 
 mortgagee possesses other means of protecting himself, the insuf- 
 ficiency of the mortgage security will not support an application for 
 a receiver.^ The mortgagee is entitled to a judgment for rents and 
 profits from the date of the decree of foreclosure, or if he has a right 
 to possession before foreclosure, from his demand for possession, when 
 hfe follows up such demand either by foreclosure or an action of eject- 
 ment.' If the mortgagee is in possession he is entitled to the rents 
 and profits accruing after his entry. And where the land has been 
 leased by the mortgagor, the entry of the mortgagee vests in him the 
 right to call upon the lessee to pay the rent to him.* If, however, the 
 lease be subject to the mortgage, i. e., executed subsequently, since 
 there is no privity of estate between the mortgagee and the lessee, 
 either party may consider the lease defeated by the entry, and no rent 
 willbecome due thereon, if either party should so elect. And any 
 agreement between the parties looking to a continuance of the lease, 
 is in fact a new lease. ° But where the lease takes precedence to the 
 
 417; Wilder v. Houghton, 1 Pick. 87; Pullan v. 
 C. &,. C. Air Line R. E., 5 Blss. 237; Cliilds v. 
 Hard, 32 W. Va. 66. It is held in MassachusettB, 
 that if the mortgaged property is not sufficient 
 in value to satisfy the debt, after entry to fore- 
 close, the mortgagee may recover of the mort- 
 gagor for past use and occupation. Merrill 
 V. Bullock, 105 Mass. 486; Morse v. Merritt, 110 
 Mass. 458. 
 
 1 Post V. Doop, 4 Edw. Ch. 412; Lofsky v. 
 Maujer, 3 Sandf. Ch. 69; Astor v. Turner, 11 
 Paige, 436; Clason v. Corley, 5 Sandf. Ch. 447; 
 Mitchell V. Bartlett, 51 N. T. 442; Myers v. 
 Estell, 48 Miss. 372; Douglassti. Cline, 12 Bush, 
 «08; Child v. Hurd, 32 W. Va. 66. 
 
 2 Bk. of Ogdensburg v. Arnold, 5 Paige, 40; 
 WUliams v. Robinson, 16 Conn. 517; Shotwell 
 V. Smith, 3Bdw. Ch.588; Quineyii. Cheeseman, 
 4 Sandf. Ch. 405; Cortteyen v. Hathaway, 11 N. 
 J. Eq. 39; Hackett v. Snow, 10 Ired. 220; Oliver 
 V. Decatur, 4 Cranch C. Ct. 458; Fribbie v. 
 Bateman, 24 N. J. Eq. 28; Williamson v. New 
 Albany R. Co., 1 Biss. 201; Whitehead o. 
 Wooten, 43 Miss. 523; Pullan v. C. & C. R. E., 4 
 Biss. 35; First Nat. Bank v. Gage, 79 111. 206; 
 Callanan v. Shaw, 19 Iowa, 183; Morrison v. 
 Buckner, 1 Hempst. 442; Syracuse Bk. v. Tall- 
 man, 31 Barb. 201. 
 
 8 Wilder v. Houghton, 1 Pick. 87; Mayo v. 
 Fletcher, 14 Pick. 525; Haven v. Adams, 8 Al- 
 len, 368; Northampton Mills ». Ames, 8 Mete. 
 1; Hill D. Jordan, 30 Me. 367; Bk. of Washing- 
 ton I/. Hupp, 10 Gratt. 23; Forlouf v. Bowlin, 
 
 29 111. App. 471; Jones on Mort. 670. This rule 
 naturally can apply only to strict foreclosure, 
 where the mortgagee is not entitled to posses- 
 sion after default. And where in strict fore- 
 closure a certain time is given after the 
 decree, within which the land might still be 
 redeemed, the judgments for rents and profits 
 can only be had after this period of redemp- 
 tion. And where the property is sold under 
 foreclosure, th^rents and profits do not accrue 
 to the purchaser until the delivery of the deed 
 to him, and perhaps not until he has made a 
 demand for possession under his deed. Clason 
 V. Corley, 5 Sandf. Ch. 447; Mitchell v. Bartlett, 
 52 Barb. 319; Astor v. Turner, 11 Paige, 436. 
 
 * Smith V. Shepherd, 15 Pick. 147; Stone ». 
 Patterson, 19 Pick. 476; Kimball v. Lockwood, 
 6 E. I. 139; Eussell v. Allen, 2 Allen, 42; Welch 
 V. Adams, 1 Mete. 494; Hill v. Jordan, 30 Me. 
 367; Northampton Mills v. Ames, 8 Meto. 1; 
 Turner «. Cameron, 5 Bxch.932; Pope v. Biggs, 
 9 B. & C. 245; Bk. of Washington v. Hupp, 10 
 Gratt. 23. 
 
 5 Eussell V. Allen, 2 Allen, 44; Smith v. Shep- 
 herd, 15 Pick. 147; Mayo v. Fletcher, 14 Pick. 
 526; Watts v. Coffin, U Johns. 495; Jones v. 
 Clark, 20 Johns. 51; Jackson k. Delancey, 11 
 Johns. 365; Kimball v. Lockwood, 6 E. I. 138; 
 Syracuse City Bk. v. Tallman, 31 Barb. 207; 
 Magill V. Hinsdale, 6 Conn. 464; McKiroher«. 
 Hawley, 16 Johns. 289; Hemphill v. Giles, 66 N. 
 C. 512; Sanders v. Vansickles, 8 N. J. L. 315; 
 Pope V. Biggs, 9 B. A C. 245; Peters v. Elkins, 
 
 495 
 
§ 425 
 
 EQUITY JUEISPEXTOENCB. 
 
 [CH. XXIV. 
 
 mortgage, the entry of the mortgagee will not defeat the lease in any 
 event. The mortgagee may, however, compel the lessee to pay to 
 him all rent accruing after entry, which has not been paid over to the 
 mortgagor before the lessee received notice of the execution of the 
 mortgage. But payment to the mortgagor before such notice even 
 of rent in advance which falls due afterwards, if hona fide, will con- 
 stitute a good defense to any action by the mortgagee.' 
 
 § 425. Mortgagee's liability for rents received. — The mortgagee 
 receives the rents and profits, not in his own right, but as trustee or 
 agent for himself and the mortgagor. After deducting the necessary 
 expenses of managing the estate, he must apply them, first, to the 
 liquidation of the accruing interest, and then of the principal of the debt. 
 Whatever surplus remains he holds in trust for the mortgagor, and all 
 others claiming under him.^ The mortgagee in possession cannot 
 apply such surplus to the liquidation of any other debts due to him 
 from the mortgagor, except with the latter's consent.' But where 
 
 14 Ohio, 344; Doe o. Hales, 7 Bing. 328; Knox ». 
 Easton, 38 Ala. 345; Branch Bk. v. Fry, S3 Ala. 
 770; Lane v. King, 8 Wend. 584; Lynden. Eowe, 
 12 Allen, 110; McDermott v. Burke, 10 Cal. 580; 
 Gartside ii. Outley, 58 111. 210; 11 Am. Rep. 59; 
 Weaver B. Belcher, 3 East, 449; Rogers ». 
 Humphreys, 4 A. &. E. 299; Higginbotham v. 
 Barton, 11 Ad. & El. 307; Henshaw v. Wells, 8 
 Humph. 568; Morse v. Goddard, 13 Mete. 177; 
 Field V. Swan, 10 Mete. 177. See Hogsett®. 
 Ellis, 17 Mich. 351: The lessees in a subse- 
 quent lease must attorn in order to be liable 
 to the mortgagee. A mere notice to pay rent 
 ■will not render them liable. But judgment 
 for mesne profits may be had if they continue 
 in possession after demand. Kimball v. Lock- 
 wood, 6 R. I. 138; Hill v. Jordan, 35 Me. 367; 
 Northampton Mills®. Ames, 8 Mete. 1; Morse 
 V. Goddard, supra; Field v. Swan, supra; Rog- 
 ers V. Humphreys, supra; Eipns v. Elliott, 9 
 A. & E. 342. But without special agreement 
 the acceptance of rent from the lessee will 
 not bind the mortgagee to the terms and dura- 
 tion of the original lease. It creates only a 
 tenancy from year to year. Hughes v. Buck- 
 nell, 8 C. & P. 566. 
 
 > Rogers v. Humphreys, 4 Ad. & E. 299; Moss 
 V. Gallimore, Dougl. 279; Fitchburg Cotton Co. 
 V. Melvin, 15 Mass. 268; Burden v. Thayer, 3 
 Me. 79; Mirick v. Hoppin, 118 Mass. 688; Bab- 
 cock V. Kennedy, 1 Vt. 457; McKircher v. Haw- 
 ley, 16 Johns. 289; Russell v. Allen, 2 Allen, 42; 
 Demarest v. Wlllard, 8 Cow. 206; Kimball v. 
 Lockwood, 6 R. 1. 138; Baldwin v. Walker, 21 
 Conn. 168; Coker v. Pearsall, 6 Ala. 542; Hen- 
 shaw V. Wells, 9 Humph. 568; Myers v. White, 
 1 Rawle, 353; Weidner v. Foster, 8 Penn. 23; 
 Hemphill v. Giles, 66 N. C. 512; see De Nich- 
 oUs V. Saunders, L. R. 5 C. P. 589; Castleman v. 
 Belt, 2 B. Mon. 157. 
 
 « Bailey v. Myrick, 58 Me. 136; King v. Ins. 
 Co., 7 Cush. 7; Ten Eyek v. Cralg, 62 N. C. 406; 
 Clark ». Bush, 3 Cow. 151; Harrison ti. Wyse, 
 
 496 
 
 24 Conn. 1; Eeitenbaugh v. Ludwick, 31 Pa. St. 
 131; Seaver «. Durant, 39 Vt. 105; Kellogg v. 
 Rockwell, 19 Conn. 448; Hunt v. Maynard, 6 
 Pick. 489; Thorp v. Feltz, 6 B. Mon. 6; Breoken- 
 ridge v. Brook, 2 A. K. Marsh. 335; Gibson v. 
 Crehore, 5 Pick. 146; Davis v. Lassiter, 20 Ala. 
 561; Walton v. Wittington, 9 Mo. 545; Anthony 
 V. Rogers, 20 Mo. 281 ; MoConnell v. Holobush, 
 11 111. 61; Brayton «. Jones, 5 Wis. 117; Ten 
 Eyck V. Casad, 15 Iowa, 524; Hill v. Hewitt, 35 
 Iowa, 563; Preytag v. Hoeland, 23 N. J. Eq. 
 36; Anderson ®. Lanterman, 27 Ohio St. 104; 
 Chapman v. Smith, 9 Vt. 153; Strang v. Allen, 
 44 111.428; Gilman v. Wills, 66 Me. 273; Roulhae 
 V. Jones, 78 Ala. 398; Murdook i;. Clarke, (Cal. 
 1890) 24 Pac. 278; Caldwell v. Hall, 49 Ark. 508. 
 But the mortgagee is only accountable tor the 
 rents and profits in equity, and then only as 
 an incident to an action for foreclosure, or for 
 the redemption of the mortgaged premises. 
 Parrall v. Lovel, 3 Atk. 723; Gordon v. Hobart, 
 2 Story, 243; Hubbell v. Moulson, 53 N. T. 225; 
 Boston Iron Co. ». King, 2 Cush. 400; Seaver 
 V. Durant, 39 Vt. 103; Weeks v. Thomas, 24 
 Me. 465; Givens v. MoCalmott, 4 Watts, 464; 
 Belli). Mayor N. Y., 10 Paige, 49. And where 
 the rents and profits collected by the mort- 
 gagee are more than sufficient to satisfy the 
 mortgage debt, and the mortgagee Is irre- 
 sponsible, a receiver may be appointed, pend- 
 ing the action to redeem, to take charge of 
 subsequently accruing rents. BoUes v. Duff, 
 35 How. Pr. 481 ; Quinn «. Brithalge, 3 Edw. Ch. 
 314. Until applied by judgment of the court 
 to the payment of the debt, there is no legal 
 satisfaction of the mortgage by the receipt of 
 rents and profits to the full amount of the 
 mortgage debt. Hubbell v. Moulson, 53 N. Y. 
 225; 13 Am. Rep. 519. 
 
 > Caldwell v. Hall, 49 Ark. 508; Demlck v. 
 Cuddily, 72 Cal. 110; but see, contra, Borel v. 
 Kappeler, 79 Cal. 342. 
 
CH. XXIV.] MOKTGAGES AS AFFECTED BY EQUITY. § 425 
 
 the mortgagor consents, a judgment creditor cannot interpose his 
 • objection.^ If the mortgagee in possession holds under a second mort- 
 gage, it has been held that he must apply the rents first to the liquida- 
 tion of the first mortgage debt.* But it would seem that the first 
 mortgagee would in that case have no more claim to the rents than 
 he would when the mortgagor is in possession. 
 
 Although the mortgagee does not, by taking possession of the land, 
 assume the responsibilities of a guarantor of the rents, in the collec- 
 tion of the rent he is under an obligation to use that care which might 
 be expected from a reasonably prudent man. And if, by reason of 
 his negligence in respect thereto, any portion of the rents and profits 
 was lost, he would be held responsible for them to the same extent 
 as if he had actually received them. Where he enters into possession 
 before the breach of the condition, a much greater degree of care is 
 required of him than after the breach.* And as a corollary to this 
 rule, if the mortgagee fails to obtain as high a rent as he might have 
 secured — as where he refuses to let to the tenant ofiering the highest 
 rent — he will be liable for this loss. But a clear case of negligence 
 or willful disregard of the mortgagor's interest must be established, 
 in order to hold him to account on this ground. The mere failure to 
 obtain the highest rent possible is not a sufficient ground of liability.* 
 Where the rents and profits have been increased by permanent im- 
 provements made by himself, whether he is accountable for such 
 increase to the morgagor depends upon the character of the improve- 
 ments. If they be in the nature of accessions to the land, or, in other 
 words, fixtures, the erection of costly buildings, etc., he need not 
 account for the increased rents and profits, unless the mortgagor has 
 
 • Whitney v. Paynor, 74 Wis. 289. mortgagee will be charged with a reasonable 
 
 * Crawford v. Mnnford, 29 111. App. 445. rent, i. «., what might be had with proper dili- 
 ' Hoods. Easton, 2 Giff. 692; Robertson v. gence. Dexter ti. Arnold, 2 Sumn. 108; Gordon 
 
 Campbell, 2 Call, 421; Hughes v. Williams, 12 v. Lewis, lb. 150; Van Buren v. Olmstead, 5 
 Ves. 493; Sparhawk v. Willis, 5 Gray, 429; Paige, 9; Clark u. Smith, IN. J. Eq. 121; Mont- 
 Strongs. Blanchard, 4 Allen, 538; Richardson gomery s. Chadwick, 7 Iowa, 114. And if the 
 V. Wallis, 6 Allen, 78; Saunders v. Frost, 5 Pick. mortgagee remains in possession himself, he 
 259; Bernard v. Jennison, 27 Mich. 230; Shaef- will be charged for rent to the full value of the 
 fer V. Chambers, 5 Halst. 548; Milliken v. land, the amount being determined by expert 
 Bailey, 61 Me. 316; Van Buren v. Olmstead, 5 testimony. Gordon v. Lewis, supra; Mont- 
 Paige, Ch. 9; Walsh v. Rutgers Ins. Co., 13 Abb. gomeiy v. Chadwick, supra; Holabird v. Burr, 
 Pr.33; Barron ». Paulling, 38 Ala, 292; Hogan 17 Conn. 556; Kellogg v. Rockwell, 19 Conn. 
 ». stone, 1 Ala. 496; Moore r. Titman, 44 HI. 446; Moore ». Cable, IJohns. Ch. 385; Chases. 
 367, Strong s. Allen, 44 111. 438; Bainbridge v. Palmer, 25 Me. 341; Trulook v. Robey, 15 Sim. 
 Owen, 2 J. J. Marsh. 463; Benham v. Rowe, 2 265; Van Buren v. Olmstead, supra; Moore v. 
 Cal. 387; Harper v. Ely, 70 111. 581; George v. Degraw, 6 N. J. Eq. 346; Powell v. Williams, 14 
 Wood, 11 Allen, 42; Hubbard v. Shaw, 12 Allen, Ala. 476; Johnson v. Miller, 1 Wils. 416; Saun- 
 122; Glvens v. McCalmont, 4 Watts, 460; Lupton ders v. Wilson, 34 Vt. 318; Barrett v. Neilson, 
 V. Almy, 4 Wis. 242; Ackermann v. Lyman, 30 54 Iowa, 41; 37 Am. Rep. 183; Clark v. Clark, 68 
 Wis. 454; Guthrie v. Kahle, 46 Penn. 333; Ger- N. H. 267. 
 
 rlsh ». Black, 104 Mass. 400; Miller s. Lincoln, * Hughes s. Williams, 18 Ves. 493; Hubbard 
 
 6 Gray, 556; Brandon v. Brandon, 10 W. R. 287; v. Shaw, 12 Allen, 123; Rowe v. Wood, 2 J. <fc 
 
 Hagthrop s. Hook, 1 Gill & J. 270; Reynolds s. W. 553; Anon., 1 Vem. 45; Jones on Mort., 
 
 Canal B'k'g Co., 30 Ark. 520; Murdock S.Clarke, § 1123; Brown s. South Boston Sav. Bank, 148 
 
 (Cal. 1890) 24 Pao. 272. If he has kept no ac- Mass. 300. 
 connt of the rents and profits received, the 
 
 32 
 
 497 
 
§ 426 EQUITY JUKISPBUDENCE. [CH. XXIV. 
 
 indemnified him for the cost of their erection, or he has been so paid 
 by the use of them. But where the improvement is the result of his 
 labor upon the land, or where wild lands have been cleared, he must 
 make returns of such improved rents. ^ 
 
 § 426. Insurance of the mortgaged premises. — Both the mort- 
 gagor and the mortgagee have insurable interests in the premises, and 
 they may insure their respective interests at the same time. The 
 mortgagee can only insure to the amount of his debt. Where he 
 takes out a policy in his own name, pays the premium, and cannot, 
 by the terms of the mortgage, call upon the mortgagor to refund such 
 payments, he takes the insurance money, in case of loss by fire, free 
 from any right of the mortgagor to have it applied to the liquidation 
 of the mortgage debt. He can recover the insurance, and then pro- 
 ceed to collect the debt.'' But if he insures the premises at the request 
 of the mortgagor, or does so in consequence of the neglect of the 
 mortgagor, and at his expense, as he may do if the mortgage contains 
 a covenant providing for the insurance of the premises by the mort- 
 gagor, the mortgagor will be subrogated to the benefit of the insur- 
 ance, and the insurance money must be applied to the debt.' Under 
 such circumstances, the mortgagee would have a claim against the 
 mortgagor and against the mortgaged property of reimbursement for 
 the premiums paid by him.* But, although the mortgagee is entitled, 
 as against the mortgagor, to the full benefit of the insurance, where 
 there is no covenant of insurance, it is not so certain that he will, as 
 against the insurance company, be permitted to recover to his own use 
 both the debt and the insurance money. Some of the courts hold that 
 
 1 Moore v. Cable, 1 Johns. Ch. 386; Bell u. Callahan ti. Llnthlcum, 43 Md. 97; a) Am. Rep. 
 Mayor of N. T., 10 Paige Ch. 49; Morrison v. 106; Gordon v. Ware Sav. Co., 115 Mass. 588; 
 McLeod, 2 Ired. 108; Montgomery v. Chadwick, King v. Mut. Ins. Co., 7 Cush. 1 ; Clark v. Wil- 
 7 Iowa, 134; Clark ». Smith, 1 N. J. Eq. 181; son, 103 Mass. 221; Larrabell». Lumbert, 32 Me. 
 Givensjj. McCalmont,4Watts, 460; Bee2Wa8hb. 97; Suffolk Ins. Co. ?;. Boyden, 9 Allen, 123; 
 on Real Prop. 224, 235; but Bee Merriam v. Bar- Waring v. Loder, 53 N. T. 581; Mix v. Ilotoh- 
 ton, 14 Vt. 501; Stoney v. Shultz, 1 Hill, 464. kiss, 14 Conn. 32; Norwich Ins. Co. v. Boomer, 
 
 2 Ring V. State Ins. Co., 7 Cush. 1; Sussex 52111. 442; 4 Am. Rep. 618; Fowler v. Palmer, 
 Mut. Ins. Co. V. Woodruff, 2 Dutch. 541; Ex- 5 Gray, 549; Martin v. Franklin Fire Ins. Co., 
 eelslorlna. Co. u. Ins. Co., 55 N. T. 343; 14 38 N. J. L. 140; 20 Am. Kep. 372; Nicholas®. 
 Am. Rep. 271; Kemsohan «. Bowery Ins. Co., Baxter, 5 R. I. 491. And when the mortgage 
 17N. Y. 428; Norwich Ins. Co. V. Boomer, 52 contains an insurance clause, and an insurance 
 III. 442; 4 Am. Rep. 618; Carpenter v. Ins. Co., policy is taken out by the mortgagee upon the 
 16 Pet. 495; Russell ji. Southard, 12 How. 139; default of the mortgagor to do so, the policy 
 -ffitna Ins. Co. v. Tyler, 16 Wend. 385; Spring- Is presumed to be taken out for the benefit of 
 field Fire Ins. Co. v. Allen, 43 N. T. 389; 3 both parties, and the mortgagee cannot re- 
 Am. Rep. 711; White v. Brown, 2 Cush. 412; fuse to apply it to the debt. Foster v. Van 
 Harding u. Townsend, 43 Vt. 536; Dobson ». Reed, 5 Hun, 321 ; Buffalo Steam Engine Works 
 Land, 8 Hare, 216; Fowler v. Palmer, 5 Gray, v. Ins. Co., 17 N. T. 406; Bllnton v. Hope Ins. 
 549; Clark v. Wilson, 103Mass. 219; Williams v. Co., 45 N. T. 454; Waring v. Loder, 53 N. T. 
 Ins. Co., 107 Mass. 377; 9 Am. Rep. 41; Bellamy 681; Honore v. Lamar Ins. Co., 51 111. 409. And 
 V. Briokenden, 2 Johns. & H. 137; Ely v. Ely, In suoh cases, the fact that the debt has been 
 80111.532; Cushing v. Thompson, 34 Me. 496; paid will not prevent a recovery of the insur- 
 Bean». A. &St. L. R. B., 58 Me. 82; King ». ance money. The mortgagor's Interest in the 
 Mut. Ins. Co., 7 Cush. 1; Brant i>. Gallup, 111 policy keeps it alive. Norwich Ins. Co. v. 
 Dl, 487. Boomer, sM^ra; Concord Ins. Co. v. Woodbury, 
 
 8 Concord, &c. Ins. Co. v. Woodbury, 45 Me. mpra; Waring v. Loder, supra. 
 447; Graves v. Hampden Ins. Co., 10 Allen. 285; * McLean v. Burr, 16 Mo. App. 240. 
 
 498 
 
<3H. XXIV. J MORTGAGES AS AFFECTED BY EQUITY. 
 
 §426 
 
 the insurance company will be subrogated to the rights of the mortgagee 
 under the mortgage in the proportion that the insurance paid bears 
 to the mortgage debt;^ while the courts of Massachusetts sustain the 
 doctrine that he may recover both the insurance and the debt, dis- 
 charged of any right of subrogation in the insurance company, on the 
 ground that the premiums paid on the policy are a good and adequate 
 -consideration for the risk assumed, and prevent any claim on the part 
 of the company to the equitable right of subrogation.^ The mortgagor 
 may insure to the full value of the premises, irrespective of the 
 mortgagee's interest. A mortgage is not such an alienation as will 
 defeat the policy of insurance — not even so far as to reduce the mort- 
 gagor's insurable interest to the equity of redemption.' And in the 
 
 1 Concord Ins. Co. v. Woodbury, 45 Me. 44T; 
 ^tna Ins. Co. v. Tyler, 16 Wend. 397; Sussex 
 Ins. Co. V. Woodruff, 2 Dutch. 541; Kernochan 
 ■». N. T. Bowery Ins. Co., 17 N. Y. 428; 
 Ulster Co. Sav. Inst. v. Leake, 73 N. Y. 161 ; 
 29 Am. Eep. 115; Excelsior Ins. Co. v. Ins. Co., 
 55N. T.343; 14Am.Kep.271; Smith ?;. Columbia 
 Ins. Co., 17 Pa. St. 253; Honore v. Lamar Ins. 
 Co., 51 111. 409; Norwich Ins. Co. u. Boomer, 52 
 111. 442; 4 Am. Eep. 618; Callanan v. Linthicum, 
 43 Md. 97; 20 Am. Eep. 106. 
 
 2 King V. Ins. Co. 7 Cush. 1; Suffolk Ins. Co. 
 -». Boyden, 9 Allen, 123; Clark v. Wilson, 103 
 Mass. 221 ; Foster v. Equitable Ins. Co., 2 Gray, 
 216; Dobsonu.Land, 8Hare,216. InKingti. Ins. 
 Co., supra. Chief Justice Shaw said: " He (the 
 mortgagee) surely may recover of the mort- 
 gagor, because he is his debtor, and on good 
 consideration has contracted to pay. The 
 money received from the underwriters was not 
 a payment of his debt; there was no privity of 
 ■contract between the mortgagor and the under- 
 writers ; he had not contracted with them to pay 
 it for him, on any contingency; he had paid 
 them nothing for so doing. They did not pay 
 because the mortgagor owed it; but because 
 they had bound themselves, in the event which 
 has happened, to pay a certain sum to the 
 mortgagee." * * * "What, then, is there 
 Unequitable, on the part of the mortgagee, 
 towards either party in holding both sums? 
 They are both due upon valid contracts with 
 him, made upon adequate considerations paid 
 by himself. There is nothing inequitable to 
 the debtor, for he pays no more than he 
 originally secured in money loaned; nor to the 
 underwriter, for he has only paid upon a risk 
 Toluntarily taken, for which he was paid by 
 the mortagee a full and satisfactory equiva- 
 lent." Perhaps the true theory lies between 
 these opposite positions of the courts. The 
 Massachusetts court is undoubtedly correct in 
 its position, that there is no equitable ground 
 for the application of the doctrine of subroga- 
 tion. But It is incorrect to go farther and hold 
 that the mortgagee may recover both sums to 
 his own use. A mortgagee insures only his 
 interest in the mortgaged premises, and that 
 interest is exhausted when the debt is paid. 
 
 Graves v. Hampden Ins. Co., 10 Allen, 283; 
 Sussex Ins. Co. v. Woodruff, 2 Dutch. 541. From 
 this position it is an easy step to say, that 
 when the mortgage property after the loss by 
 fire is sufficient to satisfy the mortgage debt, 
 and it is actually satisfied, either by foreclosure 
 or by payment by the mortgagor, the mortgagee 
 has sustained no loss. See ^Etna Ins. Co. v. 
 Tyler, 16 Wend. 385; Kernochan v. Bowery Ins. 
 Co.. 17 N. Y. 42S; Carpenter v. Providence, &c. 
 Ins. Co., 16 Pet. 495; Smith v. Columbia Ins. Co., 
 17 Pa. St. 253. Contra, Excelsior Ins. Co. v. Ins. 
 Co., 55 N. Y. 343. The mortagee may proceed 
 either against the insurance company on the 
 policy, or against the mortgagor on the mort- 
 gage, and neither of them can object, or compel 
 him to proceed against both. Nor has either a 
 claim against the other. But if the mortgagee 
 does recover from both, the position of the 
 mortgage, in respect to the insurance company, 
 is the same as if the mortgagor had paid the 
 debt, before application had been made for 
 the insurance money. In the latter case, he 
 could not recover of the insurance company, 
 for he had suffered no loss. And it would 
 seem but natural, that the insurance company 
 may be permitted to institute a suit against the 
 mortgagee for money had and received, if 
 after the payment of the insurance money the 
 mortgagor satisfied the mortgage. The position 
 does not conilict with the rules of equity in 
 reference to subrogation, while it is at the same 
 time more consonant with the general princi- 
 ples underlying the laws of insurance. 
 
 3 Strong V. Ins. Co., 10 Pick. 40; Tuck v. Hart- 
 ford Ins. Co., 56 N. H. 326; Nichols v. Baxter, 
 5 E. I. 494; Quarrier v. Peabody Ins. Co., 10 W. 
 Va. 507; 27 Am. Eep. 582; Fame v. Wenans, 1 
 Hopk. Ch. 283; Stephens v. Mut. Ins. Co., 43 
 111. 325; Dyers v. Ins. Co., 35 Ohio St. 606; 35 
 Am. Eep. 623; Manhattan Ins. Co. v. Weill, 28 
 Gratt. 382; 26 Am. Eep. 364; 111. Ins. Co. v. 
 Stanton, 57 111. 354; Commercial Ins Co. v. 
 Spankneble, 52 111. 53; 4 Am. Rep. 582; Hart- 
 ford Ins. Co. V. Walsh, 54 111. 164; Am. Eep. 
 115. And the mortgagor continues to have an 
 insurable interest in the property, as long as 
 his right of redemption is not completely 
 barred. Gordon v. Ins. Co., 2 Pick. 249; But- 
 
 499 
 
§426 
 
 EQUITY JUKISPKUDENCE. 
 
 [CH. XXTV. 
 
 absence of the covenant requiring the mortgagor to keep the premises 
 insured, the mortgagee has not the right to demand the appropriation 
 of the insurance money to the payment of the mortgage debt.* But 
 where the mortgage calls for the insurance of the premises, and the 
 mortgagor performs the covenant, the mortgagee acquires therein a 
 beneficial interest, and is entitled to have the insurance money applied 
 to the debt.^ And so, also, if the insurance covers one of two or more 
 pieces of property included in the same mortgage, the owners of the 
 other pieces of property have the right to require the application of 
 the insurance money to the payment of the debt.' But where the loss 
 is made payable to the mortgagor, or is assigned to the mortgagee 
 without the consent of the company, alienation by the mortgagor of 
 his interest will defeat the policy, even as to the mortgagee. For the 
 complete protection of the mortgagee, the policy should be assigned 
 to him with the consent of the company, and the assignment should 
 be made to appear on the company's books as well as On the face of 
 the policy. When the policy is in this shape, the mortgagee, in case 
 of loss, receives the insurance money in trust to apply it to the debt, 
 and such application may be enforced, not only by the mortgagor, but 
 by every one claiming through him and subject to the mortgage. The 
 surplus, if any, goes to the mortgagor and those in privity with him.* 
 
 falD Steam Engine Co. o. Ins. Co., 17 N. T. 
 401; Cheney v. Woodruff, 54 N. Y. 98; Strong v. 
 Ins. Co., supra; Waring v. Loder, 53 N. Y. 581. 
 Although the existence of a mortgage does 
 not reduce the insurable interest of the mort- 
 gagor, still it is held in some of the states 
 that, if inquiry is made as to them, it becomes 
 a material fact, and misrepresentations, con- 
 cerning their existence or the amount secured 
 by them, will vitiate the policy. Davenport v. 
 Ins. Co., 6 Gush. 349; Brown v. People's Ins. 
 Co., 11 Cush. 280; Bowdltch Ins. Co. v. Win- 
 slow, 8 Gray, 38; Packard v. Agawan Ins. Co., 
 2 Gray, 334; Smith v. Columbia Ins. Co., 17 Pa. 
 St. 353; contra, Norwich Ins. Co. v. Boomer, 52 
 111. 442; 4 Am. •Rep. 618. 
 
 iCarterti. Rookett, 8 Paige Ch. 437; Nichols 
 V. Baxter, 5 E. I. 491 ; Hancock v. Fishing Ins. 
 Co., 3 Sumn. 132; Stearnes v. Quinoy Mut. Ins. 
 Co., 124 Mass. 61; 26 Am. Eeft. 647; Wilsons. 
 Hill, 3 Mete. 66; Vandegraff ». Medlook, 3 Port. 
 389; Plimpton v. Ins. Co., 43 Vt. 497; Columbia 
 Ins. Co. V. Lawrence, 10 Pet. 507; Foster v. Van 
 Eeed, 70 N. Y. 19; 26 Am. Eep. 544; Carpenter 
 t>. Providence, &c. Ins. Co., 66 Pet. 495; Thomas 
 V. Vonkapff, 6Gill & J. 372; McDonald v. Black, 
 20 Ohio, 185; Powles v. Innes, 11 M. & W. 10; 
 Vernon v. Smith, 5 B. & A. 1 ; De Forest v. Ful- 
 ton Ins. Co., 1 Hall, 103; Faure v. Winans, 1 
 Hopk. Ch. 283; Neale v. Eeed, 3 Dowl. & Ey. 
 158. 
 
 ' Concord, &c. Ins. Co. v. Woodbury, 45 Me. 
 447; Gordon v. Ware Savings Ins. Co., 115 Mass. 
 588; Cromwell v. Brooklyn Ins. Co., 44 N. Y. 42; 
 Carters. Eockett, 8 Paige, 437; Norwich Ins. Co. 
 V. Boomer, 52 111. 442; Jn re Sands Ale Brewing 
 
 500 
 
 Co., 3 Biss. 175; Miller v. Aldrlch, 31 Mich. 408j 
 Giddlngsi). Seevers, 24 Md. 363; Burns». Collins 
 64 Md. 215; Thomas „. Vonkapff, 6 GUI & J. 
 372; Nichols v. Baxter, 5 E. I. 491; Brant v. 
 Gallup, 111 111. 487. 
 
 ' Conn. Mut. Life Ins. Co. v. Scammon, 117 TJ.. 
 S.a34 
 
 *Macomber S.Cambridge Ins. Co., 8 Cush. 133r 
 Grosvenor v. Atlantic Ins. Co., 17 N. H. 391; 
 Luckey v. Gannon, 37 How. Pr. 134; Boyd v. 
 Cndderback, 31 III. 119; King v. State Ins. Co.,. 
 7 Cush. 1; Fowley v. Palmer, 5 Gray, 549; 
 Graves v. Hampden Ins. Co., 10 Allen, 382; Con- 
 cord, &c. Ins. Co. V. Woodbury, 45 Me. 447; 
 Larrabee v. Lumbert, 38 Me. 97; Waring v. 
 Loder, 63 N. Y. 581; Clark v. Wilson, 103 Mass. ' 
 221; Mix v. Holchklss, 14 Conn. 32. Where the 
 insurance Is obtained in the name of the 
 mortgagor, but the policy contains a pro- 
 vision, that the loss, if any, is to be paid to the 
 mortgagee: generally it is required that suit on 
 the policy must be instituted in the mortgagee's, 
 name, or jointly with the mortgagor. Ennis v. 
 Harmony Ins. Co., 3 Bosw. 516; Concord Mut. 
 Ins. Co. V. Woodbury, 45 Me. 447; Grosvenor ». 
 Atlantic Ins. Co., 17 N. Y. 391; Norwich Ins. Co. 
 V. Boomer, 53 111. 442; 4 Am. Eep. 618; Frinki). 
 Hampden Ins. Co., 45 Barb. 384; Martin V. 
 Franklin Ins. Co., 38 N. J. L. 140. But with 
 the consent of the mortgagee, the mortgagor may- 
 bring the suit alone in his own name. Patterson. 
 V. Triumph Ins. Co., 64 Me. 500; Farrows. Ins. 
 Co., 18 Pick. ,53; Jackson v. Farmers' Ins. Co., 
 5 Gray, 52; Turner v. Quincy Ins. Co., 10» 
 Mass. 568; Illinois Ins. Co. D. Stanton, 57 111. 
 354. 
 
CH. XXIV.] MORTGAGES AS AFFECTED BY EQUITY. § 428 
 
 § 427. Assignment of the mortgage.— Whether the mortgagee's 
 interest be considered a legal estate or only a lien, it is clear, since 
 the mortgage is in form a conveyance, and is required to be recorded 
 like all other conveyances, that the proper mode of assigning it is by 
 deed or instrument of the same character as the mortgage itself, 
 either separate from or written on the back of the mortgage, together 
 "with the assignment and delivery of the instrument of indebtedness, 
 if there be any. Such an assignment would vest the entire legal 
 interest of the mortgagee in the assignee.* Whether a deed is abso- 
 lutely required to assign the legal interest of the mortgagee depends 
 upon the construction placed upon mortgages in the state in which the 
 question arises. And, in determining this question, it must be observed 
 that, although the assignment of the mortgage debt, irrespective of its 
 «ffect upon the mortgage, will be governed by the lex loci contractv^, 
 the assignment of the mortgage itself must conform to the law of 
 the place where the mortgaged land is situated." 
 
 § 428. Assignment under the lien theory.— Although it is still 
 held in those states which have, to a greater or less degree, discarded 
 the common law theory, that an effectual legal assignment of the 
 mortgage requires a deed proved and acknowledged like all other 
 deeds of conveyance, it is there held that, the debt being the princi- 
 pal thing and the mortgage only a security or lien, an assignment, of 
 the debt will operate as an equitable assignment of the mortgage, 
 binding upon all persons having notice, and giving to the assignee the 
 power in equity to exercise all the rights of the mortgagee.' Under 
 
 1 Jones on Mort., §786; 2 Washb. on Real Ladue v. K. R. Co., 13 Mich. 396; U. S. Bank 
 ftop. 113-118. V. Covert, 13 Ohio, 240; Paine v. French, 4 
 
 2 Story on Confl., §§ 363, 394; Goddard v. Saw- Ohio, 318; Mills ». Gray, 4 B. Mon. 117; Bur- 
 yer, 9 Allen, 78. Bnt this is not the case in dett v. Clay, 8 /*. 287; Lucas ti. Harris, SO El. 
 regard to the equitable assignment of the 165; Mapps ». Sharpe, 38 111. 165; Laberge ». 
 mortgage, effected by the transfer of the debt. Chauvin, 2 Mo. 179; Anderson v. Baumgartner, 
 The equitable rights of the parties are governed 27 Mo . 80 ; Potter v . Stevens, 40 Mo . 829 ; Burton 
 \>j^% lex loci contradws. SeeHoyt v. Thomp- v. Baxter, 7 Blackf. 297; French v. Turner, 15 
 son, 19 N. Y. 207; Dundas v. Bowler, 3 McLean, lud. 59; Crow v. Vance, 4 Iowa, 434; Bank of 
 397; Murrellc. Jones, 40 Miss. 565. Indiana i;. Anderson, 14 Iowa, 544; Fisher ». 
 
 3 Wolcott 57. Winchester, 15 Gray, 461; Vose«. Otis, 3 Chand. 83; Andrews v. Hart, 17 Wis. 
 Handy, 2 Greenl. 328; Southerini). Mendum, 5 297; Ord v. McKee, 5 Gal. 575; Willis v. Far- 
 N. H. 420; Northy v. Northy, 45 N. H. 144; ley, 24Cal. 397; Kurtz <). Sponable, 6 Kans. 395; 
 Blake v. Williams, 36 N. H. 39; Langc^n v. Chilton v. Brooks, 71 Md. 445; Lee v. Clark, 89 
 Keith, 9 Vt. 299; Keys v. Wood, 21 Vt. 331; Mo. 553. But as a general proposition, such 
 Lawrence v. Knap, 1 Root, 248; Dudley o. an assignee acquires no legal Interest, and can 
 Caldwell, 19 Conn. 218; Neilson *. Blight, 1 therefore exercise none of the rights of a legal 
 Johns. Gas. 205; Evertson v. Booth, 19 Johns. owner, such as the maintenance of an action of 
 491; Parmeleec. Daun, 23Barb. 461; Kortright ejectment or awrit of entry. Gottrell i>. Adams, 
 «. Gady, 21 N. Y. 261; Wilson ». Troup, 2 Cow. 2 BIse. 351; Young v. Miller, 6 Gray, 152; 
 242; Craft D. Webster, 4 Rawle, 242; Danley ». Dwinel v. Perley, 32 Me. 197; Edgerton v. 
 Hays, 17Serg. & R. 400: Partridge v. Partridge, Young, 43 111. 464; Graham v. Newman, 21 Ala. 
 38 Pa. St. 78; Hyman v. Devereux, 63 N. G. 497; Partridges. Partridge, 38 Pa. St. 78; Warden 
 624; Muller v. Wadlington, 5 S. 0. 242; Wright i>. Adams, 15 Mass. 232. But in the code states 
 V. Eaves, 10 Rich. Bq. 585; Scott v. Turner, 15 where all actions are instituted in the name of 
 La. An. 346; Wilson v. Heyward, 2Fla. 27; s. the party beneficially interested, the equitable 
 c, 6 Fla. 191; Emanuel v. Hunt, 2 Ala. 190; assignee may enforce the mortgage in his own 
 Graham «. Newman, 21 Ala. 497; Dick v. name. Gower v. Howe, 20 Ind. 396; Sangster 
 Mawry, 17 Miss. 448; Holmes v. McGinty, 44 d. Love, 11 Iowa, 580; Rankin ti. Major, 9 Iowa, 
 Miss 94; Martin v, McReynolds, 6 Mich. 70; 297; Clearwater «. Rose, 1 Blackf. 138; Paine t). 
 
 501 
 
§ 429 EQUITY JURISPBUDENCE. [CH. XXIV. 
 
 this theory, whatever constitutes in the iaw of commercial paper a 
 good assignment of the debt, will operate as an equitable assignment 
 of the mortgage. Thus a parol sale and transfer of the debt is a 
 good equitable assignment of the mortgage.' Where the mortgage 
 is given to secure two or more debts, the assignment of one of them 
 will operate as an assignment of fro rata share in the mortgage, 
 unless it is the expressed intention of the parties that the entire 
 mortgage security should be retained for the benefit of the remaining 
 debts. ^ This is always the case, in the absence of an express con- 
 tract, where the debts secured by the same mortgage fall due at the 
 same time. But where they fall due at different periods, in very 
 many of the states one is generally held to have priority over the 
 other in the order in which they fall due. The effect is the same as 
 if there had been successive and independent mortgages, one for each 
 debt.' But it is always competent for the parties to control the 
 priority of the debts secured by the same mortgage, and they may 
 altogether exclude one or more from the enjoyment of the security.* 
 It has also been held that the mortgage debts in the hands of assignees 
 will have priority in the order of their assignment. ° Inasmuch as 
 under the lien theory the mortgagee has very few, if any, rights 
 which are enforceable only in law, the equitable assignment of the 
 mortgage affords sufficient protection for the assignee. This is par- 
 ticularly the case in those states where the mortgagee is prohibited 
 from assigning the mortgage without the debt. 
 § 429. Assignment of the mortgagor's interest. — The mort- 
 
 JFrench, 4 Ohio, 320; Garland v. Elcheson, 4 borne, 7Ind. 140; MeVayu. Bloodgood, 9 Port. 
 
 Eand. 266; Kurtz v. SponaWe, 6 Kans. 395; see, 547; TJ. S. Bk. ». Covert, 13 Ohio, 240; Wood v.. 
 
 also, to the same effect, Kinney v. Smith, 2 Trask, 7 Wis. 566; Preston ». Hodges, 50 111. 56; 
 
 Green Ch. 14; Mulford ii. Peterson, 35 N. J. Bq. Funk u. McReynolds, 33 111. 497; Mitchell v. 
 
 127; Williams v. Morancy, 3 La. An. 227; South- Laden, 36 Mo. 532; Thompson v. Field, 38 Mo.. 
 
 erin «. Mendum, 35 N. H. 420; Elgney «. Love- 325; Sangster v. Love, 11 Iowa, 580; Eeeder v. 
 
 joy, 13 N. H. 247; Austin v. Burbank, 2 Day, 396; Carey, 13 Iowa, 274; Isett v. Lucas, 17 Iowa, 506; 
 
 Clarkson v. Doddridge, 14 Gratt. 44; Eunyan v. G. Wathmeys v. Eagland, 1 Eand. 466; Wilson 
 
 Mersereau, U Johns. 534. And in those states v. Hayward, 6 Fla. 171; Hunt ». Styles, 10 N. H. 
 
 where the legal title of the mortgage does not 466; Lairabee v. Lambert, 32 Me. 97; contra,. 
 
 pass with the assignment of the debt, equity Darby v. Hays, 17 Serg. & E. 400; Henderson ». 
 
 may compel the holder of the legal title to Herrod, 10 Smed. & M. 631 ; English v. Carney,, 
 
 transfer it to the assignee of the debt, or to 25 Mich. 178; Grattan v. Wiggins, ^ Cal. 30; 
 
 maintain the suits necessary for the proteo- Gorddh v. Hazzard, (S. C. 1890) 11 S. E. 100. 
 tion of the assignee. Wolcott «. Winchester, * Bryant «. Damon, 6 Gray, 165; LangdSn ». 
 
 15 Gray, 461; Crane v. March, 4 Pick. 131; Keith, 9 Vt. 299; Mechanic's Bk. e. Bk. of Nlag- 
 
 Mount V. Suydam, 4 Sandf . Ch. 399 ; Lyon's ara, 9 Wend. 410; Eastman v. Foster, 8 Mete. 
 
 App., 61 Pa. St. 15; Baker v. Terrell, 8 Minn. 195. 19; Stevenson v. Black, 1 N. J. Eq. 338; Wright 
 
 >Lane o. Duchac, 73 Wis. 646; Tledemau ». Parker, 2 Aik. 212; CoUum ». Erwin, 4 Ala. 
 
 Com. Paper, § 250. 452; Walker v. Dement, 42 lU. 2r2; Bk. of Eng- 
 
 'Donley v. Hays, 17 Serg. & E. 400; Belding land o. Tarleton, 23 Miss. 178; Cooper ». Ul- 
 
 ». Manly, 21 Vt. 550; Miller v. Rutherland, &o. man. Walk. (Mich.) 251; Grattan v. Wiggins, 23- 
 
 E. E., 40 Vt. 39; Keyes v. Woods, 21 Vt. 331; Cal. 30; Willett v. Johnson, 84 Ky. 411; Morgan 
 
 Cooper B. Ulman, Walk. (Mich.) 251; Warden ». Kline, 77 Iowa, 681. 
 
 V. Adams, 15 Mass. 233; Lane ». Davis, 14 Al- 'Eastman v. Foster, 8 MetC. 19; Noyea v. 
 
 len, 225; Blair o. White, 61 Vt. 110; Pauzel ». White, 9 Minn. 640; coft<ro, Pager. Pierce, 26 N. 
 
 Brookmire, 51 Ark. 106; In re Preston, 54 Hun, H. 817; Stevenson v. Black, 1 N. J. Eq. 338; Betz. 
 
 10. V. Heebner, 1 Penn. 280; Henderson «. Herrod> 
 
 •Stanley «. Beatty, 4 Ind. 134; Hough w.Os- 18 Miss. 631. 
 
 502 
 
CH. XXIV.] MORTGAGES AS AFFECTED BY EQUITY. § 430 
 
 gagor's interest, whether before or after condition broken, at common 
 law or under the lien theory, can only be assigned by deed, for in any 
 case and under all circumstances the moi-tgagor is considered, as 
 against all the world, except the mortgagee, as the owner of the legal 
 estate, which he can convey as long as his equity of redemption has 
 not been barred or foreclosed.* As against the mortgagee, the 
 mortgagor's assignee has merely the rights of the mortgagor under 
 the mortgage; he takes the estate subject to the mortgage. And this 
 is the case with a second mortgagee, as well as with the absolute 
 purchaser.' 
 
 § 430. The effect ef a discharge. — Where the mortgage is dis- 
 charged by the mortgagor's payment of the debt, it is extinguished 
 altogether; particularly, where there are junior incumbrances. The 
 mortgagor cannot keep it alive, even though he goes through the 
 formality of an assignment. A merger results from the union of the 
 two interests in one person.' This is, however, not the rule where 
 the assignee of the mortgagor has assumed the payment of the debt. 
 Payment by the mortgagor in that case operates as an equitable assign- 
 ment.* And so, also, will there be a merger, where the payment is. 
 made by an assignee of the mortgagor who has assumed the payment 
 of the debt.^ It has, also, been held that if there are no junior incum- 
 brancers, a satisfied mortgage may be revived, and be made a good 
 and eflFectual security for a new debt between new parties. But the, 
 position is not without doubt as to its soundness." And it is certainly 
 
 1 Co. Lit. 205 a, Butler's note, 96; White t). ■* Bakers). N. W. Guaranty Loan Co., 36 Minn.;; 
 Whitney, 3 Meto. 81; White v. Eittenmyer, 30 Eobinson v. Leavitt, 7 N. H. 73, 100; Funkr.. 
 Iowa, 273; Blgelow ». Wilson, 1 Pick. 485; Bu- McEeynoId, 33 111. 481, 495; Baker ». Terrill, 8: 
 chanan v. Monroe, 22 Texas, 537; Newell «. Minn. 195, 199; Halsey v. Eeed, 9 N. J. Bq. 446; 
 Wright, 3 Mass. 138; Hodson v. Treat, 7 Wi's. Klnnear v. Lowell, 34 Me. 299; Fletcher v. 
 283. ' Chase, 16 N. H. 38, 42; Stillman o. Stillman, 21 
 
 2 Hartley ». Harrison, 24 N. Y. 170; Andrews N. J. Eq. 126; Jumel r. Jumel, 7 Paige, 591; 
 ». Fisk, 101 Mass. 424; Flanagan v. Westcott, 11 Cox v. Wheeler, 7 Id. 248, 257. 
 
 N. J. Eq. 264; Kruse v. Scripps, 11 111. 98; Froet ^ Mlckles v. Townsend, 18 N. Y. 575; Stod- 
 
 «. Shaw, 10 Iowa, 491; First National Bank ». dardw. Eotton, 5Bosw. 378; Butler d. Seward, 
 
 Honeyman, (Dak. 1839), 42 Mo. 771. 10 Allen, 466; Mlckles v. Dillaye, 15 Hun, 296; 
 
 8 Wadsworth v. Williams, 100 Mass. 126; Wade Pike v. Goodnow, 12 Allen, 472; Strong v. Con- 
 
 ».Beldineier,40Mo. 486;McGiven».Wheelock, verse, 8 la. 557; Campbell ». Knights, 24 Me. 
 
 7*Barb. 22; Mead v. York, 6 N. Y. 449; Thomas' 332; Weed, &c. Co. v. Emerson, 115 Mass. 554; 
 
 Appeal, 30 Pa. St. 378; Eichard v. Talbird, Rich. Belmont v. Coman, 22 N. Y. 438; Trotter v, 
 
 Ch. 158; Swifts. Kraemer, 13Cal.526; Ledyard Hughes, 12 Id. 74; Fowler «. Fay, 62 111. 375; 
 
 V Chapin, 6 Ind. 320; Pelton v. Knapp, 21 Wis. Hull v. Alexander, 26 Iowa, 569; Eussell v. Pis- 
 63; Eobinson v. Urqnhart, 12N. J. Eq. 515; Peck- tor, 7 N. Y. 171 ; Fitch v. Cotheal, 2 Sandf. Ch. 
 hamc.Haddock, 36I11.38;Fewell«. Kessler, 30 29; Lilly ». Palmer, 51 111. 331 ; Pry jj. Vander- 
 Ind. 195;Perkinsu. Steame,23Texas,561; Gard- hoof, 15 Wis. 397; see Kellogg d. Ames, 41 N. 
 ner «. James, 7 E. I. 396; Champney ». Coope, 32 Y. 250. 
 
 N.Y. 543; Bowmano.Manter,33N.H. 530; Large "Marvin ». Vedder, 5 Cow. 671; Beardsleys. 
 
 V VanDoren, 14 N. J. Eq. 208; Carlton v. Jack- Tuttle, 11 Wis. 74; Walkers. Snediker, 1 Hoffm. 
 son 12 Mass. 592; Kemerer v. Bloom, 65 Iowa, Ch. 145; Star v. Ellis, 6 Johns. Ch. 392; Whit- 
 363-' Shipley v. Fox, 69 Md. 572; Eaton v. Si- Ing v. Beebe, 12 Ark. 428; Johnson v. Ander- 
 monds 14 Pick. 98; Crafts v. Crafts, 13 Gray, son, 30 Ark. 745; Hurser v. Anderson, 4 Edw. 
 360- Cherry v. Monro, 2 Barb. Ch. 618; Brown Ch. 17; International Bk. j>. Bowen, 80 III. 541; 
 ■V Lapham, 3 Cush. 551, 554; Wedge v. Moore, Jordon v. Furlong, 19 Ohio St. 89. And it 
 R Id 8- Comm. v. Chesapeake, &o. Co., 32 Md. seems the objection to this principle is greatly 
 501- Kil'bom v. Eobbins, 8 Allen, 466, 471; lessened, if not altogether removed, if the 
 Strong «. Converse, 8 Id. ^iSJ; Butleru. Seward, assignment is made at the mortgagor's request 
 mid 466- Bemis «. Call, 10 Irf. 512. to a third person. Although lifeless in this 
 
 ■ ' 503 
 
§ 431 EQUITY JUKISPEUDENCE. [CH. XXIV. 
 
 not recognized as valid against junior incumbrancers.^ If the mort- 
 gage has been delivered up and cancelled through fraud, accident or 
 mistake, the court of equity will revive it and enforce it, at least 
 against the mortgagor and all parties claiming under him, who have 
 notice of the equity. And a subsequent purchaser will be bound by 
 the equity if the mortgage has not been satisfied ont he records; for he 
 is compelled to take notice of that fact, and it is sufficient to put bim 
 on his inquiry.^ 
 
 § 431. When payment will work an assignment.— Payment of 
 the debt by the mortgagor, as has been explained, always discharges 
 the mortgage, though the satisfaction by the mortgagee be in form 
 an assignment to himself or to one in trust for him.* And where 
 the debt is paid by a volunteer — a stranger who is not interested 
 in the mortgaged premises — the mortgage will be discharged and 
 extinguished, unless an assignment has actually been made to him. 
 He cannot set up the claim to an equitable assignment, although he 
 may have paid the debt at the mortgagor's request.* On the other 
 hand, if there is an actual assignment to the volunteer payor, no 
 additional circumstances can make the transaction work a discharge 
 of the mortgage.* But when the payment is made by one who is not 
 under a primary personal obligation to pay, who is secondarily liable 
 as surety or indorser, or who has an interest in the mortgaged prop- 
 erty, and, consequently, a right to redeem, payment does not always 
 operate as a discharge. And the question is not determined so much 
 by the form of the acknowledgement of payment as the intention of 
 Ihe party paying. That intention may be derived from the facts con- 
 nected with the transaction and established by parol evidence. And 
 where it is, beyond a doubt, to the interest of the one paying that the 
 mortgage should be kept alive, equity will look upon the transaction 
 
 third person's hands, It will be a good and 23S. 0.339; 53 Am.Kep. 713; Crippen ». Chap- 
 binding security when assigned to a new pel, 35 Kans. 495; Stiger v. Bent, 111 111, 388. 
 creditor upon a new or different consideration . But it must be a mistake of fact . If the satis- 
 Bolles «. Wade, 4 N. J. Eq. 458; Sheddy v. faction is obtained through a mistake of law, 
 Gervan, 113 Mass. 378; Hoy v. Bramhall, 11 N. no relief will be granted, unless, from the ten- 
 J. Eq. 563; Goulding v. Bunster, 9 Wis. 513j der age or weak mind of the person injured, 
 Wilson V. Schoenlamb, 99 Mo. 96. the charge of undue Influence may be estab- 
 
 iManu. Elkins, ION. Y. S. 488. Ushed. Peters «. Florence, 38 Pa. St. 194; 
 
 SGrimes v. Kimball, 4 Allen, 578; Joslyn a. Hamptonu. Nicholson, 23 N . J. Eq. 423; Bent, 
 
 Wyman, 5 Allen, 63; Howe v. Wilder, 11 Gray, ley v. Whitmore, 1 Id. 366; Smith v. Smith, 15 
 
 r267; Lawrence v. Stratton, 6 Gush. 163; Stover N. H. 55. 
 
 V. Wood, 26 N. J. Bq. 417; Fassett v. Smith, s see atUe, § 430, and Tledeman Eeal Prop. 
 
 23 N. T. 252; Middlesex v. Thomas, 20 N. J. § 333. 
 
 Eq. 39; Weir v. Mosher, 19 Wis. 311; Vannice 4Downer«. Wilson, 33 Vt. 1; see Guy t>. De 
 
 «. Bergen, 16 Iowa, 555; DeYamperto. Brown, Uprey, 16 Gal. 196. But see Crippen ». Chappel, 
 
 28 Ark. 166; Stanley v, Valentine, 79 ni. 544; 35 Kans, 495, where it has been held that one 
 
 Mallet ». Paige, 8 Ind. 364; Eobinson v. Samp- paying the debt at the request of the deceased 
 
 son, 23 Me. 388. And such relief will also be mortgagor' s administrator, in reliance upon 
 
 afforded where mortgage has been satisfied, the-validity of a new mortgage given by the 
 
 instead of being assigned. Dudley w. Bergen- administrator, can claim the rights of an as- 
 
 53N. J. Eq. 397; Champlint). Laytin, 18 Wend. signee of the old mortgage, although it has 
 
 407; Russell v. Mixer, 42 Gal. 475; Bruce v. been duly cancelled. 
 
 Bonney, 12 Gray, 107; Hughes v. Torrence, HI e Brown v. Scott, 87 Ala. 4.53. 
 fa. St. 611; Charleston City Council v. Ryan, 
 
 504 
 
.CH. XXIV. J MORTGAGES AS AFFECTED BY EQUITY. 
 
 § 432 
 
 as an assignment, and not a discharge. Especially is this the case 
 where the person paying has only a part interest in the premises, or 
 is a surety, and by paying becomes entitled to contribution or satis- 
 faction from the mortgagor and others interested in the property. 
 Payment in such cases never works a discharge; the mortgage sur- 
 vives, and may afterwards be enforced against all parties affected with 
 notice.' But when such a person pays a mortgage debt, he can insist 
 upon the transfer to him of the notes or other evidences of indebted- 
 ness and the mortgage.* It has, however, been held that he cannot 
 require them to be assigned to him.' 
 
 § 432. Actions for waste. — If the party in possession — whether 
 mortgagor or mortgagee, or their respective assignees— does anything 
 in respect to the mortgage property which constitutes waste, and as 
 such essentially impairs the value of the inheritance, he will be 
 responsible in damage to the other parties who are interested in the 
 property. But a mortgagor is not guilty of waste, on account of acts 
 of omission. In the absence of an express covenant to repair, he is 
 not guilty of waste, as against the mortgagee, if he fails to keep the 
 premises in repair.* The action is not the technical legal action, but 
 is one in the nature of waste, and in the code pleading would be 
 simply an action for damages.^ But the most effective remedy for the 
 
 1 Hinds V. Ballon, 44 N. H. 619: Stantons v. 
 Thompson, 49 N. H. 872; 'Butler v. Seward, 10 
 Allen, 466; Mickles v. Townsend, is N. Y. 575; 
 lieavitt V. Piatt, S3 Me. 14; Kellogg v. Ames, 41 
 N. T. 259; Abbott v. Kasson, 72 Pa. St. 185; 
 Walker v. King, 44 Vt. 601 ; Wadsworth v. Will- 
 iams, 100 Mass. 126; Wade v. Baldmler, 40 Mo. 
 486; Cliamplin v. Laytin, 18 Wend. 407; Skill- 
 man i>. Teeple, 1 N. J. Eq. 232; Dudley v. Ber- 
 gen, 23 N. J. Eq. 397; Euasell v. Mixer, 42 Cal. 
 475; Baker». Flood, 103 Mass. 47; Ebert v. Gerd- 
 Ing, 116 ni. 216j Stelzicli v. Weidel, 27 111. App. 
 177; Averill v. Taylor, 8 N. T. 44; Loud v. Lane, 
 8 Met. 517; Bacon t>. Bowdoin, 22 Pick. 401; Mc- 
 Cabe V. Bellows, 7 Gray, 148; Gibson u. Cre- 
 hore, 3 Pick. 475; Houghton v . Hapgood, 13 
 Pick. 158; Carli v. Butman, 7 Me. 102, 105; 
 Spencer v. Waterman, 38 Conn. 342; Foster v. 
 Hilllard, 1 Story, 77; Swaine v. Perine, 5 Johns. 
 Ch. 490; Bell v. Mayor, &c., 10 Paige, 49; Lam- 
 son V. Drake, 105 Mass. 567; Davis v. Weth- 
 erell, 13 Allen, 63; McCabea. Swap, 14 Allen,191; 
 Newhallu. Savings Bank, 101 Mass. 431. And 
 payment by a purchaser of the equity of re- 
 demption will not operate in equity as an 
 extinguishment of the mortgage, as against the 
 mortgagor, sureties and junior incumbrancers, 
 although the mortgage is formally satisfied 
 and cancelled, unless he has become primarily 
 liable by his assumption of the payment of the 
 mortgage, as the consideration of the convey- 
 ance to him. Savage v. Hall, 12 Gray, 363; 
 Pitts ». Aldrich, 11 Allen, 39; Abbott v. Kas- 
 son, 72 Va. St. 183; Poolo. Hathaway, 22 Me. 
 b5; Hatch v. Kimball, 16 /*. 146; Skeel v. 
 Sprakei, 8 Paige Ch. 182; Millspauch o. Mc- 
 
 Bride, 7PaigeCh. 509; Shin v. Fredericks, 56 
 111.443; Mobile Branch Bank «. Hunt, 8 Ala. 
 876; Lyon v. Mollvaine, 24Iowa, 12; Fitch?;. 
 Cotheal, 2 Sandf . Ch, 29; Lilly v. Palmer, 51 
 111.331; Mickels v. Townsend, 18 N. Y. 575; 
 Frey v. Vanderhoof, 15 Wis. 397; Carpentem. 
 Gleason, 58 Vt. 244; Georgia Chemical Works 
 V. Cartledge, 77 Ga. 547; Gerdine v. Menage, 
 141 Minn. 417. But in law, an actual formal 
 assignment is required to keep the mortgage 
 alive. Denv. Dimon, 10 N. J. L. 156; Kinna 
 V. Smith, 17N. J. Eq. 14; Wades. Howard, 11 
 Pick. 289. And a part owner, who pays the 
 debt may require a formal assignment to him. 
 Bayles v. Hunted, 40 Hun, 376. But if the 
 mortgage is paid off by such part owner with 
 funds, in which all the owners are interested, 
 as where the widow pays the debt with the 
 proceeds of the growing crop, she cannot en- 
 force the mortgage against the deceased mort- 
 gagor's heirs and distributees. Skinner v. 
 Chapman, 78 Ala. 376. 
 
 2 Stlgerc. Bent, 111 111. 328. 
 
 3 Holland v. Citizen's Say. Bank, (E. I. 1890) 
 
 19 Atl. 654; McCuUa v. Beadleston, (R. I. 1890) 
 
 20 Atl. 11; but see contra. Nelson v. Loder, 55 
 Hun. 173. 
 
 * Union Mut., &c. Ins. Go. v. Union Mills, 
 &c.,37Fed. Eep. 286. 
 
 'Stowell V. Pike, 2 Greenl. 387; Smith v. 
 Goodwin, Id. 173; Frothingham v. McKusick, 
 24 Me. 403; Hagar v. Brainard, 44 Vt. 302; 
 Sanders v. Eeed, 12 N. H. 558; Bumside v. 
 Twitchell, 42 N. H. 390; Mayo v. Fletcher, 14 
 Pick. 525; Wilmartht). Bancroft, 10 Allen, 348; 
 Page V. Eobinsou, 10 Gush. 99; Waterman V. 
 
 505 
 
§ 433 EQUITY JUBISPKUDENCE. [CH. XXIV. 
 
 prevention of waste by the parties to a mortgage is a bill in equity 
 for an injunction, or the appointment of a receiver to take charge of 
 the mortgage property. Anyone who has an interest, either in the 
 mortgaged premises or in the mortgage debt, may avail himself of 
 these remedies.' 
 
 § 433. Process to redeem. — ^In those states where the payment 
 or tender of payment after condition broken extinguishes the mort- 
 gage, and enables the mortgagor to recover the possession by an 
 action of ejectment, no further process is needed to restore him to the 
 complete title in the land. But where payment or tender of pay- 
 ment, i. e., after breach of the condition, does not have that eflfect— ^ 
 as is the case under the common law theory — the mortgagor is obliged 
 to resort to a bill in equity to enforce a redemption and cancellation 
 of the mortgage. This equitable remedy may be instituted by the 
 mortgagor or anyone claiming under him. The bill must be accom- 
 panied with a tender of payment into the court or with the statement 
 of a willingness to pay if a balance is found to be due after an account- 
 ing," and the decree orders the mortgagee to cancel and deliver up the 
 mortgage and the instrument of indebtedness.' The action for 
 redemption must be instituted within the period of limitation pre- 
 scribed for such actions.* Where there are several parties before the 
 court claiming the right to redeem, the court will grant the right of 
 redemption to them in the order of their priority, the one who is last 
 in point of priority being required to redeem all the preceding mort- 
 
 Matteson, 4 E. I. 539; Mitchell v. Bogan, 11 Minn. 456; Bunker v. Locke, 15 Wis. 635; 
 
 Blch. Eq. 686; Lane v. Hitchcock, 14 Johns. Fairbanks ». Cudworth, 33 Wis. 358; Bobinson 
 
 805; Haskin v. Woodward, 45 Pa. St. 44; Van ». Bussell, 24 Cal. 467; Hampton v. Hodges, & 
 
 Pett V. McGraw, 4 Comst. 110; Gardner v. Heatt, Ves. 105; Bobinson v. Litton, 3 Atk. 810; Good- 
 
 3Denio,838; Barnett«. Nelson, 54 Iowa, 41; 37 man ». Kine, 8 Beav. 379. But the mortgagee 
 
 Am.Bep. 183; Moriartyi;. Ashworth, 43 Minn. is under no obligation to enjoin, or bring 
 
 1. And after condition broken, in the com- action for waste; and a subsequent incum- 
 
 mon law states, the mortgagee may have brancer or purchaser cannot hold him liable 
 
 trover t.r replevin for the timber cut by the for failing thus to protect the inheritance, and 
 
 mortgagor, against the purchaser of the mort- reduce the debt. Knarr v. Conaway, 42 Ind. 
 
 gagor, as well as against the mortgagor him- 860. 
 
 self. Langdon t). Paul, 82 Vt. 805; Gore ». ^Pryor «. Hollinger, 88 Ala. 405; Franklin!). 
 
 Jennison, 19 Me. 53; Waterman ji. Matteson, Ayer, 22 Fla. 6&4. 
 
 4 E. I. 539; Frothingham v. McKusick, 24 Me. " Beekman v. Frost, 18 Johns. 544; Silsbee ». 
 403; Adams v. Corriston, 7 Minn. 456; Kennedy Smith, 41 How. Pr. 418; Barton ti. May, 3 Sandf. 
 V. Burgess, 38 Mo. 440; Kimball ii. Lewiston, Ch. 450; Perry b. Carr, 41 N. H. 371; Edgerton, 
 Ac. Co., 55 Me. 494; contra, Peterson v. Clark, v. McEea, 6 Miss. 183; Daughdrill v. Sweeney, 
 14 Johns. 205; Wilson v. Malthy, 59 N. Y. 186; 41 Ala. 310; Anson v. Anson, 80 Iowa, 55; Pit- 
 Cooper V. Davis, 15 Conn. 556; Clark v. Bey- mane. Thornton, 66 Me. 469; Gerrishi). Black, 
 bum, 1 Kans. 281. 122 Mass. 76; Halt «. Eees, 46 111. 181; Brobst v. 
 1 Brady «. Waldron, 8 Johns. 148; Johnson v. Brook, 10 Wall. 536; Manning v. Elliott, 92 N. 
 White, 11 Barb. 194; Cooper v. Davis, 15 Conn. C. 48; Washburn v. Hammond, (Mass. 1890) 2* 
 556; Salmon o. Claggett, SBland Ch. 126; Cap- N. E. 33; Hazardc.Eobinson, 15 E. 1.286; Payor 
 ner». Parmlngton Co., 2 Green Ch. 467; Brick o. Hallinger, 88 Ala. 405. In Pennsylvania, re- 
 V. Getsinger, 1 Halst. Ch. 391; Ensign v. Col- demption may be asked for in an action of 
 burn, 11 Paige, 503; Scott t>. Wharton, 2 Hen. ejectment. Mellon v. Lemmon, 111 Pa. St. 56; 
 & M.25; ParsonsB. Hughes, 12 Md. 1; Gray o. Franklin v. Ayer, 22 Fla 654; but see contra„ 
 Baldwin, 8 Blaekf. 164; McCaslins). The State, Casserly ». Witherbee, 119 N Y 522. 
 44 Ind. 151: Nelson v. Pinegar, 30 111. 473; *See onie, § 326; see, also, Schlawigr. Pleck- 
 Mooney ». Brinkley, 17 Ark. 310; Morrison v. enstein, (Iowa, 1890) 45 N. W. 770. 
 Buckner, Hempst. 442;' Adams v. Corriston, 7 
 
 506 
 
CH. XXIV.] MOETGAGES AS AFFECTED BY EQUITY. 
 
 434 
 
 gages, in order that he may acquire the first lien or absolute title.* 
 All persons who are interested in the mortgage, either as privies of 
 the mortgagor or mortgagee, are proper parties to an action for 
 redemption. The mortgagee and his assigns are necessary parties. 
 And where there are several parcels of land covered by the mortgage, 
 and the owner of the equity of one wishes to redeem, the owners of 
 the other parcels must be made parties. But this rule does not apply 
 where there are separate mortgages over each for the same debt.^ 
 
 § 434. Who may redeem. — ^If the mortgage debt is actually paid, 
 the payment will, as against the mortgagee, extinguish the mortgage 
 and the mortgagee's rights thereunder, whoever pays the debt. But 
 in order that a tender of payment may have that effect, it must be 
 made by someone who is entitled to redeem.^ Anyone who has an 
 interest in the mortgaged premises, claiming under the mortgagor, 
 has this right. And this is the case, whether his interest be legal or 
 equitable, an estate or a lien. The only requisite is a privity of estate 
 with the mortgagor. Among sutfh may be enumerated grantees, subse- 
 quent incumbrancers, whether they be junior mortgagees or judgment- 
 creditors, heirs, devisees, personal representatives, tenants for years, 
 the husband for his curtesy, and the widowforherdower or jointure.* 
 
 ' Moore v. Beasom, 44 N. H. 215; Brewer v. 
 Hyndman, 18 N. H. 9; Arcedechare v. Bowes, 3 
 Meriv. 216; Eaymond v. Holbom, 23 Wis. 57; 
 Bucbanan v. Eeid, 43 Minn. 172j Pamperin v. 
 Scanlan, 28 Minn. 345; Parke v. Hush, 29 Minn. 
 434. See ante, § 334, for a discussion of the 
 persons who may redeem. 
 
 "1 Dan. Ch. Pr. 306, 3W; Winslow v. Clark, 
 47N-Y. 261; Dias r. Merle, 4 Paige, 259; Hilton 
 V. Lathrop, 46 Me. 297: Brown v. Johnson, 53 
 Me. 346; Wiggc. Davis, 8 Greenl. 31; McCabe 
 V. Bellows, 1 Allen, 269; Barker v. Wood, 9 
 Mass. 419; Elliott v. Patton, 4 Yerg. 10; Wol- 
 cott V. Sullivan, 6 Paige Ch. 117; Enos v. 
 Southerland, 11 Mich. 538; Shaw». Hoadley, 8 
 Blaekf . 165: Woodward v. Wood, 19 Ala. 213; 
 Beals V. Cobb, 51 Me. 348; Doody v. Pierce, 9 
 Allen, 141: Boyd ». Allen, 15 Lea. 81; Perkins 
 «. Brierfield & Co., 77 Ala. 403. Upon the 
 death of the mortgagor, either his heir or the 
 personal representatives may bring the suit, 
 because both are interested in the liquidation 
 of the mortgage. Enos v. Southerland, 11 
 Mich. 538; Guthrie v. Sorrell, 6 Ired. Eq. 13; 
 Gen. Stat. Mass. (1860) §§32, 33. And at com- 
 mon law, upon the death of the mortgagee, 
 both the heirs and personal representatives 
 had to be made parties. Anon., 2 Freem. 52; 
 Osbouru V. Fallows, 1 Russ. & M. 741; Story's 
 Eq. PI , § 188; Haskins.'p. Hawkes, IDS Mass. 379. 
 But under the lien theory of mortgages, the 
 personal reprebentatives of the mortgagee are 
 the only necessary parties. Copeland v. 
 Yaakum, 38 Mo. 349. And where a junior 
 mortgagee redeems, he must make the mort- 
 gagor, as well as the prior mortgagee, parties 
 
 defendant. Farmer v. Curtis, 2 Sim. 466; Cad- 
 dick V. Cook, 33 Beav. 70; Rhodes v. Buck- 
 land, 16 Beav. 213; Palk v. Clinton, 12 Ves. 48. 
 
 8 McCuUa V. Beadleston, (R. 1. 1890) 20 Atl. 11. 
 
 *Lomax«. Bird, 1 Vern. 182; Gibson v. Cre- 
 hore, 5 Pick. 146; Grant v. Duane, 9 Johns. 591; 
 Sx parte Willard, 5 Wend. 94: Averill v. Tay- 
 lor, 8 N. Y. 44: Manning v. Markel, 19 Iowa, 
 104; Boarman v. Catlett, 13 Smed. & M. 149; 
 Scott V. Henry, 13 Ark. 113; Moore v. Beasom, 
 44 N. H. 215; Merriam v. Barton, 14 Vt. 501; 
 Smith 1). Manning, 9 Mass. 422; Fray». Drew, 
 11 Jur., N. B., 130; Burnett v. Dennistor, 5 
 Johns. Ch. 35; Thompson v. Chandler, 7 
 Greenl. 377; Saunders «. Frost, 5 Pick. 259; 
 Bacon v. Bowdoin, 22 Pick. 401 ; Goodman v. 
 White, 27 Conn. 317; Newhall v. Savings Bank, 
 101 Mass. 431; Brainard v. Cooper, 10 N. Y. 356; 
 Hoyt v. Martense, 16 N. Y. 231 ; Dunlap v. Wil- 
 son, 32 111. 517; Mellish ©..Robertson, 26 Vt. 603; 
 Rogers v. Myers, 68 111. 92; Kimmel v. Willard, 
 1 Dougl. (Mich.) 217; Wiley v. Ewing, 47 Ala. 
 418; Calkins D. Munsell, 2 Root, 333; Young ». 
 Williams, 17 Conn. 393; McLaughlin v. Curts, 
 27 Wis. 644; Hamilton v. Dobbs, 19 N. J. Eq. 
 227; McArthur v. Franklin, 16 Ohio St. 193; 
 Hitt V. Holiday, 2 Litt. 332; Van Buren v. Olm- 
 stead, 5 Paige Ch. 9; Stainback v. Geddy, 1 
 Dev, & B. Eq. 479; Chandler v. Dyer, 37 Vt. 345; 
 Bridgeport v. Blinn, 43 Conn. 274; Kingsbury 
 V. Buckner, 70 111. 514; Casserly v. Witherbee, 
 119 N. Y. 522; Buchanan v. Reid, 43 Minn. 172; 
 Sanford v. Kane, 21111. App. 504; s. c, reversed, 
 12? 111. 591; Ryan». Newcomb, 23111. App. 113; 
 s. c, reversed, 25111. 91; Willard t;. Finnegan, 
 43 Minn. 476; Barr v. Van Alstme, 120 Ind. 590. 
 
 507 
 
§ 436 EQUITY JUBISPKUDENCE. [OH. XXIV. 
 
 And in tendering payment the mortgagee or assignee may be required 
 to deliver up the notes or other evidences of indebtedness before 
 actual payment, such a demand would not affect the effectiveness of 
 the tender.* But, in order that tender of payment may have the 
 effect of extinguishing the mortgage, the whole debt must be tendered, 
 together with all the interest and costs that have accrued thereon to 
 the date of the tender. Therefore, if the widow, for example, 
 desires to redeem for the preservation of her dower right, she must 
 offer to pay the whole debt. The mortgagee can refuse to accept 
 only her share of it. And this is true of anyone who owns only a 
 portion of the mortgaged premises.^ 
 
 § 435. Accoimting by the mortgagee. — ^Inthe action for redemp- 
 tion, in order to determine the amount then due on the mortgage, it 
 is sometimes necessary to have an accounting. An accounting may 
 be ordered whenever the mortgage debt involves a long and tedious 
 account of charges and counter-charges, but it is particularly neces- 
 sary when the mortgagee has been in possession of the premises, has 
 received the rents and profits of the land, and expended sums of 
 money in keeping the premises in repair. The mortgagor, or other 
 person, praying for redemption, asks for an accounting by the mort- 
 gagee. An accounting is an equitable remedy which may be insti- 
 tuted independently of, or in conjunction with, another and the 
 principal suit. The mortgagor and his assigns may ask for an 
 accounting without filing a bill to redeem, or they may request it in 
 connection with the action for redemption. The case is referred to 
 a master in chancery, if there be one, or to a special referee, who 
 ascertains and determines the proper debits and credits of the account 
 between the parties, and reports to the court the balance found due, 
 The approval by a court of competent jurisdiction of the mortgagee's 
 account fixes his liability thereon definitely, and the account cannot 
 thereafter be attacked collaterally.* 
 
 §436. Continued— What are lawiul debits? — ^In the first place 
 the mortgagee will be charged with whatever rents he may have 
 
 1 Stiger V. Bent, 111 111. 328. ISBj Davis «. Lassiter, 20 Ala. 561; Doody », 
 
 2 McCabe v. Bellows, 7 Gray, 148; McCabe v. Pierce, 9 Allen, 141 ; Harper's Appeal, 64 Pa. St. 
 Swap, 14 Allen, 191; Gibson v. Crehore, 5 Pick. 315; 5 Walt's Prac. 288; Barnard v. Jennison, 
 146; Smith v. Kelly, W Me. 237; Chittenden v. 27 Mich. 230; Adams v. Brown, 7 Oush. 220; 
 Barney, 5 Vt. 28; Bell v. Mayor, &c., 10 Paige Hubbell v. Moulson, 53 N. Y. 225; Farrls v. 
 Ch. 49; Fletcher v. Chase, 16 N. H. 42; Norris Houston, 78 Ala. 250; Pryor v. Hollinger, 88 
 V. Moulton, 34 N. H. 392; Downer ». Wilson, 38 Ala. 405; Shuler ». Bonander, (Mich. 1890) 45 N. 
 Vt. 1; Seymour®. Davis, 35Conn. 264; MuUan- W. 487. The mortgagee's assigns, as well as 
 phy V. Simpson, 4 Mo. 319; Douglass v. Bishop, the mortgagee, are liable to be called to ac- 
 3r Iowa, 216; Gliddon v. Andrew, 14 Ala. 733; count, and the mortgagor's' assigns have a 
 Knowles V. Eablin, 20 Iowa, 101; Lamb. v. right to demand an account. Brayton v. 
 Montague, 112 Mass. 352; Franklin v. Gorham, Jones, 5 Wis. 117; Harrison v. Wise, 24 Coivn. 1; 
 2 Day, 142; Hunter ji. Dennis, 112111. 668; Watts Strang v. Allen, 44 111.428; Ruckman «. Astor, 
 11. Bonner, 66 Mich. 629; Detweilert). Brecken- 9 Paige Ch. 517; Gelston v. Thompson, 29 Md. 
 kamp, 83 Mo. 45. 595. 
 
 8 Hunt V. Maynard, 6 Pick. 439; Gibson v. < In r« Helfenstein's Estate, (Pa. 1890) 20 Atl. 
 
 Crehore, 5 Pick. 146; Bailley v. Myrlck, 62 Me. 151. 
 
 508 
 
 z 
 
CH. XXIV. J. MORTGAGES AS AFFECTED BY EQUITY. § 437 
 
 received, or which he could have received but for his negligence in the 
 management of the estate. This matter has been already discussed in 
 a previous section, and a complete statement of the mortgagee's lia- 
 bility in this connection need not here be repeated.^ The mortgagee 
 is also chargeable with all damage done to the inheritance by himself, 
 or by others with his authority or permission, whether the acts consti- 
 tute affirmative or negative waste. Thus he is liable for damages 
 resulting from the opening and working of a mine, as well as from 
 letting tibie premises fall into decay.' 
 
 §437. Continaed — What are lawful credits? — Since the mort- 
 gagee in possession is under an obligation to keep the premises in 
 repair, he is entitled to credit himself with all sums expended for that 
 purpose. But he will not be allowed the expenses incurred in making 
 costly improvements — such as the erection of new buildings, or for 
 any repairs which are not of permanent benefit to the inheritance. 
 The true rule seems to be, that he will be allowed only such expenses 
 as he incurred in making repairs, which were necessary to keep the 
 premises in the same condition as he received them, and for such 
 improvements beyond that limit which were necessary to the ordinary 
 and reasonable enjoyment of the premises. For any other expenses 
 of repair he can be credited only when he has incurred them by and 
 with the consent of the mortgagor.' But it has been held in some of 
 the states that where lasting and permanent improvements of a truly 
 beneficial character were made by the mortgagee in possession, or by 
 a purchaser, under the mistaken belief that he had, by foreclosure, 
 acquired the absolute title, he will be allowed the value of them.* 
 This, probably, is but a deduction from the general betterment laws, 
 which have been enacted in several of the states.^ Although the 
 mortgagee is not obliged to purchase a superior or paramount title 
 held by a third person, or to pay the taxes due upon the estate, or to 
 effect an insurance where the mortgage requires the mortgagor to 
 insure, yet if he does any of these acts and incurs expenses for the 
 protection of their joint interests against such forfeiture or loss, he 
 will be permitted to charge them against the mortgagor." But in all 
 
 i See ante, % 4Z5. Iowa, 114; Adklns v. Lewis, 5 Oreg. 292 j 
 
 2 See ante, § 432. Ballinger v. Choultan, 20 Mo. 80 ; Ford v. Phil- 
 
 sRussell V. Blake, 2 Pick. 505; Reed v. Reed, pot, 5 Har. & J. 312; Miller u. Curry, (Ind. 1890) 
 
 10 Pick. 398; Crafts v. Crafts, 13 Gray, 303; 24N.E. 219,374. 
 
 Mickles v. Dillaye, 17 N. Y. 80; Moore v. Cable, * Miner v. Beekman, 50 N. Y. 337; Putnam 
 
 IJohns. Ch. 385; Gordon ». Lewis, 2 Sumn. 143; v. Ritobiie, 6 Paige Ch. 390; Vanderhaise v. 
 
 Clark V. Smith, 1 N. J. Eq. 121; Norton t>. Hughes, 2 Beas. 410; Harper's Appeal, 64 Pa. St. 
 
 Cooper, 39 Eng. Law & Eq. 130; Sparhawk v. 315; Barnard «. Jennison, 37 Mioh. 230, Neale 
 
 Willis, 5 Gray, 423; Daugherty v. McCoIgan, 6 v. Hagthorp, 3 Bland, 590; Gillis v. Martin, 2 
 
 Gill & J. 276; Harper's Appeal, 64 Pa. St. 315; Dev. Eq. 470; Troost v. Davis, 31 Ind. 34; 
 
 Lowndes v. Chisolm, 2 McCord Oh. 455; Hop- Roberts v. Fleming, 53 111. 198; MoLorley v. 
 
 klnson v. Stephenson, 1 J. J. Marsh. 341; Mo- Larissa, 100 Mass. 270; Greene v. Westcott, 13 
 
 Connel •■;. Holsbush, 11 111. 61; McCumber v. Wis. 606; Bacon «. Cottrell, 13 Minn. 194. 
 
 Oilman, 15 III. 381; McCarron ■„. Cassidy, 18 ^See Tiedeman Real Prop., § 702, and ante 
 
 Ark. 34; Tharpe v. Feltz, 6 B. Mon. 15; Hidden § 395. 
 
 V. Jordan, 28 Cal. 301; Neale v. Hagthorp, 3 « Clark u. Smith, 1 N. J. Eq. 421; Riddle v. 
 
 Bland Ch 590; Montgomery v. Chadwick, 7 Bowman, 27 N. H. 236; MuUer u. Whittier, 36 
 
 \ 509 
 
§ 439 EQUITY JUKISPRUDENCE. [CH. XXIV. 
 
 4 
 
 of these cases the claim for reimbursement is against the mortgaged 
 property, and not a personal one which may be enforced against the 
 mortgagor in a personal action.^ The mortgagee, however, cannot 
 charge for his personal services in the management of the estate; but 
 if it is necessary to employ others — as, for example, a person to col- 
 lect the rents — he will be allowed such expenses. And, in some of 
 the states, notably Massachusetts, he is allowed a commission where 
 he collects them himself. But the general rule is that he will not be 
 permitted to make any charge for his own services, whatever may be 
 their nature.^' 
 
 § 438. Making rests. — In applying the rents and profits received 
 from the estate the mortgagee may first deduct therefrom the expenses 
 incurred in the management of the mortgaged premises, and then he 
 must apply the remainder to the liquidation of the interest and prin- 
 cipal of the debt in that order. If, in making the account, it is ascer- 
 tained that in any one period — determined by the time when the 
 interest falls due — the rents and profits received are more than suffi- 
 cient to cover the expenses and the accrued interest, the balance is 
 applied to the principal; and the interest subsequently accruing is com- 
 puted on the reduced principal. This is called making a rest. And 
 rents will be made under such circumstances as often as the interest 
 falls due.^ 
 
 § 439. Balance dne. — If, when the account is stated, it is found 
 that there is a balance still due on the mortgage to the mortgagee, a 
 decree for redemption will be granted upon the payment of that sum. 
 And the report of the referee or master, when confirmed by the court, 
 is conclusive as to the amount still owing. On the other hand, if the 
 report shows that the rents and profits received by the mortgagee 
 exceed the expenses and the amount of the mortgage combined, 
 
 Me. 577; Hubbard v. Shaw, 12 Allen, 128; Will- J. Eq. 475; Breckenridge u. Brooks, 2 A. K. 
 iams V. Hilton, 35 Me. 547; EoMnson v. Eyan, Marsh. 335; Benham v. Eowe, 2 Gal. 387; Har- 
 25 N. y. 320; Mix «. Hotchkiss, 14 Conn. 32; per ». Ely, 70 111. 381; Snow b. Warwick Insti- 
 Haryie v. Banks, 1 Band. 408; Slee v. Man- tution of Sayings, (E. I. 1890) 20 Atl. 94. In 
 hattan Co., 1 Paige Oh. 81 ; Poiny v. Palmer, 5 Massachusetts, Connecticut, Pennsylvania and 
 Gray, 649; Nichols v. Baxter, 5 E. I. 494; Hag- Virginia, the mortgagee may charge a reason- 
 thorp ii. Hook, 1 Gill & J. 270; McCumber v. able percentage, usually 5 per cent., for the 
 Oilman, 15 111. 381 ; Weatherby o. Smith, 30 collection of the rents. Gerrish ». Black, 104 
 Iowa, 131; Davis v. Bean, 114 Mass. 360; Harper Mass. 400; Waterman v. Curtis, 26 Conn. 241; 
 t>. Ely, 70111. 581; Eowan v. Sharpe Eifle Co., Wilson v. Wilson, 3 Binn. 557; Granberry v. 
 29 Conn. 282; Burr v. Veeder, 3 Wend. 412; Granberry, 1 Wash. (Va.) 246; Brown v. South 
 Miller v. Curry, (Ind. 1890) 24 N. E. 219, 374; Boston Sav. Bk., 148 Mass. 300. 
 Young B. Omohundro, 69 Md. 424; West v. « Eeedsj. Eeed, 10 Pick. 398; Shaflfert). Cham- 
 Hayes, 117 Ind. 290; McCreery v. Shaffer, (Neb. bers, 6 N. J. Eq. 548; Van Vronker v. Eastman, 
 1889) 41 N. W. 996. 7 Mete. 538; Connecticut v. Jackson, 1 Johns. 
 
 iKersenbrock v. Muff, (Neb. 1890) 45 N. W. Ch. 13; Stone «. Seymour, 15 Wend. 16; Jencks 
 
 778; Zabrlskie v. Bandistel, (N. J. 1890) 20 Atl. v. Alexander, 11 Paige Ch. 619; Gordon ii.LewiS, 
 
 2«3. 2 Sumn. 147; Green v. Westcott, 13 Wis. 606; 
 
 a And any agreement that he shall be per- Saunders v. Frost, 5 Pick. 259; Patch v. Wilde, 
 
 mitted to charge for such services will not be SOBeav. 100; Gladding©. Warner, 36 Vt. 54; 
 
 binding upon the mortgagor. French v. Bar- Mahone v. Williams, 39 Ala. 202; Johnson v 
 
 ton, 2 Atk. 120; Gilberts. Dyneley, 3 Man. &. G. Miller, 1 Wils. 416j Knight v. Houghtallng, 91 
 
 12; Eaton v. Simonds, 14 Pick. 98; Moore v. N. C. 246. 
 Cable, 1 Johns. Ch. 385; Elmer u. Loper, 25 N. 
 
 510 
 
C!H. XXIV.] MORTGAGES AS AFFECTED BY EQUITY. § 44:0 
 
 redemption will be decreed, together with an order, directing the 
 mortgagee to pay over to the mortgagor whatever balance is found 
 due to him.' 
 
 § 440. Foreclosure. — Nature and kinds of.— In order to bar the 
 mortgagor's equity of redemption, and acquire the absolute title to 
 the property, or to satisfy his debt by a sale of the premises, the mort- 
 gagee must 'bring an action for foreclosure. And the action lies on a 
 deed which is absolute on its face, as soon as it is shown that it was 
 intended to operate as a mortgage, as well as on one which has been 
 executed in proper form.^ The decree in such a case bars completely 
 the right to redeem. There are two principal kinds of foreclosure, 
 although the details in both are different in different states, and are 
 governed more or less by local statutes. The more ancient kind is 
 what is called strict foreclosure. This is an action in which a decree is 
 rendered barring the mortgagor's equity, and vesting the absolute estate 
 in the mortgagee if the debt is not paid within a certain time after the 
 rendition of the decree. This kind of foreclosure is generally resorted 
 to in the New England States, although in some of them — particularly 
 Massachusetts — the form of the proceeding has been somewhat changed 
 from the old common law foreclosure. But the decree is essentially the 
 same.* But strict foreclosure, if the mortgagee is out of possession, 
 ie may recover the possession in action of ejectment.* The other 
 so-called equitable foreclosure is effected by a decree ordering the prop- 
 erty to be sold; and the proceeds of sale applied to the payment of the 
 expense of the foreclosure suit and sale of the property,* and the liqui- 
 dation of the mortgage debt. If any surplus remains, it is paid over to 
 the mortgagor and his assigns, ° and the junior incumbrancers will be 
 entitled to share in the surplus in the order of their equities.' This 
 mode of foreclosure is juster and fairer to all parties, and, very prob- 
 ably, everywhere in this country, except the New England States, f ore- 
 
 1 Pitman v. Thornton, 66 Me. 469; Holt v. usually three years, the equity of redemption 
 Eees, 46 111. 181; Gerrish v. Black, 132 Mass. 76; is foreclosed without any resort to the courts. 
 Seaver». Durant, 39 Vt. 103; Bell v. Mayor of 2 Jones on Mort., §§ 1237-1275. 
 
 N. T., 10 Paige Ch. 49; Freytag v. Hoeland, 23 *Kershaw u. Thompson, 4 Johns. Ch. 609; 
 
 N. J. Eq. 36; see Wood ». Felton, 9 Pick. 171. Schencku. Conover, 13 N. J. L. 220; Montgomery 
 
 2 Lyoni). Powell, 78 Ala. 351. >>■ Middlemiss, 21 Cal. 106; Sutton ii. Stone, 2 
 
 3 In Massachusetts, Maine and New Hamp- Atk. 101. But the decree in strict foreclosure 
 Bhire, the action for strict foreclosure is called may include an order to the mortgagor to 
 & writ of entry; in form, an action at law, but vacate the premises, and then it win not be 
 in effect an equitable proceeding. Gen. Stat. necessary for the mortgagee to resort to his 
 Mass., Ch. 140, §§ 1-11; Me. Rev. Stat., Ch. 90; legal remedies. Kendall v. Treadwell, 6 Abb. 
 Gen. Stat. N. H., Ch. 112, 213; Bartlett v. San- Pr. 76; Landon v. Burke, 36 Wis. 378; Buswell 
 bom, 64 N. H. 70; Snow v. Piessey, 82 Me. 552. »'. Peterson, 41 Wis. 82. 
 
 But in addition to this action, a strict fore- 'Castle «. Castle, (Mich. 1890) 44 N. W. 378; 
 
 closure may be effected in the New England Snow v. Warwick Institution for Savings, (E. I. 
 
 States, by entry into possession after condition 1890) 20 Atl. 94; Barry v. Guild, 25 111. App. 39; 
 
 broken, with a formal notice to the mortgagor, Moran v. Gardemeyer, 82 Cal. 98; Teflford v. 
 
 attested by witness, that the entry is for the Gamell, (111. 1890) 34 N. E. 573; easier v. Byers, 
 
 purpose of foreclosure. Generally this notice 28 111. App. 128; s. c, 139 111. 657; Balfour v. 
 
 is also required to be published in the news- Davis, 14 Greg. 47; Schallard v. Eel River, Ac. 
 
 papers, and a certificate of entry recorded in Co., 70 Cal. 144. 
 
 the general recording office. And after the « Mitchell v. Weaver, 118 Ind. 55. 
 
 lapse of a certain time, fixed by the statute, ' Armstrong v. Warrington, 111 III. 430. 
 
 511 
 
§ 440 
 
 EQUITT JURISPBUDENCE. 
 
 [CH. XXIV. 
 
 closure is always made by a sale of the premises, even though the 
 right to a strict foreclosure may still exist. Courts of equity will 
 exercise their ordinary power of discretion, and will order a sale of the 
 premises whenever a strict foreclosure would be manifestly to the 
 detriment of the mortgagor.' A bill for foreclosure may be filed at 
 any time after the breach of the condition, provided the action has not 
 been barred by the Statute of Limitations, the same time being given 
 for actions of foreclosure, as for actions of ejectment." The condition 
 is broken when the debt falls due. In other words, suit for foreclosure 
 can be brought as soon as an action at law wiU lie on the debt.' The 
 mortgage may be made to fall due upon the default in the payment of 
 an installment of interest or principal, and the mortgage may then be 
 foreclosed for the entire debt, although the time for payment has not 
 yet arrived, unless it is expressly provided that the default in payment 
 of interest or installment of principal will not give the right to fore- 
 closure.* But where it is not provided that the entire debt shall fall 
 due upon the default in interest, or in installments of principal, there 
 may yet be given the right of foreclosure for the purpose of enforcing 
 payment of the interest or installment of principal which is due, by the 
 sale of so much property as is necessary, and a subsequent sale of the 
 remaining property when the rest of the debt falls due.^ The mort- 
 
 ^ In most of the states there are statutes au- 
 thorizing foreclosure hy sale of the premises, 
 but they are only confirmatory of the power 
 which a court of equity always possessed. 
 Lansing v. Goelet, 9 Cow. 352; Mills v. Dennis, 
 3 Johns. Oh. 367; Williams' Case, 3 Bland Oh. 
 193; Packer v. Eochester, &o. E. E., 17 N. Y. 
 287j De Haven v. Landell, 31 Pa. St. 124j Hinds 
 ». Allen, 34 Conn. 193; MoCurdy's Appeal, 65 
 ra. St. 290; Shaw v. Norfolk Co. E. E., 5 Gray, 
 168; Green v. Crockett, 2 Dev. &. B. Eq. 393; 
 Belloc V. Sogers, 9 Cal. 133; Fox v. Wharton, 5 
 Del. Ch, 200. Strict foreclosure is recognized 
 now in Alabama, Florida, Illinois, Maryland, 
 Minnesota, Hew York, but it is only used In 
 special cases, and Is generally looked upon as 
 a severe remedy. Hitchcock v. U. S. Bank of 
 Pa., 7 Ala. 386; E. S. 111. (1877) pp. 120, 540; 
 Dorsey v. Dorsey, 30 Md. 522; Wilder v. 
 Haughey, 21 Minn. 101; BoUes v. Duff, 43 N. Y. 
 474; Griesbaum v. Baum, 18 111. App. 614j Ellis 
 V. Leek, IW 111. 60. In the other states it does 
 not seem to be at all applicable. O'Fallon v. 
 Clopton, 98 Mo. 284. In all the states the fore- 
 closure of mortgages Is regulated by statute in 
 the different states, and they differ widely as 
 to details. See 2 Jones on Mort., §§ 1317-1368, 
 where the distinguishing features of the stat- 
 utory remedies are fully and accurately pre- 
 sented. 
 
 2 Smith V. Woolfolk, 115 U. S. 143; MpLaugh- 
 lin V. Cecconl, 141 Mass. 252; Palmer ii. Snell, 
 HI 111. 161; but see contra, dough v. Rowe, 63 
 N. H. 562. 
 
 3 Gladwyn v. Hitchman, 2 Vern. 134; Harding 
 17. Mill River Co., 34 Conn. 458; Giles v. Bare- 
 
 512 
 
 more, 5 Johns. Ch. 545; Hughes v. Edwards, 9 
 Wheat. 489j Blethen v. Dwindal, 35 Me. 558j 
 Inchest. Leonard, 12 Mass. 379; Tripe «. Maroy, 
 39 N. H. 439; Gillett v. Balcom, 6 Barb. 370} 
 Williams v. Townsend, 31 N. Y. 411 j Trayser v. 
 Trustees of Indiana, Ac. University, 39 Ind. 
 556; Nevitt v. Bacon, 32 Miss. 212; Eoberts o. 
 Welch, 8 Ired. Eq. 287 ; Fetrow v , Merriwether, 
 53 111. 275; Pope ». Durant, 28 Iowa, 233; Brown 
 V. Miller, 63 Mich. 413; Ohio Cent. E. E. Co. v. 
 Central Trust Co., 133 U. S. 83; Leonard v. Bin- 
 ford, 122 Ind. 200; 23 N. E. 704; Orr «. Eode, 
 (Mo. 1890) 13 S. W. 1066. 
 
 ♦stanhope i^. Manners, 2 Eden, 197; West 
 Branch Bank ». Chester, 11 Pa. St. 282; Eicb- 
 ards v. Holmes, 18 How. 143; Seatonjj. Twyford, 
 L. E. 11 Eq. 591; Burrowes v. Malloy, 2 Jones 
 & Lat. 521 ; Sire v. Wrightman, 25 N. J. Eq. 102; 
 De Grott v. McCotter, 19 N. J. Eq. 531 ; Terry v. 
 Eureka College, 70 111. 236; Harshaw v. McKes- 
 son, 66 N. C. 266; Cecil «. Dynes, 8 Ind. 266; 
 Magruden ». Eggleston, 41 Miss. 284; Schooley 
 V. Remain, 31 Md. 574; Jones v. Lawrence, 18 
 Ga. 277; Hosie ». Gray, 71 Pa. St. 198; Adams v. 
 Essex, 1 Bibb, 149; Goodman v. Cin. & C. C. E. 
 E., 2 Disney, 176; Morgenstem «. Klees, 30 111. 
 422; see Poweshiek Co. v. Dennison, 36 Iowa, 
 352; 19 Am. Eep. 521; Hoodless v. Eeld, 112 111. 
 105; Scheibe v. Kennedy, 64 Wis. 584. 
 
 5 Bank of Ogdensberg o. Arnold, 5 Paige, 38; 
 Peyton v. Ayers, 2 Md. Ch. 64; Caufman v. 
 Sayre, 2 B. Mon. 202; Buford v. Smith, 7 Mo. 
 489; Magruder v. Eggleston, 41 Miss. 284; Powe- 
 shiek Co. ». Dennison, 36 Iowa, 244; Johnson ». 
 Buckhaults, 77 Ala. 278; Cleveland v. Booth, 4a 
 Minn. 16; Fox v. Whaston, 5 Del. Ch. 200; Ba- 
 
CH. XXIV.] MOETGAGES AS AFFECTED BY EQUITY. § 441 
 
 gage may also provide that the default in payment of the interest or 
 installment of principal, may cause the entire debt to fall due, ' ' at the 
 election of the mortgagee."^ In such a case the mortgagee is not 
 obliged to make his election immediately after the default.^ And like 
 the action of the debt, it is not dependent upon any previous demand 
 of payment or notice of intention to bring the action.^ The time for 
 foreclosure may be postponed by an agreement for forbearance, if 
 the agreement is supported by a valuable consideration. The fore- 
 closure can under these circumstances only be brought at the close of 
 the time for forbearance.* 
 
 § 441. Gontiniied — Who should be made parties ? — Generally all 
 persons should be made parties to a suit for foreclosure who are inter- 
 ested in the mortgage or mortgaged property. The holder of the 
 equity of redemption, subsequent purchasers, and junior mortgagees, 
 must always be made parties, including anyone in possession, what- 
 ever may be his title.* But a veqjiee, under an executory contract of 
 sale, is not a necessary party, he becomes a necessary party only 
 when he receives a deed of conveyance. ° So, also, is it unnecessary 
 to make a contingent remainder-man, who takes subject to the 
 mortgage, a party to the foreclosure suit.' The assignee of a junior 
 incumbrance must be made a party in the place of the original junior 
 mortgagee, and a decree of foreclosure against the latter would not 
 have any effect upon the right of redemption of the assignee, who 
 has not been made a party to the suit for foreclosure.* But one 
 who purchases the equity during the pendency of the suit takes the 
 mortgagor's interest subject to the decree, and need not be made 
 a party, unless this is required by statute, as is the case in some 
 of the states.' It has also been held in some states that a prior 
 
 con V. N. W., &c. Ins. Co., 131 U. S. SS8; Ander- Jens, 32 111. 23; Hunt v. Acre, 28 Ala. 580; White 
 
 son 1). Pilgiam, 30 S. C. 499 ; Kempner v. imer, v. Watts, 18. Iowa, 76 ; Newcomb v. Dewey, 27 
 
 73 Tex. 196; Bank of Napa v. Godfry, 77 Cal. Iowa, 388; MoArthur ». Franklin, 15 Ohio St. 
 
 612. 509; Porter v. Clements, 3 Ark. 364; Webb «. 
 
 1 Randolph v. Mlddleton, 26 N. J. Eq. 543; Maxan, 11 Tex. 678; Carpentier v. William- 
 English V. Carney, 25 Mich. 178; Harper v. Ely, son, 25 Cal. 161 ; Skinner v. Buck, 29 Cal. 257; 
 56 111. 179; Princeton, &c. Co. V. Munson, 60 111. Lyon v. Powell, 98 Ala. 351; Berlaoh v. Hale, 22 
 371;Schoonmakeri;. Taylor, 14 Wis. 313; BOBSe Fla. 236; Bobbles «. Munnerlyn, 83 Ga. 727; 
 V. Gallagher, 7 Wis. 442. Johnston v. McDuffee, 83 Cal. 30; Ostrander v. 
 
 2 Wheeler & Wilson, &c. Co. u. Howard, 28 Hart, 8 N. Y. S. 809; Watts v. Julian, 122 Ind. 
 Fed. Rep. 741. 184; Armstrong v. Warrington, 111 111. 430; 
 
 > Manning v. Elliott, 92 N. C. 48; Maxwell v. Mendenhall v. Hall, 134 U. S. 559; Richards v. 
 
 Newton, 65 Wis. 261. Thompson, 43 Kans. 209; but see Cooper v. 
 
 * Chiles ». Wallace, 83 Mo. 84. Loughlin, 75 Tex. 524, where it is held that 
 
 SRuyter v. Reid, (N. Y. 1890) 24 N. E. 791; beneficiaries of a trust property need not be 
 
 Finley ». U. S. Bank, 11 Wheat. 304; Caldwell joined, if the trustee Is. To same effect, see 
 
 r. Taggart, 4 Pet. 190; McCall o. Yard, 9 N.J. Harlem Co-op. Bldg. & Loan Assn. ». Quinn, 10 
 
 Eq. 358; Goodrich j;. Staples, 2 Cush. 258; Web- N. Y. S. 682; United States Trust Co. «. Roache, 
 
 ste'r V. Vandeventer, 6 Gray, 428; Williamson 116 N. Y. 120; see Douthit V. Hipp, 23 S. C. 205. 
 
 «. Field, 3 Sandf. Ch. 533; Vanderkamp V. « Stanbrough o. Daniels, 77 Iowa, 561. 
 
 Shelton'll Paige Ch. 28; Goodman v. White, ' Townshend v. Frommer, 125 N.Y. 446. 
 
 26 Conn. 317; Winslowi;. Clark, 47 N. Y. 261; 8Bigelow». Stringfeilow, 25 Fla. 366. 
 
 Haines v. Beach, 3 Johns. Ch. 459 ; Valentine v. » Smith ». Davis, (N. J. 1890) 19 Atl. 541 ; Lloyd 
 
 Havener! 20 Mo. 133; Bates v. Miller, 48 Mo. v. Passingbam, 16 Ves. 66; Parkes v. White, 11 
 
 40e- Colter v. Jones, 52 111. 84, Ohling v. Luit- Ves. 236; Watt v. Watt, 2 Barb. Ch. 271; Jack- 
 
 33 
 
 513 
 
§441 
 
 EQXnTT JUKISPEUDENCE. 
 
 [CH. XXIV. 
 
 mortgagee should be made a party. Making a prior mortgagee 
 party is equivalent to instituting an action for redemption.' But 
 by the weight of authority prior mortgagees and grantees are not 
 necessary, and hardly proper parties.^ But it may be stated that 
 wherever the mortgage is to be foreclosed by ai sale of the premises, 
 the prior mortgagee may be joined in the suit, though he is not a 
 necessary party; it is also advisable to do so, since without him the 
 property can only be sold subject to his outstanding mortgage. 
 Although in some of the states the wife of the holder of the equity is 
 not held to be a necessary party, it is best always to make her one, 
 and in the cases cited below it has been held to be necessary. * Whether 
 judgment creditors should be made parties has been differently decided 
 in different states. ° Where the mortgagor has parted with his entire 
 interest in the premises he is not a necessary party, but he may be 
 
 son V. Losse, 4 Sandf. Cli. 387; Ostrom v. Mc- 
 Cann, 21 How. Pr. 431 ; McPherson v. Honsel, 
 13 N. J. Eq. 299; Loomis v. Stuyvesant, 10 Paige 
 Ch. 490; Lyon v. Sandford, 5 Conn. B48; 
 Cleveland v. Boerum, S3 N. Y. gOl; Crooker v. 
 Crooker, 57 Me. 396; Snowman v. Hartford, lb. 
 400; Haven ». Adams, 8 Allen, 367; Poston v. 
 Eubank, 3 J. J. Marsh. 43; Bennett v. Calhoun 
 Assn., 9 Rich. Eq. 163; Hull u. Lyon, 27 Mo. 
 570; Jackson v. Warren, 33 111. 340; Dickson v. 
 Todd, 43 III. 507; Hayes u.Shuttuck, 21 Cal. 51; 
 Montgomery v. Middlemiss, 21 Cal. 106; Abadie 
 V. Lobars, 36 Cal. 390 ; Gordon v. Lee, 102 Ind. 
 125; Tierney v. Spiva, 97 Mo. 98; Wise v. 
 Griffith, 78 Ca]. 152. 
 
 iHudnit «. "Nash, 16 N. J. Eq. 550; EoU v. 
 Smalley, 6 N. J. Eq. 464; Finley v. V. S. Bk., 11 
 Wheat. 306; Wylie v. McMakin, 8 Md. Ch. 413; 
 Stanishv. Dow, 21 Iowa, 363; Persons. Merrick, 
 5 Wis. 231 ; Shively «. Jones, 6 Mon. 274 ; Persons 
 V. Alsip, 3 Ind. 67 ; Kedin v. Branhan, 43 Mich. 
 283. 
 
 2 Jerome v. Carter, 94 IT. S. 734; Weed v. 
 Beebe, 81 Vt. 499; Kay u. Whlttaker, 44 N. Y. 
 505; Hancock v. Hancock, 22 N. Y. 568; but 
 see Morris v. Wheeler, 45 N. Y, 708; Tome v. 
 Loan Co., 34 Md. 12; Bogey ». Shute, 4 Jones 
 Eq. 174; Walker v. Jarvis, 16 Wis. 28; Wright 
 V. Bundy, 11 Ind. 398; Summers v. Bromley, 28 
 Mich. 125; Hall u. Hall, 11 Texas, 637; Crawford 
 V. Munford, 29 111. App. 445; Hague v. Jackson, 
 1'1 Tex. 761. 
 
 SHolcomb V. Holcomb, 2 Barb. 20; Vander- 
 kemp V. Shelton, 11 Paige Ch. 28; Howard v. 
 Handy, 35 N. H. 315; Wood v. Oakley, 11 Paige 
 Ch. 400; Weed v. Beebe, 81 Vt. 494; Ducker v. 
 Belt, 34 Md. Ch. 13; Hagan ». Walker, 14 How. 
 St; Chaplin v. Foster, 7 B. Mon. 104; Clark v. 
 Prentice, 3 Dana, 488; Troth v. Hunt, 8 Blackf . 
 580; Mack v. Grover, 12 Ind. 254; Eucks v. 
 Taylor, 49 Miss. 552; Brown v. Nevitt, 27 Miss. 
 .801; Mims v. Mims, 1 Humph. 425; Rowan v. 
 Mercer, 10 Humph. 359; Downer ii. Clement, 11 
 Jf. H. 40; Hague i'. Jackson, 71 Tex. 761. 
 
 * That is necessary when her dower right is 
 
 514 
 
 ^ subject to the mortgage. Mills v. Van Voor- 
 hies, 28 Barb. 125; s. c, 80N. Y. 412 : Merchants' 
 Bk. V. Thomson, 55 N. Y. 7; Johns». Reardon, 
 3 Md. Ch. 57 ; Watt v. Alvord, 25 Ind. 533; Cham- 
 bers V. Nichols, 30 Ind. 349; Leonards. Villars, 
 23 HI. 377 ; Wright v. Langley, 36 111. 381 ; Mooney 
 V. Maas, 22 Iowa, 380; Bnrnap». Cook, 16 Iowa, 
 149; McArthur v. Franklin, 16 Ohio St. 193; 
 Byrnes. Taylor, 46 Miss. 95; Foster!). Hickoz, 
 38 Wis. 408; Wisner «;. Parnham, 2 Mich. 472; 
 Tadlock V. Bccles, 20 Texas, 783; Revalk v. 
 Kraemer, 8 Cal. 66; Anthony®. Nye, 30 Cal. 401; 
 but see Eslana v. Le Petre, 21 Ala. 504; Fletcher 
 V. Holmes, 32 Ind. 497; Thornton ». Pigg, 24 Mo. 
 249; Riddick v. Walsh, 15 Mo. S38; Amphlett v. 
 Hibbard, 29 Ilch. 298; Etheridge v. Vernoy, 71 
 N. C. 184; Kursheedt o. Union Dime Sav. Inst., 
 118 N. Y. 368; Barr «. Van Alstine, 180 Ind. 590. 
 But where she has not joined in the execution 
 of the mortgage, she cannot be made a party, 
 so as to bar her dower right, unless there is 
 some special defense to her claim. Brackett v. 
 Baum, 60 N. Y. 8; Bell v. Mayor of N. Y., 10 
 Paige Ch. 49; Mills v. Van Voorhies, 20 N. Y. 
 415; Merchants' Bk. v. Thomson, 55 N. Y. 7; 
 Baker®. Scott, 68111. 86; Heths. Cocke, i Rand. 
 344; Mooney v. Maas, 28 Iowa, 380; Foster v. 
 Hickox, 38 Wis. 408; Sheldon®. Patterson, 55 
 111. 507. 
 
 5 That they must be, in order to extinguish 
 their equity of redemption, see Adams v. Payn- 
 ter, ICoU. 530; Sharpe ®. Scarborough, 4 Ves. 
 538; Braiuard v. Cooper, 10 N. Y. 356; Gage ». 
 Brewster, 31 N. Y. 225; Lyon v. Sanford, 5 
 Conn. 544; Proctor ®. Baker, 15 Ind. 178; Gaines 
 V. Walker, 16 Ind. 361. So, also, a subsequently 
 attaching creditor. Lyon v. Sanfotd, 5 Conn. 
 544; Carter ®. Champion, 8 Conn. 549; Bullard 
 V. Leach, 27 Vt. 491. But in the following 
 cases, judgment creditors are held not to be 
 necessary parties. Downer v. Fox, 20 Vt. 388; 
 Felder v. Murphy, 2 Eich. Eq. 58; Person ®. 
 Merrick, 5 Wis. 231 ; Mims v. Mims, 1 Humph. 
 425; Van Dyne ®. Shaun, 41 N. J. L. 311. 
 
CH. XXIV.] MORTGAGES AS AFFECTED BY EQUITT. 
 
 § 442 
 
 joined, and must be, if the mortgagee wishes to obtain a personal 
 judgment against him in the same suit for the balance of the debt left 
 unsatisfied by a sale of the mortgaged property/ If, however, the 
 assignment has not been recorded, and the mortgagee does not know 
 of the assignment of the equity of redemption, it is not necessary to 
 make the assignee a party. His interest is barred by foreclosure.^ 
 But the mortgagor's surety or guarantor is not a proper party to an 
 action for foreclosure. A personal judgment against him can only 
 be obtained in a suit at law.* Where the mortgagor is dead, his heirs 
 and his widow must be made parties, and his personal representatives 
 need be, only when a judgment against the mortgagor's estate for the 
 balance is desired, except in Missouri, where they are by statute 
 required to be parties in every case.* 
 
 § 442. Parties to foreclosure — Continued. — All persons — such as 
 joint mortgagees, assignees, etc. , whether their interest be legal or 
 equitable — who are interested in the mortgage or mortgage debt, 
 should join iu the suit as parties plaintiff. But if any should refuse 
 they must be made defendants.^ One not interested in the mortgage 
 which is to be foreclosed cannot be a party plaintiff. A junior judg- 
 ment creditor cannot compel the foreclosure of the senior mortgage. 
 His only remedy is the redemption of the mortgage. ° Where the 
 mortgagee has assigned the mortgage and debt absolutely, the assignee 
 is the proper party to bring the suit, and the mortgagee need not join; 
 
 1 Lockwood V. Benedict, 3 Edw. Ch. 472; 
 Drury v. Clark, 16 How. Pr. 434 ; Soule v. Albee, 
 31 Vt. 142; Heyem. Pruyn, 7 Paige Ch. 465; 
 Swift V. Edson, 5 Conn. 153; Andrews v. Steele, 
 22 N. J. Eq. 478; Delaplaine ?;. Lewis, 19 Wis. 
 ■476; Wilkins v. Wilkins, 4 Port. 245; Cord v. 
 Hirech, 17 Wis. 532; Stevens v. Campbell, 21 
 Ind. 471 ; Shaw v. Hoadley, 8 Blackf. 165; Moore 
 V. Sparks, 1 Ohio St. 369; Jackson v. Monell, 13 
 Iowa, 300; Heymanc. Lowell, 23 Cal. 106; Bellse 
 V. Eogers, 9 Cal. 123; Mich. Ins. Co. v. Brown, 
 11 Mich. 265; Jones t'. Lapham, 15 Eans. 450; 
 Dickerman i;. Lust, 66 Iowa, 444; but see Bige- 
 low V. Bush, 6 Paige Ch. 343; Buchanan v. 
 Munroe, 22 Tex. 557. Nor are purchasers 
 of the equity of redemption necessary or 
 proper parties after they have assigned it. 
 Soule ». Albee, 31 Vt. 142; Loekwood v. Ben- 
 edict, 3 Edw. Ch. 472; Hall v. Yoell, 45 Cal. 584. 
 
 2 Diokennan v. Lust, 56 Iowa, 444. 
 
 3 Walsh V. Vanhom, 23 111. App. 170. 
 
 * Farmer ». Curtis, 2 Sim. 466; Bradshaw v. 
 Outram, 13 Ves. 234; Wood v. Moorhouse, 1 
 Lans. 405; Grahams. Carter, 2 Hen. & M. 6; 
 Worthington ». Lee, 2 Bland Eq. 678; Mayou. 
 Tomkins, 6 Munf. 52; Boyce«. Bowers, 11 Rich. 
 Eq. 41; Averett v. Ward, Busb. Eq. 192; Erwin 
 •». Ferguson, 5 Ala. 158; Hunts;. Acre, 28 Ala. 
 580; Bollinger©. Chouteau, 20 Mo.89; Mclver v. 
 Cherry, 8 Humph. 713; Moore v. Stark, 1 Ohio 
 St. 369; BissellD. Marine Co., 55 111. 165; Stark 
 V. Brown, 12 Wis. 572; Shively v. Jones, 6 B. 
 Hon. 2741 Byrne v. Taylor, 46 Miss. 96; Abbott 
 
 V. Godfrey, 1 Mich. 178; Slaughters. Poust, 4 
 Blackf. 379 ;Britton».Hunt,9 Kans. 228 ; Burton 
 V. Lies, 21 Cal. 87; Hogden v. Heidman, 66 Iowa, 
 645; Richards v. Thompson, 43 Kans. 299; Weir 
 ■u. Field, (Miss. 1890) 7 So. 355. But in Georgia 
 and Missouri the personal repTesentatives are 
 necessary parties. Dixon v. Cuyler, 77 Ga.248; 
 Magruderc. Offut, Dudley, 227; Miles i?. Smith, 
 23 Mo. 502; Perkins v. Woods, 27 Mo. 547; Hall 
 V. Klepzig, 99 Mo. 83. 
 
 'Carpenter i>. O'Dougherty, 58 N. Y. 681; 
 Noyes v. Sawyer, 3 Vt. 100; Eankin v. Major, 9 
 Iowa, 297; Thayer v. Campbell, 9 Mo. 280; 
 Pogue V. Clark, 25 111. 351; Stucker v. Stucker, 
 3 J. J. Marsh. 301 ; Shirkey v. Hanna, 3 Blackf. 
 403; Woodwards. Wood, 19 Ala. 213; Goodall 
 V. Mopley, 45 Ind. 355; Johnson v. Brown, 31 N. 
 H. 405; Jenkins v. Smith, 4Metc. {Ky.)380; Bell 
 V. Shrook, 2 B. Mon. 29; Wilson v. Hey ward, 2 
 Fla. 27; Myers ». Wright, 33111. 284; Pettibone 
 V. Edwards, 15 Wis. 95; Hartwell v. Blocker, 6 
 Ala. 581 ; Graydon v. Church, 7 Mich. 51 ; Saund- 
 ers V. Frost, 5 Pick. 259; Wiley -n. Pierson, 23 
 jTex. 486 ; Webster v. Vandeventer, 6 Gray, 428; 
 Hopkins!). Ward, 12 B. Mon. 185; Beals);. Cobb, 
 51 Me. 349; Davis v. Hemingway, 29 Vt. 438; 
 Somes V. Skinner, 16 Mass. 348; Lambert v. 
 Hyers, 22 111. App. 616. But in Rankin v. Major, 
 supra, and Thayer v. Campbell, supra, it was 
 held that the holder of one of two notes 
 secured by the same mortgage may sue alone. 
 
 8 Kelly V. Longshore, 78 Ala. 203. 
 
 515 
 
§ 4:43 EQUITY JURISPRUDENCE. [CH. XXTV^ 
 
 but he is a necessary party, if the assignment is only conditional.^ 
 But if the mortgagee has only assigned one of two or more debts, 
 secured by the same mortgage, he can institute the action, making the 
 assignee a party defendant, if he refuses to join as party plaintiff.^ 
 But whether the assignee of the debt can bring the suit independently^ 
 of the mortgagee or legal holder of the mortgage, depends upon the 
 construction given by the courts to the effect of such an assignment. 
 At common law the holder of the legal title to the mortgage must, 
 institute the suit as trustee for the assignee of the debt, while under 
 the lien theory in those states, where the assignment of the debt is held 
 to work an equitable assignment of the mortgage, the assignee may 
 maintain the suit in equity without joining the legal owner of the- 
 mortgage. In other states, where the assignment of the debt is held 
 to transfer the legal as weU as the equitable title to the mortgage, the 
 assignee may maintain aU suits, both in law and equity. ' It is now the 
 general rule in this country, that upon the death of the mortgagee the 
 mortgage descends with the debt to the personal representatives, and 
 they must, consequently, be the plaintiffs in a sujt for foreclosure.* 
 If the mortgage be given to two jointly to secure a joint debt, the sur- 
 vivor is the proper party plaintiff, and the deceased mortgagee's rep- 
 resentatives are not necessary parties. But if the joint mortgage is. 
 given for two separate debts, the rule is different; both the survivor 
 and the representatives of the deceased, must join in the suit, and 
 either may institute the proceedings.* 
 
 § 443. Effect of decree in foreclosure npon the land. — A decree 
 in foreclosure bars the interests in the land of the mortgagor, and all 
 claiming under him who have been made parties to the suit. It vrill 
 
 1 Whitney v. McKinney, 7 Johns. Oh. 144; * Kinna v. Smith, 3 N. J. Eq. 14; Eoath v. 
 Miller V. Henderson, 10 N. J. Eq. 320; Newman Sijith, 5 Conn. 133; Smith v. Dyer, 16 Mass. 18;. 
 V. Chapman, 2 Band. 93; Kittle o. Van Dyok, 1 Dewey t>. Van Dusen, 4 Pick. 19; Maryland 
 Sandf. Oh. 76; Hoyt v. Martense, 16 N. Y. 231; Code, (1860) 94; Maine Rev. Stat., (1857) Oh. 1890, 
 McGuflfey v. Finley, 80 Ohio, 474; Garrett i). § 10; Gen. Stat. Vt, (1870) 393; Worthington 
 Pa«kett, 15 Ind. 485; BoUeau. Carli, 12 Minn. v. Lee, 2 Bland, 678; Mo. Rev. Stat., (1855) Oh. 
 113; Ward v. Sharp, 15 Vt. 115 ; Overall v. Ellis, 113, § 4 ; Eiley v. MoCord, 24 Mo. 265; Perkins v. 
 32 Mo. 332} Walker v. Bk. of Mobile, 6 Ala. 452; Woods, 27 Mo. 547; Eatlifif v. Davis, 38 Miss. lOr-;. 
 Chambers v. Goldwin, 9 Ves. 264; Gage v. Staf- Buck v. Fischer, 2 Col. 183; GrattaniJ. Wiggins,. 
 ford, 1 Ves. Sr. 544; Sowles' Trustee v. Buck, 23CaI. 16; Comp. Laws Mich., (1871) 1393; Rev. 
 (Vt. 1890) 20 Atl. 146; Smytheii. Brown, 25 S. C. Stat. Wis., (1871) 1223; Rev. Stat: Ohio, Oh. 43. 
 89; Haaveno. Lyons, 9 N. Y. S. 211; Stiger v. § 66; Citizens' Bank v. Dayton, 116 111. 267; 
 Bent, 111 111. 328. contra, Btheridge v. Vemey, 71 N. C. 174; Mc 
 
 2 Boone v. Clarke, 129 111. 466. Iyer v . Cherry , 8 Humph. 713. But If the mort- 
 8 Austin V. Burbank, 2 Day, 476; Stone v. gagee's heir is in possession, he must be made 
 
 Locke, 46 Me. 445; Moore u. Ware, 38 Me. 496; a party. Osborne v. Tunis, 25 N. J. L. 633; 
 Calhoun ». TuUass, 35 Ga. 119; Holdridge v. Huggins u. Hall, 10 Ala. 883. 
 Sweet, 23 Ind. 118; Story Eq. PI., §§ 201-809; ' Blade i>. Sanborn, 8 Gray, 184; Williams v. 
 Martin «). Reynolds, 6 Mich. 70; see ante, §§ 329, Hilton, 35 Me. 547; Martin v. McEeynolds, 6- 
 330. And in the code states it is expressly Mich. 70; Lannay». Wilson, 30 Md. 536; Erwin 
 provided that all actions should be prosecuted ». Ferguson, 5 Ala. 159; M.lroy o. Stookwell 1 
 in the name of the real party in interest, tinder Cart. (Ind.) 35; Minor ». Hill, 58 Ind. 176; 86 
 this provision, whether the assignee be con- Am. Rep. 71. Contra, if the debt is several or 
 sidered a legal or only an equitable owner of there are conflicting claims. Freeman v. Soo- 
 the mortgage, in either case he is the proper field, 16 N. J. Eq. 28; Vickers v. Cowell, 1 Beav. 
 party to institute the suit for foreclosure. 2 589; Mitchell v. Burnham, 44 Me. 305; Burnett 
 Jones on Mort., § 1370. v. Pratt, 28 Pick. 556. 
 
 516 
 
<3H. XXIV.] MORTGAGES AS AFFECTED BY EQUITT. § 443 
 
 have no effect upon the interest of anyone who is not a party, and as 
 to him the equity of redemption continues to exist. ^ A mortgagee in 
 possession under a defective foreclosure is not in any sense a tres- 
 passer, but he holds the possession in the character of a mortgagee.* 
 And if the foreclosure is defective because one who had a right to 
 redeem had not been made a party, the only remedy for such a person 
 against the purchaser is an action for redemption. He cannot main- 
 tain an action for possession before redemption.' So, also, if a junior 
 incumbrancer, non-resident, has been made a party by service by pub- 
 lication, without receiving actual knowledge of the pendency of the 
 suit, the court may in its discretion re-open the foreclosure to enable 
 him to redeem.* In equitable foreclosure by sale, some of the statutes 
 require that a certain time be given to the mortgagor after the sale to 
 redeem the estate, and a court of equity, in the exercise of its discre- 
 tion, may, in the absence of statute, provide for such a period of 
 redemption before sale.° In such a case, however, it is held that 
 the mortgagor can redeem the land on paying, not the amount of 
 the mortgage debt, but the amount of the bid, for which the prop- 
 erty was sold under foreclosure.^ And where there is a time for 
 redemption after the sale, the decree must not direct a delivery of 
 the deed until this period for redemption has expired. But a cer- 
 tificate is generally given to the purchaser.' Until delivery of the 
 deed, the mortgagor is entitled to the rents and profits of the land. 
 And if a mortgagee is permitted to enter into possession before the 
 expiration of the period of redemption, he taks possession in his char- 
 acter as mortgagee.' But when the deed is delivered, it operates nimo 
 jpro time from the date of the sale, and bars any intervening attaching 
 rights. And although the decree be erroneous for some irregularity, it 
 cannot be attacked collaterally, and the title of a honafide purchaser, 
 in a sale during the pendency of the suit, cannot thereby be avoided, 
 notwithstanding the decree has subsequently been reversed.' 
 
 iPacker v. Rochester, &c. E. E., 17 N. Y. 28?; Ind. 244; Nelms v. Kennon, 88 Ala. 329; Wll- 
 
 Kershaw v. Thompson, 4 Johns. Ch. 609; De- lard v. Plnnegan, 42 Minn. 476; Buchanan v. 
 
 Havene. Landell,31Pa.St. 124;Hindot).Allen, Eeid, 43 MJnn. 172; Pamperin v. Scanlan, 28 
 
 34 Conn. 193; Ritger v. Parker, 8 Cush. 149; Minn. 345; Parke v. Hush, 29 Minn. 434; Wood 
 
 Kraemer v. Eebman, 9 Iowa, 114; Tallman «. v. Holland, (Ark. 1890) 13 S. W.739; Emmons o. 
 
 Ely, 6 Wis. 244; Burton v. Lies, 21 Cal. 91; Sowden, (Mich. 1890) 43 N. W. 1100; Johnson v. 
 
 Montgomery v. Tutt, 11 Cal. 192; Hodsou v. Golder, 9 N. Y. S. 739. 
 
 Treat, 7 Wis. 265lj Watts v. Julian, 122 Ind. 124; « Williamson.'!;. Dickerson, 66 Iowa, 105. In 
 
 Steinhardt v. Cunningham, 55 Hun, 375; Alabama, California, Oregon, Michigan, Min- 
 
 France v. Armbuster, (Neb. 1890) 44 N. W. nesota, Wisconsin, Tennessee, Iowa, Illinois, 
 
 481; Glide v. Dwyer 83 Cal. 477; Barr v. Van there are statutes regulating the right of re- 
 
 Alstine, 180 Ind. 590. demptlon. 2 Washb. on Real Prop. 261-269, 
 
 2 Blair v. Rivard, 19 111. App. 477; Cook v. note. 
 
 Cooper, 18 Oreg. 142. ' Boester ». Byrne, 72 111. 466; Ehlnehart V. 
 
 8 Evans v. Pike, 118 U. S. 241. Stevenson, 23 111. 524; Jones v. Oilman, 14 Wis. 
 
 4 Russell V. Gunn, 40 Minn. 463. 450; Walker v. Jarvis, 16 Wis. 28; Harlan ». 
 
 sperlne v. Dunn, 4 Johns. Ch. 140; Durrett Smith, 6 Cal. 173. 
 
 V. Whiting, 7 B. Mon. 547; Richardson v. Par- » Jones v. Elgby, 41 Minn. 530; Clason v. Cor- 
 
 rott, 7 B. Mon. 379; Smith v. Hoyt, 14 Wis. 252; ley, 5 Sandf. Ch. 447; Whaliu v. White, 25 N. 
 
 Stockton V. Dundee Manfg. Co., 22 N. J. Eq. Y. 464; Whitney «. Allen, 21 Cal. 233. 
 
 56; Harkinsf Forsyth, 11 Leigh, 294; Parkers. "Graham i-. Bleakie, 2 Daly, 55; Homer v. 
 
 Bacres, 2 Wash. 439; Gaskellr. Viquesney, 122 Zimmerman 45 111.14; Burford u. Rosenfeld, 
 
 517 
 
§ 443 EQUITY JUEISPKUDENCE. [CH. XXIT. 
 
 In strict foreclosure, the decree makes the estate absolute in the 
 mortgagee. His title, whatever it is held to be before foreclosure, 
 becomes afterwards a legal estate in lands and descends to the heirs, 
 instead of to the personal representatives.' But, in some of the states, 
 if the mortgagee dies before a suit for strict foreclosure has been 
 instituted, and it is brought by the personal representatives, the estate, 
 for the purpose of distribution, partakes of the character of person- 
 ality, and the title vests in those who became, by the death of the 
 mortgagee, entitled to the mortgage debt.* The decree in a foreclos- 
 ure suit is binding upon infant holders of the equity to the same extent 
 as adults, except that if the foreclosure is irregular on account of some 
 defect in the proceeding, he may take advantage of such error within 
 a reasonable time after arriving at his majority. And this is the rule, 
 whether the foreclosure is in equity or at law; but for the protection 
 of his interests, it is generally required that the infant be represented 
 in the suit by a guardian ac? litem.^ So, also, is the decree binding 
 upon married women, if their husbands are joined with them as parties 
 to the suit. And the failure of the husband to defend will not consti 
 tute a ground for setting aside the decree; at least, where the fore- 
 closure is by a sale of the premises.* But the decree only transfers 
 whatever interest is claimed by or through the mortgagor. It vests 
 that interest in the mortgagee or purchaser, but cannot bar the inter- 
 ests held by persons who are not privies to the mortgagor. The 
 decree, therefore, does not affect any paramount title which is held 
 or claimed by such persons, even though they have been made parties 
 to the suit.^ Nor does the decree determine the priorities of the 
 junior mortgagees and their relative claims to a share in the surplus 
 of the proceeds of sale." Where, however, the foreclosed mortgage 
 covers only one undivided interest in a joint estate, the plaintiff 
 
 37 Texas, 48; Torroms v. mcks, 32 Mich. 307; v. Maas, 82 Iowa, 380; Wolf v. Banning, 3 Minn. 
 Ogden V. Walters, 12 Kans. 288; Markel v. 202; Mavrick v. Grier, 3 Nev. 52. But in the 
 Evans, 47 Ind. 326; Miller v. Sharp, 49 Cal. 233; states where married women hold their prop- 
 but see Brindernagle ». German Ref. Church, erty independent of their husbands, it seems 
 1 Barb. Ch. 15. unnecessary to make the husband a party. 
 
 1 Brainard v. Cooper, 10 N. Y. 359; Goodman Somerset, &c. Assn. v. Camman, 11 N. J. Eq. 
 
 «. White, 26 Conn. 322; Bradley J). Chester Val. 382; Thornton ». Pigg, 24 Mo. 249. And the 
 
 R. B., 36 Pa. St, 150; Kendall v. Treadwell, 14 same rule now prevails in Massachusetts for a 
 
 How. Pr. 165; Farrell v. Earlier, 50 III. 274; Os- difTerent reason. Davis v. Wetherell, 13 Allen, 
 
 borne t>. Tunis, 25 N. J. L. 633; Swift v. Ed son, 62; Newhall v. Sav. Bk., 101 Mass. 430. 
 
 5 Conn. 531. 6 Concord, &c. Ins. Co. v. Woodbury, 45 Me. 
 
 "Mass. Gen. Stat., Ch. 96, §§ 10, 1 B, 14; 447; Broome i;. Beers, 6 Conn. 198; Coming ». 
 
 Fifleld V. Sperry, 20 N. H. 338. Smith, 6 N. Y. 82; Lewis ». Smith, 9 N. T. 514; 
 
 3 If it be a strict foreclosure, the Infant Eaglej P. Ins. Co. v. Lent, 6 Paige Ch. 635; 
 
 would be bound by the decree, if he does not Mooney v. Maas, 22 Iowa, 22; Strobe v. Downer, 
 
 show some defect in the foreclosure proceed- 13 Wis. 10; Pelton v. Parmin, 18 Wis. 827; 
 
 Ing within a reasonable time after his arrival Palmer ». Yager, 20 Wis. 103; Banning v. 
 
 at majority. 2 Cruise Dig. 199; Mills J). Dennis, Bradford, 21 Minn. 308; 18 Am. Rep. 398; Grat- 
 
 3 Johns. Ch. 367. But the infant is bound by tan v. Wiggins, 23 Cal. 32; Holcomb «. Hol- 
 
 a sale under the decree, if he has been prop comb, 2 Barb. 20; Brundadge v. Missionary So- 
 
 erly made a party to the action, notwlthstand- ciety, 60 Barb. 205; Kinsley v. Scott, 58 Vt. 470; 
 
 ing the irregularity. Mills v. Dennis, supra; 2 Weil v. Uzzett, 92 N. C. 515; Bozarth v. Sanders, 
 
 Washb. on Real Prop. 259. 113 111. 181 ; Ord v. Bartlett, 83 Cal. 428. 
 
 * Mallack v. Galton, 3 P. Wms. 352j Mooney « Burchell v. Osborne, 119 N. Y. 486. 
 
 518 
 
CH. XXIV.J MORTGAGES AS AFFECTED BT EQUITY. § 444 
 
 may secure by the same judgment, a partition of the joint estate.^ 
 This statement of the effect of the decree in foreclosure is true in 
 all technical suits for foreclosure; but where, as in Maine and Massa- 
 chusetts, the suit for foreclosure is in the nature of an action at law for 
 the recovery of possession, if the person in possession holds under a 
 superior title it would be necessary, or at least proper to assert such title. 
 But this is really not an exception to the rule above cited, since 
 wherever the mortgagee may maintain the action of ejectment the ques- 
 tion of a paramount title might be raised by the party in possession, 
 if he is not the mortgagor. ^ 
 
 § 444. The effect of foreclosure upon the debt.— If the suit be 
 for strict foreclosure, all actions on the surplus of the debt remaining 
 unsatisfied are barred as long as the foreclosure is upheld; " but if the 
 mortgagee — in the case that the value of the property is not sufficient 
 to satisfy the entire debt — wishes to pursue his remedy for the unsat- 
 isfied balance, it will re-i5pen the foreclosure, and the property will or 
 may be sold under judicial decree, in order to ascertain its actual 
 value, and the amount of the judgment to be entered up against the 
 debtor.* Where the decree directs a sale of the premises, the pro- 
 ceeds of sale are applied to the liquidation of the debt, and if they are 
 not sufficient to pay the whole debt, the mortgagee has his remedies 
 for the balance, which are the ordinary actions at law for the recovery 
 of a debt. It is usual, however, for the court of equity, in rendering 
 a decree in foreclosure for the sale of the mortgaged premises, to give 
 judgment for the unpaid surplus against the mortgagor and others 
 who may be jointly liable with him.^ And the court may grant this 
 judgment for the unsatisfied surplus, although the complaint or bill in 
 foreclosure contains no such prayer.^ The remedies of the mortgagee 
 are twofold: First, against the property mortgaged, and Secondly, on 
 the personal liability of the mortgagor. These remedies are inde- 
 pendent of each other, and although there can be but one payment of 
 the debt, the prosecution of one of these remedies does not bar the 
 
 1 Lyon V. Powell, 78 Ala. 351. Watts, 475; Mott a. Clark, 9 Pa. St. 399 ; Andrews 
 
 "Hunt V. Hunt, 17 Pick. 118; Keith v. Swan, v. Sootten, 2 Bland, 666; Hale v. Rider, 5 Gush. 
 
 11 Mass. 216; Johnson v. Phillips, 13 Gray, 198; 231; Jones v. Conde, 6 Johns. Ch. 77; Payne v. 
 
 Churchill v. Lorlng, 19 Pick. 465; Wheelright Harrell, 40 Miss. 498; Stark v. Mercer, 3 How, 
 
 V. Freeman, 12 Mete. 154; Whlttier v. Dow, 14 (Miss.) 377; Marston ». Marston, 45 Me. 412; 
 
 Me. 298. Gage v. Brewster, 31 N. Y. 220; Johnson v. Har- 
 
 ' Griesbanm i;. Baum, 18 III. App. 614. mon, 19Iowa, 58; Drayton «. Marshall, Eice Bq 
 
 * Lovell V. Leiand, 3 Vt. 581 ; Osborne v. Tunis, 386 ; EoUins v. Forbes, 10 Cal. 299 ; Lee v. Kings- 
 
 25 N. J. L. 633; Spencer v. Harford, 4 Wend. bury, 13 Texas, 69; Shepherd v. Pepper, 133 U. 
 
 381; Morgan v. Plumb, 9 Wend. 287; Andrews S. 626; Weir ». Field, (Miss. 1890) 7 So. 355; Hil- 
 
 V. Sootton, 2 Bland, 666; Paris v. Hulett, 26 Vt. ton v. Otto Co. Bank, 89 Fed. Eep. 202; Shields; 
 
 308; Edgerton v. Young, 43 111. 470; Bean v. v. Riopelle,63 Mich. 458; Ohio Central E. E. Co.. 
 
 Whitcomb, 13 Wis. 431; Bassett ». Mason, 18 v. Central Trust Co., 133 U. S. 83. There are 
 
 Conn. 136; Porter ». Pillsbury, 36 Me. 278; Pat- statutory provisions, for rendering a judg- 
 
 ten j>. Pearson, 57 Me. 434; Hunt v. Stiles, 10 N. ment for any unsatisfied balance in the fore- 
 
 H. 466; Smith v. Packard, 19 N. H. 575; Armory closure suit, in Arkansas, California, Indiana, 
 
 V. Fairbanks, 3 Mass. 563; Leiand V. Loring, 10 Michigan, Minnesota, New York, Missouri, 
 
 Mete. 122; Lansing v. Goelet, 9 Cow. 346. Texas and Iowa. See Washb. on Eeal Prop. 
 
 SDunkley v. Van Buren, 3 Johns. Ch. 330; 261-269, note. 
 Deare v. Carr, N. J. Bq. 513; Pierce v. Potter, 7 » VVatkins v. Vrooman, 51 Hun, 175. 
 
 519 
 
§ 445 EQUITY JUEISPEUDENCE. [CH. XXIV. 
 
 right to pursue the other, and they may be employed simultaneously 
 in separate proceedings.^ But in some of the states — notably, New 
 York — ^judgment will not be rendered in an action at law on the debt, 
 while a suit for foreclosure is pending, without leave of the court in 
 which such suit is filed. ^ This rule of practice, no doubt, rests upon 
 the ground that the entry of judgment in the proceeding at law would 
 be useless, since in the foreclosure suit, judgment will be given for 
 any balance remaining unsatisfied. 
 
 § 445. Mortgages with power of sale. — In order to avoid the bur- 
 densome and expensive proceedings for foreclosure, the idea was con- 
 ceived of giving to the mortgagee the power to sell the mortgaged 
 premises upon the breach of the condition, and apply the proceeds of 
 sale to the liquidation of the mortgage debt. It was at first doubted 
 whether such a power was valid, when granted either in the mortgage 
 or in a separate instrument. It was considered as a contemporaneous 
 agreement, which, in its exercise, curtailed the mortgagor's right to 
 redeem, and, therefore, was void. But the power of sale is now 
 generally held to be good, since it does not abridge or take away the 
 ordinary remedies for foreclosure, and is not in theory a means of 
 foreclosing the mortgagor's equity of redemption.' It is a power 
 coupled with an interest, and is, therefore, irrevocable by the mort- 
 gagor. It operates as the appointment of a use, which under the 
 Statute of Uses, becomes executed into a legal estate in the purchaser, 
 and has all the characteristics that are met with in ordinary powers of 
 appointment under that statute.* It is not determined by the death of 
 
 1 Booth V. Booth, 2 Atk. 343; Hale o. Elder, 5 » Wilson v. Troup, 7 Johns. Ch. 25; Smith o. 
 Gush. 231; Jones v. Conde, 6 Johns. Ch. 77; Bui-' Provin, 4 Allen, 518; Kinsley v. Ames, 2 Mete, 
 nellt). Martin, 2 Dougl. 417; Atty.-Qen. o. Win- 29; Calloway ». People's Bk., 54 Ga. 441; Long- 
 Stanley, 5 Bligh, 130; Wlswell v. Baxter, 20 worth v. Butler, 3 Gilm. 32; Bloom «. Van 
 Wis. 680; Tappan v. Evans, 11 N. H. 311; Hughes Eensselaer, 15 111. 503; Panning v. Keer, 7 Iowa, 
 V. Edwards, 9 Wheat. 4Sr; MoCall v. Lenox, 9 462; Wing v. Cooper, 37 Vt. 184; Sims v. Hund- 
 Serg.&E. 302; Oilman i». 111. <&; Miss. Tel. Co., ley, 3 Miss. 896; Mann v. Best, 62 Mo. 491; 
 91 U. S. 603; Thornton v. Plgg, 24 Mo. 249 ; Very Clark v. Gondii, 18 N. J. Eq. 358; Hyman v. 
 D. Watkins, 18 Ark.546; O'Learyj). Snediker, 16 Devereux, 63 N. C. 624; Bradley v. Chester 
 Ind. 404; Eiblett v. Davis, 24 Ohio St. 114; Valley E. E., 36 Pa. St. 141; Walthall's Execu- 
 Slaughter v. Foust, 4 Blaokf. 379; Payne v. tors v. Elves, 34 Ala. 91; Mitchell «. Bogan, 11 
 Hanel, 40M1SS 498; Delahay v. Clement, 4 111. Eleh. L. 686; Crowning «. Cox, 1 Eand. 306; 
 201; Longworth v. Flagg, 10 Ohio, 300; Down- Morrison v. Bean, 15 Texas, 267; Turner v. 
 ing V. Palmeteer, 1 B. Mon. 64 ; Christy v. Dyer, Johnson, 10 Ohio, 204 ; Plum v. Studebaker, 89 
 14 Iowa, 443; Baum v. Tompln, 110 Pa. St. 569; Mo. 162. 
 Shepherd ». Pepper, 133 U. S. 626. <Wilson«. Troup, 2Cow. 236. The difficulty 
 
 ^Williamson v. Champlln, 8 Paige Gh. 70; of the courts at first, in determining the validity 
 
 Suydam®. Bartle,9PaigeCh.294; 3 Eev. St. of a sale under the power, is, no doubt, trace- 
 
 N. Y. (1875) 198; Mutual L.Ins. Go. v. Smith, 54 able to a failure to apply to that case the 
 
 N. Y. Super. Ct. 400; Schultz v. Meade, 8 N. Y. doctrine of powers of appointment under the 
 
 S. 663; U. S. Lifelns. Co.». Poillon, 7N. Y. S. Statute of Uses. The ordinary mortgage is, in 
 
 834 In Michigan, Iowa and Indiana the same form and effect, a deed of bargain and sale, 
 
 statute rules prevail. Mich. Gomp. Laws, (1871) and the grant of a power of sale therein may 
 
 1549; Code of Iowa, (1873) § 3230; 2 Ind. Eev. be construed as the limitation of a use. See 
 
 Stat. (1876) 259; Shields!). Eiopelle, 63 Mich. TiedemanEeal Prop., Chapter XV., on Powers. 
 
 458. In Minnesota, no suit at law on the debt But In most of the states, where mortgages 
 
 may be instituted until the foreclosure suit is with power of sale are in common use, they 
 
 elided. Johnson v. Lewis, 13 Minn. 364; see, are expressly authorized by statute, and there 
 
 also, to the same effect, Anderson o. Pllgam, 30 is no need of this construction in order to 
 
 S. C. 499. establish their validity. 
 
 520 
 
on. XXIV.] MOKTGAGES AS AFFECTED BY EQUITY. § 446 
 
 either party, as is the case with common law powers of attorney; '■ it 
 descends to the mortgagee's heirs at his death, ^ and passes to the 
 assignee of the mortgage, except where only a part of the mortgage 
 debt is assigned. The power is indivisible, and, therefore, in a partial 
 assignment, remains in the mortgagee, who must exercise it for the 
 benefit of both parties.' If the donee of the power is a corporation, 
 the power may be exercised by its duly authorized agent.* The power 
 of the sale need not be limited to the estate of the mortgagee. While 
 the mortgage may only cover a life estate, the power might authorize 
 a sale of the fee.^ And the power of sale would be valid as a security 
 although no estate in the mortgaged property be given to the creditor. 
 The power of sale would in that case be a naked power." 
 
 § 446. • Character of the mortgagee in relation to the power. — 
 As donee of the power, the mortgagee assumes the character of trustee 
 for himself and the mortgagor, and all other parties having inter- 
 ests in the mortgaged premises. In this capacity he is under the ordi- 
 nary obligations of a trustee, and bound in his actions by the same 
 rules of duty. In the execution of the power he must exercise the 
 most scrupulous care to render the sale of the premises as beneficial 
 as possible to aU parties concerned. And he will be liable in damages 
 for any loss to such parties resulting from his negligence in the con- 
 duct of the sale.' In most of the states where mortgages with power 
 of sale are in conunon use, the execution of the power is regulated by 
 local statutes. But in the absence of statutory regulations, sales under 
 the power are governed by the same rules as apply to the sale of other 
 trust property.' A failure to observe the statutory requirements, or 
 
 lOhnsburg v. Turner, 87 Mo. 127; Benneson man, 80 ni. 160; Solberg v. Wright, 33 Minn. 
 
 V. Savage, 130111. 352. 224; Holmes «. Turner's Falls Lumber Co., 150 
 
 2 When it is stated in tlie text that the power Mass. 535; Sanford v. Kane, 24 111. App. 504; 
 
 of sale passes to the heirs of the mortgagee, reversed 127 111. 591 ; but see Dameron v. Bsk- 
 
 reference itself is only had to those states ridge, 104 N. C. 621. And this is also true 
 
 where the mortgage itself descends to the where the assignment of the debt works an 
 
 heir. But in most of the states the power of assignment of the mortgage. Such an assignee 
 
 sale descends with the mortgage to the personal may exercise the power in those states where 
 
 representatives, and may be exercised by them, such a transaction Is looked upon as a legal 
 
 although the power is expressly limited to the assignment. See cases eupra. And the 
 
 "heirs and assigns." Demarest ®. Wynkoop, 3 assignee may exercise the power, although 
 
 Johns. Oh. 125; Johnson v. Turner, 70hio, 568; the assignment has not been recorded. Mon- 
 
 Berry v. Skinner, 30 Md. 573; Hamickle v. tague V. Dawes, 13 Allen, 397; s. c, 14 Allen, 
 
 Wells 50 Ala. 198; Collins v. Hopkins, 7 Iowa, 373. But it has been held in Missouri, that the 
 
 463. In Missouri and Illinois, and perhaps in power must be expressly limited to the mort- 
 
 other states, upon the death of the mortgagee gagee and assigns, in order that the assignee 
 
 the sheriff may be directed to execute the may exercise the power. Dolbear v. Worduft, 
 
 power, or a new trustee can be appointed upon 84 Mo. 619. 
 
 the application of anyone interested therein. * Chilton v. Brooks, 71 Md. 445. 
 
 Hackman V. Dill, 32 Mo. App. 509. « Sedgwick v. Laflin, 10 Allen, 430; Butler V. 
 
 ^Doolittle V. Lewis, 7 Johns. Ch. 45; Wilson Ladue, 12 Mich. 173; Torrey v. Cook, 116 Mass. 
 
 ■». Traup, 2 Cow. 236; Jencks v. Alexander, 11 165. 
 
 Paige Ch. 619; Berger v. Bennett. 1 Caine's « Neidig o. Eiffer, 18 Abb. Pr. 353 ; Parshallo. 
 
 Cas. 1; Slee v. Manhattan Co., 1 Paige Ch. 48; Bggart, 52 Barb. 367; Holmes v. Hall, 8 Mich. 
 
 Haraickell v- Omdoff, 35 Md. 341; Pease v. 66; Bousey u. Amee, 8 Pick. 236. 
 
 Pilot Knob, &c. Co., 49 Mo. 134; Pickett v. 'Tomlins. Luce, 43 Ch Div. 191. 
 
 Jones, 63 Mo. 195; Niles v. Eansdorf, 1 Mich. "Howards. Ames, 3 Mete. 311; Robertson v. 
 
 338- s'trother J). Law, 64 111. 413; Bush o. She r- Norris, 1 Giff. 424; Jencks v. Alexander, 11 
 
 521 
 
§ 446 
 
 EQUITY JURISPRUDENCE. 
 
 [CH. XXIV. 
 
 the terms of the power, will invalidate the deed of conveyance made 
 in pursuance of the sale, even in the hands of a purchaser without actual 
 notice. There must be a substantial compliance with such regulations, 
 in order to pass a good title to the purchaser, the burden of proof 
 being cast upon the purchaser uhless the recitals show a compKance 
 with the requirements of the law.^ . The sale will, however, under 
 such circumstances, operate as an equitable assignment of the mort- 
 gage and pass to the purchaser, whatever title the mortgagee as such 
 
 Paige Oh. 624; Ellsworth v. Lockwood, 42 N. Y. 
 89; Leet v. McMaster, 51 Barb. 236; Montague 
 V. Dawes, 14 Allen, 369. Mere inadequacy of 
 price will not vitiate the sale, but if the property 
 has been so grossly sacrificed that the pur- 
 chaser may be presumed to know of it, the 
 sale will be avoided. Vail v. Jacobs, 62 Mo. 
 130; Kingt). Bronson, 122 Mass. 122; Horsey ii. 
 Hough, 38 Md. 130; Landrum v. Union Bk. of 
 Mo., 63 Mo. 48; Hoodless v. Eeid, 112 111. 105; 
 Maxwell v. Newton, 65 Wis. 261 ; Gross v. Jane- 
 sok, 10 N. Y. S. 541; Chilton v. Brooks, 71 Md. 
 445; Condon v. Maynard, 71 Md. 601. And any 
 fraudulent mismanagement or deception 
 practiced upon the mortgagor will avoid the 
 sale, if the purchaser participates in it, or is 
 cognizant of it. Banta v. Maxwell, 12 How. Pr. 
 479; Lee v. McMasters, 51 Barb. 236; Eucking 
 V. Simmons, 28 Wis. 272; Bush v. Sherman, 80 
 111. 160; Hurd v. Case, 32 111. 45; Jackson v. 
 Crafts, 18 Johns. 110; Mapps v. Sharp, 32 111. 13; 
 Mann v. Best, 63 Mo. 491. Notice of the sale to 
 the parties interested in mortgaged premises 
 Is not necessary to validity of sale In absence 
 of a statutory requirement. Carver v. Brady, 
 104 N. C. 219. The action to set aside a sale 
 under a power is an equitable proceeding to 
 redeem the property. A bill to set aside the 
 sale, without offering to redeem, will not be 
 entertained. Candee v. Burke, 1 Hun, 546; 
 Vroom V. Ditmas,7 Cow. 13; Robinson v. Ryan, 
 25 N. Y. 320; Schwartz v. Sears, Walk. (Mich.) 
 170. But the, bill must be filed within a 
 reasonable time after the discovery of the 
 fraud or other equitable claim. Acquiescence 
 is treated as a waiver of all irregularities in 
 the sale. Hamilton v. Lubukee, 51 111. 415; 
 Bush V. Sherman, 80 111. 160; Hoffman v. Har- 
 rington, 33 Mich. 398; Landrum v. Union Bk. 
 of Mo., 63 Mo. 48; Alexander v. Hill, 88 Ala. 487. 
 1 Smith V. Prodin, 4 Allen, 518; Eoarty v. 
 Mitchell, 7 Gray, 243; Bradley v. Chester Val. 
 E.R., 36 Pa. St. 141; Longwithu. Butler, 3GiIm. 
 32; Cooper I). Crosby, /*. 508; John v. Bump- 
 stead, 17 Barb. 100; Root v. Wheeler, 13 Abb. 
 Pr. 294; Gibson v. Jones, 5 Leigh, 370; Ormsby 
 V. Tarascon, 3 Litt. 404 ; Dana v. Parrington, 4 
 Minn. 433; Tyler d. Herring, (Miss. 1890) 6 So. 
 740; Pierce v. Grimley, (Mich. 1890) 43 N. W. 
 932. Among others, the following circum- 
 stances have been deemed sufficient to set 
 aside the sale: Neglect to give the required 
 notice to the parties interested, liowv. Purdy 
 2Lans, 422; King ii. Duntz, 11 Barb. 191; Ran- 
 
 522 
 
 dall V. Hazleton, 13 Allen, 442; Hull v. Cush- 
 man, 14 N. H. 171; Green v. Cross, 45 N. H. 594; 
 Drinani). Nichols, 115 Mass. 353; Carpenter v. 
 Black Hawk, &o. Co. 65 N. Y. 43; Lee v. Mason, 
 10 Mich. 403; Rutherford v. Willi j.ms, 42 Mo. 
 18. Hoodleis v. Eeid, 112 Ul. 105; Clark v. Sim- 
 mons, 150 Mass. 357. An- insuf&cient publica- 
 tion of notice. Lawrence v. Farmers' Loan, 
 Ac. Co., 13 N. Y. 642; Elliott «. Wood, 45 N. Y. 
 71; Gibson v. Jones, 5 Leigh, 370; Hoffman v. 
 Anthony, 6 R. I. 282; Doyle v. Howard, 16 
 Mich. 261; Butterfield v. Pamham, 19 Minn. 
 85; Bush v. Sherman, 80 HI. 160; Hubbells. Sib- 
 ley, 50 N. Y. 468; Calloway v. People's Bank, 54 
 Ga. 441; Fenner v. Tucker, 6 R. I. 551; Ban- 
 ning «. Armstrong, 7 Minn. 46; Dickerson Ji. 
 Small, 64 Md. 395; Morse v. Byam, 65 Mich. 
 594; Bacon i;. Kennedy, 56 Mich. 339; Magnas- 
 Bouu. Williams, 111 111. 450; Lester v. Citizens' 
 Sav. Bank, (R. I. 1890) 20 Atl. 231; Williamson 
 V. Stone, 27 111, App. 214; 128 111. 139. It is not 
 usually necessary to sell the property in par- 
 cels, and unless it is essentially advantageous 
 to the mortgagor, a failure to do so will not 
 vitiate the sale. Rowley v. Brown, 4 Binn. 61 ; 
 Chesley v. Chesley, 49 Mo. 540; s. c, 54 Mo. 347; 
 Sumrall v. Chaffln, 48 Mo. 402; Ellsworth v. 
 Lockwood, 42 N. Y. 89; Shannon v. Hay, 106 
 Ind. 589; Willard v. Finnegan, 43 Minn. 476; 
 Holmes v. Turner's Falls Lumber r Co., 150 
 Mass. 535; see statutes in New York, and sev- 
 eral other states to the same effect. A sale on 
 credit, when that is not expressly authorized, 
 is invalid. Olcut v. Bynum, 17 Wall. 44; Mead 
 u. McLaughlin, 42 Mo. 198; Arnold v. Green, 
 15 R. I. 348; see 2 Jones on Mort., §§1868, 1869. 
 But he may give credit for what is coming to 
 him, although not authorized. Strother v. 
 Law, 54 111. 413. A sale is absolutely void only 
 where there is a complete failure to comply 
 with an essential requirement (Bigler v. Wal- 
 ler, 14 Wall. 297) ; and only voidable at the 
 election of the parties, when the exercise of a 
 discretion as to the manner of compliance is 
 irregular or unwise. Ingle v. Culbertson, 43 
 Iowa, 265. And to avoid the sale in the hands 
 of a purchaser for value, notice of the irregu- 
 larity must be brought to him. Beatie v. But- 
 ler, 21 Mo. 320; Mann v. Best, 62 Mo. 461; Stern- 
 berg ». Dominick, 14 Johns. 435; Montague v. 
 Dawes, 12 Allen, 397; Holt». Russel, 56 N, H. 
 ,559; Hamilton v. Lubukee, 51 111. 415; Jackson 
 V. Henry, 10 Johns. 185. 
 
CH. XXrV.] MORTGAGES AS AFFECTED BY EQUITY. 
 
 § 4i8 
 
 has in the land.' And whether the purchaser claims title as assignee 
 of the mortgage or not, the subsequent exercise of the power of sale 
 in foreclosure is in nowise affected by the illegal exercise of the power.'' 
 
 § 447. Purchase by mortgagee at his own sale.— Since the mort- 
 gagee as donee of the power is a trustee for all parties concerned, he 
 will not be permitted to purchase at his own sale, directly or indirectly, 
 unless he is authorized to do so by statute or by the terms of the mort- 
 gage. And such a purchase may be avoided at the instance of the 
 mortgagor, even though the consideration be fair and adequate. ' The 
 purchase by the mortgagee without express authority is, however, 
 only voidable at the election of the mortgagor and his privies. And 
 they cannot invalidate the sale, if the property ia the meantime has 
 passed into the hands of an innocent purchaser.* 
 
 § 448. Extinguishment of the power. — The power is extinguished 
 by any acts, which will discharge the mortgage, such as payment or 
 tender of payment, and the exercise of the power afterwards will not 
 vest a good title in any purchaser," unless the mortgagor by his own 
 acts is estopped from denying the validity of the sale. Thus, for 
 example, if the mortgagor is present at the sale and makes no protest, 
 
 1 Sawyers v. Baker, 77 Ala. 461. 
 
 2 Ohusburg v. Turner, 87 Mo. 127. 
 
 3 Downes v. Grazebrook, 3 Meriv. 207; Davone 
 V. Fanning, 5 Johns. Ch. 257; Jackson v. Walsh, 
 14 Johns. 415; Elliott v. Wood, 45 N. T. 71; 
 Patten v. Pearson; 57 Me. 435; Jennlson v. Hap- 
 good, 7 Pick. 1 ; Howard v. Ames, 3 Mete. 308; 
 Dyer v. Shirtlieff, 112 Mass. 165; 17 Am. Eep. 
 77; Hyndman v. Hyndman, 19 Vt. 9; Montague 
 V. Dawes, 12 Allen, 400; Hall v. Bliss, 118 Mass. 
 560; 19 Am. Eep. 475; Watersr. Groom, 11 Clark 
 & F. 684; Michaud v. Glrod, 4 How. 553; Scott 
 V. Freeland, 7 Smed. & M. 418; Hall v. Towne, 
 45 111. 493; Roberts v. Fleming, 53 111. 196; Ruth- 
 erford V. Williams, 42 Mo. 18; Parmenter v. 
 Walker, 9 E. I. 225; Whithead v. Hellen,76N. 
 C. 99; Komsu. Shaflfer, 27 Md. 83; Benham ». 
 Rowe, 3 Cal. 387; Chilton v. Brooks, 71 Md. 601; 
 Bohn V. Davis, 75 Tex. 24; Nichols v. Otto, 
 (111. 1890) 23 N. B. 411. Statutory provisions, 
 authorizing the mortgagee to purchase at his 
 own sale, are to be found in New York, Michi- 
 gan, Wisconsin, Minnesota, Maryland. 2 
 Washb, on Real Prop. 74; 2 Jones on Mort., 
 § 1740. It is not necessary to show fraud or 
 unfair dealing in order to avoid purchase by 
 the mortgagee. Rutherford v. Williams, 42 
 Mo. 18; Thornton v. Irwin, 43Mo. 153; Blockley 
 V. Fowler, 21 Cal. 326; contra, Richards v. 
 Holmes, 18 How. 143 ; Howard v. Davis. 6 Tex. 
 174; Hamilton v. Lubukee, 51 111.420. When 
 the sale is made under a judicial decree, or by 
 a public oiBcer. when that is permitted, there 
 is no restriction upon the right of the mort- 
 gagee to purchase. Richards v. Holmes, 18 
 How 143; Bloom v. Rensselaer, 15 111. 503; 
 Allen V. Chatfleld, 8 Minn. 435; Ramsey v. 
 Merriam, 6 Minn. 168; Maxwell v. Newton, 65 
 
 Wis. 261 ; contra, Saines v. Allen, 58 Mo. 537. 
 
 * Dexter v. Shepard, 117 Mass. 480 ; Burns v. 
 Thayer, 115 Mass. 89; Robinson v. Cullom, 41 
 Ala. 693; Kdmondson v. Welsh, 27 Ala. 578; 
 Rutherford v. Williams, 42 Mo. 18; Thurston v. 
 Prentiss, 1 Mich. 193; Benham v. Rowe, 2 Cal. 
 387; McCall v. Mash, (Ala. 1890) 7 So. 770. And 
 the right to avoid the sale is extinguished by 
 ratification of the mortgagor, or his acquies- 
 cence therein for an unreasonably long time. 
 Dobson V. Racey, 8 N. Y. 216 ; Nichols v. Baxter, 
 5 R. I. 491; Patton v. Pearson, 60 Me. 223; 
 Learned ti. Poster, 117MaBS. 365;BergenD. Ben- 
 nett, 1 Caine's Cas. 19; Munn v. Burgess, 70111. 
 604; Medsker v. Swaney, 45 Mo. 273; Craddock 
 17. Am. Freehold, &c. Co., 88 Ala. 281. 
 
 ' Cameron v. Irwin, 5 Hill, 272; Charter «. 
 Stevens, 3 Denio, 33; Burnet v. Denniston, 5 
 Johns. Ch. 35; Warner «. Blakeman, 36 Barb. 
 501; 2 Jones on Mort., §§ 888-893; Jenkins v. 
 Jones, 2Giff. 99; Lower. Grinnan, 19 Iowa, 192. 
 Tender after condition broken does not at 
 common law extinguish the power. Cranston 
 V. Crane, 97 Mass. 459; Montague v. Dawes, 12 
 Allen, 397. But in most of the states, payment 
 has the same effect after as well as before con- 
 dition broken. Jenkins v. Jones, supra; Cam- 
 eron V. Irwin, supra; Flower v, Elwood, 66 111. 
 438; Burnet v. Denniston, 5 Johns. Ch. 35; 
 Whelom v. Reilly, 61 Mo. 566; see 2 Jones on 
 Mort., § 893; and Tiedeman Real Prop., § 333. 
 But as long as the mortgage remains unsatis- 
 fied on the records, a sale after payment would 
 be upheld in favor of a purchaser for value 
 and without notice. Elliott v. Wood, 53 Barb. 
 285; Brown v. Cherry, 56 Barb. 635; Warner v. 
 Blakeman, 56 Barb. 601. 
 
 523 
 
§ 451 EQUITY JURISPRUDENCE. [CH. XXIV. 
 
 and gives no notice of his rights to the bystanders, he will be precluded 
 under the doctrine of estoppel from setting aside the sale as against 
 an innocent purchaser.* The power is, however, unaffected by the 
 institution of an action for foreclosure, as long as the foreclosure has 
 not been effected.^ 
 
 § 449. Application of the pnrcliase money. — The mortgagee, on 
 receiving the proceeds of sale, must apply it first to the expenses of 
 the sale, and then to the satisfaction of the mortgage debt. And if 
 there is a surplus remaiijing, he holds it in trust for the junior incum- 
 brancers, and lastly, the mortgagor. Such surplus has in equity all 
 the qualities of real estate, and, if the mortgagor has died, will be dis- 
 tributed among the widow and heirs, instead of going to his personal 
 representatives.' On the other hand, if the purchase money fell short 
 of a settlement of the mortgage debt, the mortgagee may recover the 
 Isalance of the debt in an action on the personal obligation.* 
 
 § 450. Deeds of tmst. — ^Somewhat similar in effect to mortgages 
 Tvith power of sale are deeds of trust, in which the property is conveyed 
 to a trustee in trust to secure the creditor in his claim, and to sell the 
 property for the satisfaction of the debt, if it is not paid at maturity. 
 But inasmuch as this species of trust is already fully discussed in the 
 preceding chapter on modern express trusts,^ it is not necessary to add 
 anything more in this connection. 
 
 § 451. Contribution to redeem. — General statement." — ^When 
 one of two or more persons jointly liable on a debt pays the whole 
 debt, he has the right to call upon the others for contribution towards 
 such payment in proportion to their several interests in the debt. 
 This liability for contribution is an incident to all contractual obliga- 
 tions, and the same rules of construction apply, whatever may be the 
 nature or origin of the debt. In the present discussion the liability for 
 contribution arises out of the joint obligation of several persons to 
 answer for the mortgage debt, either in their person or with their 
 interests in the mortgaged premises. It has been explained that when 
 
 1 Cromwell v. Bank of Pittsburg, 2 WalL Jr. f<"" 'lie recovery of their alleged share In the 
 669; Smith ». Newton, 38 111. 230. surplus. Bevler ?i. Schoonmaker,'29 How. Pr. 
 
 2 Jenkins ». International Bank, IH 111.462. 411; Cope ». Wheeler, 41 N. Y. 303; Stoever V. 
 s Butteriok v. Wentworth, 6 Allen, 79; An- Stoever, 9 Serg. & R. 434; Matthews v. Duryea, 
 
 drews ti. Pisa, 101 Mass. 422; Dunning v. Dean 45 Barb. 69; Reynolds o. Hennessey, 15 B. L 
 Nat. Bank, 61 N. Y. 49?; 19 Am. Rep. 293; 215. Or the mortgagee may file a bill of Inter- 
 Sweezy v. Thayer, 1 Duer, 286; Hawley ». Brad- pleader, and compel the adverse claimants to 
 ford, 9Paige, 200; Pickett II. Buckner, 45 Miss. settle their disputes. Bleeker ®. Graham, 2 
 226; Poxo. Pratt, ar Ohio St. 512; Hinohman ». Edw. Ch. 647; The People©. Ulster Com. Pleas, 
 Stiles, 9 N. J. Eq. 454; Shaw v. Hoodley, 8 18 Wend. 628; Bailey v. Merritt, 7 Minn. 159. 
 Blackf. 165; Foster v. Potter, 37 Mo. 534; Reid But without the consent of the mortgagor the 
 V. MuUins, 43 Mo. 306. In Vermont and Michl- mortgagee has no power to appropriate the 
 gan, the surplus Is held to be personalty, and money to any debt of the mortgagor which is 
 vests in the personal representatives instead not secured by the mortgage. Johnson v. 
 of the widow and heirs. Varnum v. Meserve, Thomas, 77 Ala. 367. 
 «Allen, 158; Smiths. Smith, 13 Mich. 258. The * Shepherd ti. May, 115 U. S. 505. 
 surplus Is distributed among the claimants ' Ante, Chapt. XVII, § 305. 
 according to the prlorty of their respective in- ' See post, § 530, for a further explanation of 
 terests, and their rights in case of a dispute the general subject of contribution and ex- 
 may be settled by a suit against the mortgagee oneration. 
 
 524 
 
CH. XXIV.] MORTGAGES AS AFFECTED BY EQUITY. § 452 
 
 a person is entitled to redeem, and is interested only in a part of the 
 premises, he must pay the entire debt, and as against the others jointly 
 interested with him, he becomes subrogated to the mortgagee, and is 
 equitable assignee of the mortgage, even though the mortgage has beea 
 satisfied on the records. He can then, in turn, foreclose the mortgage 
 against them if they refuse to pay their pro rata share of the debt. 
 This liability constitutes the right to contribution, as applied to mort- 
 gages. It is not a personal liability resting upon the persons interested 
 in the mortgaged premises; their interests are alone liable. Nor can 
 they be compelled to contribute; they have the right to refuse and to 
 surrender their interests to forfeiture under foreclosure.' This liabil- 
 ity of their interests depends upon the equality or inequality of their 
 respective equities in regard to the mortgage and the debt, and must, 
 therefore, vary according to the relation of the parties between whom 
 the question arises. But whatever maybe the relation of these parties 
 to each other, the mortgagee cannot be compelled to observe the equal- 
 ity or inequality of their equities in the enforcement. He can proceed 
 against any one of them, against whom he has a claim for the satis- 
 faction of the mortgage, whether his equity was inferior or superior.^ 
 § 452. Mortgagor v. his assignees. — Since the mortgagor is per- 
 sonally liable to pay the debt, as a general rule, he would have no right 
 to call upon his assignees to contribute, nor could his heirs or devisees 
 claim such a right. ^ But if the purchaser assumed the mortgagor's 
 liability as a part of the consideration of the conveyance, should the 
 mortgagor be afterwards compelled by the mortgagee to pay the debt, 
 the mortgagor would be subrogated to the rights of the mortgagee 
 under the mortgage, and could enforce it against such purchaser.* 
 Where there is no agreement on the part of the purchaser to pay the 
 debt, if the mortgage is foreclosed, the purchaser can claim from the 
 mortgagor exoneration for the full amount lost by foreclosure.* On 
 the other hand, if the purchaser of the mortgagor's estate has assumed, 
 in whole or in part, the payment of the mortgage debt, he cannot 
 claim contribution of the mortgagor, as long as he is not forced to pay 
 more than he has agreed to pay.' 
 
 iCheeaebrough v. Millard, 1 Johns. Ch. i09; Lowell, 34 Me. 299; Fletcher v. Chase, 16 N. H. 
 
 Stevens v. Cooper,I6. 425; Lawrences. Cornell, 42; Sweet v. Sherman, 109; Mass. 231; Funk v. 
 
 i Johns . Ch . 542 ; Salem v. Edgerly, 33 N. H . 46; ' McReynolds, 33 111 . 481 ; Lily » . Palmer, 51 111. 
 
 Stroud V. Casey, 27 Pa St. 471; Chase v. Wood- 333; Baker v. Terrell, 8 Minn. 199; Eussell v. 
 
 hury, 6 Cush. 143; Gibson v. Crehore, 5 Pick. PIstor, 7 N. T. 171; Krueger v. Ferry, 41 N. J. 
 
 146; Johnson v. Rice, 8 Me. 167; Briscoer. Bq. 432; Millem. Faaler,43Minn.366;MilIer5>. 
 
 Power, 47 111. 449. Bisele, 42 Minn. 368; Gerdine v. Menage, 41 
 
 spalmer v. Snell, 111 HI. 161. Minn. 417. 
 
 8Harbert's Case, 3 Eep. 11; Chase v. Wood- ' Davis v. Winn, 3 Allen, 111 ; Downer v. Fox, 
 
 bury, 6 Cush. 143; Allen v. Clark, 17 Pick. 47; 20 Vt. 388; Young v. Williams, 17 Conn. 393; 
 
 Beard v. Fitzgerald, 108 Mass. 134; Cowles v. Burnett v. Denniston, 5 Johns. Ch. 35; Mc- 
 
 Dlckinson, 5 Johns. Ch. 235; Look v. Fulford, Lean v. Towle, 3 Sandf. Ch. 119; Brainard v. 
 
 52 111 166; Johnson v. Williams, 4 Minn. 268; 2 Cooper, 10 N. Y. 356; Flachs v. Kelly, 30 111. 
 
 Jones on Mort., § 1090. 462; Gunst v. Pelham, 74 Tex. 586. 
 
 4Cox». Wheeler, 7 Paige Ch. 29r; Jumel». oMoorei-. ShurtlefE, 128 111. 370; Gunst «. Pel- 
 
 Jumel,I6.591;Halsey».Keed,9PaigeCh.446; ham, 14Tex.586. 
 
 Morris v. Oakman, 9 Pa. St. 498; Kinnear v. 
 
 525 
 
§ 453 EQUITY JUKISPKUDENCE. l^CH. XXIV. 
 
 § 453. Contribntion between the assignees of the mortgagor. — 
 Effect of release of one of them. — If the mortgaged property con- 
 sists of . two or more parcels of land, and they are simultaneously 
 conveyed by the mortgagor to different persons, and one of the parcels 
 is sold under foreclosure of the mortgage, the assignee or grantee of 
 that parcel has the right to recover from the assignees of the other 
 parcels their ^o rata share of the debt; the debt being divided among 
 them in proportion to the value of their respective parcels.* But 
 where the assignments have been made sicccessimely, or at different 
 times the courts have delivered contrary opinions in respect to their 
 liability for contribution. In most of the states the rule prevails that 
 their liability for contribution to each other is in the inverse order of 
 aKenation; in other words, that the equity of the prior purchaser or 
 assignee is superior to that of the subsequent purchaser. So, if the 
 prior purchaser is called upon to redeem, or his lot or parcel is fore- 
 closed, he becomes an equitable assignee of the mortgage, and may 
 enforce it against the subsequent purchasers of the other parcels, who, 
 in order to redeem, must contribute to the fuU value of their estates 
 in the inverse order of their alienation, the last being required to 
 exhaust his entire interest in the mortgaged property before there can 
 be any right of contribution against a prior purchaser. If, therefore, 
 the last parcel conveyed is sufficient to satisfy the debt, the prior pur- 
 chaser takes his estate free from any liability for contribution. The 
 inequality of their equities rests upon the doctrine that inasmuch as, 
 after the first assignment, the estate remaining in the mortgagor 
 became the primary fund for the satisfaction of the debt, the second 
 and other subsequent purchasers took, in respect to their relative 
 liabilities under the mortgage, only such equities as the mortgagor had 
 at the time of the successive conveyances to them.^ In a few of the 
 states it is held that the equities are equal between assignees of the 
 mortgagor, whether the alienations are simultaneous or successive, 
 and this opinion finds strong support in Judge Story. ^ But it is 
 
 1 Chase v. Woodbury, 6 Gush. 143; Bailey v. 139; JolinBon o. WiUlams, 4 Minn. 268; Ingle- 
 Myrick, 50 Me. 171; Aiken v. Gale, 37 N. H. 501; hart v. Crane, 42 Bl. 261; Nlles v. Harmon, 80 
 Stevens v. Cooper, 1 Johns. Ch. 425; Briscoe v. 111. 396; Bitch ». Eichelbeiger, 13 Fla. 169; Gum- 
 Power, 47 111. 448; Bates v. Euddock, 2 Iowa, ming v. Gumming, 3 Ga. 460; Beard v. Fitzger- 
 423. aid, 105 Mass. 134; Mason v. Payne, Walk. 
 
 2 Gushing v. Ayer, 25 Me. 383; Shepherds. (Mich.) 459; McKinneyii. Miller, 19 Mich. 142; 
 Adams, 32 Me. 64; Brown v. Simons, 44 N. H. McGullon v. Turpie, 32 Ind. 146; Worth ». Hill, 
 475; Aiken v. Gale, 37 N. H. 501, Lyman v. 14 Wis. 559; Spence v. Aldrich, 15 Wis. 316; 
 Lyman, 32 Vt. 79; Gates v. Adams, 24 Vt. 70; Mahagan v. Mead, 63 N. H. 570; Moore t). 
 Bradleyj). George, 2 AUen, 392; Gilli). Lyon, 1 Shurtleflp, 128I11.370;Deavltto. Judevlne, 60Vt. 
 Johns. Ch. 447; Jumel v. Jumel, 7 Paige Gh. 695; Gase Threshing Machine Go. ■». Mitchell, 
 591; Patty v. Pease, 8 Paige Gh. 277; Nailer v. (Mich. 1889) 42 N. W. 151; 74 Mich. 679. 
 Stanley, lOSerg. & E. 450; Gowden's Estate, 1 'Greens. Bamage, 18 Ohio, 428; Stanley V. 
 Pa. St. 267; Shannon v. Marselis, 1 N. J. Bq. Stocks, 1 Dev. Eq. 314; Barney v. Myers, 28 
 413; Galkill v. Sine, 13 lb. 400; Henkle®. All- Iowa, 1; Bates v. Duddick, 2Iowa,423; Jobeo. 
 stadt, 4 Gratt. 284; Jones v. Myriek, SGratt. 179; O'Brien, 2 Humph. 34; Dickey v. Thompson, 8 
 Stoney v. Shultz, 1 Hill Gh. (S. G.) 500; Norton B. Mon. 312; Story's Eq. Jur., § 1233b, and note; 
 V. Lewis, 3 S. C. 25; Mobile Dock, &e. Co. v. Huff v. Farwell, 67 Iowa, 298. 
 
 Euder, 35 Ala. 717,', Aiken v. Brucey, 21 Ind. 
 
 526 
 
CH. XXIV. J MORTGAGES AS AFFECTED BY EQUITY. § 455 
 
 believed that the preponderance of authority is in favor of the former 
 theory, and it may be accepted as the prevailing rule in this country. 
 This question of priority is, however, always subject to the agreement 
 of the parties.^ But if the mortgagee should release one of the 
 assigned lots from the lien of the mortgage without the consent of 
 the other assignees and after the assignment of the other lots to them, 
 it would discharge the other lots from liability under the mortgage, 
 on the ground that the rights of these other assignees had been 
 injuriously affected by the consequent loss of their claim against the 
 assignee who had been released for contribution or exoaerations. But 
 if the release was made before the assignment of the other lots, the 
 release would have no effect on the lien of the mortgage over the 
 other lots.'' So, also, any agreement between the mortgagor and his 
 assignees, in respect to the partition of the mortgage liability between 
 them, will have no effect on the mortgage in the hands of the holder 
 of the mortgage, unless he has assented to such partition.' 
 
 § 454. Contribution between the surety and the mortgagor. — 
 Where the surety, because of his personal liability, pays the mortgage 
 debt, such payment will operate as an assignment of the mortgage to 
 him, and he can enforce the mortgage to its full value against the 
 mortgagor, his heirs, and even his assignees for value. He is only 
 secondarily liable, the mortgagor, and with him the mortgaged prem- 
 ises, being treated as the primary fund out of which the debt is to be 
 satisfied, and until they have been exhausted the surety can claim com- 
 plete exoneration.* The widow who releases the dower right in the 
 mortgaged lands is so far considered a surety that she can make claim 
 of exoneration against the estate of the deceased husband, and compel 
 the enforcement of a chattel mortgage given for the same debt, in her 
 own behalf.^ The same rule applies where the one debt is secured by 
 two mortgages of separate pieces of property one of which only is 
 given by the primary debtor, the other mortgage is in the nature of a 
 collateral security, and the primary debtor's mortgage must exonerate 
 the owners of the other mortgaged lands. " But if the surety be also the 
 mortgagor and the other co-debtor the principal, and the latter pays 
 the debt, he will not be subrogated to the rights of the mortgagee. He 
 is the principal, and can claim contribution or exoneration of no one. ' 
 
 § 455. Between heirs, widow, and devisees of the mortgagor. — 
 If the mortgagor dies, and the mortgaged premises descend to his 
 
 1 Vogel V. Shurtleff, 28 ni. App. 516. 4 Md. Ch. 853; Burton v. Wheeler, 7 Ired. Eq. 
 
 2Libbey v. Tufts, (N. T. 1890) 24 N. E. 12! 217; Bk. of S. C. v. Campbell, 2 Rich. Eq. 179; 
 
 GroesbeokD. Mattison, 43 Minn. 547. Billings v. Sprague, 49 III. 511; McHenry v 
 
 SDeHavent). Musselman, (Ind. 1890) 24 N. E. Cooper, 27 Iowa, 137; Canaday u. Boliver, 25 S. 
 
 171; Groesbeck v. Mattison, 43 Minn. 547. C. 507. 
 
 *Cheesebrougli v. Millard, 1 Johns, Ch. 409; 'Gore v. Townsend, 105 N. D. 2S3. 
 
 Hayes v. Ward, 4 Johns. Ch. 123; Ottman V. » Canaday v. Boliver, 25 S. C. 507. 
 
 Moak, 3 Sandf. Ch. 431; Hoot v. Bancroft, 10 'Crafts v. Crafts, 13 Gray, 362; Killbom v. 
 
 Meto.'48; Mathews v. Aiken, 1 Comst. 595; Bk. Robins, 8 Allen, 471; Cherry v. Monro, 2 Barb, 
 
 of Albion v. Bums, 45 N. Y. 170; Dearborn v. Ch. 618; Morris Adm'rt). Davis, 83 Va. 297. 
 
 Taylor, 18 X. H. 153; Ohio Life Ins. Co. v. Winn, 
 
 527 
 
§ 457 EQUITY JXIBISPEUDENCE. [CH. XXTV. 
 
 ■widow and heirs, or are devised by will to several parties, their equities 
 being equal, if one of them redeems the mortgage will be assigned to 
 him, and he may foreclose the same against the others unless they con- 
 tribute their pro rata share towards redemption. They are all vol- 
 unteers, whether they be heirs or devisees, and it is likely — if a part 
 of the mortgaged premises were devised and a part descended to the 
 heirs — there would be a right in favor of the devisee to contribution 
 from the heir, and mce versa?- 
 
 § 456. Between the mortgaged property and the mortgagor's 
 personal estate. — Upon the death of the mortgagor, leaving the mort- 
 gage unsatisfied, a claim for contribution or rather exoneration some- 
 times exists against the mortgagor's personal estate in favor of the real 
 estate covered by the mortgage. The claim is founded upon the 
 doctrine that the burden was imposed upon the real estate for the 
 benefit of the personal estate, and as between the heirs and next of kin 
 the latter should bear the loss.^ Only the widow, heirs and devisees 
 can claim this right of exoneration. Purchasers from the heirs, and 
 voluntary purchasers from the mortgagor, cannot; nor can the heir or 
 devisee exercise the right if they have parted with the equity of 
 redemption, notwithstanding by the terms of their conveyance they are 
 bound to see to the payment of the mortgage.' This claim is more 
 clearly conceded, where the same debt was secured also by a mort- 
 gage of the personalty.* It can be enforced only against the personal 
 representatives and residuary legatees. If, therefore, the personal 
 estate has been bequeathed to others in the shape of general or specific 
 legacies, the right to exoneration is lost.^ Nor can the right be exer- 
 cised if the estate of the mortgagor is insolvent; and whether the estate 
 is insolvent or not, it cannot be enforced against property which has 
 been levied upon, nor will the right of exoneration in any case take 
 precedence to liens held by creditors upon the personal property. 
 In New York there wall be no such claim for exoneration, unless the 
 mortgagor has by will expressly made the payment of the debt a 
 charge upon the personalty. ' 
 
 § 457. Special agreements affecting the rights of contribution 
 and exoneration. — ^If in any case where the right of contribution or 
 
 1 Carll V. Butman, 8 Me. lOSj Gibson D.Crehore, 3 Bro. Ch.lOl ; Cumberland v. Codington, iwpra. 
 5 Pick. 146; Houghton v. Hapgood, 13 Pick. 158 ; sGoodburnr. Stevens, 1 Md. Ch. 42; Lupton 
 Swaine v. Ferine , 5 Johns. Ch. 490; Foster ». ». Lupton, 2 Johns. Ch. 614; Cumberland ». 
 Hilliard,! Story, 77; Jones ». Sheward, 2 DeT.& Codington, 3 Johns. Ch. 229; Lockhardt v. 
 B. Eq. 179;Merritti;. Hosmer, UGray,296;Bell Hardy, 9BeaT.379; Hayeno. Foster, 9 Pick. 112. 
 ». Mayor of N. Y., 10 Paige Ch. 49; Drew v. < Gores. Townsend, 105 N. C. 228. 
 
 Rust, 36 N. H. 343 ; Eaton v. Simonds, 14 Pick. 98. ' Cope v. Cope, 2 Salk. 449 ; Mansell's Estate, 
 
 2 Cope ®. Cope, 2 Salk . 449 ; Patton v. Page, 4 1 Pars. Eq. Cas. 367 ; Mason's Estate, 4 Pa. St. 
 Hen. & M. 449; Henagan v. Harllee, 10 Eleh. 497; Gibson ii. MoCormick, 10 Gill <Ss J. 65j 
 Eq. 285; Trustees, &c. v. Dickson, 1 Preem. Ch. Terr's Estate, 2 Rawle, 250. 
 
 474. But this is not the case, where the mort- ° Gibson v. Crehore, 3 Pick. 475; Church ». 
 
 gage was executed by a prior owner, and the Savage, 7 Cush. 440. 
 
 ancestor purchased the property subject to the 'Moseleyt). Marshall, 27 Barb. 42; Bapalyee. 
 
 mortgage. The heir or devisee must, in such Eapalye, lb. 610; Wright v. Holbrook, 32 N. Y 
 
 a case, pay the mortgage. Tweddle «. Tweddle, 587. 
 
 528 
 
CH. XXIV.] MOKTGAGES AS AFFECTED BY EQUITY. § 458 
 
 exoneration exists by law, the parties to the mortgage agree that one 
 or more parcels covered by the mortgage should be released from the 
 incumbrance, such agreement will be enforced between the parties and 
 their subsequent assignees. But in no case will it be permitted to aflfect 
 or alter the equities of parties who had previously become interested 
 in the mortgaged property.* And if the mortgagee releases one part 
 of the mortgaged premises, after the mortgagor had assigned another 
 part, the mortgagee can only enforce the mortgage against the assignee 
 to an amount determined by the proportion which the value of the 
 entire mortgaged premises bears to the value of such assigned parcel.^ 
 § 458. Marshalling of assets between successive mortgagees. — 
 When there are two mortgages upon one parcel of land, and the first 
 mortgage covers another parcel which is not included in the second, if 
 the parcel included in both mortgages is not sufficient to satisfy both 
 debts, equity gives the junior mortgagee the right to call upon the 
 senior mortgagee to exhaust the parcel not covered by both mortgages, 
 before he forecloses against the other parcel. But equity will not 
 compel the first mortgagee to satisfy himself in that manner, if it would 
 be detrimental to his interests or inconvenient to him. In such a case, 
 however, the court will direct him to assign his mortgage to the junior 
 mortgagee, who may then foreclose against the parcel not covered by 
 his own mortgage.* An exception to this rule of marshalling of assets 
 between two mortgages is, however, recognized in favor of a wife who 
 joins in the execution of one mortgage for the purpose and with the 
 intention of rehnquishing her homestead, and reserves her homestead 
 in the execution of the second mortgage. The second mortgagee can- 
 not, on the principle set forth above, claim the right of satisfying his 
 claim against the homestead:* Not only is this the case, but the first 
 mortgagee can be required to exhaust his lien on the mortgaged prop- 
 erty, which is not covered by the homestead claim, before he is 
 permitted to enforce such Hen against the homestead estate.'* 
 
 1 Welsh V. Beers, 8 Allen, 151; Bryant v. Da- J. Eq. 180; Baine v. Williams, 10 Smed. & M. 
 mon, 6 Gray. 564; Johnson v. Rice, 8 Me. 157; 113; Inglehart v. Crane, 43 111. 261; White t). 
 TheStatei;.Throup,15Wis.314; Cheesebrough Polleys, 20 Wis. 505; Clark o. Bancroft, 13 
 ». Millard, IJohns. Oh. 435. Iowa, 327; Cowden's Estate, 1 Pa. St. 274; 
 
 2 Stevens v. Cooper, 1 Johns. 435; Stuyyesant Swigert v. Bk. of Ky., IV B. Mon. 285; Miami 
 V. Hall, 2 Barb. Ch. 151; Johnson v. Rice, 8 Me. Ex. v. U. S. Bank, Wright, (Ohio) 249; Conrad 
 157; Parkman v. Welsh, 19 Pick. 231; Paxton v. v. Harrison, 3 Leigh, 532; Bk. of S. C. ». Mitch- 
 Harrier, 11 Pa. St. 312; Inglehart v. Crane, 42 ell. Rice Eq. 389; Marr v. Lewis, 31 Ark. 203; 
 111. 261; Taylor v. Short, 27 Iowa, 361; 1 Am. 25 Am. Rep. 553. 
 
 Kep. 280. 4Mltchelson v. Smith, (Neb. 1890) 44 N. W. 
 
 SLanoy v. Athol, 3 Atk. 446; Evertson v. 871; Horton ». Kelly, 40 Minn. 193; McCreery i). 
 
 Booth, 19 Johns. Ch. 486; Cheesebrough v. Mil- Schaffer, 36 Neb. 173. 
 
 lard, 1 Johns. Ch. 412; Warren t-. Warren, 30 » Horton «. Kelly, 40 Minn. 193; McCreeryo. 
 
 Vt. 530; Ayres v. Husted, 15 Conn. 516; Reilly Schaffer, 26 Neb. 173. 
 
 V. Mayor, 12 N. J. Eq. 55; Blair v. Ward, 10 N. 
 34 
 
 529 
 
CHAPTER XXV. 
 
 CHATTEL MORTGAGES AND PLEDGES IN EQUITY. 
 
 Section 
 CJhattel mortgages defined.— Conflict of 
 common law and equitable theories. — 
 Equity of redemption .... 463 
 Parol defeasance, when enforcible . . 464 
 Can a chattel mortgage cover after-ac- 
 quired property? 
 
 How far mortgages of after-acquired prop- 
 
 465 
 
 , Section 
 erty is invalid. — The mortgage in equity 466 
 
 The mortgagor's right of redemption. . 467 
 
 The mortgagee's right of possession after 
 forfeiture 468 
 
 Foreclosure of the mortgagor's equity of 
 redemption in equity and at law . . 469 
 
 Pledges ... ... 470 
 
 § 463. Chattel mortgages defined. — Conflictof commoii law and 
 equitable theories. — Equity of redemption. — A mortgage of per- 
 sonal property, according to the common law, is a sale or transfer of 
 the title to the property, upon the condition that if a debt of the 
 grantor is paid when it falls due, the sale will become void and the 
 title revert, otherwise to remain in full force. Upon the breach of a 
 condition, the title becomes absolute in the grantee.^ The chattel 
 mortgage, therefore, is nothing more than a conditional sale, in which 
 the condition is the payment of a debt. If the mortgagor of a com- 
 mon law mortgage, of real as well as of personal property, failed to 
 perform the condition at the agreed time, the title to the property 
 became absolute in the mortgagee, even though the estate may have 
 been worth much more than the mortgage debf There was no rem- 
 edy by which the mortgagor could enforce the acceptance of payment 
 after the breach of the condition, even where his failures arose from 
 some accident or unavoidable delay; or where the payment of the debt 
 with interest to date of the tender of payment would do no injury to 
 the mortgagee. This rigorous rule of the common law did not fail to 
 be productive of great justice in many instances, and like all cases of 
 hardships resulting from the technicality of the common law it attracted 
 the attention of the court of chancery. A long contest ensued between 
 these courts from the time of the Magna Charta until the reign of 
 James I., when chancery acquired jurisdiction over questions arising 
 out of mortgages, and decreed that the mortgagor may become 
 entitled to redeem his property, after condition broken, by the pay- 
 ment of the debt and interest, and in the reign of Charles I. , the law 
 of mortgages was firmly established as a branch of equity juris- 
 prudence.' This right of the mortgagor to redeem the property after 
 
 1 Parshall v. Bggert, 58 Barb. 367; Porter v. 
 Parmly, 43 How. Pr. 445j 34 N. Y. S. C. 398; 
 Tompkins v. Batie, 11 Neb. 147, 151 ; Miner v. 
 Judson, 2 Hun, 441; Mowry v. Wood, 12 Wis. 
 4ia 
 
 630 
 
 ' Pay «. Cheney, 14 Pick. 399; Wood v. Trask, 
 7 Wis. 666; Brighamu. Winchester.! Met. 390; 
 Wade's Case, 5 Hep. 115. 
 
 » 1 Spence Eq. Jur. 603; Jones on Mortg., § 6; 
 How V. Vigures 1 Rep. in Ch. 38; Emanuel 
 
CH. XXV.] CHATTEL MORTGAGES AND PLEDGES IN EQUITY. § 463 
 
 the breach of the condition was recognized only in a court of equity. 
 The legal title, as viewed from the legal stand-point, was still considered 
 to be absolute in the mortgagee, and discharged of aU rights of 
 the mortgagor in and to the property. The right to redeem was 
 therefore no legal right. It was simply an equity, and hence was 
 called the equitt of redemption. ' Asa result of this equitable juris- 
 diction, mortgages, both real and personal, assumed in equity a dif- 
 ferent character from what they had in law. Equity seized hold of 
 the real intention of the parties and construed the mortgage to have 
 only the effect of a lien, instead of being a conditional sale, whereby a 
 defeasible title to the property became vested in the grantee. The 
 purposes of the parties are fully carried out under this theory of a lien, 
 while the hardships of the common law forfeiture for the breach of 
 the condition are avoided. Equity treated a mortgage, therefore, as 
 a lien, instead of a conditional sale. This is necessarily involved in a 
 recognition of the right of redemption.^ But, at this point, in the 
 development of the law, chattel mortgages and mortgages of real 
 property part company. As soon as equity assumed jurisdiction over 
 mortgages, it began to exert a potent influence over the development 
 of the law in respect to the mortgages of real property, and has more 
 or less superseded the common law theories in respect to the character 
 of the real estate mortgage and the rights and interests of the mort- 
 gagor and mortgagee, so that the incidents of the real estate mortgage, 
 as unfolded by the modern law of mortgages, are everywhere more in 
 harmony with the equitable lien theory than with the common law 
 theory of an estate upon condition.' But for some inexplicable rea- 
 son — unless it be that chattel mortgages, until recently, have been 
 comparatively rare, and hence the same opportunity has not been pres- 
 ent for a modification of their legal character through the influence of 
 the equitable doctrines — the same radical variation from the common 
 law definition of a mortgage is not to be noticed in the case of a chattel 
 mortgage. Although the right of redemption after condition broken 
 is conceded to the mortgagor of a chattel mortgage; it is in the absence 
 of statute strictly an equitable remedy, not recognized in a court of law.* 
 
 College ij. Evans, 1 Eep. In Ch. 18; Eoscanioi; Matthews v. Wallwyn, i Ves. 118; i Kent's 
 
 ■». Barton, 1 Gas. in Ch. 217; Casbomer.Soarfe, Com. 138; Timms w. Shannon, 19 Md. S96; Mc- 
 
 lAtk.603; Willette ». Winnelly , 1 Vem. 488; Millanti. Richards, 9 Cal. 365; Myers u. White, 
 
 Price ». Perrie, 2 Freem. 258. lEawle, 353; Whitney ». French, 25 Vt. 663; 
 
 I See post, § 467. Ellison v. Daniels, 11 N. H. 280; Deedly v. Cad- 
 
 « Flanders ». Chamberlain, 24 Mich. 305, 313; well, 19 Conn. 218; Hughes v. Edwards, 9 
 
 Daris r. Hubhard, 38 Ala. 185, 189; Sidener «. Wheat. 500; Green ». Hart. 1 Johns. 580. See 
 
 Bible, 43 Ind. 230; Woodward v. Wilcox, 27 ante, §§ 411-114, where the same matter is ex- 
 
 Ind. 207; Blakemore v. Taber, 22 Ind. 466; plained in connection with real estate mort- 
 Tritipo V. Edwards, 35 Ind. 467; Broadhead v. 
 
 McKay, 46 Ind. 595; Evans t). Merriken, 8 Gill s Tiedeman on Real Prop., § 301, and ante, 
 
 &J. 39; Headley v. Goundray, 41 Barb. 282; § 414. 
 
 Jacksonu.Willard, 4Johns. 41; Kinnas. Smith, * Evans u. Merriken, 8 Gill & J. 39; Wood v. 
 
 2 Green Ch. 14; Runyanu. Mersereau, lljohns. Dudley, 8 Vt. 430; Charter «. Stevens, 3 Denlo, 
 
 534; Eaton ti. Whiting, 3 Pick. 484; Anderson 33; Bunaoleugh ». Poolman, 3 Daly, 236; Hul- 
 
 V. Baumgartner, 27 Mo, 80; Ragland «. Justices, son ». Walter, 34 How. Pr. 385; Porteru. Parmly, 
 
 10 Ga. 65; Hannah v. Carrington, 18 Ark. 85; 43 How. Pr. 445; 34 N. T. S. C. 398. 
 
 531 
 
§ 464 EQUITY JURISPRUDENCE. [CH. XXT. 
 
 After condition broken, no other right than the right of redemption 
 is recognized as belonging to the mortgagor; ^ and the universal judicial 
 opinion is that, in law, the title of the mortgagee to the goods becomes 
 absolute upon the breach of the condition, subject only to the mortr 
 gagor ' s right of redemption. ^ And where the debt is payable in install- 
 ments, default in the pajnnent of the first installment will cause the title 
 to become absolute in the mortgagee. ^ The only apparent exceptions to 
 this general rule seem to be found in Michigan and Oregon, where the 
 chattel mortgage is treated as a lien, and the title is not held to become 
 absolute in the mortgagee upon breach of the condition, as at com- 
 mon law.* The mortgagor's right of redemption is the chief distinc- 
 tion between the chattel mortgage and the ordinary conditional sale.* 
 § 464. Parol defeasance, when enforcible. — It is a cardinal rule 
 of evidence that parol evidence is admissible to vary or control the 
 meaning of a written instrument. And in the application of this rule 
 to the law of chattel mortgages, as to that of real estate mortgages, 
 it is held that where the bill of sale is executed on its face apparently 
 absolute, it cannot be made to operate as a mortgage by parol proof of 
 the intention of the grantor to execute a mortgage instead of an abso- 
 lute bill of sale. This is certainly the legal rule; hence at law a parol 
 defeasance is invalid, if the transfer or sale had been effected by a 
 written instrument." But the instrument must be a bill of sale or 
 other form of transfer of title to the goods, in order that the parol 
 defeasance may be declared iavalid. The fact that a bill of parcels 
 or account has been issued, does not prevent the parol defeasance from 
 being operative; for in that case the sale was itseK parol.' But in 
 equity, this rule is more or less ignored, in respect to parol def ea- 
 
 1 Boyd ». Beandln, 54 Wis. 193, 198s Leach «. J.) 8j Bryant v. Carson Eiver Lumber Co., S 
 
 Kimball, 34 N. H. 568. Key. 313; Robinson v. Campbell, 8 Mo. 365; s. 
 
 ^Langdon v. Buel, 9 Wend. 80; Aohley v. c, 615; Volney & Stamp v. Oilman, 43 Miss. 
 
 Finch, 7 Cow. 290; Fox ». Burns, 12 Barb. 677; 456; Flanders s.Barstow, 18 Me. 357; Brown r. 
 
 ByreoB. May,3Ghand. 103; Anderson d. Hunn, Phillips, 3 Bush, 656; Fikes ti. Manchester, 43 
 
 5 Hun, 79; Fuller J). Acker, 1 Hill, 473; Flanders 111.379; Durfee «. Grinnell, 69 111. 371; McCon- 
 
 ». Thomas, 12 Wis. 410; Talman «. Smith, 39 nell D. People, 84 111. 583; Larmon «). Carpenter, 
 
 Barb. 390; Butler v. Miller, 1 N. Y. 496; Brown 70 111. 549; In re Haake, 2 Sawy. 231 ; Moore v. 
 
 «. Bement, 8 Johns. 96; Brown ». Lipscomb, 9 Murdock, 26 Gal. 514; Mervine u. White, 50 
 
 Port. (Ala.) 472; Heyland v. Badger, 35 Cal. 404; Ala. 388. 
 
 Wright V. Ross, 36 Cal. 414; Rhines v. Phelps, s Flanders v. Barstow, 18 Me. 357; Halstead v. 
 3 Gilm. 455; Pike v. Colvin, 67 111. 337; Bean v. Swartz, 1 T. & 0. (N. Y.) B59; Pulvers). Rich- 
 Barney 10 Iowa, 498; Winchester v. Ball, 54 ardson, 3 T. & C. 436; Burton v. Tannehill, 6 
 Me. 558; Merchants' Nat. Bank«. McLaughlin, Blackf. 470; Murray?;. Erskine, 100 Mass. 597. 
 1 McCrary, 258;2Fed. Rep. 128; Thornhill w. ■» Kohl ti. Lynn, 34 Mich. 360; Lucking ». Wes- 
 Gilmer, 4 Smed. & M. 163; Bowens v. Benson, son, 25 Mich. 443; Gary v. Hewitt, 36 Mich. 228; 
 57 Mo. 26; Leach v. Kimball, 34 N. H. 588; Baxters. Spencer, 33 Mich. 325; Chapman «. 
 Woodsidei). Adams,40N. J. L.417,427;Patchln State, 5 Oreg.432. 
 V. Pierce, 12 Wend. 61; 1 Hill, 473; Moody v. « See post, §467 
 
 Haselden, 1 S. G. 129; Nichols v. Webster, 1 6 Harper v. Ross, 10 Allen, 332; Bryant ». 
 
 Chandl. 203; Musgat!). Pumpelly, 46 Wis. 660; Crosby, 36 Me. 568; Hogel v. Lindell, 10 Mo. 
 
 Smith V. Coolbaugh, 21 Wis. 427; Lowe v Wing, 483; Montany v. Rock, 10 Mo. 506; Hartshorn v. 
 
 13 N. W. Rep. 892, (1882) Wis.; Smith v. Koust, Williams, 31 Ala. 149; but see contra. Puller V. 
 
 50 Wis. 360; Smith «. Phillips, 47 Wis. 202; Parish, 3 Mich. 211; Reed ». Jewett, 5 Me. 96. 
 
 BlodgettD.Blodgett, 48 Vt. 32 ;Hulsen». Walter, ? Caswell v. Keith, 18 Gray, 351; Hazard*. 
 
 34 How. Pr. 385; Hall v. SnowhiU, 8 Green, (N. Loring, 10 Gush. 267. 
 
 532 
 
CH. XXV. j CHATTEL MORTGAGES AND PLEDGES IN EQUITY. 
 
 § 464 
 
 sance; and parol evidence is very generally held to be admissible to 
 prove that a bill of sale, absolute on its face, was intended to be a 
 mortgage. The authorities are not uniform as to how far, or in 
 what cases, such evidence is admissible. Some have held that in any 
 case parol evidence can be introduced to prove a bill of sale to be a 
 mortgage, thus ignoring completely the application to mortgages of 
 the rule of evidence, just explained, '^ while others either deny the 
 right to admit parol evidence altogether,^ or limit its admissibility to 
 such cases as fall within the ordinary equitable jurisdiction of fraud, 
 accident or mistake, i. e., where the failure to reduce the defeasance 
 to writing arose out of some fraud, accident or mistake. ' The parol 
 defeasance will not only be valid in equity against the parties to the 
 mortgage, but likewise against all others, who might subsequently 
 acquire interests in the property, with notice of the fact that 
 the sale was made with a defeasance.* But it cannot be enforced 
 against a subsequent purchaser for value and without notice of its 
 existence.^ 
 
 1 Parks V. Hall, 2 Pick. 306; Hodges v. Tenn. 
 Marine A Fire Insurance Co., 8 N. Y. 416; Coe 
 V. Cassidy, 72 N. Y. 133; Farrell v. Bean, 10 
 Md. 217; Doughty v. McGalgan, 6 G. & J. 275; 
 Stokes r. HoUis, 43 Ga. 262; Todd u. Hardig, 5 
 Ala. 698; Watson v. James, 15 La. An. 386; 
 Scott ». Henry, 13 Ark. 112; Eogers v. Vaughan, 
 31 Ark. 62; Ward ». Deerlng, 2 Mon. 9; Hickman 
 V. Cantrell, 9 Yerg. 172; Hurford v. Harned, 6. 
 Oreg. 362; Bartel v. Lope, 6 Oreg. 321; Love v. 
 Blair, 73 Ind. 281 ; Wilmerding v. Mitchell, 52 
 N. J. L. 476; Wilson v. Carver, 4 Hayw. 90; 
 Loyd J). Currin, 3 Humph. 462; Carter v. Bur- 
 ris, 10 Sm. & M. 527; Humphries v. Bartee, 10 
 Sm. &, M. 282; Johnson n. Clark, 5 Aik. 322; 
 National Ins. Co. v. Webster, 83 111. 470; Hud- 
 son «. Isbell, 5 St. & P. 67; Parish v. Gates, 39 
 Ala. 254; Laeber v. Langhor, 45 Md. 477; Ing 
 V. Brown, 3 Md. Ch. 521 ; Miohelson v. Fowler, 
 27Hun, 159; Smith ti. Seattle, 31 N. Y. 542; Des- 
 pard V. Walbridge, 15 N. Y. 374 ; Trieber v. An- 
 drews, 31 Ark. 163; Eussell v. Southard, 12 
 How. 139; Babcock v. Wyman, 19 How. 239; 
 Sprigg V. Bk. of Mt. Pleasant, 14 Pet. 201 ; Pierce 
 V. Robinson, 13 Cal. 116; Farmerti Grose, 42 
 Cal. 169; Kuhnu. Rumpp, 46 Cal. 299; Klock v. 
 Walter, 70 111. 416; Conwell v. Evill, 4 Ind. 
 677; Heath r. Williams, 30 Ind. 495; Johnson 
 V. Smith, 39 Iowa, 549; Zuveru. Lyons, 40 Iowa, 
 670; Richardson %,. Woodbury, 43 Me. 206; 
 Campbell v. Dearborn, 109 Mass. 130; Hassam v. 
 Barrett, 115 Mass. 24; McDonough v. Squire, 111 
 Mass. 256; Glass v. Hulbert, 102 Mass. 24; Swet- 
 landc. Swetland, 3 Mich. 483; Belate ». Mor- 
 rison, 8 Minn. 87; Weide v. Gehl, 21 Minn. 449; 
 Littlewort v. Davis, 50 Miss. 403; Freeman v. 
 Wilson, 51 Miss. 329; O'Neill v. Capelle, 63 Mo. 
 202; Slowey v. McMurray, 27 Mo. 116; Schade 
 V. Bessenger, 3 Neb. 140; Cookesti. Culbertson, 
 9 Nev. 109; Sweet v. Parker, 22 N. J. Eq. 453; 
 Cottrell V. Long, 20 Ohio, 464; Ehines v. Baird, 
 
 41 Pa. St. 256; Palmer «. Guthrie, 76 Pa. St. 441; 
 Nichols «. Reynolds, 1 R. I. 30; Mead O.Ran- 
 dolph, 8 Tex. 191 ; Gibb v. Penny, 43 Tex. 560; 
 Wright V. Bates, 13 Vt. 348; Hill «. Loomis, 42 
 Vt. 563; Ross v. Norvell, 1 Wash. (Va.) 14; Bird 
 V. Wilkinson, 4 Leigh, 268; Klinck«. Price, 4 
 W. Va. 4; Rogan v. Walker, 1 Wis. 527; Wil- 
 cox V. Bates, 26 Wis. 465; Fuller v. Parrish, 3 
 Mich. 211; Tyler «. Strang, 21 Barb. 198. 
 
 2 Bassett v. Bassett, 10 N. H. 64; Porter v. Nel- 
 son, 4 N. H. 130; Boody v. Davis, 20 N. H. 140. 
 See Osgood v. Thompson, 30 Conn. 27, where 
 the question is pronounced to be a very doubt- 
 ful one. 
 
 8 Freeman o. Baldwin, 13 Ala. 246; MoKin- 
 Btry ». Conly, 12 Ala, 678; Sewell v. Price, 32 Ala. 
 97; Whitfield v. Gates, 6 Jones Bq. 136; Wash- 
 burn V. Merrills, 1 Day, 139; Brainerd v. Brain- 
 erd, 15 Conn. 575; Chaires v. Brady, 19 Fla. 133; 
 Collins V. Tillon, 26 Conn. 368; French v- 
 Burns, 35 Conn. 359. In Georgia, a statute 
 confines the admission of parol evidence to 
 prove a defeasance to cases of fraud. Code 
 of 1873,3809; Spence v. Steadman, 49 Ga. 133; 
 Broach v. Barfleld, 57 Ga. 601; Briggars v. 
 Bird, 55 Ga. 650. The courts, which admit 
 parol evidence to prove a parol defeasance 
 in any case, justify this extension of the 
 equitable jurisdiction on the ground that 
 " fraud in the use of the deed (mortgage) is as 
 much a ground for the interposition'of equity 
 as fraud in its creation." Jones on Mortgages, 
 § 288; see, also, to same effect. Pierce «. Robin- 
 son, 13 Cal. 116; Conwell ^). Evill, 4 Ind. 677; 
 O'Neill V. Capelle, 62 Mo. 202; Wright v. Bates, 
 13 Vt. 348; Strong ». Stewart, 4 Johns. Ch. 167; 
 Rogan o. Walker, 1 Wis. 52; Moreland v. Bern- 
 hart, 44 Tex. 275. 
 
 4 Omaha Book Co. v. Sutherland, 10 Neb 334. 
 
 6 Morgan v. Shinn, 15 Wall. 105. 
 
 633 
 
§ 465 
 
 EQUITT JURISPBUDENCE. 
 
 [CH. XXV. 
 
 § 465. Can a chattel mortgage coyer after-acquired property ? — ^ 
 
 It is said to be "a common learning in the law, that a man cannot 
 grant or charge property which he hath not." ^ And inasmuch as 
 the common law, and the still prevalent, theory is that the chattel 
 mortgage is a grant in prcRsemti upon condition, there is no escape 
 from the conclusion that at law a chattel mortgage cannot, as a mort- 
 gage, be made to cover after-acquired goods;' not even where the 
 subject of the mortgage is a stock of goods, and the agreement of 
 the parties is that the mortgagor shall retain the stock, sell the goods 
 at retail in the course of trade, and keep up the stock by purchasing^ 
 other goods of Kkekind.* The only exception to this general rule, 
 which the common law recognized, was in relation to those things 
 which were in the potential, but not actual, possession of the party 
 who made the grant or mortgage; such as the increase or growths 
 from the property of the grantor or mortgagor. For example, it 
 has been held possible, at common law, to make a mortgage of a 
 growing crop, where one owned the land, or had a possessory interest 
 therein, ° and even of a crop not yet planted, if it is to be planted or 
 grown during the continuance of the present possessory interest in the 
 land,' although the authorities are at variance on this latter proposition, 
 many of the courts refusing to apply the doctrine of potential existence 
 
 1 For other discussions of the effect of pres- 
 ent transfers or assignments of property not 
 presently owned by the transferrer, see ante, 
 %% ?llir-^in, 386. 
 
 2 Perkins, §65. 
 
 8 Jones V. Richardson, 10 Met. 481 ; Chesley 
 
 B. Josselyn, 7 Gray, 489 ; Farmers' Loan & Trust 
 Co. V. Long Beach Imp. Co., 27 Hun, 89; Otis v. 
 Sill, 8 Barb. 102; Griffiths. Douglass, 73 Me. 
 533; Hunt v. Bullock, 23 111. 320; Wilson v. 
 Wilson, 37 Md. 1; Eose ». Bevan, 10 Md. 466; 
 Letourno v. Ringgold, 3 Cranch 0. C. 103; 
 Looker ». Peckwell, 38 N. J. L. 253; Comstock 
 V. Scales, 7 Wis. 159; Williams v. Briggs, 11 R. I. 
 476; Cooke. Corthell, 11 R. 1. 482 ; Parker d. Ja- 
 cobs, 14 S. C. 112; Chapman v. Weimer, 4 Ohio 
 St. 481; Hunter v. Bosworth, 43 Wis. 583; Pierce 
 V. Emery, 32 N. H. 484, 505; Wagner v. Watts, 2 
 Cranch C. C. 169; Hamilton v. Rogers, 8 Md. 
 301; Royc. Goings, 6 Bradw. 162; s. c, 98 111.361; 
 Head v. Goodwin, 37 Me. 181 ; Chapin «. Cram, 
 40 Me. 561; Gardner v. McEwen, 19 N. Y. 123; 
 Bonseyi). Amee, 8 Pick. 236; Codman v. Free- 
 man, 5 Gush. 306. 
 
 * Williams v. Briggs, 11 R. I. 476; Rose v. 
 Bevan, 10 Md. 466; Moody v. Wright, 13 Met. 17; 
 Ehines v. Phelps, 3 Glim. 455 ; Chapin v. Cram, 
 40 Me. 561 ; St. Louis Drug Co. v. Dart, 7 Mo- 
 App. 590; Sharpe v. Pearce, 74 N. C. 600; Bar- 
 nard v. Eaton, 2 Cush. 294; Jones v. Richard- 
 son, 10 Met. 481; Hamilton u. Rogers, 8 Md. 
 301; Wright ». Bircher, 5 Mo. App.328; Griffith 
 V. Douglass, 73 Me. 532 ; Parker v. Jacobs, 14 S. 
 
 C. 112. In Georgia, it is provided by statute 
 that such a mortgage will be efllcient to cover 
 the goods added to the stock by way of replen- 
 
 534 
 
 ishlng the stock. Ga. Code of 1882, % 1954. See 
 also, in construction of this statute, Chisholm 
 ». Chittenden, 45 Ga. 213; Andersons. Howard, 
 49 Ga. 313; Goodrich ». Williams, 50 Ga. 425; 
 Johnson «. Patterson, 2 Woods, 443. 
 
 sQayoe v. Stovall, 50 Miss. 396; Thrash ». 
 Bennett, 57 Ala. 156; Jones v. Webster, 48 Ala. 
 109; Stephens ii. Tucker, 55 Ga. 643; s. u., 58. 
 Ga. 391; McGee v. Fitzer, 37 Tex. 27; Moore v. 
 Byrum, 10 S. C. 452; Cook v. Steel, 42 Tex. 53; 
 Butlers. Hill, 1 Baxt. 375; Steams®. Gafford, 
 56Ala. 544; White j;. Thomas, 52 Miss. 49. And 
 if the means of identification are provided In 
 the description of the mortgaged property, the 
 mortgage may be ma^e to cover only a part of 
 growing crop. Stephens v. Tucker, 55 Ga. 543. 
 But if the description does not point out 
 which portion is covered by the mortgage, the 
 mortgage is only an executory agreement, un- 
 til the portion of crop covered by It has been 
 set apart, or otherwise definitely ascertained. 
 Prentice i>. Nutter, 25 Minn. 485; Thurman v. 
 Jenldns, 2 Baxt. 426; Williamson v. Steele, a 
 Lea. 527. 
 
 6 Van Hoozer v. Q^t;, 34 Barb. 9, 12; Wood ». 
 Lester, 29 Barb. 145; Robinson v. Ezzell, 72 N. 
 C. 231; Watkins v. Wyatt, 9 Baxt. 250; Conder- 
 mani). Smith, 41 Barb. 404; Argues v. Wasson, 
 51 Cal. 620; Gotten v. Willoughby, 83 N. 0. 75; 
 Womble v. Leach, 83 N. C. 84; Harris v. Jones, 
 83 N. C. 317. In New Mexico, the mortgage of 
 a growing crop Is declared to be void and of no 
 effect; and in California, it is provided by 
 statute that such mortgages shall be enforced, 
 even after severance of the crop from the solU 
 Jones on Chattel Mortgages, § 143. 
 
CH. XXV.] CHATTEL MORTGAGES AND PLEDGES IN EQUITY. § 465 
 
 to an unplanted crop, so as to make a mortgage of the crop valid at law.' 
 It is also held, under the same doctrine of potential existence, that a 
 mortgage of all the crops, to be grown on the land during the continu- 
 ance of the lease under which the mortgagor holds possession, is valid. ^ 
 Although growing trees, fruit and grass are generally considered a 
 part of the realty and, as such, cannot be the subject of a chattel 
 mortgage,^ if a mortgage is given of growing trees and grasses, to be 
 cut and severed from the soil,* and more especially where it is given by 
 one who does not own the land, but has purchased the same from the 
 owner of the land,° it is a good chattel mortgage under the doctrine of 
 potential existence. It is further held, that a valid chattel mortgage 
 may be made at common law of the future increase of stock which 
 the mortgagor then owned,' and of the futui-e profits or income from 
 the use of the mortgagor's steamboat.' And so, also, may the sailor 
 mortgage his share in the profits of a whaling voyage, which is actually 
 begun or projected,' but not the profits of a voyage not yet projected.'' 
 But a mortgage could not be made at law of the fish which may be 
 caught on a projected voyage, for the fisherman has no potential interest 
 in the fish which he may catch in the future, although he may mortgage 
 the earnings to be derived from the voyage.^" It is, also, impossible to 
 mortgage a mere possibility or expectancy of acquiring property. ^^ It 
 is, also, another apparent exception of the general rule which pro- 
 hibits at law the mortgage of goods not yet acquired, that if personal 
 property become annexed to other property which is itself Covered by 
 
 1 McCaffreys. Woodin, 65 N. Y, 459; Stowell Bellows ». Wells, 36 Vt. 599; Lewis i;. Lyman, 
 V. Bair, 5 Bradw. 104 ; Cressey v. Sabre, 17 Hun, 22 Pick. 437 ; Moulton v. Eobinson, 27 N. H. 550. 
 ISO; Elmore v. Simon, 67 Ala. 526; Millman v. ^ Crosby v. Wadsworth, 6 East, 603; Soorell 
 Neher, 20Barb. 37; Bank ». Crary, 1 Barb. 542; ». Borall, 1 You. &Jer. 396; Rod well t;. Phillips, 
 Eeesu. Coats, 56 Ala. 439; Hutchinson?). Ford, 9 M. & W. 505; Wintermute v. Light, 46 Barb. 
 9 Bush, 318; Tomlinson v. Greenfield, 31 Ark. 278; Green v. Armstrong, 1 Den. 550; Teal v. 
 SSI; Apperson v. Moore, 30 Ark. 56. In Arkan- Anty, 2B. & B. 99; s. u., 4 J. B. Moo. 542; Car- 
 sas, it is now provided by statute that such a rington v. Roots, 2 M. & W. 248; Bank of Lan- 
 mortgage shall be valid at law. Sambeth ». singburgi). Crary, 1 Barb. 542, 547; Cudworthc. 
 Ponder, 33 Ark. 707. But in order that an in- Scott, 41 N. H. 456, 463. 
 
 strument may operate as a mortgage of an un- < Cook v. Stearns, 11 Mass. 533; Douglas v. 
 
 planted crop, it must contain words of grant, Shumway, 13 Gray, 498; Cudworth v. Scott, 41 
 
 and something more than an agreement that N. H. 463; Wood «. Lester, 29 Barb. 145; Erskine 
 
 the creditor shall have the right to enter and v. Plummer, 7 Me. 447; Nelson v. Nelson, 6 
 
 take possession of the crop when grown. But- Gray, 385. 
 
 terfields. Baker, 5 Pick. 522; MunsellD.Carew, 6 Claflin ». Carpenter, 4 Met. 580; Smith ». 
 
 2 Cush. 50; MlUiman v. Neher, 20 Barb. 37; Jencks, 1 Denio, 380; s. c, 1 N. Y. 90; Green v. 
 
 Buskirkr. Cleveland, 41 Barb. 610. Armstrong, 1 Denio, 650; see Sheldon v. Con- 
 
 2 Fetch ». Tutin, 15 M. & W. 110; 15 L. J. ner, 48 Me. 584. 
 
 Exch. 280; Argues®. Wasson, 51 Cal. 620; Ever- « Grantham i). Hawley, Hob. 132; Sawyers. 
 
 man v. Eobb, 52 Miss. 653; Booker v. Jones, 55 Gerrish, 70 Me. 254; Moore v. Byrum, 10 S. C. 
 
 Ala. 266; Thrash v. Bennett, 57 Ala. 156; Adams 453; Parrari;. Smith, 64 Me. 74; Oakes V. Moore, 
 
 V. Tanner, 5Ala. 740; Mauldin v. Armistead, 14 24 Me. 214, 330. 
 
 Ala. 703; s. o., 18 Ala. 500; Headrlck®. Brat- 'Stewarts. Bay, 3 Ala. 573. 
 
 tain,63Ind. 438; Pennington W.Jones, 57 Iowa, » Gardner v. Hoeg, 18 Pick. 168; Tripp «. 
 
 37;Pejavary». Broesch, 52Iowa,88; Robinson Brownell, 13Cush.376; LowD.Pew,108 Mass.347. 
 
 V. Kruse, 29 Ark. 575; Robinson v. Mauldin, « Cooper «. Douglass, 44 Barb. 409. 
 
 11 Ala. 977; Steams v. Gafford, 56 Ala. 544; w Robinson u. McDonnell, 5 Mau. & Sel. 228; 
 
 Brown *. Coats, 56 Ala. 439 ; Jones v . Webster, Low v. Pew, 108 Mass. 347 ; but see Jones v. Web- 
 
 48 Ala. 109 ; Sillers v. Lester, 48 Mi s. 513 ; Qui- ster, 48 Ala. 109 ; Curtis v. Auber, 1 J. & W. 526. 
 
 liaque ». Dennis, 24 Cal. 154; Smith v. Atkins, "Skipper v. Stokes, 42 Ala. 855; Puroell u. 
 
 18 Vt. 461, 465; Harris v. Frank, 52 Miss. 155; Mather, 35 Ala. 570. ggg 
 
§ 466 EQUITY JUEISPRUDKNCE. [CH. XXV. 
 
 a mortgage, that the thing so annexed becomes a part of the mort- 
 gaged property and, as such, is covered by the mortgage. This 
 happens often where the mortgage is given to an uncompleted article.' 
 And, on the same principle, it is held that a mortgage of domestic 
 animals covers their increase.^ But this vrould be the case in the 
 absence of an express stipulation that the increase shall be included, 
 only as long as it is necessary for the young to follow the dam for 
 nurture." The mortgage, likewise, covers the growth of cuttings 
 from mortgaged plants.* 
 
 § 466. How far mortgage of after-acquired property is invalid. 
 — The mortgage in equity. — But it must be observed, in the forego- 
 ing discussion, that the mortgage of after-acquired goods is held to be 
 invalid only as against subsequent purchasers and attaching creditors. 
 Such a mortgage is good as between the parties to the mortgage, the 
 mortgagor being estopped from denying its validity as to the after- 
 acquired goods; ^ and the mortgage is also held to be valid against a 
 purchaser who buys with notice of the mortgage, on the ground that 
 since the mortgagor is bound, the purchaser with notice is not misled 
 and, therefore, gets no better title." For the same reason, viz.: that 
 of notice, if the mortgagee has taken possession of the after-acquired 
 property \mder the mortgage, the mortgage will be valid against sub- 
 sequent purchasers and attaching creditors.'' And the same result is 
 attained, whether the mortgagor voluntarily puts the mortgagee into 
 possession, or the mortgagee acquires possession against the will of 
 the mortgagor, but in pursuance of an executory agreement contained 
 in the mortgage that he shall take possession on default of pay- 
 ment.' Another form of validating the mortgage of after-acquired 
 
 1 Eeid V. Fairbanks, 1 C. L. R. 787; Hardingo. can Cigar Co. ». Poster, 36 Mich. 368; Cadwell 
 
 Cobum, 12 Met. 333; Jenokes v. Goffe, 1 R. L v. Pray, 41 Mich. 307; Wood v. Lester,39 Barb. 
 
 611 ; Sxparte Ames, 1 Lowell, 561 ; Perry v. Pet- 145; McGee v. Fitzer, 37 Tex. 37. 
 
 tingill, 33 N. H. 433; Putnam «. Gushing, 10 ' Rowley ». Rice, 11 Met 333; Chaseu. Denny, 
 
 Gray, 334; Crosbyi). Baker, 6 Allen, 295; Comina 130 Mass. 566; Butterfield v. Baker, 5 Pick. 522; 
 
 v. Newton, 10 Allen, 518; The Canada, 7 Fed, 
 Rep. 248; Southworth v. Ashland, 3 Sandf. 
 448; and see Dunning!). Stearns, 9 Barb, 
 Frost®. Willard, 9 Barb. 440; Sumner v. Ham- 
 let, 12 Pick. 76; Puloifer v. Page, 32 Me. 404; 
 
 Carrington v. Smith, 8 Pick. 419; Leland v. Col- 
 ver, 34 Mich. 418 ; McCaffrey r. Woodin, 65 N. Y. 
 459; Kennedy v. Nat. Union Bank, 83 Hun, 
 494; Gregg i;. Sanford, 24111. 17; Roy v. Goings, 
 6 Bradw. 162; Chapman v. Welner, 4 Ohio St. 
 
 Glover i). Austin, 6 Picii. S09; Gregg ». Sanford, 481; Thompson v. Poerstel, 10 Mo. App. 290; 
 
 24 111. 17. Farmers' Loan and Trust Co. i. Commercial 
 
 iiFormani;. Proctor,9B. Mon. 124; M'Carty Bank, 11 Wis. 207; Morrow ». Reed, 30 Wis. 81 ; 
 
 V. Blevins, 5Yerg. 195; Gundy v. Biteler, 6 Bookers. Jones, 55 Ala. 266; Stem ». Simpson, 
 
 Bradw. 510; Nicholson j>. Temple, 4 P. & B. N. 62 Ala. 194; Moore ». Byrum, 10 S. C. 452, 463; 
 
 B. 248; Hughes!). Graves, 1 Litt. 317; Tonville Oliver v. Town, 28 Wis. 328; Chynoweth v. 
 
 ®. Casey, 1 Murphy, (N.C.) 389; Evans w.Meni- Tenney, 10 Wis. 397; Cameron v. Marvin, 26 
 
 ken, 8 Gill & J. 39. Kans. 612, 629; Brown v. Webb, 20 Ohio, 389; 
 
 3 Winter v. Landphere, 42 Iowa, 471; see Hunt !). Bullock, 23 111. 320; Titus ». MabSe, 25 
 
 Thorpe v. Cowles, 55 Iowa, 408; Kellogg v. 111.257; Brown «. Piatt, 8 Bosw. 324; Cooks). 
 
 Lovely, 46 Mich. 131 ; Fowler v. Merrill, 11 How. Corthell, 11 R. L 482; Williams v. Brlggs, 11 K. 
 
 •375. L 476; Griffith v. Douglass, 73 Me. 532; Mitchell 
 
 ■•Bryant J). Pennell, 61 Me. 108. s. Black, 6 Gray, 100; Moody v. Wright, 13 
 
 s Allen V. Goodnow, 71 Me. 420, 425; Fejavary Met. 32. 
 
 ■». Broesch, 52 Iowa, 88. a Thompson v. Foerstel, 10 Mo. App. 290; 
 
 • Eobson !). Michigan Central R. E. Co., 37 Chapman v. Weimer, 4 Ohio St. 481. And the 
 
 Mich. 70; People v. Bristol, 35 Mich. 28; Amerl- attempted revocation of a license to enter into 
 
 536 
 
CH. XXV.] CHATTEL MOETGAGES AND PLEDGES IN EQUITY. § 466 
 
 goods is to indorse on the mortgage, after the goods have been 
 acquired, some sort of satisfaction of the mortgage.^ Where the after- 
 acquired goods have been mixed up with the goods which were in 
 possession when the mortgage was executed, the burden is on the 
 mortgagee to prove which of the goods were the property of the mort- 
 gagor at the date of the mortgage.^ But whatever doubt and con- 
 fusion may prevail as to the validity at law of mortgages which 
 cover after-acquired goods, since equity treats the chattel mortgage 
 as a lien, instead of a grant, the mortgage will be enforced in a court 
 of equity over the after-acquired property, " attaching in equity as a 
 lien or charge upon the particular property, as soon as the assignor or 
 contractor acquires a title thereto, against the latter and all persons 
 asserting a claim thereto under him, either voluntarily, or with 
 notice." ' But in order that the chattel mortgage may, in any case, 
 at law or in equity, cover after-acquired property, the mortgage 
 must show that it was intended to cover the after-acquired property; * 
 and the mortgage must describe these goods, so that they may be 
 identified by the description.^ 
 
 The authorities do not agree as to the effect of recording a chat- 
 tel mortgage which covers after-acquired property, as to charging 
 subsequent purchasers with constructive notice of the lien on the after- 
 acquired property. Some of the courts hold that the recording does not 
 serve to give constructive notice," not even when the mortgage has 
 become valid at law by a reduction of the after-acquired goods to 
 the possession of the mortgagee.' But there are other courts, which 
 maintain that the record gives constructive notice of the contents of 
 the mortgage, although it is only operative in equity.' 
 
 possession will not avail to prevent tJie en- 580jEosb«. Wilson, 7 Bush, 29; Zaring«. Cox 
 
 forcement of the mortgage. Wood v. liead- 78Ky. 527; Borsts. Nalle, 88Gratt. 423; Levy v. 
 
 bitter, 13 M. & W. 838; Wood v. Manly, 11 Ad. Welsh, 2 Edw. Ch. 438; Williamson v. N. J. 
 
 ■& E. 34; McCaffrey v. Woodin, 65 N. Y. 459; Southern E. E. Co., 29 N. J. Eq, 311; Wrightii. 
 
 but see contra, Chynoweth v. Tenney, 10 Wis. Blrcher, 72 Mo. 179; Griffith v. Douglass, 73 Me. 
 
 397; Singles. Phelps, 20 Wis. 398. 532; Williams v. Winsor, 12 E. I. 9; Sillers ». 
 
 > Brown*. Thompson, 59 Me. 372; see, also, Lester, 48 Miss. 513; Stephens v. Pence, 66 
 
 .eriffithj). Douglass, 73 Me. 532. Iowa, 257; Gregg v. Sanford, 24 111. 17; Eobin- 
 
 2 Hamilton v. Eogers, 8 Md. 301; but see soni). Mauldin, 11 Ala. 977; Sohulenburg v. 
 
 Howry v. White, 21 Wis. 417; Dunning v. Martin, 1 McCrary, 348; Brett u. Carter, 2 Low. 
 
 Steams, 9 Barb. 630; Simmons v. Jenkins, 76 458; Beallc. White, 94 U. S. 382j but see contra, 
 
 HI 479. Moody v. Wright, 13 Met. 30 ; Barnard v. Eaton, 
 
 « Story, J., in Mitchell v. Winslow, 2 Story C. 2 Cush. 294; Chynoweth v. Tenney, 10 Wis. 397 ; 
 
 C. 634; Butt v. EUett, 19 Wall. 544; s. c, 1 Hunter ». Bosworth, 43 Wis. 583. 
 
 Woods C. C. 214; Nat. Shoe <fc Leather Bank v. * Phillips ». Both, 58 Iowa, (1882) 499. 
 
 Small, 7 Fed. Eep. 837 ; Apperson v. Moore, 30 ^ Belding v. Eead , 3 Hurl. & C. , 955 ; Lazarus 
 
 Ark. 56; Parker «. Jacobs, 14 S. C. 112; Floyd v. Andrade, 5 C. P. D. 318. 
 
 V. Morrow, 86 Ala. 353; Scharf enburg u. Bishop, « Jones V, Eichardson, 10 Met. 493; Frost v. 
 
 35 Iowa, 60; Pejavary ii. Broesch, 52 Iowa, 88; Willard, 9 Barb. 440; Farmers' Loan & Trust 
 
 Phelps r. Murray, 2 Tenn. Ch. 746; Cook ». Co. ■». Long Beach Imp. Co., 27 Hun, 89; Jones 
 
 Corthell, 11 E. I. 482; Groton Mfg. Co. V. Gar- v. Chamberlain, 5 HeiBk.210; Single v. Phelps, 
 
 diner, 11 E. I. 626; Thompson v. Foerstel, 10 20 Wis. 398; Tedford v. Wilson, 3 Head, 311; 
 
 Mo. App. 290, 299; Page*. Gardner, 20 Mo. 507; Polk v. Foster, 7 Barb. 98; Griffith ». Douglass, 
 
 Pennock v. Coe, 23 How. 117; Smithurst v. Ed- 75 Me. 532. 
 
 munds,14N.J.Eq.408;GeverBj).Wright,18N. 'Single «. Phelps, 26 Wis. 398; Mowry «. 
 
 J. Eq. 330; McCaffrey v. Woodin, 65 N. Y. 459; White, 21 Wis. 417. 
 
 First Nat. Bank v. Tumbull, 32 Gratt. 695; « Gregg i;. Sanford, 24 111. 17; Hart o. Farmers' 
 
 Brockenbrongh J>. Brockenbrough, 31 Gratt. & Merchants' Bank, 33 Vt. 252; Duke ». Strick- 
 
 537 
 
§ 467 EQUITY JURISPRUDENCE. [CH. XXV. 
 
 § 467. The mortgagor's right of redemption. — As has been 
 already explained/ according to the common law, the mortgagee's 
 title to the mortgaged goods becomes absolute upon default in payment; 
 and at law the mortgagor has, after default, no claim whatever on the 
 mortgaged goods. ^ But, as in the case of mortgages of real property, 
 so here, the court of equity assumes jurisdiction for the purpose of 
 preventing an injustice to the mortgagor resulting from the forfeiture 
 of his title to the mortgaged goods for default in payment, where the 
 value of the goods was greater than the amount of the debt, and 
 decreed that if the mortgagor would pay into court the full amount of 
 the debt within a reasonable time after default, he should have the right 
 to recover his property from the mortgagee. And this is called the 
 mortgagor's right or equity of redemption.' This right of redemption 
 is generally conceded to the mortgagor, independently of any statutory 
 authority.* The mortgagor is not permitted by an agreement, contem- 
 poraneous with the execution of the mortgage, to debar himself of 
 right of redemption. Such an agreement is absolutely void.° But in 
 order that the mortgagor may redeem his property from the mort- 
 gage, he must make a lawful tender of payment of the debt in full in 
 the bill or before the suit is brought." And the action must be brought 
 within a reasonable time after default. What constitutes a reasonable 
 time, independent of statutory regulation, will no doubt depend upon 
 the circumstances of each case.' It would seem but proper that, as in 
 the case of mortgages of real property, the provision of the Statute of 
 Limitations, in reference to actions at law for the recovery of personal 
 
 land, 43 Vt. 494; Parker v. Jacobs, 14 S. 0. 112; Wakelee, 11 Mich. 177; Heyland v. Badger, 35 
 
 Seharfenburgw. Bishop, 35 Iowa, 60 j Brown u. Cal. 404; Saxton v. Williams, 15 Wis. 292; 
 
 Allen, 35 Iowa, 306; see, also, Butler v. Hill, 1 Flanders v. Thomas, 12 Wis. 410; Waite v. Den- 
 
 Baxt. 375; Williamson v. Steele, 3 Lea. 527, as nison, 51 111. 319; Hammers ». Dole, 61 111. 3OT; 
 
 to mortgage of a growing crop. Bragelman v. Dane, 69 N. Y. 69; Hinman v. 
 
 1 See ante, § 463. Judson, 13 Barb. 629; Pratt v. Stiles, 17 How. 
 
 STaber v. Hamlin, 97 Mass. 489; Burtis v. Pr. 211; a. c, 9 Abb. Pr. 150; West v. Crary, 47 
 Bradford, 122 Mass. 129; Wendell v. N. H. _ N. Y. 423. But the equitable remedy for re- 
 Bank, 9 N. H. 404, 420. demption is always superseded by a statutory 
 
 ' Flanders v. Chamberlain, 24 Mich. 305, 313; remedy, except where the latter remedy proves 
 Davis V. Hubbard, 38 Ala. 185, 189; Evans v. ineffectual. Gordon v. Clapp, 111 Mass. 22; 
 Merriken, 8 Gill & J. 39; Boyd v. Beandin, 54 Boston & Pairhaven Iron Works v. Montague, 
 Wis. 193; Leach v. Kimball, 34 N. H. 568. In a 108 Mass. 248; Bushnell v. Avery, 121 Mass. 148. 
 late Indiana case, it was doubted whether the ^Bunacleugh v. Poolman, 3 Daly, 236; La- 
 mortgagor had any equity of redemption in a vigne ». Naramore,52 Vt. 267; see Landers*, 
 chattel mortgage. Sidenera. Bible, 43 Ind. 230; George, 49 Ind. 309. 
 
 but seeBlakemore«. Taber,22Ind.466; Wood- "Flanders v. Chamberlain, 24 Mich. 305; 
 
 ward V. Wilcox, 27 Ind. 207; Trittipo v. Ed- Lavigneii. Naramore, .52 Vt. 267; Stoddard v. 
 
 wards, 35 Ind. 467; Broadhead v. McKay, 46 Dennison, 38How. Pr. 296; Halsteadti. Swartz, 
 
 Ind. 595. 46How.Pr. 289,291; Hall c. Ditson, 55 How. Pr. 
 
 * Flanders v. Barstow, 18 Me, 357; Carter v. 19; Adams v. Nebraska City Nat Bank, 4 Neb. 
 
 Stevens, 3 Denio, 33; Stoddard ». Dennison, 38 370; Tallon ». Ellison, 3 Neb. 63, 74. Thefail- 
 
 How. Pr. 296; Patching. Pierce, 12 Wend. 61; ure to tender payment before the suit la 
 
 Dnpuy V. Gibson, 36111. 197; Wylder?). Crane, brought only affects the question of costs. 
 
 53111. 490; Foster*. Ames,lLow. 313; Smiths. Boydu. Bendin, 54 Wis. 193. 
 
 Coolbaugh, 81 Wis. 427; Wilson v. Brannan, 27 ' Lavigne v. Naramore, 52 Vt. 267; Arnold v. 
 
 Cal. 258; Blodgett v. Blodgett, 48 Vt. 32; Tan- Chapman, 13 R. I. 586; Stoddard v. Dennison, 
 
 nahlU V. Tuttle, 3 Mich. 104; Flanders v. 38 How. Pr. 296; Hatfield v. Montgomery, 3 
 
 Chamberlain, 24 Mich. 305; Van Brunt v. Port. (Ala.) 58. 
 
 538 
 
OH. XXV.] CHATTEL MORTGAGES AND PLEDGES IN EQUITY. § 468 
 
 property, should govern by analogy this question of reasonable time in 
 respect to the biU for redemption.^ Where a statute provides a time 
 for redemption, as a matter of course the action must be brought 
 within that time.* But in any case, whether there be a statute or not, 
 the time of redemption does not begin until there has been a default; 
 and the mortgagor may, by the terms of the mortgage, have his entire 
 life-time in which to pay the debt.' If the mortgagee has consumed 
 the property, or otherwise disposed of it, so that he coald not, in obedi- 
 ence to a decree for redemption, restore the mortgaged property to 
 the mortgagor, the court will, instead thereof, decree damages to be 
 estimated by the value of the mortgaged property at the time it was 
 disposed of by the mortgagee.* 
 
 § 468. The mortgagee's right of possession after forfeiture. — 
 Upon default in payment of the mortgage debt, the legal title of 
 the mortgagee, according to the general prevailing theory of chattel 
 mortgages, becomes absolute in him, and the legal title of the mort- 
 gagor is defeated altogether. In consequence of his acquisition of the 
 absolute title to the mortgaged goods, the mortgagee is entitled to the 
 possession of the goods, and may maintain his action of replevin for 
 the recovery of the possession of them. And he has this right to 
 possession aiter forfeiture, notwithstanding the provisions in the mort- 
 gage for the sale of the property, and a payment to the mortgagor 
 of the surplus remaining after the satisfaction of the mortgage debt.' 
 A different rule obtains in Michigan and Oregon, where it is held that 
 the mortgagor is not divested of his legal title to the mortgaged prop- 
 
 1 See Byrd v. McDaniel, 33 Ala. 18; Perry v. Wing, 56 Wis. (1882) 31 ; Smith v. Koust, 50 Wis. 
 Craig, 3 Mo. 516; Baker v. Baker, 13 B. Mon. 360; Smith i). Coolbaugh, 21 Wis. 427; Musgat 
 406. ' »• Pumpelly, 46 Wis. 660; Blodgett v. Blodgett, 
 
 2 Winchester v. Ball, 54 Me. 558; Clapp v. 48 Vt. 33; Hulsen «. Walter, 34 How. Pr. 385; 
 Glldden,39Me. 448. In Maine, Massachusetts, Fuller u. Acker, 1 Hill, 473; Ackley «. Finch, 7 
 Minnesota, Rhode Island, redemption can be Cow. 290; Hall v. SnowhlU, 2 Green, (N. J. L.) 
 called only within six days after forfeiture 8; Bryant «. Carson River Lumber Co., 3 Nev. 
 for default. In Kentucky, action for redemp- 313; Robinson v. Campbell, 8 Mo. 365; s. c, lb. 
 tion must be brought within five years. In 615; Volney Stamps v. Oilman, 43 Miss. 456; 
 New Hampshire, Vermont, Delaware, Florida, Flanders v. Barstow, 18 Me. 357 ; Brown v. Phil- 
 Missouri, Pennsylvania, and South Carolina, lips, 3 Bush, 656; Flkes «. Manchester, 43 111. 
 statutes provide that the foreclosure of the 379; Simmons v. Jenkins, 76 111. 479; Constant 
 mortgagor's equity of redemption shall not be v. Matterson, 22 111. 546; Ehines v. Phelps, 3 
 made until due notice has been given, varying Gilm. 455; Wright v. Ross, 36 Cal. 414 ; Heyland 
 in length from thirty to sixty days. Jones on v. Badger, 35 Cal. 404; Brown v. Lipscomb, 9 
 Chattel Mortgages, § 689. Port. 472; Nervine V. White, 50 Ala. 338; Moore 
 
 8 Joynerr. Vincent, 4 Dev. <fc Bat. 512; Bart- v. Murdock, 26 Cal. 514; In re Haake, 3 Sawy. 
 
 lettu. Thynes, 3 Hill (C. C.)Eq. 171. And part 231; Larmonv. Carpenter, 70 III. 549; MoCon- 
 
 payment will stop the running of the time of nell v. People, 84 111. 583; Pike v. Calvin, 67 111. 
 
 redemption. Winchester v. Ball, 54 Me. 558. 227; Bean v. Barney, 10 Iowa, 498; Winchester 
 
 iMowry «. First Nat. Bank, 54 Wis. 38; Boyd v. Ball, 54 Me. 558; Merchants' Nat. Bank v. 
 
 V Beandin, 54 Wis. 193; Blodgett V. Blodgett, McLaughlin, 1 McCrary, 258; s. c, 3 Fed. Rep. 
 48 Vt. 33; Stoddard v. Dennison, 38 How. Pr. 128; Thomhlll v. Gilmer, 4 Sm. & M. 153; Bow- 
 296- Bragelman v. Dane, 69 N. Y. 69. ens v. Benson, 57 Mo. 26; Leach V. Kimball, 34 
 
 6 Burdicku. McVanner, 3 Denio, 170;Durfree N. H. 568; Woodside v. Adams, 40 N. J. L. 417; 
 
 V Grinnell, 69 111. 371; Nichols v. Webster, 1 Langdon v. Buel, 9 Wend. 80; Patchin v. 
 Chandl 203; McConnell v. Scott, 67 111. 274; Pierce, 13 Wend. 61;s. c, 1 Hill, 473; Moody ». 
 Jefferson « Barkto, 1 Bradw. S68. See, also, Haseldon, 1 S. C. 129; Flanders i;. Thomas, 12 
 generally, as to effect of default on the mort- Wis. 410; Smith v. Phillips, 47 Wis. 202. 
 gagee's title to the morgaged goods, Lowe v. 
 
 539 
 
§ 469 EQUITY JTJEISPKUDENCE. [CH. XXV, 
 
 erty, until the transfer under a decree of foreclosure.^ And, although 
 the mortgagor still has his equity of redemption, by the enforcement 
 of which he can recover his property, the mortgagee is not obliged to 
 proceed to the foreclosure of the equity of redemption, because he had 
 taken possession of the property. He has a right to hold the posses- 
 sion," as long as the debt remains unpaid, and can force the mortgagor 
 to the action for redemption.^ * The mortgagee, by taking possession of 
 the mortgaged goods on default of payment, acquires the right, inde- 
 pendent of any decree of the court or special grant of power of sale, 
 to bar the mortgagor's equity of redemption by a sale of the mort- 
 gaged property. The relation of the mortgagor and mortgagee, under 
 these circumstances, is held to be equivalent to that of pledgor and 
 pledgee, and the mortgagee acquires the pledgee's right to sell after 
 due notice to the mortgagor. This is not only the case, where there is 
 no grant of power to sell,.^ but also where express provisions for the 
 sale of the property at public auction are contained in the mortgage; 
 the property may be sold at private sale, under this implied power, if 
 the mortgagee has taken possession of the property.* And in New 
 York it has been held that the sale operates as a valid bar of the mort- 
 gagor's equity, although no notice of the projected sale has been given 
 to him.* But a reasonable notice of the sale is generally required to 
 be given to the mortgagor; and what is a reasonable notice is generally 
 to be determined by a consideration of all the circumstances of each 
 particular case.* 
 
 § 469. Foreclosure of the mortgagor's equity of redemption in 
 equity and at law. — Where the mortgagee has not acquired the pos- 
 session of the mortgaged property after default of the mortgagor, 
 and the mortgage cannot, for that reason, be considered to have the 
 characteristics of a pledge, the mortgagor's equity cannot be barred 
 by the mortgagor's sale of the property, unless the mortgagor has 
 consented to the sale, when it becomes in effect the joint sale of the 
 
 iKohl ». Lynch, 34 Mich. 360; Baxters. N. J. Eq. 370; Long Dock Co. «. Mallery, 12 N. 
 
 Spencer, 33 Mich. 385; Gary v. Hewitt, 26 Mich. J. Eq. 93; Hulsen v. Walter, 34 How. Pr. 385; 
 
 228; Lucking*. Wesson,S5Mich. 443; Chapman Ballo v. Cunningham, 60 Barb. 425; Hall ». 
 
 c. state, 6 Oreg. 432. Ditson, 55 How. Pr. 19; Stoddard v. Dennison, 
 
 2 Craig ». Tappin, 2 Sandf . Ch. 78 ; Bradley v. 38 How. Pr. 296 ; Hart v. Ten Eyck, 2 Johns. Ch. 
 
 Redmond, 42 Iowa, 452; Nichols v. Webster, 1 62, 100. 
 
 Chand. (Wis.) 203; Craft v. Bullard, 1 Smed. & * Flanders v. Chamberlain, 24 Mich. 305; Tal- 
 
 M. Ch. 366; Murray v. Erskine, 109 Mass. 597. man v. Smith, 39 Barb. 390; Freeman v. Free- 
 
 aPatchin v. Pierce, 18 Wend. 61, 63; Charter man, 17N. J. Eq. 44; Robinson*. Campbell, 8 
 
 V. Stevens, 3 Denio, 33j Craig i;. Tappin, 2 Mo. 365; s. c, IS. 615;Dane«. Mallory, 16Barb. 
 
 Sandf. Ch. 73, 90; Chamberlain v. Martin, 43 46; Landon v. Emmons, 97 Mass. 37; McCon- 
 
 Barb. 607; Huggans v. Fryer, 1 Lans. 876; Tal- nells. People, 84111. 583; Waitei). Dennison, 51 
 
 man v. Smith, 39 Barb. 390; Hall ». Bellows, 11 111. 319;Hungate». Reynolds, 72ni.425!Wylner 
 
 N. J. Eq. 333; Runyon v. Qroshon, 12 N. J. Eq. v. Crane, 53 111. 490. 
 
 86; Denny t). Faulkner, 28 Kans. 89; Bryan u. « chamberlain v. Martin, 43 Barb. 607; Hall 
 Robert, IStrobh.Bq. 334; Broadheadj). McKay, v. Ditson, 55 How. Pr. 19; s. c, 5Abb. N. C. 198; 
 46Ind. 595; Wilson v. Brannan, 87 Cal. 258; Patohin «. Pierce, 12 Wend. 61. 
 Bryant «. Carson River Lumbering Co., 3 Nev. "Wilson©. Brannan, 27 Cal. 358; Bird ». 
 318; Johnson n. Vernon, 1 Bailey, 527; Birdt). Davis, 14 N.J. Eq. 467; see Freeman ». Free- 
 Davis, 14 N. J. Eq. 467; Champman v. Hunt, 13 man, 17 N. J. Eq. 44, 47. 
 
 540 
 
CH. XXV.] CHATTEL MOETGAGES AND PLEDGES IN EQUITY. • § 470 
 
 two, and an equivalent of foreclosure; ^ or the sale is made under the 
 judicial decree, or in the exercise of a special power of sale. In very 
 many of the states, the statute provides for the foreclosure of chattel 
 mortgages, and wherever these provisions are to be found, they must 
 be complied with, in order to secure a foreclosure of the chattel mort- 
 gage.^ But in the absence of special statutory provisions, the court 
 of equity has ample power to decree a foreclosure of the mortgagor's 
 equity on reasonable terms." And the right to a foreclosure by a bill 
 in equity is not taken away or precluded by the existence of a power 
 of sale in the mortgagee for the purpose of a substitute for foreclosure. 
 The mortgage may be foreclosed in equity, although the mortgage 
 contains such a power of sale.* Nor is the right to foreclosure pre- 
 cluded by the mortgagee's right at law to recover the possession, and 
 by such possession to be enabled to sell the property.^ The foreclos- 
 ure of chattel mortgages in equity differs in no essential respect from 
 that of real estate mortgages, and hence it will be sufficient to refer 
 to what has been already stated in reference to the foreclosure of mort- 
 gages of real estate. ° 
 
 § i70. Pledges. — ^Equity assumes jurisdiction also over pledges. 
 It is, however, not because the pledge is in any sense an equitable 
 interest, but because under peculiar circumstances where an accounting 
 or a discovery is needed, but where the pledge has been assigned, the 
 remedy for the pledgor is not adequate, and he must resort to a court 
 of equity to secure a sufficient redemption.'' And while, furthermore, 
 the pledgee may bar the pledgor's right of redemption by a sale under 
 the power' of sale, which he acquired by implication as a part of the 
 pledge, he need not so sell the pledge, but instead he may resort to a 
 court of equity to secure a foreclosure of the pledgor's right of 
 redemption by the ordinary methods, which are applied by equity in 
 the foreclosure of mortgages of all kinds. In some of the states the 
 foreclosure by statute in equity is almost universally resorted to; ° and 
 where personal notice cannot be given to the pledgor, or where the 
 
 1 Harris v. Lynn, 25 Kans. 281; Talman v. « See ante, §§ 440-444. 
 
 Smith, 39 Barb. 390; MoConnell «. People, 71 'Hasbrouck jj. Vandervoort,4 Sandf. 74; Co- 
 
 Ill_ 481, nyngham's Appeal, 57 Pa. St. 474; and see 
 
 2 See Jones on Chattel Mortgages, Chapter Brown «. Runals, 14 Wis. 693; Jones ti. Smith, 2 
 XVII. Ves. 372 ; Bartlett v. Johnson, 9 Allen, 530 ; Mer- 
 
 2 Brown v. Greer, 13 Ga. 285; Broadhead v. rill V. Houghton, 51 N. H. 61 ; White Mts. E. E. 
 
 McKay, 46 Ind. 595; Morris «. Tillson, 81 111. i^. Bay State Iron Co., 60 Jtf. 57. 
 
 607; Hammers u. Dole, 61111.307; Dupuyo. Gib- 8 strong n. Nat. Mech. Bkg. Assn., 45 N. Y. 718; 
 
 son, 36 111. 197; Halli;. Bellows, 11 N.J. Eq. 333; Booth v. Eighmie, 60 Id. 338; Stearns u. Marsh, 
 
 Freeman v. Freeman, 17 K. J. Eq. 44; Charter 4 Denio, 227; Diller v. Brubaker, 52 Pa. St. 498, 
 
 V. Stevens, 3 Den. 33; Wylder u. Crane, 53 111. 502; Worthington v. Tormey, 34 Md. 182; Ex 
 
 490- Aldrich v. Goodell, 75 111. 452; Packard v. parte Mountfort, 14 Ves. 606; Cartert;. Wake, L. 
 
 Kingman, 11 Iowa, 219; Blackmore v. Taber, R. 4 Gh. D. 605; Boynton v. Payrow, 67 Me. 587; 
 
 22 Ind. 466. Freeman t). Freeman, 17 N. J. Eq. 44; Dupuyc. 
 
 * Briggs V. Oliver, 68 N. Y. 336; Rich v. Milk, Gibson, 36 111. 197; Donohoe v. Gamble, 38 Cal. 
 
 20 Barb. 616. 340. 
 
 SMarxD. Daris, 56Miss. 745; Long Dock Co. 
 V. Mallery, 12 X. J. Eq. 93. 
 
 541 
 
§ 4:70 • EQUITY JURISPKUDENCE. [CH. XXV. 
 
 articles pledged are things in action, except commercial securities, it 
 is also necessary for the pledgee to resort to the foreclosure in equity.' 
 
 • Stearns v. Marsh, 4 Denio, 227; Wheeler v. Mountfort, 14 Ves. 606; Carter ». Wake, L. E. 4 
 
 Mewbould, 16 N. Y. 392; Gay v. Moss, 34 Cal. Oh. D. 605; Boynton v. Payrow, 67 Me. 587; 
 
 125; Donohoe v. Gamble, 38 Id. 340; Cal. Ciyil Freeman v. Freeman, 17 N. J. Eq. 44 ; Dupuy v. 
 
 Code, §§ 3006, 3011 ; Booth v. Eighmie, 60 N. Y. Gibson, 36 111. 197; Strong v. Nat. Meoh. Bkg. 
 
 238; Diller v. Brubaker, 62 Pa. St. 498, S02; Assn., 45 N. Y. 718. 
 Worthington v. Tormey, 34 Md. 182; Uxparte 
 
 542 
 
CHAPTER XXVI. 
 
 GENERAL EXPLANATION CONCERNING EQUITABLE REMEDIES. 
 
 Section 
 General statement .... . 472 
 
 General classification 473 
 
 Equitable remedies operating in personam 
 
 Section 
 
 and in rem 474 
 
 Remedies in personam, beyond territorial 
 jurisdiction • 475 
 
 § 472. General statement. — The last division of equity jurispru- 
 dence includes the remedies and remedial rights which one can claim 
 under the equitable jurisdiction. The remedial rights of equity are very 
 often vitally different from those which can be enjoyed in a court of 
 law; and the defect and limitation of the common law remedies and 
 remedial rights constitute, as has been already explained, one impor- 
 tant ground for the assumption of jurisdiction by courts of equity over 
 a great many causes of action, which otherwise would fall exclusively 
 within the jurisdiction of courts of common law origin. In this 
 connection, it must be observed that nothing will be said in refer- 
 ence to equity practice or pleading, simply the explanation given of 
 the remedial rights which parties are permitted, under the doctrines 
 of equity jurisprudence, to claim at the hands of courts of equity or of 
 courts having equity powers. The equity practice and pleadings do 
 not fall within the limitations of equity jurisprudence; and for that 
 reason no explanation of them will be attempted in this volume. 
 
 § 473. General classification. — Classification of the remedial rights 
 may vary according to the stand-point from which the writer views 
 them, either in relation to the limitation and inadequacy of the common 
 law procedure as a cause for the exercise by a court of equity of juris- 
 diction, in order to provide the needed remedy, or in the relation of 
 such remedy to the ultimate recovery or assertion of the complainant's 
 substantive rights. Inasmuch as in a previous connection the juris- 
 diction of a court of equity has been explained by a division of such 
 jurisdiction into exclusive, concurrent and auxiliary, the same division 
 will be employed in this connection, setting forth the equitable reme- 
 dies and remedial rights. 
 
 § 474. Equitable remedies acting in personam or in rem. — One 
 peculiarity of all equitable remedies, where they have not been modi- 
 fied by statute, is that the equitable decree consists invariably of an 
 order of the court directing that the parties, against whom the decree 
 had been rendered, shall or shall not do whatever is needed to be done 
 or to be refrained from doing, in order to carry out the judgment of 
 the court. Thus, for example, if the equitable suit was in relation to 
 rights of property, and the decree of the court is to the effect that the 
 
 543 
 
§ 474 EQUITY JUKISPEUDENCE. [CH. XXVI. 
 
 plaintiff in the suit is entitled to the property, of which the def endam 
 has had possession and whose technical legal title is in the defendant, 
 the decree of the court in that case would not be a declaration that the 
 subject-matter of the litigation belongs to the plaintiff in the action, 
 and that the title to it becomes vested in him by virtue of this decree; 
 but, instead of such a judgment, as would be obtained in the common 
 law action of replevin, the decree of the court of equity is that the 
 plaintiff is entitled to such property, and directs the defendant to make 
 the necessary transfer or conveyance in order that the claim of the 
 defendant to such property may be released. In other words, the 
 decree operates m personam, against the person of the defendant, and 
 not in rem against the subject-matter of the litigation. 
 
 If the defendant refuses to comply with the order of the court and 
 make the conveyance, or do whatever else is necessary to carry into 
 effect the decree of the court, under the original methods of equitable 
 proceeding, nothing could be done but to punish the defendant for 
 contempt of court in disobeying the order, and to keep him in jail until 
 he became more amenable to the order of the court. But in many of 
 our states, probably in the majority of them, statutes have been passed 
 providing that a decree of a court of equity, where the title to property 
 is the subject-matter of the suit, shall have the effect of transferring to 
 and vesting in the party, declared to be entitled thereto, the title of the 
 property in dispute. In some of the states the statute is positive in its 
 declaration that all equitable decrees shall have such effect, while in 
 others the courts are permitted to make their decree operate to transfer 
 the title of the property in dispute by a declaration to that effect in 
 the decree.^ These statutes, when enacted by the states, have only the 
 effect of controlling proceedings in equity, which are instituted in their 
 own courts. Inasmuch as the equity jurisdiction and the equity powers 
 of the United States courts are not controlled by state legislation, but 
 by acts of Congress, the fact that statutory changes in the character of 
 equitable remedies, as thus described, have been created in the particu- 
 lar states, will not control or affect the character of the equitable 
 remedy which is sought for in the United States courts, sitting in a 
 district or circuit within the state in which such legislation has been 
 enacted. The character of the equitable decree, and its effect in the 
 United States courts, under such circumstances, remains the same and 
 unaffected by the state legislation, though the property which consti- 
 tutes the subject-matter of the suit is situated within the state. ^ 
 
 iSuoh statutes are to be found In Alabama, Miss. 37; King v. BUI, 28 Conn. 593; Taylor «. 
 
 Arkansas, Connecticut. Delaware, Georgia, Boyd, SOblo, 337; Prlceii. Sisson, 2 Beaal. 168* 
 
 Illinois, Indiana, Iowa, Kansas, Kentucky, Griffltb u. Phillips, 3 Grant's Gas. 381; Young »!. 
 
 Louisiana, Maine, Maryland, Massachusetts, Frost, 1 Md. 377, 403; Eandall t). Pryor, 4 Ohio' 
 
 Michigan, Minnesota, Mississippi, Missouri, 424; Pennii. Hayward, 14 Ohio St.302; Battles."^ 
 
 Nebraska, New Hampshire, New Jeisey, New Bering, 7 Yerg. 529; Gitt v. Watson, 18 Mo. 274J. 
 
 York, North Carolina, Ohio, Oregon, Tennes- HoflEman r. Stigers, 28 Iowa,302. 
 
 see, Texas, Vermont, Virginia, West Virginia, 2 Watkins v. Holman, 16 Pet. 25, 26; Briggs 0. 
 
 and South Carolina. Shotwell ». Lawson, 30 French, 1 Sunm. 504; Lyman v Lyman 3 
 
 544 
 
CH. XXVI.] EXPLANATION CONCERNING EQUITABLE REMEDIES. § 475 
 
 § 475. Remedies in personam beyond territorial jurisdiction. 
 
 — ^Inasmuch as the equitable decree operates against the person of the 
 defendant, and not against the subject-matter of the suit, in order that 
 a court of equity may assume jurisdiction and render a decree between 
 the parties, it is not necessary, as a general rule, that the subject- 
 matter of the suit should be corporeally within the jurisdiction of the 
 court, provided the parties are in person within the jurisdiction, so 
 that they can be personally summoned to answer the complaint. Hence, 
 a court of equity is able to employ the remedies in personam against 
 the parties who are within its jurisdiction in respect to almost every 
 kind of sabject-matter or cause of dispute, wherever such subject-mat- 
 ter may be situated; as for example, a court of equity of England, 
 where the parties are within the jurisdiction of that court, may issue 
 its decree in personam for relief against fraud, or for the settlement of 
 a partnership, or for the action for specific perf ormance^ and the like, 
 though the subject-matter of such litigation may be situated in this 
 country. And the same rule has been applied to the United 
 States courts, in respect to the litigation arising in the different states, 
 and likewise to the ex-territorial jurisdiction of the state courts 
 of equity.^ Where, however, the statute is strictly local and 
 relates to specific property, and the necessary effect of the statute 
 is the determination of titles to lands, the disposition of the courts is 
 to deny or limit the ex-territorial jurisdiction, and to require the suit 
 to be maintained in the state in which the subject-matter of the suit 
 is located.^ In this connection, it must be borne in mind, that the 
 statutory changes, in the effect of equitable decrees, making them 
 remedies in reon instead of remedies in personam,, are not declared to 
 have the effect of taking away the power of a court of equity to issue 
 a decree in personmn, where that form of decree is necessary to the 
 assumption of jurisdiction. For example, the decree in rem, which is 
 permitted by a court of equity by state legislation, cannot be rendered 
 where the subject-matter of the suit is located beyond the jurisdiction 
 of the court; it can only be applied to those equitable suits, which are 
 
 Paine, 11, 13; Tardy v. Morgan, 3 McLean, 358; ton's Heirs v. Brents, 1 McLean, 167; Watts v. 
 
 Massie v. Watts, 6 Cranoh, 148; Shepherd v. Waddle,! M. 200; Tardy c. Morgan, 3 W. 358; 
 
 Ctomm'rB of Ross Co., 7 Ohio, 271. Moore v. Jeager, 2 McArthur, 465; Wood ». War- 
 
 iHawley II. James, 7 Paige, 213; Mead V. ner, 2 McCart. 81 ; Brown j). Desmond, 100 Mass. 
 
 Merritt, 2 IS. 402; Dickinson*. Hoomes' Adm'r, 267; Davis ». Parlcer, 14 Allen, 94; Penn «. Lord 
 
 8 Gratt. 353; Moor v. Hood, 9 Eich. Eq. 311; Baltimore, 1 Ves. Sen. 444; 2 Eq. Lead. Cas. 
 
 Eoss V. Southwestern R. R. Co., 53 Ga. 514; 1806 (4th Am. ed.); Caldwell v. Carrington's 
 
 Guild». Guild, 16 Ala. 121; Topp v. White, 12 Heirs, 9 Peters, 86; Watkins v. Holman, 16 Id. 
 
 Heisk. 165; Penn v. Hayward, 14 Ohio St. 302; 25; Massie v. Watts, 6 Cranoh, 148. 
 
 Henry v. Doctor, 9 Ohio, 49; Willis v. Cowper, 2 Miss. & Mo. R. E. v. Ward, 2 Black, 485; 
 
 2 Id. 124; Olney v. Eaton, 66 Mo. 563; Pingree North Ind. E. E. «. Mich. Cent. R. R., 15 How. 
 
 V. Cofan, 12 Gray, 288, 304; Gardner v. Ogden, (TJ. S.) 233; 5 McLean, 444; Massie v. Watts, 6 
 
 22 N. Y. 327, 332 339; Newton ». Bronson, 13 I(f. Crauch, 148. As to injunctions restraining 
 
 587; Bailey v. Ryder, 10 Id. 363; De Klyn v. threatened acts in other states, see West. 
 
 Watkins, 3 Sandf. Ch. 185; Cleyeland v. Bur- TJ. Tel. Co. v. West., &c. E. R., 8 Baxt. 54; At- 
 
 rill, 25 Barb. 532; Sutphen v. Powler, 9 Paige, lantic, &0. Tel. Co. v. Baltimore & Ohio R. E., 
 
 280; Briggs v. French, 1 Sumn. 504; Carring- 14 J. A S. 377. 
 
 545 
 
§ 475 EQUITY JURISPRUDENCE. [CH. XXVI. 
 
 brought for the settlement of the rights of the parties in property, 
 located -within the territorial jurisdiction of the court. Where a court 
 of equity is asked to assume jurisdiction over a cause of action, the 
 subject-matter of which is beyond its territorial jurisdiction, the only 
 kind of a decree which it can render in such a suit would be the decree 
 ■m personam; and it has been held that, notwithstanding this statutory 
 regulation of equitable remedies, a court of equity, in assuming 
 the jurisdiction over ex-territorial causes of action, may be able to 
 employ the ancient decree m persona/m, for the reason that the 
 statutory remedy m rem cannot apply. ^ 
 
 iHawley v. James, 1 Paige, 213 j Sutphen v. 12 Heisk. 165; Moore v. Jeager, 2 McArthur, 
 
 Powler, 9 Paige, 880 j Newton «. Bronson, 13 N. 465; Penn v. Lord Baltimore, 1 Ves Sen. 444; 
 
 Y. 587; Baileys. Eyder, 10 N. Y. 363; Gardner 2 Lead. Gas. in Bq. and notes thereto; Cald- 
 
 ®. Ogden, 82 N.Y. 338-339; Pingree ». Coffin, 18 well n. Carrington, 9 Peters, 86; Watkins ». 
 
 Gray, 304; Davis i;. Parker, 14 Allen, 94; Brown Holman, 16 Peters, 25; Mead v. Merritt, 2 
 
 ». Desmond, 100 Mass. 267; see Topps). White, Paige, 402. 
 
 546 
 
CHAPTER XXVII 
 
 INJUNCTION. 
 
 Section 
 Fundamental principle and general nat- 
 ure of iniunction 
 
 Kinds of injunctions.— Interlocutory, per- 
 petual, and mandatory .... 
 Injunction when resorted to fertile pro- 
 tection of equitable interests and in aid 
 of equitable remedies .... 
 Injunction to prevent violation of con- 
 tracts 
 
 Contracts for personal service . . . 483 
 Private rights protected by injunction. — 
 Miscellaneous cases 483 
 
 478 
 
 479 
 
 481 
 
 Section 
 
 Nuisances when restrained by injunction 484 
 
 Violation of easements enjoined 
 
 Injunctions for protection of patents, 
 copyrights, rights in literary property in 
 genera], trade-marks .... 
 
 Slander or libel ; wrongful use of names . 
 
 To restrain actions or judgments at law . 
 
 When jurisdiction is not exercised for re- 
 straining actions at law 
 
 When the jurisdiction may he exercised. 
 
 Equitable jurisdiction to restrain actions 
 at law under modern procedure 
 
 485 
 
 486 
 487 
 483 
 
 489 
 490 
 
 491 
 
 § 478. Fundamental principle and general nature of injunction. 
 
 — The purpose of an action for injunction, and the effect of the 
 injunction itself , is to prevent the occurrence of injury to the property 
 or the rights of another through some threatened wrongful act. The 
 injunction serves, therefore, as a preventive remedy, restraining the 
 commission of wrong, in contrast with the ordinary remedies resorted to 
 for the purpose of recovering damages for injuries already done, or 
 restoring one's rights, which have been taken away or violated by 
 others. In determining in what cases, the right to an injunction may 
 be asserted, the purpose of the injunction must be clearly kept in 
 mind. The court of equity wijl issue a decree of injunction for the 
 protection of any right, which might be threatened vnth violation, 
 as long as the remedies at law for the protection of the right are 
 shown to be incomplete and inadequate; on the other hand, if the 
 claim for damages which can be made good at law will be a complete 
 satisfaction for the injury occasioned by an actual commission of the 
 wrong, then a court of equity will refuse to grant the decree.* It is 
 
 1 Phillips V. Stone Mountain, 61 Ga. 386; Life 
 Ass'n of Am. v. Boogher, 3 Mo. App. 173j Davis 
 V. Am Soc, Ac, 6 Daly,81; 75 N. Y. 362; Cohen 
 V. Goldsboro, 77 N. C. 2; Jersey City v. Gardner, 
 33 N. J. Eq. 622; Powell v. Foster, 59 Ga. 790; 
 Johnson v. Conn. Bk., 21 Conn. 148, 157; Wat- 
 son V. Sutherland, 5 Wall. 74; see Atlantic, Ac. 
 Tel. Co. V Baltimore & O. E. E., 14 J. & S. 377; 
 West. U. Tel. Co. v. West., &c. E. E., 8 Baxt. 
 54; Parker v. Winniplseogee, &a. Co., 2 Black, 
 (U. S.) 545; Olmsted v. Loomis, 6 Barb. (N. Y.) 
 160; Piskw. Wilber, 7 Barb. (N. Y.)400; Gardner 
 V. Newburgh, 2 Johns. Ch. (N. Y.) 164; Ogden 
 V. Kip, 6 Johns. Ch. (N. Y.) 160; Jerome v. 
 Eoss, 7 Johns Ch. (N. Y.) 315; s. c, 11 Am. Deo. 
 485; Coe V. Lake Co., 37 N. H. 254; Burston v. 
 Augusta, 17 Me. 202; Goodrich v. Moore, 2 
 Minn. 61; s. o., 72 Am. Dec. 74; Hart v. Mar- 
 
 shall, 4 Minn. 296; Montgomery v. McEwen, 9 
 Minn. 108; Flnleyi). Thayer, 42 111. 350; Whit- 
 tlesey V. Hartford, Ac. E. Co., 23 Conn. 241; 
 Thlbodaux v. Wright, 3 La. Ann. 130; Laugh- 
 lin V. Lamas Co., 6 Ind. 223; Camp v. Mathe- 
 son, 30 Ga. 170; Arnold «. Klipper, 24 Mo. 273; 
 Winniplseogee Lake Co. v. Worster, 29 N. H. 
 (9 Post.) 433; Warne v. Morris, &c. Co., 5 N. J. 
 Eq. (1 Hals.) 410; Balcom v. Julien, 22 How. 
 (N. Y.) Pr. 349; Eogers v. Michigan, &c. E. Co., 
 28 Barb. (N. Y.) 539; Stevenson v. Fayer- 
 weather, 21 How. (N. Y.) Pr. 449; McCoy v. 
 United States Bank, 5 Ohio, 548; Wilkins v. 
 Hogue, 2 Jones (N. Car.) Eq. 479; Nioolson v. 
 Hancock, 4 Hen. & M. (Va.) 491; Borland v, 
 Thornton, 12 Cal. 440; Hulsei). Wright, Wright, 
 (Ohio,) 61. 
 
 547 
 
§ 479 EQUITY JURISPRUDENCE. [CH. XXVU. 
 
 also required, as a ground for claiming the right, to show reasonable 
 diligence in seeking the aid of equity. Any delay of an unreasonable 
 character in seeking the protection of an injunction, particularly 
 where in consequence of the delay the other party has incurred great 
 expenses, and made extensive outlays of capital, the court will refuse 
 to grant the injunction and will leave the parties to their actions at 
 law.^ And this required diligence must appear on the face of the 
 petition; if the bill or petition shows upon its face that there has been 
 an unreasonable delay, the court will dismiss the bill without any 
 inquiry into the cause at issue. ^ 
 
 § 479. Kinds of injunctions. — Interlocutory, perpetnal and 
 mandatory. — The remedy of injunction may be intended to serve as a 
 temporary, as well as a permanent protection against the commission of 
 a wrong. Where there is great danger of a continuance of the wrong, 
 a perpetual injunction against the further commission of the injury- 
 is generally asked for. The plaintiff's right to a perpetual injunction 
 will depend, as it will be explained more fully in other connections, 
 upon the certainty of his right to the subject-matter of the dispute, 
 and the absence of an adequate remedy at law for the purpose of pre- 
 venting irreparable injury to himself. It is not sufficient for the 
 plaintiff to show in his evidence that the defendant is about to commit 
 an injury against him, but this must appear upon the pleadings, and 
 he must show by his pleadings the necessity for the injunction to pro- 
 tect his rights. The burden of establishing a right to a perpetual 
 
 1 Gibson V. Moore, 22 Tex. 611 ; Fitehugh v. Iowa, 14; Paynter v. Eyans, 7 B. Mon. (Ky.) 420; 
 
 Orton, 12 Tex. 41; Musgrove v. Chambers, Todd j). Pisk, 14 La. An. 13; Williams©. Jones, 
 
 12 Tex. 32; Crawford v. Winfleld, 25 Tex. 414; 18 Miss. (10 Smed. & M.) 108j Semple v. Mc- 
 
 Kidwell V. Masterson, 3 Cranch (C S.) 0. Gatagan, 18 Miss. 98; Bninert). Planters' Bani, 
 
 C. 58; Wells «. Wall, 1 Greg. 895; Grey v. 83 Miss. 514; Shipp v. Wbeeless, 33 Miss. 646; 
 
 Ohio, &o. R. Co , 1 Gratt. Cas. (Pa.) 412; Pen- Jordan v. Thomas, 34 Miss. 7Sj Brandon »;. 
 
 sacola, &c. E. Co. v. Jackson, 21 Fla. 146; Green, 7 Humph. (Tenn.) 130; Champion u. 
 
 Logansport v. La Rose, 99 Ind. 117; Brown v. Miller, 2 Jones (N. Car.) Eq. 194; Vaughn o. 
 
 Merrick Co. Commrs., IS Neb. 355; Dierks v. Johnson, 9 N. J. Eq. (1 Stock.) 173; Schroepel 
 
 Martin, 16 Neb. 120; Atty.-Gen. v. Sheffield, 3 v. Shaw, 3 N. Y. 446; Sample v. Barnes, 14 How. 
 
 De G. M. & G. 304; Dulin v. Caldwell, 28 Ga. (U. S.) 70; Wynn v. Wilson, Hempst. (U. S.) 698; 
 
 117; Griffin v. Augusta, &o. E. Co., 70 Ga. 164; Parker v. Winnipiseogee, &c. Co., 2 Black, 
 
 Morris ». Edwards, 62 Tex. 205; Dana».Valen- CU. S.) 545; Burdens. Stein, 27 Ala. 104; Dibbla 
 
 tine, 5 Met. (Mass.) 8; Central E. Co. v. Stand- v. Trueloek, 12 Fla. 185; Tarver v. McKay, 15 
 
 ard Oil Co., 33 N. J. Eq. 127; United Co. v. Ga. 550; Water Co. v. Bucks, 5 Ga. 315; Rogers 
 
 standard Oil Co., 33 N. J. Eq., 123; Atty.-Gen. v. Kingsbury, 22 Ga. 60; Vaughn v. Puller 23 
 
 «!. trticalns. Co., 2 Johns. Ch. (N. Y.) 379; Van Ga.366; Cleckleyu.Beall, 37Ga. 583; Eamseyr. 
 
 Bergen «. Van Bergen, 3 Johns. Ch. (N. Y.) Perley, 34 111. 504; Titcomb «. Potter, 11 Me. (2 
 
 282; Reid «. Gifford, 6 Johns. Ch. (N. Y.) 19; Pairb.)218; Faulkner «. Campbell, Morr. (Iowa,) 
 
 Bradfleld B.Dewell, 48 Mich. 9; Hill ». Harris, 148. 
 
 51 Ga. 628; Fuller®. Melrose, 1 Allen, (Mass.) ^ Jones ». Bennett, 1 Bro. P. C. 528; Smith v. 
 166; Russ v. Wilson, 22 Me. 207; Blnney's Case, Whitmore, 1 H. & M. 576; Morris v. Edwards 
 2 Bland, (Md.) 99; Sedam o. Williams, 4 Mo- 62 Tex. 205; Nevins v. MoKee, 61 Tex. 412- 
 Lean, (0. S.) 51; Pillow v. Thompson, 20 Tex. Contretras v. Haynes, 61 Tex. 104; Johnson v. 
 206; CallawayB. Alexander, 8 Leigh, (Va.) 114; Templeton, 60 Tex. 238; Schleicher ». Mark- 
 Northern Pao. R. Co. V. St. Paul, &c. R. Co., 2 ward, 61 Tex. 102; Montgomery v. Carleton 56 
 McCrary, (U. S.) 260; Jones r. Cameron, 81 N. Tex. 361; Plummeri;. Power, 29 Tex. 14- Snow 
 Car. 154; American Dock and Imp. Co. a. v. Hawpe, 22 Tex. 168; Burnley v. Elce 81 
 School Trustees, 35 N. J. Eq. 181; Parker «). Tex. 171. ' 
 SplUin, 10 Phila. (Pa.) 8; Miller V. McGuire, ' Fort Clark Horse R. Co. «. Anderson, 108 111 
 Morr. (Iowa,) 160; Krieohbaum v. Bridges, 1 64; ». i;., 48Am. Eep. 545; Jefferson© Hamil- 
 
 548 
 
OH. XXVIl.J INJUNCTION. § 479 
 
 injunction rests always upon the party making the claim to such pro- 
 tection, and only when that claim is clearly established.^ It is also 
 necessary that the party to be enjoined shall have been made a party 
 to the suit.'' 
 
 Ordinarily, a court will grant an injunction against the acts of the 
 defendant, only when the plaintiff has completely proven his case and 
 the question of right of property, or otherwise, has been definitely 
 settled by the court, in favor of the plaintiff; and then the injunction 
 is made perpetual. But there are cases in which the danger. of irre- 
 parable injury is so great, that if the plaintiff were denied all protec- 
 tion against the wrongful acts of the defendant, until the case was 
 tried and the question of right definitely settled, the perpetual injunction 
 "would prove to be of very little value; or, at any rate, would not serve 
 as a complete protection against the wrongful acts of the defendant. 
 Where, therefore, the danger of irreparable injury pending the settle- 
 ment of the suit is very great and serious, the court will entertain a 
 prayer for what is called a preliminary or interlocutory injunction, 
 which provides for restraining the disputed or contested acts of the 
 defendant, until the suit for a perpetual injunction has been decided. 
 The court will grant this preliminary injunction, only when the plain- 
 tiff' makes out a very strong prima facie case of right against the 
 defendant.' But where the plaintiff's complaint or petition shows no 
 cause of action; * or where his right to the perpetual injunction is 
 doubtful on his prima facie presentation of the case, the preliminary 
 or interlocutory injunction will be refused; at least, that is the case 
 with respect to what are called special interlocutory injunctions. A 
 distinction is made by the courts between special and common inter- 
 locutory injunctions; the common interlocutory injunction being those 
 which are granted as a matter of course, and would generally include 
 preliminary injunctions, restraining the transfer of property or choses 
 in action, concerning whose title a dispute has arisen. But the special 
 preliminary interlocutory injimctions are those, in which the claim for 
 a preliminary injunction must be based upon the particular facts of 
 
 ton, 69Ga. 463; Stringhanuj.Brown, 7Iowa, 33; 3 Wallace ». MoVey, 6 Ind. 300; S. P. Real 
 
 Sloano. Boolbangh, 10 Iowa, 31; Waffenden®. Del Monte, Ac. Co. ». Pond, <&c. Co., 23 Cal. 
 
 Waffenden, 1 Ariz. 328; see Broadbentu. Im- 82; Flagg ». Sloan, 16 Ind. 432; see Androvette 
 
 perialGasCo., 7DeG. M. & G. 436; s. c, 3 Jur. «. Brown, 4 Abb. (N. Y.) Pr. 440; a. o., 15 How. 
 
 U. S. 221; 26 L. J. Ch. 276; Hunt 7). Peake, 1 (N. Y.) Pr. 75; Blakemore v- Glamorganshire, 
 
 Johns. 705. 1 My. & K. 154; Hioksi). Micha-'l, 15Cal. 107; 
 
 iSpangleri). Cleveland, 43 Ohio St. 526; Bo- Atty.-Gen. v. Paterson, 9 N. J. Bq. (1 Stock.) 
 
 napartej). Camden, &c. R. Co., 6 Baldw. (U. S.) 624; Ward v. Dewey, 7 How. Pr. (K. Y.) 17; 
 
 218; Whalen v. Dalashmutt, 59 Md. 250; Burn- Corning v. Troy, &c. Factory, 6 How. (N. Y.) 
 
 bam V. Kempton, 44 N. H. 78. Pr. 89; Zinsser v. Cooledge, 17 Fed. Rep. 538; 
 
 2 Chapman v. Harrison, 4 Rand. (Va.) 336; seeHamilton ». Eden Gold Mining Co., 75 Ga. 
 
 ■Orthv. Orth, (Mich.) 37 N. W. Rep. 67; Thorne 447; International Tooth Crown Co. v. Mills, 
 
 V. Sweeney, 13 Nev. 415; Champion ». Sessions, 22 Fed. Rep. 659; McHenryu. Jewett, 90N.Y.58. 
 
 SNev. 271;'Errissman«. F.rrissman, 25 111. 119; * Allen «. Meyer, 73 N. Y. 1; Wright jj.Brown, 
 
 Hornesbyc.Burdei:,9S. Car. 303; McLaughlin 67 N. Y.l; Collins v. Collins, 71 N. Y. 270; 
 
 V. Kelly, 22 Cal. 212; Ottawa v. Walker, 21 III. Paul v. Hunger, 47 N. Y. 469. 
 
 «10; Alsup V. Allen, 43 Tex. 
 
 549 
 
§4Y9 
 
 EQUITY JUKISPEUDENCE. 
 
 [CH. xxvn. 
 
 the case at bar, the danger of irreparable injury and a reasonable cer- 
 tainty of the right of the plaintiflE in the matter.^ 
 
 Originally, injunctions, whether preliminary or perpetual, were 
 employed for the purpose of restraining the doing of a wrongful act; 
 but, sometimes, in order to procure the end desired, it is necessary 
 for the court, not only to restrain the doing of a wrongful act, but also 
 to compel the removal of some obstruction or nuisance which had 
 already been erected or committed, and when the order of the court 
 takes that form, it is called a mandatory injunction, and is contrasted 
 with ordinary injunctions, which may be called proMMtive, in that 
 they operate as a prohibition of an act or of a series of acts, which 
 threaten the injury. These mandatory injunctions are granted only 
 in cases of extreme danger of irreparable injury, and where the legal 
 remedies are plainly inadequate.^ Where, however, other remedies, 
 whether legal or equitable, are adequate to the enforcement of an 
 obligation or the protection of one's rights, the mandatory injunction 
 will be denied.* As a general rule, a mandatory injunction will only 
 be granted as a perpetual injunction, after a final hearing of the case 
 in dispute; * but whenever it is plainly necessary to resort to the man- 
 
 iPurneU v. Daniel, 8 Ired. Eq. (N. Car.) 9; 
 Bradford v. Peokham, 9 R. I. 250; Woodworth 
 V. Eogers, 3 Woodb. & M. (U. S.) 135; Troy v. 
 Norment, 2 Jones (N. Car.) Eq. 318; Peterson 
 V. Matthis, SJones (N. Car.) Eq. 31; Chadwell 
 V. Jordan, 2 Tenn. Oh. 635; Patterson u. Gor- 
 don, 3 Tenn. Oh. 18; but see Anderson d. 
 Noble, 1 Drew. 143; Magnay v. Mines Eoyal 
 Co., 3 Drew. 130; Martins. Cook, 6 Jones (N. 
 Car.) Eq. 199; Murray v. Knapp, 62 Barb. (N. 
 Y.) 566; Woodworth v. Eogers, 3 Woodb. & M. 
 (U. S.) 135. 
 
 2 Lane v. Howard, Gary, 148; Ludlow v. Lan- 
 sing, Hopk. (N. Y.) 231; Wood v. Mason, 3 
 Sumn. (U. S.) 318; Kershaw v. Thompson, i 
 Johns. (N. Y.) Ch. 609; Eoberdeau v. Eous, 1 
 Atk. ; Gates v. Hembly, 2 Atk. 360; Penn ». 
 Lord Baltimore, 1 Ves. 444; Dove v. Dove, 3 
 Dick. 617; s. c, 1 Bro. 0. C. 375, 1 Cox, 101; 
 Stribley v. Hawkie, 3 Atk. 275; Shelton v. 
 Shelton, Poth. 115; Denio ». Carew, Poth. 75; 
 Blakemore v. Glamorganshire Canal, &c., 1 
 Myl. & K. 154; Spencer v. Birm. Ey. Co., 8 
 Sim. 193; Great North, &c. Ey. V. Clarence 
 Ey., 11 Coll. 507; Eankin v. Huskisson, 4 Dim. 
 13; Cole, &c. Co. v. Virginia, Ac. Co., 1 Sawy. 
 (U. S.) 470, 685; Eogers, &0. Works v. Erie E. 
 Co. , 20 N. J. Eq. 379 ; Longwood E. Co. ». Baker, 
 27N. J. Eq. 166; Comingr. Troy, &c. Factory, 
 40N. Y. 191; Guskin v. Balls, L. B. 13 Oh. Div. 
 324; Cook «. Chilcott, L. E. 3 Ch. Dlv. 694; 
 Krehl v . Burrell, L. E. 7 Ch . Div. 551 ; Manners 
 V. Johnson, L. E. 1 Ch. Div. 673; London, &o. 
 Co. V. Tenant, L. E. 9 Ch. App. 218; Goodson v. 
 Eichardson, L. E. 9 Ch. App. 221 ; Aub:im, &c. 
 Co. o. Douglass, 12 Barb. (N. Y.) 553; Penni- 
 man v. N. Y., Ac. Co., 13 How. Pr. N. Y. 40; 
 Green v. Green, 5 Hare, 400; Atty.-Gen. v. Met. 
 B. Of W., 1 Hen. &M. (Va.)298; Hepburn v. 
 
 550 
 
 Lordan, S Hen. & M. (Va.) 345; Mexborongh v. 
 Bower, 7 Beav. 127; Greatrex v. Greatrex, 1 De 
 G. & Sm. 692; Hervey ®. Smith, 1 K. & J. 389. 
 
 ' Pallon V. Eailroad Co., 1 Dill. (D. S.) 121; 
 South Wales E. W. Co. v. Wythes, 5 De G. M. 
 L. 880; Heathcote v. North Stafford E. Co., 20 L. 
 J.,N. 8., 83; see Danforth v. Philadelphia, &c. 
 E. Co., 30 N. J. (Stew.) Eq. 12; Wilkerson ».. 
 Clements, L. E. 8 Ch. App. 96; Beck i?. Allison, 
 56 N. Y. 367; Justices. Croft, 18 Ga. 473 ; Erlng- 
 ston V. Aynesley, 2 Bro. C. C. 341; People v. 
 Albany, &e . E. Co. , 24 N. Y. 267 ; Union Pac. E. 
 Co. B.Hall, 9117. S. 343; Blackett ». Bates, L. 
 E. 1 Ch. App. 117; Eoss v. Union Pac. E. Co., 
 Woolw. (U. S.) 26; Lucas ». Coinmerford, S 
 Bro.C. C. 166; Mastin v. Halley, 61 Mo. W6. 
 
 * Mammouth Vein, &c. Appeal, 54 Pa. St. 183; 
 Brown's Appeal, 62 Pa. St. 17; Andenreid v. 
 Phil., &c. E. Co., 68 Pa. St. 370, reversing s. o., 
 27 Leg. Int. (Pa.) 149; Lehigh Coal & Nav. Co. 
 V. Beaver Meadow E. Co., 7 Leg. & Ins. (Pa.) 
 325; Mocanaqua Coal Co. v. Northern Cent. E. 
 Co., 4 Brewst. (Pa.) 158; s. u., 9 Phila. (Pa.) 250; 
 Gale «. Abbott, 8 Jur., n. »., 987; Blakemore v. 
 Glamorganshire Canal Co., 1 Myl. tic K. 154; 
 Durrell v. Prltohard, L. E. 1 Ch. App. 244; Great 
 West. E. Co. V. Birmingham, &o. E. Co., 2 Ph. 
 597; Shrewsbury E. Co. v. Shrewsbury, &c. E. 
 Co., 1 Sim., N. s., 410; Washington University 
 V. Green, 1 Md. Ch. 97; Eogers, &o. Works v. 
 Erie E. Co., 5 C. E. Green, (N. J.) 379; Andenreid 
 V. Phil., &c. E. Co. 68 Pa. St. 370; compare 
 Beadel v. Perry, L. E. 3 Eq. 456; Durrell v. 
 Prltchard, 1 Ch. App. 244; Cole, &c. Co. v. Vir- 
 ginia, &c. Co., 1 Sawy. ([I. S.) 470; Baptist Con- 
 gregation u. Scanuell, 3 Grant's Cas. (Pa.) 48; 
 Frear t). Sasterlin, 6 Luz. L. Eeg. (Pa.) Ill; 
 Farmers' R. Co. v. Eeno, &c. E. Co., 53 Pa. St. 
 224. 
 
CH. XXVII.] INJUNCTION. § 480 
 
 datory injunction prior to the final settlement of the suit, then it 
 may be granted as an interlocutory iaj unction.' 
 
 § 480. Injunction when resorted to for the protection «f equi- 
 table interests and in aid of equitable remedies. — Where the estate 
 or interest which is threatened by a wrongful attack is of a purely 
 equitable character, inasmuch as such interest or estate can obtain no 
 recognition at all in a court of law, the common law action for the 
 redress of wrongs would have no application whatever; and hence, as 
 to such interests, the legal remedies would in every case be totally 
 inadequate; so that it may be laid down as a general proposition, to 
 whicl^there is no exception, that a court of equity will employ the 
 remedy of injunction whenever it deems it necessary for the protection 
 of an equitable interest, without taking notice at all of the question of 
 adequacy of the common law remedy. This is true, not only in 
 respect to eqmtable estates or interests which still remain exclusively 
 equitable in character, but likewise in respect to those equitable inter- 
 ests, such as the rights of assignees of choses in action, whose interests, 
 although originally equitable, have been recognized by courts of law 
 and are now, strictly legal rights, as well as equitable rights. Thus, 
 for example, equity will grant an injunction, to prevent the transfer 
 of negotiable instruments, in the interest of the defrauded maker or 
 acceptor, so that such instrument may not get into the hands of a iona 
 fide holder who could assert his right to enforce such instrument 
 against the original obligor.^ For the same purpose, a court of equity 
 enjoins a transfer of all sorts of choses in action, although not strictly 
 negotiable, such as stocks, bills of lading, and the hke.' The court 
 will very readily grant the injunction in order to restrain any breach of 
 trust on the part of a trustee, and enjoin such trustee from doing any 
 act which would be injurious to the trust estate; the injunction is 
 the only eflfective remedy in the enforcement of trusts, and in compel- 
 ling the trustee to discharge his duty as such.* The injunction has 
 
 1 Robinson v . Byron, 1 Bro. (C. C.) 588 ; Hervey 3 De G. & J. 294 ; Osborn ». TJ. S . Bk . , 9 Whfeat. 
 
 V. Smith, 1 Kay & J. 392; Bispham's Prin. of 738, 844, 845; Hile v. Davison, 20 N. J. Eq. 228; 
 
 Eq., § 400. Elder First Nat. Bk., 12 Kans. 238. 
 
 "Osbom V. TT.JS. Bk.,9 Wheat. 738, 845; Dea- * Morrison v. Moat, 9 Hare, 241; Peabody D. 
 dericko. Mitchell, 6 Baxt. 35; Bridges r.Eobin- Norfolk, 98 Mass. 452; Dancer. Goldingham, 
 son, 2 Tenn. Ch. 720; Belohradsky v. Kuhn, 69 L. R. 8 Ch. 902; Brenan v. Prestan, 2 De G. M. 
 111. 547; Thiedemann v. Goldschmidt, 1 De G. & G. 813; North Car. R. R. «. Drew, 3 Woods, 
 F. & J. 4, 10; FeiKUSon v. Fisk, 28 Conn. 501; 674; People v. Clark, 70 N. Y. 518; Menard ». 
 Hile V. Davison, 20 N. J. Eq. 238; Metler's Hood, 68 111. 121; Owen v. Ford, 49 Mo. 438; 
 Adm'rsp. Metier, 18 7d.270; 19 Id. 457; Zelgler Chesapeake, &c. R. Co. v. Patton, 5 W. Va. 
 ». Beasley, 44 Ga. 56; Hinkle v. Margerum, 50 2.34; Joseph v. McGill, 52 Iowa, 127; French 
 Ind. 210; Hood». Aston, 1 Euss. 412; Thur- v. Snell, 29 N. J. Eq. 95; Vogler V. Mont- 
 man V. Burt, 53 HI. 129; James v. Roberts, 18 gomery, 54 Mo. 577; Venable a. Everett, 63 
 Ohio, 548; CowleSB. Eagnet, 14 0hio, 38; Woos- Ga. 633; Sierra Nevada, &c. Co. V. Sears, 10 
 ter V. Eaton, 11 Mass. 375; Roll v. Eagent, 4 Nev. 346; Great W. E. Co. v. Birmlng- 
 Ohio,419; Sackettc. Hillhouse, 5 Day, (Conn.) ham Co., 2 Ph. 597; Cuttis v. Buckingham, 3 
 451- Eembert v. Brown, 17 Ala. 667; Robinson V. & B. 168; Spiller v. Spiller, 3 Swanst. 556; 
 V. Jefferson, 1 Del. Ch. 344. Wlnslow v. Wood, 70 N. Car. 430; Lee v. 
 
 3 King's. King, 6 Ves. 172; Lords. Chedworth Pearce, 68 N. Car. 76; Harris v. Carstarphen, 
 
 •S. Edwards, 8 Id. 46; Stead v. Clay, 1 Sim. 294; 69 N. C. 416; Craycroft v. Moorehead,67N. Gar. 
 
 4 Euss. 550; Athenaeum Life Ass. Co. J). Pooley, 423; Ponton v. McAdoo, 71 N. Oar. 101; Mo- 
 
 551 
 
§ 481 EQUITY JURISPEUDENCE [CH. XXTIL 
 
 also been used to restrain a life-tenant from making use of a tax title, 
 which he had purchased.* It may be stated, generally, that a court of 
 equity will employ the remedy of injunction in suits for the enforce- 
 ment of some equitable right or trust or lien, or to compel the specific 
 performance of a contract, where such injunction is heeded to prevent 
 the transfer of the subject-matter of the litigation to other parties, 
 and thus take such subject-matter beyond the power of disposition of 
 the court. ^ - 
 
 § 481. Injunction to prevent violation of contracts. — Where a 
 contract has been broken, it is presumed that a common law remedy 
 for damages is a satisfactory and adequate remedy; and where that is 
 not the case and the contract calls for the doing of an affirmative act, 
 the proper remedy in equity would be an action for the specific per- 
 formance of the contract. But where the contract creates a negative 
 obligation, as where the obligor agrees not to do something, if the 
 common law remedy proves inadequate, a decree of the court of equity, 
 which would aim to accomplish a specific performance of the contract, 
 .would necessarily take the form of an injunction against the doing of 
 those things which the obligor has agreed not to do; so that it may be 
 stated as a general proposition, that in all cases where the contract creates 
 a negative obligation, that is, an obligation to refrain from doing some- 
 thing, a court of equity will enjoin the doing of the prohibited thing, 
 whenever the court of equity would under similar circumstances grant 
 a decree for specific performance of a contract, which calls for the 
 doing of an affirmative act.' Thus, for example, covenants in deeds, 
 leases, and agreements, which restrain or limit the use to which lands 
 may be put, and particularly where this restrictive covenant is 
 imposed upon two or more adjoining lots, a court will enjoin the vio- 
 lation of the covenant and the consequent breach of the equitable ease- 
 ment which arises under such circumstances, not only at the instance 
 of the original covenant, but likewise at the instance of subsequent. 
 
 Corkle ». Brem, 76 N. Car. 407; , Peebles -v. (N. T.) 285; Palmer v. Harris, 60 Pa. St. 156; 
 
 Davie Co. Cominrs., 88 N. Car. 385; Williams «. Connell i). Eeed, 188 Mass. 477; Dunlop ». 
 
 Wadsworth, 51 Conn. 877. Gregory, 10 N. T. 241 ; Guerand u. Bandelet, 32 
 
 1 Phelan v. Boylan, 25 Wis. 679. Md. 561 ; Popes ». Upton, 185 Mass. 858; Carroll 
 
 2 Eobinson v. Pickering, L. E. 16 Ch. D. 371, v. Hiokey, 10 Phila. (Pa.) 308 ; Grow v. Seligman, 
 660; VenaWeii. Everett, 63 Ga. 633; Sierra Nev. 47 Mich. 607; s. c, 41 Am. Eep. 737; Eichardson 
 Min. Co. 11. Sears, 10 Nev. 346; Vogler v. Mont- v. Peacock, 26 N. J. Eq. 40; Maxwell ». Bast 
 gomery, 54 Mo. 577; Vavasseur^. Krupp, L. R. River Bank, 3 Bosw. (N. Y.) 184; Spier v. 
 9 Ch. D. 351; Building Assn. v. Ashmead, 7 Lambdin, 45 Ga. 319; Peabody v. Norfolk, 98 
 Phila. 872; Joseph v. MoGill, 53 Iowa, 127; Mass. 458; Hubbard v. Miller, 27 Mich. 15; 
 French v. Snell, 29 N. J. Eq. 95; Lemprlere v. Webber v. Gage, 39 N. H. 182; Ooe «. Lake Co., 
 Lange, L. E. 12 Ch. D. 675. 37 N. H. 854; Burnham v. Kempton, 44 N. H. 
 
 s Singer Mfg. Co. v. Union, &c. Co., 6 Ksh. 78; Lake Co. «. Worster, 29 N. H. 433; Jordan «. 
 
 Pat. C. (U. S.) 480; Morris Canal Co. «. The So- Woodward, 38 Me. 433; Morse v. Machias 
 
 clety, 5N. J. Eq. (1 Hals.) 203; Western Union Water Power Co., 42 Me. 119; Niagara Falls, 
 
 Tel. Co. V. Philadelphia, &o. E. Co., 9 Phila. &c. Co. v. Great Western R. Co., 39 Barb. (N. 
 
 (Pa.)494; Wason B.Sanborn, 45 N. H. 169; Jor- Y.) 212; Brown's Appeal, 62 Pa. St. 17; Elder©, 
 
 dan 0. Woodward, 38 Me. 423; Burnham ». Shaw, 12 Nev. 78; Florence Sewing Machine Co. 
 
 Kempton, 44 N. H. 78; Webber «. Gage, 39 N. v. Singer Mfg. Co., 8 Blatchf. (U. S.) 113; Col- 
 
 H. 182; Pusey II. Wright, 31 Pa. St. 387; Wolfe lins u. Plumb, 16 Ves. 454. 
 ». Burke, 56 N. Y. 115; Taylor v. Gillies, 5 Daly, 
 
 552 
 
OH. XXVII.] INJUNCTION. § 481 
 
 purchasers of these several adjoining lots, all of which are subject to 
 the restraining covenant. In this case, of course, the equitable ease- 
 _ ment furnishes the ground for an interference of the court of equity, 
 where the claim for protection is made by the subsequent purchaser 
 of the several lots in question, but the original covenantee can like- 
 wise claim the protection of the remedy of injunction, on the ground 
 that the common law remedy for the breach of this contract would 
 not prove adequate.' Although the court of equity never enforces a 
 forfeiture of property or of interests on account of the breach of some 
 condition annexed thereto, leaving the parties to their remedies at law 
 for the enforcement of the condition or of the forfeiture resulting 
 from the breach; yet, if it can be shown in any case, that the interest 
 of one of the parties can only be adequately protected by an injunction 
 against the breach of the condition, the court of equity may and will 
 enjoin such a breach of the condition.^ 
 
 Very many examples may be given, which illustrate the employ- 
 ment of the injunction for the purpose of restraining the violation of 
 contracts. A few are found to be contracts, in which the stipulations 
 are negative in form and in fact, and correspond in character to the 
 class of contracts which would be specifically enforced by a court of 
 equity, if the stipulation had been of an affirmative character. The 
 inadequacy of the legal remedy being established, the court readily 
 grants this decree of specific performance; thus, for example, aU 
 agreements not to carry on a particular trade if they are valid. 
 Where this asreement is of a more or less limited character, a court 
 will enjoin its violation.^ So, also, will an illegal combination in 
 restraint of trade be enjoined.* Injunctions have also been issued for 
 
 'NiagaraBridgeCo.u. Great Western E. Co., 308; Baumgarten ». Broadway, 77 N. Car. 8; 
 
 39 Barb. (N. Y.) 212; Dodge v. Lambert, 2 Bosw. see Bergei v. Armstrong, 41 Iowa, 447j Sploer 
 (N. Y.) 570; Steward v. Winters, 4 Sand. (N. Y.) -ji. Hoop, 51 Ind. 365; Habn v. Concordia Sooi- 
 Ch. 587; Howard v. Ellis, 4 Sandf. (N. Y.) Cb ety, 42 Md.460; Harkinson's App., 78 Pa. St. 
 369; Trenor v. Jackson, 46 How. Pr. (N. Y.) 389; 196; Smalley v. Greene, 52 Iowa, 243; Hedge i;. 
 s. c, 15 Abb. Pr. (N. Y.) 115; Gawtry v. Leland, Lowe, 47 Iowa, 137; McClurg's App., 58 Pa. St. 
 
 40 N. J. Eq. 323; Steward v. Winters, 4 Sandf. 61 ; Palmer v. Graham, 1 Pars. (Pa.) 476; Eeece 
 <N. Y.) Ch. 587; Pugh v. Jayne, 17 Leg. Int. ». Hendricks, 1 Leg. Gaz. (Pa.) 79; Jenkins v 
 <Pa.) 149; Pope v. Bell, 35 N. J. Bq. 1; per Sir Temples, 39 Ga. 655; Cbappel o. Broekway, 21 
 Geo. Jessel, M. E., in Leecb v. Sobweder, L. E. Wend. (N. Y.) 157; Wolfe ». Burke, 56 N. Y, 
 9 Cb. 465 n; Tripping v. Eckersley, 2 K. & J. 115; Taylors. Gillies, 5 Daly, (N. Y.) 885; Pal- 
 264,270,273. meri). Harris, 60 Pa. St. 156; Meriden Co. »i 
 
 2 Tallmadge ». Bast Eirer Bank,'2 Duer, (N. Parker, 39 Conn. 450; Connell v. Heed, 128 
 Y.)614; Watrous o. Allen, 57 Micb. 362; Tulk Mass. 477; Baker v. Pottmeyer, 75 Ind. 451; 
 •». Moxhay, 2 PblU. (N. Car.) 774; Mann v. Ste- BergerJ). Armstrong, 41 Iowa, 447; Caswell v. 
 p'bens, 15 Sim. 377; Hill v. Miller, 3 Paige, (N. Gibbs, 33 Mich. 331; Doty v. Martin, 32 Id. 462; 
 Y.) 354; Barron v. Eichard, 8 Paige, (N. Y.)354; Butler v. Burleson, 16 Vt. 176. Not to build, 
 Brouwer v. Jones, 23 Barb. (N. Y.) 153; Linzee &c., Eankin v. Huskisson, 4 Sim. 13; Lloyd v. 
 «. Mixer, 101 Mass. 512; Gilbert v.Peteler, 38 N. London, Ac. Ey., 2De G. J. & S. 568; Bowes «. 
 T.165; AtlanticDockCo.'B.Leavitt,54N.Y.35. Law, L. E. 9 Eq. 636; St. Andrew's Church's 
 
 3 Diamond Match Co. v. Eoeber,35 Hun, (N. Appeal, 67 Pa. St. 512; Cobbs V. Niblo, 6 Dl. 
 T.) 421 ; Thayer v. Younge, 86 Ind. 259 ; Eckart App. 60; Eopes v. Upton, 125 Mass. 258 ; McNutt 
 r. Garlach, 12 Phlla. (Pa.) 530; Gompers V. v. McEwen, 10 Phila. 112; Carroll v. Hickes, 10 
 Eochester,56Pa. St. 194; Guerand o. Dandelet, Id. 308; Harkinson's Appeal, 78 Pa. St. 196; 
 32Md.661; a. c, 3 Am. Eep. 164; Dunlop «. Eiohardsono.Peacock,28N. J.Bq. 151; 26iS.40. 
 Gregory, 10 N. Y. 241; Eopes «. Upton, 125 * Stanton i). Allen, 5 Den. (N. Y.) 434; Hiltou 
 Mass 258; Carroll k. Hickey, 10 Phila. (Pa.) i,. Eckersley, 32Eng. L. & Eq. 198. 
 
 553 
 
§ 482 EQUITY JXJRISPBUDENCE. [CH. XXVH. 
 
 the purpose ot preventing the violation of the agreements by raikoad 
 companies not to run trains past a certain station without stopping, 
 agreements not to ring a certain bell,^ or by an author not to write 
 or publish a competitive book.* Contracts and agreements not to 
 disclose confidential communications,* and other agreements of the 
 same kind may be cited, where injunctions are issued for the purpose 
 of restraining the violation of contracts of a negative character.' Not 
 only will injunctions be issued for the purpose of restraining the vio- 
 lation of contracts, which are negative in form, but the same remedy 
 will be employed where the obligation, although having an affirmative 
 form, yet likewise is really negative; as, for example, where hus- 
 band and wife have upon separation agreed that the children should 
 spend part of each year with each of them, a court of equity will 
 enjoin one or the other of the parties against interfering with the per- 
 formance of the contract by restraining the action of the children.' 
 
 § 482. Contracts for personal service. — One of the propositions, 
 upon which the doctrine of specific performance rests, is that a court 
 of equity will never decree the specific performance of a contract, 
 where it is impossible, for the court to secure such performance; and 
 this rule has been applied to all contracts which call for the personal 
 service of the obligor, in the performance of which a personal skill is 
 required. Courts of equity invariably refuse to grant a decree for 
 the specific performance of such contracts; for example, the contract 
 of a singer, or actor, or an author to write a book, and the like. And 
 according to the early cases in England, the court of equity would 
 refuse to entertain a bill for redress of any sort, in the case of a 
 threatened breach of such a contract.' But the later English authori- 
 ties have recognized the power of the court of equity to enjoin an obli- 
 gor of such a contract from doing anything in the way of rendition of 
 similar service to others, which would interfere with the performance 
 of the violated contract. While a court of equity cannot affirmatively 
 compel a singer or actor to perform a contract to act or sing, it can 
 prevent such actor or singer from making an engagement of a similar 
 sort with someone else, and thus negatively secure a specific perform- 
 
 1 Hood ». North East. Ry., L. E. 8 Eq. 666; Taylor, 3 De G. P. & J. 467j Nicholson i>. Rose, 
 5Ch. 525; Phillips ». Great West. Ry., L. E. 7 4 De G. & J. 10; Shrewsbury, &o. Ey. -u. Lon- 
 Ch. 409; Rigby ». Great West. Ry.,2Ph. 44. don, &e. Ry., 3 Maon. &, G. 70; Wagner v. 
 
 2 Martin v. Nulkin, 2 P. Wms. 866. Meety, 69 Mo. 150; Hall v. Wesster, 7 Mo. App. 
 'Barfleldi;. Nicholson, 2 S. & S. 1; Morris u. 66; Gold, &c. Tel. Co. v. Todd, 17 Hun, 648j 
 
 Colman, 18 Ves. 4S1. Gillis v. Hall, 2 Brews. 342; Beokwith v. How- 
 
 * Complainant In Peabody».Nor£olk,98 Mass. ard, 6R. I. 1; Manhattan, &c. Co. v. Van Keu- 
 
 452; Cholmondeley v. Clinton, 19 Ves. 261; ren, 23 N. J. Eq. 251; Haskell «. Wright, Id. 
 
 Morrison v. Moat, 9 Hare 255; Evittc. Price, 1 389; Parker o. Garrison, 61 111. 250; Frank V. 
 
 Sim. 483; Williams v. Williams, 3 Mer. 159; Bry- Brunnemann, 8 W. Va. 462. 
 
 son V. Whitehead, 1 Sim. & Stu. 74; Benwell v. » In Hamilton v. Hector, L. E. 6 Ch. 701; see, 
 
 Inus, 24 Beav. 307; Viokery v. Welch, 19 Pick. also, Drury i>. Molin8,6Ves.328; Prattv. Brett, 
 
 (Mass.) 523; Salomon II. Hertz, 40 N.J. Eq. 400; 2 Madd. 62; Briggs v. Law, 4 Johns. Ch. 22; 
 
 Jarvis v. Peck, 10 Paige, (N. J.) 118; Taunton Marvine v. Drexle's Ex'rs, 68 Pa. St. 362. 
 
 Mfg. Co. 1,. Cook, Boston L. Rep. 547. ' Kemble v. Kean, 6 Sim. 333 ; Kimberley ». 
 
 'Peck V. Matthews, L. R. 3 Eq. 515; Dyke ». Jennings, 6 Id. 340. 
 
 554 
 
CH. XXVII. J 
 
 INJUNCTION. 
 
 § 48a 
 
 ance of the contract. In America, the later English doctrine has 
 been adopted by some of the courts.'' But the older English doctrine 
 is still recognized by a large number of American cases; or if it has 
 been rejected at all by them, only to a j)artial extent.' 
 
 § 483. PriTate rights protected by injunction. — Miscellaneous 
 cases. — As a general rule, it has been held that a court of equity 
 will enjoin injuries to private rights of all sorts and of every char- 
 acter, whenever the common law remedy of damages for the violation 
 of such rights proves inadequate. A court of equity will enjoin the 
 violation of a right, whether it be legal or equitable, provided the 
 legal remedies can only furnish an inadequate protection. Thus, 
 for example, a corporation may be enjoined from doing acts or 
 making use of the corporate property, which would be ultra vires.*' 
 So, also, may a court of equity restrain by injunction any unlawful 
 act of a director or a managing officer of a corporation. ° So, on the 
 
 1 Jennings v. Brighton, <&c. Bd., 4 De G. J. &. 
 
 5. 735; Johnson v. Shrewsbury, &c. Ky., 3 De 
 
 6. M. <fc G. 914; Stocker v. Brockelbank, 3 
 Macn. <fe G. 250; Wolverhampton, &e. Ry. v. 
 London, &c. Ey., L. E. 16 Eq. 433; Donnell v. 
 Bennett, L. E. 23 Oh. D. 835; Lumley v. Wag- 
 ner, 1 De G. M. & G. 604; Montague v. Flock- 
 ton, L. E. 16 Eq. 189. 
 
 2 West. tr. Tel. Co. v. Union Pac. Ey., 1 Mo- 
 Crary, 558; West. U. Tel. Co. v. St. Joe, &c. Ey., 
 
 I Id. 565; Singer, &c. Co. v. Union, &c. Co.. 1 
 Holmes, 253; Hamblin v. Dinneford, 2 Edw. 
 Ch. (N. Y.) 529; Sanqulrico v. Benedetti, 1 
 Barb. (N. T.) 315; Daly v. Smith, 38 N. Y. Sup. 
 Ct. 158; McCaull v. Brahan, 16 Fed. Eep. 37; 
 see De Pol v. Sohlke, 7 Eobt. (N. Y.) 280; Alle- 
 ghany Base Ball Club v. Bennett, 14 Fed. Eep. 
 257 ; Healy v. Allen, 38 La. An. 867; Caldwell v. 
 Cline, 8 Mart., if. s., (La.) 684; Hayes v. Willis, 
 
 II Abb. Pr., K. s., (N. Y.) 167; Predricks «. 
 Mayer, 13 How. Pr. (N. Y.) 566; Daly v. Smith, 
 49 How. Pr. (N. Y.) 150; see, also, Hahn v. Con- 
 cordia Soc., 42 Md. 460; Burton v. Marshall, 4 
 Gill, (Md.) 487. 
 
 'See Sanquirico »^ Benedetti, 1 Barb. 315; 
 Bk. of Gal. V. Fresno, &c. Co., 53 Cal. 201; West. 
 U. Tel. Co. V. West., &c. E. E., 8 Baxt. 54; 
 Cratchfield v. Wason Car Works, 8 Id. Z4Z; 
 Smith V. McElwain, 57 Ga. 247; Hahn v. Con- 
 cordia Soc, 42 Md. 460; Manhattan Man., &c. 
 Co. V. N. J. Stock Yard, &c. Co., 22 N. J. Eq. 
 161; Gallagher v. Fayette Co. E. E., 38 Pa. St. 
 102. 
 
 * Lord Aukland «. Westminster Bd., L. E. 7 
 Ch. 597; Metts v. Northern Ry., L. E. 5 Ch. 621; 
 Pudsey Gas Co. v. Corpor. of Bradford, L. E. 
 15 Eq. 167; Pickering ». Stephenson, L. E. 14 
 Bq. 323; Kernaghan v. Williams, L. E. 6 Eq. 
 228; London, &c. Ey. v. London Ey., 4 De G. & 
 J. 363; Ware ». Eegent's Canal Co., 3 Id. 213; 
 Rogers V. Oxford, &o. Ey., 2 Id. 663; Hodgson v. 
 Earl of Powis, 1 De G. M. & G. 6; Cohen u. 
 Wilkinson 1 Macn. & G. 481; PlattevUle v. 
 Galena, &C.R.R. 43 Wis. 493; Central E. Co v. 
 
 Collins, 40 Ga. 682; Kent v. Quicksilver Min- 
 ing Co., 78 N. Y. 159; s. u., 12 Hun, (N. Y.) 53; 
 17 Hun, (N.Y.) 169; Bronson v. Lacrosse, &0.R. 
 Co., 2 Wall. (U. S.) 302; Dodge v. Woolsey, 18 
 How. (U. S.) 331 ; Chetlain v. Eep. Life Ins. Co., 
 86111.220: Faulds «. Yates, 57 111. 416; Terwll- 
 lingeri). Great Western, &c.Co., 59 111. 249; Kelly 
 II. Maripose, &c. Co., 14 Hun, (N. Y.) 632; Un- 
 derwood J). New York, &o. E. Co., 17 How. (N. 
 Y.) Pr. 537; Hazard u. Durant, U E. I. 195; 
 March v. East E. Co., 40 N. H. 567; s. c, 43 N. 
 H. 515; Sears «. Hotchkiss, 35 Conn. 175; Pratt 
 II. Pratt, 33 Conn. 446; Kean v. Johnson, 1 
 Stock. (N. J.) 401 ; Lauman ». Lebanon Valley 
 E. Co., 30 Pa. St. 46j Taylor ». Miami Exp. Co., 
 5 Ohio, 162; Tippecanoe Co. v. Lafayette, &c. R. 
 Co., 50Ind. 86; Rogers v. Lafayette, &c. Works, 
 52 Ind. 297; Stewart v. Erie, &c. Transp. Co., 17 
 Minn. 373; Brewer v. Boston Theatre Co., 104 
 Mass. 378. 
 
 s Frostburg Building Ass'n v. Stark, 47 Md. 
 338; Mozley v. Alston, 1 Ph. 798; Simpsonii. 
 Westminster P. H. Co., 8 H. L. 717; Stewart v. 
 Erie, &c. Transp. Co., 17 Minn. 372; GiSfordii. 
 N. J.,&o. Co., 3 Stock. (N. J.) 121; Uummeru. 
 Chippenham, 14 Ves. 245; Wisuree v. First 
 Congregational Church, 14 Ohio St. 31; Atly.- 
 Gen. ■0. Mayor,lBligh, N. s., 321; James, <fce. Co. 
 V. Anderson, 13 Leigh, (Va.) 278; Gartside v. 
 East St. Louis, 43 111. 47 ; Ware v. Regents, &a. 
 Co., 3De Gex, 212; Hawes v. Oakland, 14 Otto, 
 N. 8., 450; Colman v. Eastern Counties R. Co., 
 10 Beav. 1 ; Atty.-Gen. v. Great N. R. Co., 1 Dr. 
 ASm. 154;Bagshaw ©.Eastern E. Co., 7 Hare, 
 114; Sears v. Hotchkiss, 35 Conn. 171; Mander- 
 son V. Commercial Bank, 38 Pa. St. 379; Kean 
 V. Johnson, 1 Stock. (N. J.) 401 ; Central E. Co. 
 V. Collins, 40 Ga. 582; Eraser v. Whalley, 2 Hem. 
 10; Stewart v. Little M. E. Co., 14 Ohio, 353; 
 HillB. Parrlsh. 14 N. J. Eq. 380; Thompson!;. 
 Tammany Soc, 17 Hun, (N. Y.) 305; Webb ». 
 Eidgely, 38Md. 364; Brown ti, Pac, <S;c. Co.,5 
 Blatch. (U. S.) 535; Reed v. Jones, 6 Wis. 680 j 
 Cannon v. Trask, L, E. 30 Eq. 669; Dowllng v. 
 
 555 
 
§483 
 
 EQUITY JUKISPKUDENCE. 
 
 [CH. XXVII. 
 
 other hand, may the minority of a religious corporation be restrained 
 from interfering with the control of the majority.^ And the injunc- 
 tion may issue to restrain the expulsion of a member from a club or 
 society.^ As a general rule, an injunction is not a proper remedy 
 for determining the right of one to act as an oflGicer of a corporation, 
 the writ of quo warranto is the usual remedy in such cases. But if 
 the character of the duties of the office renders it possible that great 
 danger might result to the corporation or to the stockholders, if a 
 claimant to the office were permitted to perform the duties of such 
 office, until his title to the office could be determined by a writ of quo 
 warrwnto, then a preliminary injunction could be granted against the 
 performance of the duties of the office, until his title thereto has been 
 definitely settled.' An injunction can also be properly employed in 
 preventing the doing of acts by a mortgagor or mortgagee in respect 
 to the subject-matter of the mortgage; as, for example, to restrain a 
 mortgagee from making an improper sale of the property under the 
 power of sale,* or a mortgagor from doing anything with the prop- 
 erty, whereby the security would be imperiled, whether the act con- 
 stituted waste or not.^ So, also, may a court restrain the sale of 
 property under an illegal tax.* But illegal taxation will never be 
 restrained by injunction, unless some special reason is shown for 
 equitable interference; in other words, only when the remedy at law 
 proves to be inadequate.' But a court wUl enjoin the collection of an 
 
 Poiitypool,&o.Ry.,L.R. 18 Eq. 714; Featherstone 
 V. Cooke, L. R. 16 Eq. 898; Mair v. Himalaya 
 Tea Co., L. R. 1 Eq. 411; Carlisle v. South East. 
 Ey. , 1 Macn. & G. 689; Pond v. Vt. Valley K. 
 E., 12 Blatoh. 280. 
 
 J Cooper V. Gordon, L. E. 8 Eq. 249; Perry t). 
 Shlpway, 4 De G. * J. 353. 
 
 2 Lowry V. Read, 3 Brews. 452; Gregg v. Mass. 
 Med. Soc, 111 Mass. 185; Fisheri). Bd. o£ Trade, 
 80 111. 85; Fisher v. Keane, L. E., 11 Ch. D. 353; 
 LabouGhere v. Earl of Wharncllflfe, L. R., 13 
 Ch. D. 346. 
 
 ' See Aslatt v. Corpor. of Southampton, L. 
 E. 16 Ch. D. 143; Hussey v. Gallagher, 61 Ga. 86. 
 
 •'Capehart «. Briggs, 77 N. C. 261; Purnell v. 
 Vaughan, Jd. 268; Haggerson v. Phillips, 37 
 Wis. 364; Collins ti. Lamport, 4 De G. J. & S. 
 SOO. 
 
 sBagnall*. Villar, L. R. 12 Ch. D. 812; Warner 
 •». Jacob, L. R. 20 Ch. D. 830; Truman v. Red- 
 grave, L. R. 18 Ch. I). 547; Mut. Life Ins. Co. v. 
 Bigler, 79 N. Y. 568; Taylor v. Collins, 51 Wis. 
 123; Walker v. Brewster, L. R. 5Eq. Cas. 85; 
 Herzti. Bank, 2 Giff. 686; Rochester «. Curtiss, 
 1 Clarke, (N. T.) 336; Harrison v. Newton, 9 N 
 Y. Leg. Obs. 311; s. c, 1 CodeR., u. s., (N. T.) 
 807; Frankford v. Leuuing, 2 Phila. (Pa.) 403; 
 8. c, 1 Am. L. Rep. 357; Hough v. Doylestown, 
 4 Brewst. (Pa.) 333; Bunnell's Appeal, 69 Pa. 
 St. 59; Hieskell v. Gross, 3 Brewst. (Pa.) 430; 
 a. c, 7 Phila. (Pa.) 317; Philadelphia's Appeal, 
 78 Pa. St. 33; s. c, Phila. (Pa.) 499. 
 
 «Kean v. Asch, 27 N. J. Eq. 57; Oliver v. 
 
 556 
 
 Memphis, Ac. E. E., 30 Ark. 188; Deming v. 
 James, 72 111. 78; Abbott v. Edgerton. 53 Ind. 
 196; Trowbridge v. Horan, 78 N. Y. 439. 
 
 ' Scribner v. Allen, 12 Minn. 148; Coulson t?. 
 Harris, 43 Miss. 788; McDonald v. Murphree, 45 
 Miss. 705; Paget!. St. Louis, 80 Mo. 138; Deanes. 
 Todd, 22 Mo. 90; State v. Parkville, &c. B. Co., 
 32 Mo. 496; First Nat. Bank v. Meredith, 44 Mo. 
 !)00; Rockingham Savings Bank v, Portsmouth, 
 52 N. H. 17; Brown v. Concord, 56 N. H. 375; 
 Hoagland v. Delaware, 17 N. J. Eq. 107j Lieb- 
 stein II. Mayor, <fcc. of Newark, 24 N. J. Eq. 
 200; Hoboken Land, &c. Co. «). Hoboken, 31 
 N. J. Eq. 461 ; Elyton Land Co. v. Ayres, 62 Ala. 
 413; Tallessee Mfg. Co. v. Glenn, 50 Ala. 489; 
 Clayton v. Lafargue, 83 Ark. 137; Floyd i>. Gil- 
 brath, 27 Ark. 675; Murphy v. Harrison, 89 Ark. 
 340; Oliver v. Memphis, &c. E. Co., 30 Ark. 
 128; De Witt v. Hays, 2 Cal. 463; s. c, 56 Am. 
 Dec. 352; Mintum». Hays, 2 Cal. 590; s. c, 56 
 Am. Dec. 366; Robinson v. Gaar, 6 Cal. 273; 
 Merrill v. Gorham, 6 Cal. 41 ; Bucknall v. Story, 
 36 Cal. 67; Savings and Loan Assn. v. Austin, 
 46 Cal. 415; Houghton v. Austin, 47 Cal. 646; 
 Central Pac. R. Co. v. Corcoran, 48 Cal. 65; 
 HoUister v. Sherman, 63 Cal. 38; Dusenbury t>. 
 Mayor, &o. of Newark, 25 N. J. Bq. 295; Bank 
 of Utica ». TJtioa, 4 Paige, (N. Y.) 399; s. c, 27 
 Am. Dec. 72; Wlggin v. New York, 9 Paige, (N. 
 y.) 16; Van Doreu, v. New York, 9 Paige, (N. 
 Y.) 388; Heywood v. Buffalo, 14 N. Y. 534j 
 Marsh v. Brooklyn, 59 N. Y. 880; Livingston v, ' 
 HoUenbeck 4 Barb. (N. Y.)9' Van Bensaelaer 
 
CH. xxvn.] 
 
 INJUNCTION. 
 
 § 483 
 
 illegal tax whenever such assessment or levy is tainted with fraud/ or 
 the enforcement of such a tax would create a cloud upon the title. ^ 
 Injunctions have also been issued for the purpose of preventing the 
 confiscation of property to public use without compensation.' So, 
 also, may a municipal corporation be enjoined from the unauthorized 
 issue of bonds;* and any citizen may bring the suit for injunc- 
 tion. In, fact, if citizens fail to bring the suit, prior to the 
 issue of the bonds, for the purpose of deciding the validity of such 
 
 V. Kldd, 4 Barb. (N. Y.) 17; Dodd v. Hartford, 
 25 Conn. 232 j Arnold v. Middleton, 39 Conn. 
 401 ; Rowland V. First School District, 42 Conn. 
 30; Waterbnry Savings Bank v. Lawler, 46 
 Conn. 243; Frost v. Flick, 1 Dakota, 131; Lin- 
 ton V. Athens, 53 Ga. 588; Decker v. McGoun, 
 59 Ga. 805; Georgia Loan Assn. v. McGowan,59 
 Ga. 811; Wilkerson v, Watters, 1 Idfiho, n. s., 
 564; Burnes V. Mayor, &c. of Atchison, 2EEins. 
 454; Missouri River, <fec. E. E. v. Morris, 7 Kans. 
 210, 231 ; Messick V. Supervisors of Columbia 
 Co., 50 Barb. (N. Y.) 190; Thatcher V. Dusen- 
 bury, 9How. (N. Y.) Pr. 32; Chemical Bank V. 
 New York, 12 How. Pr. (N. Y.) 476; s. o., 1 Abb. 
 Pr. (N. Y.) 79; Corwin v. Campbell, 45 How. 
 (N. Y.) Pr. 9; Western Railroad Co. v. Nolan, 
 48 N. Y. 513; Pumpelly». Oswego, 45 How. Pr. 
 (N. Y.) 219; Hanlon v. Supervisors of West- 
 chester, 57 Barb. (N. Y.) 383; s. c. Abb. Pr. (N. 
 T.) N. s., 261, overruling Wood v. Draper, 24 
 Barb. (N. Y.) 187; s. c, 4 Abb. Pr. (N. Y.) 322; 
 Freeland t>. Hastings, 10 Allen, (Mass.) 570; 
 Brewer v. Springfield, 97 Mass. 152; Lord o. 
 Charleston, 99 Mass. 209; Whiting v. Boston, 
 106 Mass. 89; Hunnewell v. Charleston, 106 
 Mass. 350; Pillsbury,». Humphrey, 26 Mich. 245; 
 Corrothers v. Board of Education, 16 W. Va. 
 527; Christie v. Maiden, 23 W. Va. 667; Warden 
 V. Supervisors of Lafayette Co., 14 Wis. 672; 
 Wiltimore v. Rock Co., 15 Wis. 9; Ivinson v. 
 Hance, 1 Wyo. 270; seeComins. Supervisors of 
 Jefferson, 3 Thomp. & 0. (N. Y.) 296; Mann v. 
 Board of Education, 53 How. (N. Y.) Pr. 289; 
 Crever v. Mayor, &o. of New York, 13 Abb. Pr., 
 N. B., (N. Y.) 340; Broadnaxt). Groom, 64 N. Car. 
 244; Bumet v. Cincinnati, 3 Ohio 73; s. o., 17 
 Am Dec. 582 ; McCoy v. Chillicothe, 3 Ohio, 370 ; 
 8. c, 17 Am. Dee. 607; Mechanics', &c. Bank>. 
 Debolt, 1 Ohio St. 591; Exchange Banko. Hines, 
 3 Ohio St. 1; Hughes v. Kline, 30 Pa. St. 227; 
 Wharton e. School Directors, 42 Pa. St. 368; 
 Greene v. Mumford, 5 E. I. 473; Shermans;. 
 Leonard, 10 E. I. 469; People's Sav. Bank v. 
 Tripp, 13 E. I. 621; Red v. Johnson, 53 Tex. 284; 
 Blanc V. Meyer, 59 Tex. 89; White Sulphur 
 Springs Co. v. Robinson, 3 W. Va. 542. 
 
 1 Leltch V. Wentworth, 71 111. 146; First 
 National Bank v. Cook, 77 111. 623; Cleghomu. 
 Postlewaite, 43 111. 428. 
 
 2 Jersey City vMortis Canal, Ac. Co., 12 N. J. 
 Eq. (1 Beas,)227; Siegel v. Supervisors, &c., 36 
 Wis 70; Marquette, &C.E. Co. v. Marquette, 35 
 Mich. 504; Huntington v. Central Pac. R. Co., 2 
 Sawy. (U, S.) 503; South Platte Land Co. v. Buf- 
 falo Co., 7 Neb. 25S; Wiley v. Floumoy, 30 Ark. 
 
 609; Greedup B.Franklin Co., 30 Ark. 101; Mo- 
 bile, &o. R. Go. V. Peebles, 47 Ala. 317; Milwau- 
 kee Iron Co. V. Hubbard, 29 Wis. 51 ; Fowler v. 
 St. Joseph, 37 Mo. 228; Johnsons. Milwaukee, 
 40 Wis. 315; McPike«. Pen, 51 Mo. 63; Johnson 
 V. Hahn, 4 Neb. 39 ; Holleubeck «. Hahn, 2 Neb. 
 377; Leslies;. St. Louis 47 Mo. 474; Hanlon v. 
 Westchester, 8 Abb. Pr. (N. Y.) n. s., 261 ; o. c, 
 57 Barb. (N.Y.) 383; Felton v. Oregon, &c. E. 
 Co., 3 Sawy. (U. S.) 22; Lockwood v. St. Louis, 
 34 Mo. 30; McCormick». District of Columbia, 
 4 Mackey, (D. C.) 396; Palmer v. Eioh, 12 Mich, 
 414; Scofleld v. Lansing, 17 Mich. 437; Seeley ». 
 West Port, 47 Conn. 294; Minn. Linseed Oil Co. 
 V. Palmer, 20 Minn. 468; Hey wood v. Buffalo, 14 
 N. Y. 534; Mutual, &c. Ins. Co. v. Supervisors of ' 
 N. Y., 33 Barb. (N. Y.) 332; Mitchell v. Milwau- 
 kee, 18 Wis. 93. 
 
 1 Folley V. Passaic, 26 N. J. Eq. 216; and see 
 Tribune Ass'n d. The Sun, &c. Ass'n, 7 Hun, 175; 
 Dairiese v. Cooke, 1 Otto, 580; Lewis v. Provi- 
 dence, 10 E. L 97; People v. Chicago, 53 111. 424; 
 Baltimore s;. Hook et al., 62 Md. 371; s. v., 6 
 Am. & Eng. Corp. Gas. 443 ; Mason City, &o. Co. 
 V. Mason, 23 W. Va. 211; s. ^., 7 Am. & Eng. 
 Corp. Cas. 426; Pierpoint v. Harrisville, 9 W. 
 Va. 215; Anderson o. Harvey's Heirs, 10 Gratt. 
 (Va.) 389; and McMillens;. Perrell,7 W. Va. 
 223; Sower v. Philadelphia, .35 Pa. St. 231; 
 Eidemiller v. Wyandotte City, 3 Dill. (U. S.) 376; 
 Gardner v. Newburg, 2 Johns. Ch. (N. Y.) 162; 
 Lafayette!;. Bush, 19Ind. 326. 
 
 ^Chestnutwood v. Hood, 68 111. 132; Spring- 
 field V. Edwards, 84 111. 626; see Jackson Go. v. 
 Brush, 77 111. 59; McGoy V. Briant, 63 Gal. 247; 
 McPike V. Pen, 51 Mo. 63; Curtenius V. Hoyt, 
 37 Mich. 583; Missouri Eiver, &c. E. Co. v. Mi- 
 ami Co., 13 Kaus. 530; Allen v. Jay, 66 Me. 124; 
 List V. Wheeling, 7 W. Va. 501 j Delaware Co. v. 
 McClintock, 51 Ind. 325; Allison ». Louisville, 
 &c. R. Co., 9 Bush, (Ky.)247; Campbell u. Paris, 
 &0. R. Co., 71 111. 611 ; State v. Sabine Co. Court, 
 51 Mo. 350; Foster v. Kenosha, 13 Wis. 616; 
 Chestnutwood v. Hood, 68 111. 132; Livingston 
 Co. V. Welder, 64 111. 427; Marshall v. Silliman, 
 61 111. 218; Livingston Co. v. Weider, 64111.427; 
 Allison V. Louisville, &c. R. Co., 9 Bush, Ky. 
 247; Bond v. Wis., &a. R. Co., 45 Wis. 543; 
 Wright V. Bishop, 88 111. 303; Colton v. Hanch- 
 ett, 13 HI. 615; Perry v. Kinnear, 42 111. 160; 
 Drake v. Phillips, 40 111. 388; Beaucamp v. 
 Supervisors, 45 111. 274; Marshall v. Slllimaoi, 
 61 111. 218. 
 
 6 Sherman v. Carr, 8 E. I. 431; Newmeyer v. 
 Missouri, Ac. R. Co., 52 Mo. 82; s. c, 14 Am. 
 
 557 
 
§484 
 
 EQUITT JURISPKUDENCE. 
 
 [cH. xxvn. 
 
 bonds, by such delay it is possible that the honafide purchaser may be 
 enabled to recover on his bonds, notwithstanding the illegality of the 
 issue.* And it may be stated, generally, that city officials can be 
 restrained from acting under ordinances which are void for any reason.'' 
 Injunctions are also employed for the protection of the property rights 
 of married women,' in the settlement of partnership affairs after dis- 
 solution,* and for the purpose of enjoining a partner, during the part- 
 nership, from engaging in a business which is injurious to such 
 partnership.' An injunction is also issued for the purpose of prevent- 
 ing a cloud upon the title, or the doing of those acts which would 
 create a cloud upon the title." Other illustrations of cases in which 
 injunctions will be issued may be added: such as to restrain the pubUca- 
 tion of spurious foreign securities; ' to restrain the submission of a 
 dispute to arbitration, or to restrain the arbitration itself; * to prevent 
 one from taking letters from the post-office for a fraudulent purpose.' 
 § 484. Nuisances when restrained by injnnction. — A court of 
 equity has jurisdiction over existing or threatened public nuisances, 
 and may enjoin the future commission of them at the suit of the state 
 
 Eep. 394; Douglass v. Placerville, 18Cal. 643; 
 Drake v. Phillips, 40 111. 386; Rice v. Smith, 9 
 Iowa, 570; Grant v. Davenport, 86 Iowa, 396; 
 Smith*. Magourich, 44 Ga. 363; Howell v. Pe- 
 oria, 90 ni. 104; hut see Roosevelt v. Draper, 83 
 N. Y. 318; DooUttlec. Broome Co., 18 N. T. 155; 
 McCoy V. Briant, 53 Cal. 847; Wilhington v. 
 HarvaTd, 8 Gush. (Mass.) 66; Baltimoie v. Gill, 
 31 Md. 3?5; Merrill v. Plalnfield, 45 N. H. 126; 
 Frederick t;. Qroshen, 30 Md. 436 ; Baltimorpv. 
 Porter, 18 Me. 284; New London v. Brainaid, 
 22 Conn. 552; Ban v. Deniston, 19 N. H. 170. 
 
 iGelpcke v. Dubuque, 1 Wall. 175 (1865); 
 Havemeyer v. Iowa County, 3 Wall. 294; Lee 
 County V. Rogers, 7 Wall. 181 ; Thompson v. Lee 
 County, li. 327; Olcott v. Fond du Lac Sup., 16 
 Wall. 678 (1872); State v. Holiday, 72 Mo. 499; 
 Town of Plalnview v. Winona &, St. Peter R. 
 Co., 36 Minn. 506; People v. Mead, 24 N. Y. 124; 
 Venice v. Murdock, 98 U. S. 494 (1875) ; Gould v. 
 Sterling, 23 N. Y. 439, 456; Steines ». Franklin 
 County, 48 Mo. 167; Columbia County d. King, 
 13Fla. 451; New Buffalo v. Cambria Iron Co., 
 105 U. S. 73 ; Rails County v. Douglass, 105 U. S. 
 728; Foote i». Johnson Co., 5 Dill. 208 (1878); 
 Cass Co. V. Johnson, 95 U. S. 360; Cutler?;. 
 Board, &c., 56 Miss. 115; Vicksburg v. Lom- 
 bard, 61 Miss. 126; ante, % h\l\po8t, § 517; Ke- 
 nosha V. Lamson, 9 Wall. 477; Campbell v. 
 Kenosha, 5 Wa.l. 194(1866); Foster ii. Kenosha, 
 12 Wis. 616; Butz v. Muscatine, 8 Wall. 575; 
 Carroll Co. Sup. v. United States, 18 Wall. 71; 
 Chicago V. Sheldon, 9 Wall. 50 ; Pine Grove Tp. 
 V. Talcott, 19 Wall. 666; Elmwood v. Marcy, 92 
 tr. S. 289 (1875); Anderson v. Santa Anna, 116 U. 
 S. 356; Claiborne County v. Brooks, 111 TJ. S. 
 400; Taylor v. Ypsilanti, 105 U. S. 60; Douglass v. 
 County of Pike, 101 U. S. 677. 
 
 2 Merrill v. Plainfleld, 45 N. H. 126; Normand 
 V. Otoe Co., 8 Neb. 18; Oliver v. Kelghtley, 24 
 
 558 
 
 Ind. 514; Drake V. Phillips, 40 111. 388; Grant v 
 Davenport, 36 Iowa, 396; Hooper v. Ely, 46 Mo. 
 606; Douglass v. Placerville, 18 Cal. 643; Patter- 
 son V. Bowes, 4Grant, (Can.) 170; WestGwlllim 
 bury V. Hamilton R. Co., 23 Grant, (Can.) 383 
 Sank V. Phila., 4 Brewst (Pa.) 133 ; s. c, 8 Phila. 
 (Pa.) 117; Crampton v. Sabriskie, 101 V. S. 601 
 Gifford V. N. J. R. Co., 10 N. J. Eq. 171; Balti- 
 more v. Gill, 31 Md. 378; Wade«. Richmond, 18 
 Gratt. (Va.) 583; Page v. Allen, 58 Pa. St. 338; 
 Stevens?). Railroad Co., 29 Vt. 546; Webster?). 
 Harwinton, 32 Conn. 131 ; Terrett V. Sharon, 34 
 Conn. 105. 
 
 3 Allen V. Benners, 10 Phila. 10; Simson V. 
 Bates, 10 U. 66; French v, SneU, 29 N. J. Eq. 95. 
 
 4 Large v. Ditmars, 27 N. J. Eq. 283; Cropper 
 ». Coburn, 2 Curt. (U. S.) 465; Marble Co. V. 
 Ripley, 10 Wall. (U. S.) 339; Newt). Wright, 44 
 Miss. 202; Miles v. Thomas, 9 Sim. 606. 
 
 6New V. Wright, 44 Miss. 202; Benton v. 
 Wookey, 6 Madd. 367; Long v. Majestre, 1 
 Johns. (N. Y.) Ch. 305; Anderson v. Wallace, 2 
 Wall. 540; Marble Co. v. Ripley, 10 Wall. (U. S.) 
 339; Cropper t). Cobum, 2 Curt. (TJ. S.) 465; 
 Miles V. Thomas, 9 Sim. 606; Falrthome ®. 
 Weston, 3 Hare, 387; Marshall v. Watson, 25 
 Beav. 501; Greatrex v. Greatrex, 1 De G. & Sm. 
 692; Blackford v. Hawkins, 1 L. J. Ch. 141; Hall 
 V. Hall, 12 Beav. 414; Morrison v. Moat, 81 L. J., 
 N. s., Ch. 248; s. c, 16 Jur. 321. 
 
 " See post, § 543, removing cloud, and cases 
 there cited; Lehman v. Roberts, 86 N. Y. 832; 
 Strusburg v. New York, 87 Id. 452; Dederer v. 
 Voorhles, 81 Id. 154; Remington Pai>er Co. w. 
 O'Dougherty, 81 Id 474. 
 
 ' Emperor of Austria v. Day, 3 De G. F. & 3. 
 217. 
 
 8 Pickering v. Cape Town Ry., L. R. 1 Eq. 84. 
 
 iZelleuhoff v. Collins, 23 Hun, 156; and see 
 Guion V. Trask, 1 De G. F. & J. 373. 
 
CH. XXVII. J 
 
 INJUNCTION. 
 
 §484 
 
 or municipality.* Where, also, the public nuisances cause a special 
 injury to some private person, the party so suffering the special injury 
 may likewise institute a suit for an injunction. But in such a case, in 
 order that he might secure the injunction, the special injury which he 
 suffers must be real, and the legal remedy must be shown to be inade- 
 quate.' Where the nuisance is a private one, equity will restrain its 
 further commission at the suit of the injured party. But in order 
 that a private nuisance may be restrained by injunction, special ground 
 for the interposition of the court of equity must be shown; the injury 
 must be real, and permanent, and not trifling or temporary; in other 
 words, the damage or injury must be irreparable, or the remedy at 
 law prove inadequate. The jurisdiction of equity in all such cases is 
 based upon the combined claim of an irreparable injury and the pro- 
 vision for avoiding a multiplicity of suits. And if, in that particular 
 case, it can be shown that the interference of a court for the purpose of 
 restraining the future commission of the nuisance is not necessary to 
 the protection of the interest of the party injured, the court will 
 refuse such injunction.' If, for example, a nuisance is not of a dan- 
 gerous character, and there is no danger of the nuisance being continu- 
 ous, a court of equity will refuse to grant relief; but in order that 
 a nuisance can be claimed to be a continuous one, it is not necessary 
 for that injury to be unceasing; a repetition of the injury at intervals 
 
 1 Pennsylvania v. Wheeling, &o. Bridge Co., 
 13HOW. (U. S.) 518; Miss. & Mo. R. K. v. Ward, 
 2 Black, 485; Atty.-Gen. v. Cohoes Co., 6 Paige, 
 133; Mohawk Bridge Co. v. Utiea,<&;e.E.R., 6 Id. 
 S54; People v. Third Ave. E. E.,45 Barb. 63; 
 Hinchman ». Patterson, <fcc. E.E., ITN.J.Bq. 75; 
 Craig ». The People, 47 111. 487; Atty.-Gen. ». 
 Cleaver, 18 Ves. 211, 217; Atty.-Gen. v. Forbes, 
 2 My. & Or. 123; Earl of Eipon v. Hobart, 3 My. 
 & K. 169, 179; Atty.-Gen. v. Great East. Ey., L. 
 E. 6 Oh. 572; Atty.-Gen. %>. Eau Claire, 37 Wis. 
 400; State v. Eau Claire, 40 Id. 533; Eochester 
 V. Erickson, 46 Barb. 92; Coast Line E. E. ». 
 Cohen, 50 Ga. 451; Watertown v. Cowen, i 
 Paige, (N. T.) 510; Mayor v. Bolt, 5 Ves. 129; 
 
 WUliams v. Smith, 22 Wis. 600. 
 
 2 Shedo. Hawthorne, 3 Neb. 179; Sparhawk v. 
 ■Pnion Passenger E. Co., 54 Pa. St. 401; Peter- 
 son V. Railway Co., 5 Phila. (Pa.) 199; Pas- 
 senger E. Co. V. Philadelphia, 3 W. N. C. 
 (Pa.) 639; s. u., 33 Leg. Int. (Pa.) 264; Passenger 
 E. Co. V. Passenger E. Co., 1 W. N. C. (Pa.) 492; 
 Homer ». Craig, 2W. N. C. (Pa.) 11; Coming 
 V. Lowerre, 6 Johns. (S. T.) Ch. 439; Doolittle 
 V. Broome Co., 18 N. Y. 160; O'Brien v. Nor- 
 wich, &C. E. Co., 17 Conn. 373; Hinchman v. 
 Patterson, Ac. E. Co., 3 C. E. Green, (N. J.) 75; 
 Beveridge ». Lacey, 3 Eand. (Va.) 63 ; Walker 
 V. Shepardson, 3 Wis. 384 ; Meokling v. Kittan- 
 ning Bridge Co., 1 Grant's (Pa.) Cas. 416; 
 Barnes v. Eaolne, 4 Wis. 454; Ewell v. Green- 
 wood, 28 Iowa, 377; Williams V. Smith, 22 Wis. 
 594; Green V. Lake, 54 Miss. 540; Engs v. Peck- 
 ham, U E. I. 210; Coast Line E. Co. v. Cohen, 
 
 50 Ga. 451; Price ». McCoy, 40 Iowa, 533; Illi- 
 nois Co. V. St. Louis, 2 Dill. (a. S.) 70; Whit- 
 field V. Rogers, 26 Miss. 84; Smith v. Bangs, 15 
 111. 399; Sheboygan v. Sheboygan, &c. E. R., 21 
 Wis. 667; Pettibone v. Hamilton, 40 Wis. 4(K; 
 Thayer v. New Bedford E. E., 125 Mass. 253; 
 Osborne v. Brooklyn, &o. E. E., 5 Blatch. 366; 
 Hartshorn v. South Reading, 3 Allen, 601 j Cen- 
 tral Bridge Corp. v. Lowell, 4 Gray, 474; Eowe 
 V, Granite Bridge Corp., 21 Pick. 344; Bigelow 
 V. Hartford Bridge Co., 14 Conn. 665; Prink v. 
 Lawrence, 30 Id. 117 ; Milhau v. Sharp, 27 N. T. 
 611 ; Knox v. New York, 55 Barb. 404; Smith v. 
 Lockwood, 13 Id. 209; Mayor, &c. v. Baumber- 
 ger, 7 Robt. 319; Hudson River E. E. v. Loeb, 
 Id. 418; Manhattan, &0. Co. v. Barker, Id. 523; 
 Peck V. Elder, 3 Sandf. 186; Black v. Phila., &c. 
 E. R., 58 Id. 249; Philadelphia v. Collins, 68 Id. 
 106; Buck Mt., &c. Co. v. Lehigh, &c. Co., 50 
 Id. 91, 99; Higbee v. Camden, &c. R. R., 19 N. 
 J. Eq. 276; Allen v. Board of Freeholders, 2 
 Beasl. 68, 74; Zabriskie v. Jersey City, &c. E. 
 R., 2 Id. 314; Delaware, &o. E. E. v. Stump, 8 
 Gill & J. 479; Hamilton v. Whltridge, 11 Md. 
 128; Savannah, &c. R. R. V. Shlels, 33 Ga. 601 ; 
 Columbus<;.Jaques, 307(2. 606; Green v. Oakes, 
 7 111. 349. 
 
 8 Atty.-Gen. v. NIohol, 16 Ves. 338, 342; Wyn- 
 stanleys. Lee, 2 Swanst. 333, 335; Fishmong- 
 er's Co. ■!). East India Co., 1 Dick. 163; Blacke- 
 more v. Glamorganshire Canal Navigation, 1 
 My. & K. 154; Dent v. Auction Mart Co., 35 L. 
 J.(Ch.) 555; see, also, Danan. Valentine, 5 Met. 
 (Mass.) 8; New York v. Mapes, 6 Johns. (N. T.) 
 
 559 
 
§484 
 
 EQUITY JUEISPKUDENCB. 
 
 [cH. xxvn. 
 
 would make such injury a continuous one.^ So, also, will an injury 
 be considered irreparable, for the purpose of laying the foundation to 
 the claim to an equitable injunction, although the damage can be 
 repaired or actual compensation can be obtained. The constant expos- 
 ure of the plaintiff to repeated commissions of the nuisance, and the 
 constant necessity of resorting to the courts for the recovery of such 
 compensation, makes the injury, in contemplation of law, an irreparable 
 one, and one which cannot be adequately redressed in an action at law." 
 But in order that an injunction may issue for the restraint of 
 a nuisance, it is not necessary that a nuisance shall have been actu- 
 ally committed; a nuisance which is simply threatened may be 
 restrained, as well as one which has been already committed and is 
 threatened to be continued.' The intervention of a court of equity for 
 
 Ch. 46; Arnold «. Klepper, 24 Mo. 273; Ehea®. 
 Forsyth, 37 Pa. St. 503; Porter v. Witham, 17 
 Me. 292; Mohawk, &c. E. Co. v. Arteher, 6 
 Paige, (N. T.) 83; Carlisle v. Cooper, 21 N. J. 
 Eq. 576; Norris «. Hill, 1 Mich. 202; Davis «. 
 Londgreen, 8 Neb. 43; State v. Mobile, 5 Port. 
 (Ala.) 179; B. u., Am. Deo. 564; Whitfield v. 
 Rogers, 26 Miss. 84; Robeson «. Pittenger, 1 
 Green (N. J.) Ch. 57; s. c, 32 Am. Dec. 413; 
 Heiskell v. Gross, 3 Brewst. (Pa.) 430; s.u.,7 
 Phila. (Pa.) 317; Bunnell's Appeal, 69 Pa. St. 
 59; Dana v. Valentine, 5 Met. (Mass.) 8; Elm- 
 hlast V. Spencer, 2 Mao. <fe G. 45; Broad- 
 bent V. Imperial G. Co., 7 De G. M. & G. 436; 
 Reynolds v. Clarke, 2 Ld. Eaym. 1399; Weston 
 «. Woodcock, 5 M. & W. 587; Earl of Eipon v. 
 Hobart, 3 Myl. & K . 180; Dunning v. Aurora, 
 40 ni. 481 ; Town of Lakeview v. Litz, 44 111. 81 ; 
 Remington v. Foster, 42 Wis. 608; Powell v. 
 Foster, 59 Ga. 790; Parker v. Winnipiseogee, 
 Ac. Co., 2 Black, (JJ. S.) 545; Bruce v. Dela- 
 ware, <feo. Co., 19 Barb. (N. Y.) 371; Bostock 
 V. N. staff. R. .Co., 3 Sm. & G. 283; Atty.-Gen. 
 V. Southampton, 1 Giff. 363; Ogletree v. Mc- 
 Quaggs, 67Ala. 584; Kingsbury v. Flowers, 65 
 Ala. 484; St. James o. Arrington, 36 Ala. 548; 
 Rosser V. Randolph, 7 Port. (Ala.) 245; Fergu- 
 son v. Selma, 43 Ala. 400; Dorsey v. Allen, 85 
 N. Car. 358; o. c, 39 Am. Rep. 704; Green v. 
 Lake, 54 Mass. 540; d. c, 28 Am. Rep. 378; De- 
 marestj). Hardham, 34 N. J. Eq. 469; Ray v. 
 Lynes, 10 Ala. 64; Van Bergen v. Van Bergen, 
 3 Johns. Ch. (N. T.) 287; Davidson v. Isham, 1 
 stock. CM. J.) 186. 
 
 1 Davis i>. Londgreen, 8 Neb. 43. 
 
 2 Wood V. Sutcliffe, 2 Sim., K. s., 165; Elm- 
 hurst V. Spencer, 2 Mao. & G. 50; Atty.-Gen. v. 
 Tel.Co., 30 Beav. 287; Coming v. Troy, &0. Co., 
 40 N. Y. 191. 
 
 3 Ross ». Butler, 19 N. J. Eq. 294; Gardener 
 V. Newburg, 2 Johns. (N. Y.) Ch. 162; s. c, 7 
 Am. Deo. 526; Belknap o. Belknap, 2 Johns. 
 (N. T.) Ch. 463; s. o., 7 Am. Deo. 548; Catlin v. 
 Valentine, 9 Paige, (N. Y.) 575; s. c, 38 Am. 
 Dec. 567; Atty.-Gen. ex rel. Bell v. Blont, 4 
 Hawks, (N. Car.) 384; s. i;., 15 Am. Dec. 526; 
 Clark v. Lawrence, 6 Jones (X. Car.) Eq. 83; 
 
 560 
 
 Dunning ». Aurora, 40 111. 481, 486; Wahle v. 
 Eeinbock, 76 111. 322; Fuselier v. Spalding, 2 
 La. An. 773; Blanc ». Murray, 36 La. An. 162; 
 s. c, 51 Am. Rep. 7; Whitfield u. Eogere, 26 
 Miss. 84; Society, &c. v. Morris Canal, &c.Co., 1 
 N.J. Eq. 57; Atty.-Gen. v. Sheflield Gas Con- 
 sumers' Co., 3 De G. M. &G. 304; Dawsonu. Pa- 
 ver, 5 Hare, 415, 430; Potts v. Levy, 2 Drew, 272; 
 Elwell u.Crowther, 31 Beav. 163 ; State v. Mobile, 
 6 Port. (Ala.) 279; s. c, 30 Am. Dec. 564; Co- 
 ker». Birge, 9Ga. 425; s. c, 54 Am. Dec. 347; 
 De Give D. Seltzer, 64 Ga. 423; People v. St 
 Louis,56ilm. ([ll.)351; s. c, 48Am. Dec. 339; 
 Wier's Appeal, 74 Pa. St. 230; Aldrich v. How- 
 ard, 7 R. I. 87; Phillips v. Soekett, 1 Tenn. 200; 
 Coalterj). Hunter, 4 Rand. (Va.) 58; n. c, 15 
 Am. Dec. 726; Keystone Bridge Co. v. Sum- 
 mers, 13 W. Va. 476; Walker v. Shepardson, 2 
 Wis. 384; s. 0., 60 Am. Dec. 423; Hamilton v. 
 Whitridge, 11 Md. 128; s. c, 69 Am, Dec. 184; 
 Hough V. Doylestown, 4 Brewst. (Pa.) 333; 
 Sellers v. Pennsylvania R. Co., Phila. (Pa.) 
 319; Rhodes v. Dunbar, 57 Pa. St. 274; DiL 
 worth's Appeal, 91 Pa. St 247; Lining v. Ged- 
 des, 1 MeCord (S. Car.) Ch. 304; s. c, 16 Am. 
 Dec. 606; Kirkman v. Handy, 11 Humph. 
 (Tenn.) 406; s. u., 54 Am. Rep. 45; Ramsey v. 
 Riddle, 1 Cranch (U. S.) C. C. 399; Flint v. 
 Russell, 1 Dill. CU. S.) 151 ; Duncan v. Hays, 23 
 N. J. Eq. 25; Mohawk Bridge Co. v. Utioa, &c. 
 R. Co. ,6 Paige, (N. Y.) 554; Hudson, &o. Ca- 
 nal Co. V. New York, .See. R. Co., 9 Paige, (N. 
 Y.) 323; Phoenix ». Comm. of Emigration, 1 
 Abb. Pr. (N. Y.) 466; Barnes v. Calhoun, S 
 Ired. (N. Car.) Eq. 199; Simpson v. Justice, 8 
 Ired. (N. Car.) Eq. 115; Clark v. Lawrence, 6 
 Jones (N. Car.) Eq. 83; Fizzle v. Patrick, 6 
 Jones (N. Car.) Eq. 354; Dorsey v. Allen, 85 N. 
 Car. 358; s. c, 39 Am. Rep. 704; Biddle v. Ash, 
 2 Ashm. (Pa.) 211; Laughlin v. Lamasco, 6 Ind. 
 223; Keiser v. Loveth, 85 Ind. 240; s. c, 44 Am. 
 Rep. 10; Shirose. dinger, 50 Iowa, 571; s. c, 
 32 Am. Rep. 138; Adams v. Michael, 38 Md. 123; 
 8. c, 17 Am. Rep. 516; Dumesnil v. Dupont, 18 
 B. Mon. (Ky.) 800; s. c.,68 Am. Rep. 760; Rog- 
 ers «. Danfortb, 9 N. J. Eq. 289; Butlers. Rog- 
 ers, 9 N.J. Eq. 487; WolcottJ). Melick, 11 N. J. 
 
CH. XXVII.] INJUNCTION. § 485 
 
 the purpose of restraining a nuisance, which has only been threatened, 
 is an extraordinary exercise of the equitable jurisdiction, and is granted 
 cautiously. It must be not only a clear case of nuisance, but the 
 danger of suffering irreparable injury from the commission of the 
 threatened nuisai ce must be imminent; and these claims for a pressing 
 necessity for equitable intervention must be shown by facts, and can- 
 not rest upon a mere inference, or upon opinion or belief. Where 
 there is a reasonable doubt that there is any imminent danger of the 
 threat being carried into execution, or if carried into execution, the 
 damage that would ensue therefrom would not be of a very serious 
 character, a court of equity wiU refuse to enjoin the commission of 
 the threatened nuisance. So, likewise, will the injunction be refused, 
 where there is a reasonable doubt as to whether the act threatened is 
 a nuisance, in the legal acceptation of the term.^ 
 
 § 485. Yiolation of easements enjoined. — ^Among the wrongs 
 against property in the nature of nuisances, which will be very readily 
 restrained by injunction, are violations of easements of all sorts. 
 Wherever there has been an actual interference with the easement and 
 danger of its continuance, or where the future interference with such 
 easement is seriously threatened, for the future protection of such 
 easement against such interference, an injunction will issue. The 
 multiplicity of suits necessarily resulting from the continuance of the 
 nuisance will, in every case, be a justification for the interference of 
 equity by injunction. These injunctions have been issued for the 
 purpose of restraining interferences with the easement of light and 
 air.* Easements in streams of water, where they are threatened with 
 violation by the diversion or pollution of the stream; ' or where owners 
 
 Eq. 2Mj a. u., 66 Am. Dec. 790; Cleveland v. T.)822; Higbeet). Camden, &o. E. Co., 20 N. J. 
 
 Citizens' Gas Light Co., 20 N.J. Eq. 201; Atty.- Eq. 435; Miss., &c. R. Co. -e;. Ward, 8 Black, 
 
 Gen. v. steward, 20 N. J. Eq. 415; St. James' (U. S.) 494; Clark v. Lawrence, 6 Jones Eq. 
 
 Church V. Arlington, 36 Ala. 546; Eouse v. (N. Car.) 83; Atty.-Gen. v. Steward, 21 N. J. 
 
 Martin, 75 Ala. 510; s. c, 51 Am Eep. 463; 340; Duncan u. Hays, 22 N. J Eq. 29; McCon- 
 
 Kingsbury ». Flowers, 65 Ala. 479; s. u.,39Am. nell». Gibson, 12111, 128; Lockard v. Lockard, 
 
 Eep. 14; Bigelow v. Hartford Bridge Co., 14 16 Ala'. 430; Lancaster?). Eallroad, 62 Ala. 562; 
 
 Conn. 565; s. u., 36 Am. Dec. 502; Thebaut v. Spence's Equity, 672; Harrison v. Brooks, 20 
 
 Canova, 11 Fla. 143; Harrison v. Brooks, 20 Ga. 6a. 537. 
 
 537; Whitaker v. Hudson, 65 Ga. 43; Eounsa- 2 Aynsley v. Glover, L. E. 10 Ch. 283; Hackett 
 
 ville V. Kohlheim, 68 Ga. 668; a. c, 45 Am. v. Baiss, L. E.20Eq. 494; Smith i». Smith, L.E. 
 
 Eep. 505; Lake Views. Letz, 44111. 81. 20 Eq. 500; Ecclesiastical Comm'rsti. Kino, L. 
 
 1 Cleveland v. Gas Light Co., 20 N. J. Eq. 206; E. 14 Ch. D. 213; Thruston v. Minke. 23 Md. 
 
 Rhodes v. Dunbar, 57 Pa. St. 274; Eosser v, 487; Eobeson v. Pittenger, 1 Green Ch. 57; 
 
 Eandolph, 7 Port. 245; Ferguson v. Selma, 43 Irwin V. Dixon, 9 How. (U. S.) 10; Atty.-Gen. i). 
 
 Ala. 400; Leigh j>. Westervelt, 2 Duer, (N. T.) Nichol, 16 Vea. 338; Wynstanley «. Lee, 2 Sw. 
 
 618; Wallace «. MoVey, 6 Ind. 303; Wolcott ». 333; Back v. Stacy, 2 Eusa. 121; Tapling v. 
 
 Melick, 3 Stock. (N. J.) 204; Branch Turnpike Jones, 11 H. L. Caa. 290. 
 
 Co.r. Yuba Co., 13 Cal. 190; Thebaut s.Canova, « Holt «. Corpor. of Rochdale, L. E. 10 Eq. 
 llFla.143; Adams».Michael,38Md. 125; Fort 354, 361; Carlisle r. Cooper, 21 N. J. Eq. 766,779, 
 V, Groves, 29 Md. 193; St. James' Church V. Ar- 583, 585; Atty.-Gen. Steward, 21 Id. 340; 80 Id. 
 rington, 36 Ala.548; Dumeanil V. Dupont, 18 416; Shimer v. Morris Canal Co., 27 Id. 363; 
 B. Mon. (Ky.) 800; Kirkman v. Handy, 11 Holsman v. Boiling Spring, &c. Co., 1 McCar- 
 Humph. (Tenn.) 406; Lake View ». Letz, 44 ter, 335; Jacobs V. Allard, 42 Vt. 303; Bull v. 
 111. 81; Ellison v. Commissioners, 5 Jonea' Eq. Valley Falla Co., 8 E. I. 42; Frink v. Lawrence, 
 (N. Car.) 57; Eosa v. Butler, 19 N. J. Eq. 294; 20 Conn. 117; Fisk v. Wilber, 7 Barb. 395; Pol- 
 Williams V N. T. Cent. E. Co., 18 Barb. (N. litt v. Long, 58 Id. 20; Olmstead v. Loomis, 9, 
 
 561 
 
 36 
 
§485 
 
 EQUirr JUEISPEUDENCE. 
 
 [cH. xxvn. 
 
 of mills have acquired extraordinary rights in such streams for 
 running their mills, and their easements are in danger of being injured 
 or interfered with by some unreasonable use of the stream by riparian 
 owners.^ An injunction will also be granted for the purpose of 
 restraining an unlawful or wrongful system of drainage,* as well as 
 for the purpose of preventing interference with drains that have been 
 lawfully constructed/ An injunction will always be granted for the 
 prevention of interference with lateral and subjacent support to lands 
 and buildings,* as well as with party walls/ Encroachments upon 
 public parks and highways will be restrained by in j unction, ° as well 
 as encroachments of municipal or public corporations upon the rights 
 of adjoining proprietors.' The number of illustrations of nuisances 
 arising from violation of easements, which may be restrained by 
 injunction, is almost without limitation, and it would be impossible to 
 make any complete reference to all of them. Other illustrations of 
 "violations of easements will be foimd in the note below.' 
 
 Id. 152; Gardner v. Newburgh, 2 Johns. Ch. 
 162, 165; Van Bergen v. Van Bergen, 2 Id. 272; 
 3 Id. 282; EeidD. Gifford, Hopk. Ch. 416; Ham- 
 mond V. Fuller, 1 Paige, 197; Arthur v. Case, 1 
 Id. 447; Belknapi). Trimble, 3 I<i. 577,600; Bab- 
 cook V. New Jersey, &a. Co., 20 N. J. Bq. 296; 
 Spangler's Appeal, 64 Pa. St. 387; Sanderson «. 
 Pa. Coal Co., 86 Id. 401; Lewis v. Stein, 16 Ala. 
 214; Burden ». Stein, 27 /(?. 104; Leaohi;. Day, 
 27Cal. 643; Ferreat). Knipe, 28 M.340; Grigsby 
 V. Burtnett, 31 Id. 406; More v. Massini, 32 Id. 
 590; Hill v. Smith, 33 Id. 166; Levaroni v. Mil- 
 ler, 34 Id. 231; Tolo Co. v. Sacramento, 36 
 Id. 193; Grisby v. Clear Lake W. Co., 40 Id. 
 396; Gregory v. Nelson, 41 Id. 378; Cowell v. 
 Martin, 43 Id. 605; Cave v. Crafts, 53 Id. 135; 
 Sobinson v. Black Diamond Coal Co., 50 Id. 
 460; 57 Id. 412; Bensley v. Mt. Lake W. Co., 13 
 Id. 306; Logan v. DrisooU, 19 Id. 623; Eobinsou 
 «. Eussell, 24 Id. 46T; Wixon v. Beaver Elver, 
 &c. Co., 24 Id. 367; Hulme v. Shreve, 3 Green 
 (N. J.) Ch. 116; Eupley v. Welch, 83 Cal. 452; 
 Phoenix, &.O. Co. v. Fletcher, 23* Cal. 481; 
 National, &o. Co. v. McCoy, 23 Cal. 490; She- 
 boygan t). Sheboygan, &c. R. Co., 81 Wis. 667; 
 Owen V. Field, 12 Allen, (Mass.) 457; Wilcox 
 V. Wheeler, 47 N. H. 488. 
 
 1 Batavia Mfg. Co. v. Newton Wagon Co., 91 
 m. 245; Tucker v. Jewett, 11 Conn. 311, 317, 384; 
 Ingraham v. Hutchinson, 2 Conn. 584; Mason 
 V. Hill, 5 Bam. & Adol. 1; Bealey v. Shaw, 6 
 East, 208; Brown v. Best, 1 Wils. 174; Saunders 
 v. Newman, 1 Barn. & Adol. 258, 262; Cary v. 
 Daniels, 8 Met. (Mass.) 468, 478; Ortmau v. 
 Dixon, 13 Cal. 38; Wheatley v. Chrisman, 24 Pa. 
 St. 298; Gillette. Johnson, 30 Conn. 183; PoUitt 
 V. Long, 58 Barb. (N. Y.) 20; Sackrider v. 
 Beers, 10 Johns. (N. Y.) 241; Wentworth v. 
 Poor, 38 Me. 243; Clark v. Rockland Water 
 Power Co., 68 Me. 78; Dillingti. Murray, 6 Ind. 
 384; Shears ®. Wood, 7 Moore, 345; Chandler©. 
 Howland, 7 Gray, (Mass.) 348 ; Hoxsie v. Hoxsie, 
 38 Mich. 77; Palmer v. Mulligan, 3 Cal. (N. Y.) 
 
 562 
 
 307; s. 0., 2 Am. Dec. 270; Hetrich v. Deaehler, 
 .6 Pa. St. 32; Casebeer v. Mowry,55 Pa. St. 423; 
 Ferrea v. Knipe, 28 Cal. 343; Springfield v. 
 Harris, 4 Allen, (Mass.) 496; Davis v. Getchell, 
 50 Me. 604; 3 Kent's Com. 440, note a; Tyler v. 
 Wilkinson, 4 Mason, (U. S.) 401; Blanchard v. 
 Baker, 8 Greenl. (Me.) 253 ; s. c, 23 Am. Dec. 504. 
 
 2 Smiths. Fletcher, L. R. 7 Exch. 305; s. c, 
 3 Eng. R. 305; Ellis v. Duncan, cited in Good- 
 ale ». Tuttle, 29 N. Y. 466; Buffum v. Harris, 5 
 E. 1. 243; Eawstron v. Taylor, 11 Exch. 389; 
 Broadbent v. Eamsbotham, 11 Exch. 662; 
 Wheatley v. Baugh, 25 Pa. St. 528; Petti grew v. 
 Evansville, 25 Wis. 823; Miller ». Laubach, 47 
 Pa. St. 154; Curtiss v. Ayrault, 47 H. Y. (2 Sick.) 
 73. 
 
 ' Butler V. Peck, Ohio St. 335; Laumier v. 
 Francis, 23 Mo. 181 ; Livingston v. McDonald, 
 21 Iowa, 160. 
 
 <Hunt». Peake, Johns. 705; 6Jur.,if. s.,l(Kl; 
 Farrand v. Marshall, 19 Barb.. (N. Y.) 380; Mo- 
 Maugh V. Burke, 12 E. I. 499; Lasala i!. Hol- 
 brook, 4 Paige, (N. Y.) 173; s. c, 25 Am. Dec. 534; 
 see, also, Stevenson v. Walace, 27 Gratt. (Va.) 
 77; Quincy ». Jones, 76 111. 231; Story v. Odin, 
 12 Mass. 157; Partridge «. Scott, 3 Mee. & W. 
 220; Brown v. Windsor, 1 Crompt. & J. 80; 
 Hide V. Thornborough, 2 Car. & Kir. 250. 
 
 5 Ogden V. Jones, 2 Bosw. (N. Y.) 685; Phil- 
 lips V. Bordman, 4 Allen, (Mass.) 147. 
 
 ° Corning i>. Lowerre, 6 Johns. Ch. 439; Hill 
 x>. Miller, 3 Paige, 254; Trustees of Watertowu 
 V. Cowen, 4 Id. 510. 
 
 ' Drake «. Hudson Elver R. E., 7 Barb. 508; 
 Atty.-Gen. v. Tudor Ice Co., 104 Mass. 239; 
 Morris, &c. E. E. ». Prudden, 20 N. J. Eq. 530; 
 Coats V. Clarence Ey., 1 Russ. & My. 181; Bonar 
 parte v. Camden, Ac. R. R., Baldw. 205, 531; 
 Mohawk, <fec. E. E. ». Artoher, 6 Paige, 83. 
 
 8 Vernon v. Vestry of St. James, L. R. 18 Ch. 
 D. 449; Meigs v. Lister, 23 N. J. Eq. 199; 
 O'Rileya.McChesney, 3 Lans. 278; Snow t>. Will- 
 lams, 16 Hun, 488; Rothery v. N. Y. Rubber 
 
CH. XXVII.] INJUNCTION. • § 486 
 
 In all applications for injunctions for the restriction or prevention 
 of violations of easements, diligence in making the application is nec- 
 essary. Any unnecessary delay in applying for protection, and 
 acquiescence for an unreasonable length of time in the violation of the 
 easement, -will be a bar to the claim for an injunction.^ 
 
 § 486. Injunctions for the protection of patents, copyrights, 
 literary property in general, and trade-marks. — Whenever the rights 
 in and to a patent or copyright have been definitely settled, either in a 
 prior suit or in the same action, and there has either been a past 
 infringement of such right, or infringements by the defendant to the 
 suit in the future are seriously threatened, the court will, for the pro- 
 tection of such patent or copyright, enjoin the parties who threaten 
 such infringement from the commission of such a wrong. In America, 
 the United States courts alone have jurisdiction over questions relat- 
 ing to infringements of those rights.^ Where an application is made 
 for a preliminary injunction for the protection of patent rights, any 
 serious doubt as to the right of the plaintiff to such patent will pre- 
 vent his acquiring a temporary injunction.' Independently of copy- 
 rights, no legal property is recognized by the law in the published 
 literary eflforts of an author. But until he has published, in the legal 
 acceptation of the term, the products of his brain, he has a complete 
 control over their disposition; and if anyone should interfere with or 
 attempt to make use of such unpubhshed manuscripts without the con- 
 sent of the author, a court will enjoin such a violation of his rights. 
 These injunctions have been issued for the purpose of restraining 
 the unauthorized publication or performance of dramatic composi- 
 
 Co., 24 Id. iraj Seaman -n. Lee, 10 Id. 607; Sheldon ®. Rockwell, 9 Wis, 168; Cobb «. Smith, 
 Beach v. Elmira, 22 Id. 158 ; Henderson v.'S.Y. 16 Wis. 61 ; Crosby ». Smith, 19 Wis. 472 ; Pet- 
 Cent. K. B., 78 N. Y. 423; Lynch ». Mayor, &c., tlbone v. La Crosse, &c. E. Co., 14 Wis. 443; 
 76 Id. 60; Adams v. Popham, Id. 410; Campbell Kane v. Bloodgood, 7 John. 93; Dexter v. Ar- 
 V. Seaman, 63 Id. 568; Olmsted v. Loomis, 9 nold, SSumn. (U. S.) 152; Piatt w. Vattier, 9Pet. 
 Id. 423; Davis v. Lambertson, 56 Barb. 480; (U. S.) 405, 416, 417; Sherwood w. Sutton, Mass. 
 Owen ». Phillips, 73 Ind. 284; Wahle v. Rein- (U. S.) 143, 146; Bowman ». Wathen, 1 How. 
 bach, 76 III. 328; Green v. Nunnemacher, 36 (U. S.) 189; Gould r. Gould, 3 Story, (TJ. S.) 516; 
 Wis. 50; Pettibone V. Hamilton, 40 Id. 402; Welleri;. Smeaton, 1 Cox Oh. 102. 
 Lewis V, Stein, 16 Ala. 214; Sx parte Martin, 13 ^ As to patent rights, Potterw. Muller, 2 Fish. 
 Ark. 198; Lamborn w. Covington Co., 2 Md. Ch. Pat. Gas. (U. S.) 465; Shelley v. Brannan, 4 
 409; Ivlmey v. Stocker, L. R. 1 Ch. 396; Smith Fish. Pat. Cas. (U. S.) 198; s. c, Biss. (U. S.) 
 C.Smith, L. K. 20 Eq. 500; Fenwick v. East 315; and see Sickles i). Gloucester Mfg. Co., 1 
 London Ry., L. E. 20 Eq. 544; Alien v. Martin, Fish. Pat. Cas. (U. S.)'232; Sanders «. Logan, 2 
 L. E. 20 Eq. 462; Mott V. Shoolbred, L. R. 20 Fish. Pat. Cas. (II. S.) 167; Goodyear v. Day, 2 
 Eq. 22; Broadbent v. Imperial Gas Co., 7 De G. Wall. (U. S.) Jr. 383; Buchanan v. Howland, 5 
 M. & G. 436, 460, 462; 7 H. L. Cas. 600; St. Blatohf. (U. S) 151. As to copyrights, Wilkins 
 Helen's, &c. I). Tipping, H. L. Cas. 642; Watson ». Aikens, 17 Ves. 422; Saunders i). Smith, 3 
 V. Sutherland, 5 Wall. 74; Parker v. Winnipiae- Myl. & Cr. 728; Dudley v. Mayhew, 3 N. Y. 9; 
 ogee, &o. Co., 2 Black, 545; Cadigan v. Brown, Baker v. Taylor, 3 Blatchf . (U. S.) 82; Atwillu. 
 120 Mass. 493; Richmond Man. Co. v. Atlantic, Ferrett, 2 Blatohf. (U. S.) 39; Pierpont V. 
 &a. Co., 10 R. I. 108; Duncan v. Hayes, 23 N. Fowle, 2 Woodb. & M. (U. S.) 83; Little ». 
 J. Eq. 25. Gould, 8 Blatohf. (U. S.) 165, 368; Paige v. 
 1 See, also, Nosser v. Seeley, 10 Neb. 460 ; Payne Banks, 7 Blatohf. (tJ. S.) 153 ; 13 Wall. (U.S.) 608. 
 V. Paddock, Walk. (Mich.) 487; Water Lot Co. ' Dodge v. Card, 2 Fish. Pat. Cas. (TJ. S.) 166; 
 V. Bucks, 5 6a. 315; Hellman v. Union Canal Wlnansc. Eaton, 1 Fish. Pat. Cas. (U. S.) 181; 
 Co., 37 Pa. St. 100; Blanohard v. Doering, 23 Sullivan?;. Redfleld, 1 Paine,(U.S.) 441; Ogle v. 
 Wis. 200; Wood v. Sutoliffe, 8 Sim., N. »., 163; Edge, 4 Wash. (U. S.) 584. 
 
 563 
 
§ 4:86 EQUITY JURISPEUDENCE. [CH. XXVU. 
 
 tions,'of lectures,^ of private letters, whether they are on literary topics, 
 or relate only to matters of private business or family interests. In the 
 case of private letters, the suit for injunction may be instituted by 
 the writer against the person written to, or by both the writer and the 
 person written to, against any stranger, who might undertake to pub- 
 lish the same without authority.' So, also, will an injunction be 
 granted against the manufacture, sale, or exhibition of copies of 
 paintings, statuary, engravings, and other works of art, even though 
 the originals have been publicly exhibited.* In all of these cases, the 
 facts, that such literary property has not been published to the world, 
 and the authority of the author to duplicate and seU copies of the 
 same has not thus been impliedly granted, is a necessary condition 
 precedent to the claim for protection by injunction. A letter or a 
 drama is not considered to have been pubhshed, so as to cause the 
 author to lose his proprietary rights therein, because the letter has been 
 delivered to one to whom it was addressed, or the drama has been 
 presented to a select audience. 
 
 Similar to the protection which a court of equity will afford by 
 injunction to patents, and copyrights, and literary property in general, 
 is that which courts of equity give by means of an injunction against 
 the unlawful or unauthorized use of trade-marks. There is some 
 criticism by the courts of the right of recognizing any right of prop- 
 erty in a trade-mark in those who make use of them; but whether 
 such property and the right to an exclusive use of such trade-mark be 
 recognized or denied at aU, the court of equity will restrain the use of 
 such trade-mark by others, on the ground that its unauthorized use 
 constitutes a fraud upon the possible pxirchaser of the spurious 
 articles; and for their protection, if not for the protection of the 
 merchant or manufacturer who distinguishes his goods by such a trade- 
 mark, the injunction will be granted.^ 
 
 1 Keen v. Clark, 5 Rob. {N. Y.) 38 ; Daly v. Pal- 1 H.& Tw. 1 ; 2 De G. & Sm. 652; Turner a.Eob- 
 mer, 6 Blatohf. (U. S.) 258; Emerson v. Davies, inson, 10 Ir. Ch. 121, 510; Keene ii. Kimball, 1ft 
 3 Story, (U. S.) 768, 793; Keene v. Kimball, 16 Gray, (Mass.) 551 ; Bartlett r. Crittenden, 4 Mc- 
 Gray, (Mass.) 545; Keene v. Clarke, 5 Eobt. 38; Lean, (U.S.) 303; Granard v. Dunkin, 1 Ball & 
 Palmer v. De Witt, 47 K. Y. 532; 2 Sweeny, 530; B. 207; Palin v. Gothercoe, 1 Coll. 565. 
 
 5 Abb. Pr., h. »., 130; Bouclcanlt v. Fox, 5 ^Burgesst). Burgess, 3 De G. M. & G. 896; 
 
 Blatcbf. 87. Edelsteu v. Edelsten, 1 De G. J. & S. 185; 
 
 2 AbemethytJ. Hutchinson, 1 H. & Tw. 28,40; Leather Cloth Co. v. American Leather Cloth 
 3 L. J. Ch. 209; Keene v. Kimball, 16 Gray, 645, Co., 11 H. L. Cas. 523; Anheuser-Busch Brew- 
 per Hoar, J. ; Bartlett v. Crittenden, 4 McLean, ing Assoc, v. Clarke, 26 Fed. Rep. 410; Sonth- 
 ^''*'- em White Lead Co. v. Gary, 25 Fed. Rep. 125; 
 
 8 Earl of Granard «. Dunkin, IBall & B.207; Royal Baking Powder Co. v. Davis, 26 Fed. 
 
 Folsom V. Marsh,2Story, 100, 113; Hoyt v. Mac- Rep. 293; Davis «. Davis, 27 Fed. Rep. 490; 
 
 kenzie,3Barb. Ch.320; Wetmore v. Scovell, 3 Pratt Manfg. Co. ». Astral Refining Co., 27 Fed. 
 
 Edw. Ch. 515, 529; Woolsey v. Judd, 4 Duer, Rep. 493; Estes v. Leslie, 23 Blatchf. C. Ct. 479; 
 
 379; Wetmore v. Scovell, 3 Edw. Ch. (N.Y) 515; b. c, 27 Fed. Rep. 23; Estes «. Worthington, 31 
 
 UnitedStatesii. Tanner, 6 McLean, (U.S.) 128; ped. Rep. 154; Pierce «. Guittard, 68 Cal. 68; 
 
 Eyre «. Higbee, 38 How. Pr. (N. Y.) 198 ; Grigsby Qlen Cove Manf g. Co . v. Ludeling, 22 Fed. Rep. 
 
 V. Breckinridge, 2 Bush, (Ky.)481; Hoytu. Mac- 823; Alexanders. Morse. 14 R. 1. 153; s. c, 51 
 
 kenzle, 3 Barb. Ch. (N. Y.) 330; Denis ». Le- Am. Rep. 369; New York Cab. Co. tJ. Mooney, 
 
 clerc, 1 Martin, (Orleans T.) 291; Folsom v. 15 Abb. (N. Y.) N. Cas. 152; Avery v. Meikle, 81 
 
 Marsh, 2 Story, (U. S.) 100. Ky. 73; New Haven Patent Rolling Spring Bed 
 
 * Prince Albert v. Strange, 1 Macn. & G. 25 ; Co. v. Farren, 61 Conn 324 ; Williams v. Brooks, 
 
 564 
 
CH. XXVII.] INJUNCTION. § 488 
 
 § 487. Slander or libel ; wrongful use of names. — The English 
 have very generally, in their recent decisions, employed the remedy 
 of injunction to restrain libelous publications against one's business, 
 trade, or title to land, as well as to restrain the wrongful use of a 
 name by which the public might be misled or the plaintiff injured in his 
 business.* The ground, of course, for the employment of this remedy 
 in this case is the inadequacy of other remedies as a protection against 
 the threatened injuries; but the American courts have not mani- 
 fested any disposition to follow the example of the English courts; and 
 where the question has been raised, the injunction has been generally 
 denied. 
 
 § 488. To restrain actions or judgments at law. — This was prob- 
 ably the original ground for the intervention of a court of equity by 
 injunction. Inasmuch as the original jurisdiction of equity was to 
 supply more effective remedies where the common law remedies 
 proved inadequate, it was impossible to afford the desired relief by the 
 employment of the equitable remedy, if parties to the litigation were 
 permitted to pursue the common law remedies. Hence, to enable a 
 court of equity to assume complete charge of the case, the court would 
 enjoin the parties to the litigation from pursuing their legal remedies. 
 The injunction would not be issued against the court of law, but 
 against the parties to the cause of action. There would, therefore, be 
 no interference with the jurisdiction of the court of law directly; only 
 the parties to the suit were enjoined from proceeding with their legal 
 
 50 Conn. 278; s. c, 47 Am. Eep. 642; Bradley ii. v. New York Pub. Co., 8 Daly, (N. Y.)375; Elec- 
 
 NOTton, 33 Conn. 157; Myers v. Kalamazoo tro-Silicon Co.d. Levy, 59 How. (N. Y.) Pr. 469; 
 
 Buggy Co., 54 Mich. 215; s. c, 52 Am. Eep. Eoyal Baking Powder Co. v. Slierrill, 59 How. 
 
 811; McCann v. Anthony, 21 Mo. App. 83; (N. Y.) Pr. 17; Potter ». McPherson, 21 Hun, (N. 
 
 Plant Seed Co., 23 Mo. App. 579; Estes u. Will- Y.) 559; Dreydoppel v. Young, 14 Phila. (Pa.) 
 
 iams, 21 Fed. Eep. 189; Carroll v. Ertheiler, 14 226; Pennsylvania Salt Manuf. Co. ■u.Babbit, 24 
 
 Phila. (Pa.) 424; Humphreys, &c. Co. ». Wenz, Leg. Int. (Pa.) 165; Williams v. Johnson, 2 
 
 14 Fed. Eep. 250; Collins Co. v. Olive, &c. Cor., Bos. (N. Y.) 1 ; Curtis ». Eyan, 2 Daly, (N. Y.)31S; 
 
 20 Blatchf. (r. S.) 548; Funke v. Dreyfus, 34 s. c, 36 How. Pr. (N. Y.) 33; Dixon «. Crucible 
 
 La. An. 80; s. c, 44 Am. Eep. 413; Hegeman v. Co. v. Guggenheim, 2 Brewst. (Pa.) 321; s. u., 7 
 
 O'Bryne, 9 Daly, (2s . Y.) 264; Godillot v. Har- Phila. (Pa.) 408. 
 
 ris, 81 N. Y. S63; Enoch Morgan's Sons Co. v. i Dixon ». Holden, L. E. 7 Eq. 488; Spring- 
 
 Troxell, 57 How. (N. X .) Pr. 121; Oilman v. head, &a. Co. v Eiley, L. E. 6 Eq. 551; Dicks o. 
 
 Hnnnewell, 122 Mass. 139; Enoch Morgan's Brooks, L. E. 15 Ch. D. 28; Thomas v. Williams, 
 
 Sons Co. V. Schwachofer, 55 How. (N. Y.) Pr. L. E. 14 Ch. D. 864, 871, 872; Thorley's Cattle 
 
 37; Bell v. Locke, 8 Paige, (X. Y.) 75; Taylor v. Food Co. v. Massam, L. E. 14 Ch. D. 763; s. c. 
 
 Carpenter, 11 Paige, (N. Y.) 292; Partridge L. E.6Ch.D. 588;Prudential Ass. Co. ». Knott, 
 
 V. Menck, 2 Barb. (N. Y.) Ch. 101; Clark u. L. E. 10 Ch. 142; Fisher ». Appollinaris Co., L. 
 
 Clark, 25 Barb. (N.Y.) 76; Gillotts.Esterbrook, E. 10 Ch. 297; Clover ». Royden, L. E. 17 Eq. 
 
 47 Barb. (X. Y.) 455; Gillott v. Kettle, 3 Duer, 190; Mulkem v. Ward, L. R. 13Eq. 619. 
 
 (N. Y.) 634; Burnet V. Phalon, 9 Bosw. (N. T.) 2 Boston Diatite Co. v. Florence Man. Co., 
 
 634; Christy «. Murphy, 12 How. (N. Y.) Pr. 77; 114 Mass. 69; Whitehead 1). Kitson, 119 id. 484; 
 
 Bingeru. Wattles, 28 How. (N.Y.I 206; Fetridge Life Assn. v. Boogher, 3Mo. App. 173; Mauger 
 
 V. Merchant, 4 Abb. (N. Y.) Pr. 156; Colladaysi. v. Dick, 55 How. Pr. 132; and Singer Man. Co. 
 
 Baird, 4 Phila. (Pa.) 139; Coats ». Holbrook, 2 v. Domestic, &0. Co., 49 Ga. 70. But in one 
 
 Sandf. (N. Y.) Ch. 586; Taylor r. Carpenter, 2 case. Celluloid Man. Co. v. Goodyear, &c. Co., 
 
 Sandf. (N. Y.) Ch. 603; Perry.!). Trueflt, 6 Beav. 13 Blatch. 375, it has been held that the court 
 
 66; Smiths. Woodruff, 48 Barb. (N. Y.) 438; may issue injunctions for the purpose of re- 
 
 Newmani). Alvord, 49 Barb. (N. Y.) 588; Lowu. straining all such publications when they are 
 
 Hart, son! Y. 457; India Eubber Co. ». Eubber not only false and Injurious but also mali- 
 
 Comb, &c. Co., 45 N. Y. Super. Ct. 258; England clous. 
 
 565 
 
§ 489 EQUITT JURISPEUDENCR. [CH. XXVH. 
 
 remedy. The suit for injunction for restraining actions in courts 
 of law was at one time practically without limit, where the question 
 was one of relative adequacy of the remedies at law and in eqmty; and 
 in the exercise of the right to bring the matter of dispute completely 
 within its control, a court of equity could enjoin actions at law in the 
 courts of other countries, as well as in the legal courts in the same 
 state or country. But this would be done only when absolutely neces- 
 sary to the rendition of justice between the parties.^ There is, how- 
 ever, one exception to that general proposition in respect to the United 
 States courts, i. e., the United States courts cannot restrain actions 
 in state courts in the general exercise of their equitable jurisdiction.' 
 § 489. When jurisdiction is not exercised for restraining^ 
 actions at law. — In order that a court of equity may interfere for the 
 purpose of restraining actions at law, the claim must be made good 
 that the remedies at law are inadequate. If the parties to the litiga- 
 tion can find complete protection for their interests, or a satisfactory 
 settlement of their dispute in ^their actions at law, a court of equity- 
 will not interfere. And this is the case, even though in the prosecu- 
 tion of the action at law the party has by his own act or omission 
 failed to avail himself of the valid defense of the action. "Where a. 
 court of law has jurisdiction over the causes of action, and the decision 
 has been rendered, a court of equity will not interfere for the purpose 
 of restraining the judgment, on the ground that the action has been 
 wrongfully tried or decided by the court of law, whatever may be the 
 reason for such wrongful decision.^ Whenever, therefore, a court 
 
 1 Ostell ». La Page, 2 De G. M. A G. 892; Kit- e. Emery, 18 Id. 387; Vanarsdalen v. Whitaker^ 
 tie V. Kittle, 8 Daly, 72; Cole v. Young, 24 10 Phlla. 153; Nelson i>. Turner, 2 Md. Oh. 73; 
 Kans. 436; In re Boyse, L. E. 15 Ch. D. 591; Simpson v. Lord Howden, 3 My. & Or. 97, 108; 
 Moor V. Anglo-Italian Bk., L. E. 10 Ch. D. Protheroe «. Forman, 2 Swanst. 227, 233; Ware 
 181; Hope v. Carnegie, L. R. 1 Ch. 320; In re «. Horwood, 14 Ves. 28, 31; Bateman v. Willoe, 
 Chapman, L. E. 15 Eq. 75. 1 Seh. & Lef. 201, 204, 206; McCanu ii. Otoe Co., 
 
 2 Coster V. Griswold, 4 Edw. Ch. (N. T.) 364; 9 Neb. 324; Slack v. Wood, 9 Gratt. (Va.) 40; 
 Schuyler v. Pelissler, 3 Edw. Ch. (N. T.) 203; Erie Canal Co. v. Lowie, 5 Clark, (Pa.) 464;. 
 Thompson v. Norris, 63 How. Pr. {N. T.) 418; Smiths. Mayor, 1 Leg. Gaz. E. 86; Ashton «. 
 compare Hlnes v. Rawson, 40 Ga. 356; s. c, 2 Parkinson, 8 Phila. (Pa.) 338; s. c, 1 Leg. Gaz. 
 Am. Eep. 581; Riggs v. Johnson Co., 6 Wall. (Pa.) 99; Wright u. Eaton, 7 Wis. 595; Ablemaa 
 (U. S.) 166; tl. S. V. Keokuk, 6 Wall. (U. S.) 514; v. Both, 12 Wis. 81 ; Duncan v. Lyon, 3 Johns. 
 McKim V. Voorhies, 7 Craneh, (U. S.) 279. (N. Y.) Ch. 351; Wingate v. Haywood, 40 N. H. 
 
 s Chambers v. Penland, 79 N. C. 53; Atty.- 437; Davis v. Briggs, 3 How. (N. Y.) Pr. 65; 
 
 Gen. V. Baker, 9 Eich. Eq. 521; Williams ». Wordsworth v. Lyon, 5 How. (N. Y.) Pr. 463;. 
 
 Stewart, 56 Ga. 663; Brown v. Wilson, 56 Id. 534; s. c, 1 Code E. (N. Y.) n. b., 163; Rathbone v. 
 
 Shaw 1). Lindsey, 60 Ala. 344; Womack v. Warren, 10 Johns. (N. Y.) 587; Ham®. Schuy- 
 
 Powers, 50 Id. 5; O'Connor ». Sheriff, 30 La. ler, \ Johns. (N. Y.) Ch. 140; Rogers v. Eath- 
 
 An. pt. 1,441; Graham ». Eoberts, 1 Head, 56, bun, IJohns. (X. Y.)Ch.367; Tupper». Powell, 
 
 59; Chadwellt). Jordan, 2 Tenn. Ch. 635; Hart- 1 Johns. (N. Y.) Ch. 369; Savage v. Todd, 9- 
 
 man v. Heady, 57 Ind. 545; Comstock v. Henue- Paige, (N. Y.) 578; Paterson v. Bangs, 9 Paige, 
 
 berry, 66 111. 212; La Crosse, Ac. Co. ». Eey- (N. Y.) 578; Vilas v. Jones, 10 Paige, (X. 
 
 nolds, 12 Minn. 213; Kemp v. Tucker, L. R. Y.) 76; b. c, 1 N. Y. 274; Marine Ins. Co. r. 
 
 8 Ch. 369; see, also. Holmes «. Stateler, 57 111. Hodgson, 7 Cranoh, (U. S.) 332; Prewltt v. 
 
 209; McClure v. Miller, Bailey Eq. 107; Kew Perry, 6 Tex. 260; MeEae v. Purvis, 12 La. An. 
 
 Orleans v. Morris, 3 Woods, 103; Hungerford t). 85; Lee v. Hubbell, 20 La. An. 551; Hendriokson 
 
 Sigerson, 20 How. (U. S.) 156: Tyler v. Hamers- v. Hinchley, 17 How. (U. S.) 443; Glenn v. Fow- 
 
 ley,44Conn.419; Wallacko.Soc. Eef. Juv. Del., ler, 8 Gill & J. (Md.) 340; Huston «. Ditto, 20 
 
 67N.Y.23; Jackson u. Bell, 31 N. J. Eq. 554; 33 Md. 306; Littler. Price, 1 Md.Ch. 135; Smith®. 
 
 Id. ^11; Holmes v. Steele, 28 Id. 173; Van Syckel Walker, 16 Miss. (8 Smed. & M.) 131j Fanning, 
 
 566 
 
CH. xxvn.J 
 
 INJUNCTION. 
 
 § 489 
 
 errs in the trial of a cause, either in admitting or excluding evidence, 
 or in not giving proper instructions to the jury, there will be no 
 ground for the interposition of a court of equity.^ So, also, will it be 
 
 t7. Farmers', <fco. Bank, 16 Miss. (8 Smed. & M.) 
 139; Cole V. Hundley, 16 Miss. (8 Smed. A M.) 
 473; Love v. Pass, 23 Miss. (14 Smed. &M.) 158; 
 Young V. Billups, 23 Miss. 407; Meekw. How- 
 ard, 18 Miss. (10 Smed. & M.) 502; Brandon v. 
 Green,7 Humph. (Tenn.) 130; Bellamy v. Wood- 
 son, 4Ga. 175; Robinsr. Mount, 3 Ga. 74; Ven- 
 mun V. Davis, 35 111. 568; Slcinner v. Demlng, 2 
 Ind. 558; Johnson v. Lyon, 14 Iowa, 431 ; Smith 
 V. Short, 11 Iowa, 523 ; Central Iowa E. Co. v. 
 Moulton & A. E. Co., 67 Iowa, 249; Crawford v. 
 Paine, 19 Iowa, 173; Faulkner o. Campbell, 
 Mor. 148; Kreichbaum v. Bridges, 1 Iowa, 14; 
 Shrioker o. Field, 9 Iowa, 366; Minor v. Stone, 
 
 I La. An. 283; Lockard v. Lockard, 16 Ala. 423; 
 Watt V. Cobb, 32 Ala. 530; Fosters. State Bank, 
 17 Ala. 678; Bentley ». Dillard, 6 Ark. 79; Dugan 
 V. Cureton, 1 Ark. 31; Andrews v. Fenter, 1 
 Ark. 186; Watson ». Palmer, 5 Ark. 501 ; Hemp- 
 stead V. WaUcins, 6 Ark. 317; Menifee v. Ball, 7 
 Ark. 520; Conway r. Ellison, 14 Ark. 360; Phelps 
 V. Peabody, 7 Cal. 50; Pollock v. Gilbert, 16 Ga. 
 398; Taylor 11. Sutton, 15 Ga. 103. 
 
 1 Mayo V. Brytle, 47 Cal. 625j' Hausmeister v. 
 Porter, 21 Fed. Eep. 355; Torpedo Co. v. 
 Cleveudon, 19 Fed. Eep. 231; Wilson v. Hugh- 
 ell, Mor. (Iowa,) 461; Cowles v. Shaw, 2 Iowa, 
 496; Snyder v. Marks, 109 U. S. 189; Legg v. 
 Horn, 45 Conn. 409; Grant v. Moore, 88 N. Car. 
 77; Finegan v. Fernandina, 18 Fla. 127; States. 
 Civil District Judge, 34 La. An. 741 ; People v. 
 Wasson, 64 N. Y. 167; N. Y., &c. Co. v. Amer., 
 Ac. Co., 11 Paige, (N. Y .) 384; Jerome v. Ross, 7 
 Johns. Ch. (N. Y.) 315; De Witt v. Hayes, 2 Cal. 
 463; Pico v. Sunol, 6 CaL 294; Smith v. Sparrow, 
 13CaL597; Imlay». Carpenter, 14 CaL 173; Lo- 
 gan V. Hillegass, 16 Cal. 201 ; Green v. Thomas, 
 17 Cal. 86; Comstock v. Clemens, 19 Cal. 78; 
 Leach®. Day, 27 Cal. 643; Eahm v. Minis, 40 
 Cal. 421; Whalen v. Dalashmutt, 59 Md. 250; 
 Hayesv. Hayes, 2Del. Ch. 191; Olmsted's App., 
 86 Pa. St. 284; Hewett v. Kuhl, 10 C. E. Green, 
 (N. J.) 24; Powell v. Chamberlain, 22 Ga. 123; 
 Carr v. Lee, 44 Ga. 376; Beauchamp v. Put- 
 nam, 34111. 378; Yates u. Batavia, 79 111. 500; 
 Hartmanc. Heady, 57 Ind. 545; Smith v. Short, 
 
 II Iowa, 523; Gibson v. Moore, 22 Tex. 611; 
 Lanahant;. Gahan, 37 Md. 105; George's Creek, 
 Ac. Co. 11. Detmold, 1 Md. Ch. 371; Jerome v. 
 Eoss, 7 Johns. Ch. 315; Goodell v. Lassen 69 111. 
 145; Dunhams. Miller, 75 111. 379; Kilpatrick 
 D. Smith, 77 Va. 347; Kendall v. Missisquoi, &o. 
 R. Co., 55 Vt. 438; Pullman Palace Car Co. v. 
 Central Trans. Co., 34 Fed. Rep. 357; Richards 
 Kirkpatrick, 53 Cal. 433 ; Stevenson v. Payer- 
 weather, 21 How. (N. Y.) 449; Wilkins v. 
 Hogue, 2 Jones (N. Car.) Bq. 479; McCoy v. U. 
 S. Bank, 5 Ohio, 548 ; Nioolson v. Hancock, 4 
 Hen. & M. (Va.) 491; Borland ». Thorton, 12 
 Cal. 440; Hulse v. Wright, Wright; (Ohio,) 61; 
 Amelung v. Seekamp, 9 Gill & J. (Md.) 468; 
 Hamilton v. Ely. i Gill, (Md.) 34; White u. 
 
 Flannigan, 1 Md. 525; Whittlesey ». Hartford, 
 &e. R. Co., 23 Conn. 421; Camps. Mathesou, 
 30 Ga. 170; Thibodaux v. Wright, 3La. An. 130; 
 Arnolds. Kleeper, 24 Mo. 273; Winnipiseogee 
 Lake Co. ». Worster, 29 N. II. (9 Fost.) 433; 
 Warne v. Morris, Ac. Co., 5 N. J. Eq. (1 Halst.) 
 410 ; Rogers v. Michigan, &c. R. Co. , 28 Barb. (X. 
 Y.) 539; Balcoms. Julien, 22 How. (N. Y.) Pr. 
 349; Willis V. Stapels, 39 Hun, (N. Y.) 644; 
 Flnoke v. N.Y. Police Comm'rs, 66 How.(N. Y.) 
 Pr. 318; Cummings v. Barrett, 10 Cush. (Mass.) 
 196; Washburn E. Miller, 117 Mass. 376; Parker 
 
 II. Winnipiseogee Cotton Co. , 2 Black, (U. S.) 
 545; Sickles v. New Rochelle, 41 Hun, (N.Y.) 
 408; Goldfrank-B. Young, 64 Tex. 432, overrul- 
 ing Blackwell v. Barrentt, 52 Tex. 326 ; Laughlin 
 «. Lamasco, 6 Ind. 223; Finleyi). Thayer, 42 
 
 III. 360; La Mothe v. Fink, 8 Biss. (U. S.) 493; 
 Gore V. Brubacker, 55 Md. 87; Jacks v. Big- 
 ham, 36 Ark. 481 ; Jersey City v. Gardner, 33 N. 
 J. Eq. 632; Gutierres v. Pino, 1 New Mex. 393; 
 Frazier v. White, 49 Md. 1 ; Edwards ii. Allonez 
 Min. Co., 38 Mich. 46; Palmer s. Logansport, 
 Ac. Co., 108 Ind. 137; Kenneys. Consumers' 
 Gas Co., 142 Mass. 41T; Coughron v. Swift, 18 
 111. 414; Poageii. Bell, 3 Rand. (Va.) 586; Wink- 
 ler V. Winkler, 40 111. 179; Webster v. Couch, 6 
 Rand. (Va.) 519; Sherman v. Clark, 4Nev. 138; 
 Arkrilli7. Selden, 1 Barb. (N. Y.) 316; Mullens. 
 Jennings, 1 Stock. (N. J.) 192; Bay City Bridge 
 Co. V. VanBtten, 36 Mich. 210; Mears v. Ho- 
 warth, 34 Mich. 19; Teft v. Stewart, 31 Mich. 
 367; Bennett s. Nichols, 13 Mich. 22; Oliver v. 
 Memphis, Ac. Co., 38 Ark. 128; Murphy s. Har- 
 rison, 29 Ark. 340; Sanders s. Sanders, 20 Ark. 
 610; Lovette s. Longmire, 14 Ark. 339; Wooden 
 V. Wooden, 2 Green (N. J.) Ch. 429; Frazier s. 
 White, 49 Md. 19; Brandon s. Green, 7 Humph. 
 130; Duckworth s. Duckworth's Adm'r, 35 Ala. 
 70; Holmes v. Stateler, 57 111. 209; Vennum s.. 
 Davis, 35 Id. 568; Hinriohsen s. Van Winkle, 27 
 Id. SSi; Johnson «. Lyon, 14 Iowa, 431 ; Hen- 
 drickson s. Hinckley, 17 How. (U. S.) 443, 445; 
 Walkers. Robbins, 14 Id. 584; Creath's Adm'r 
 V. Sims, 5 Id. 192; Marine Ins. Co. v. Hodgson, 
 7 Cranch, 332; Barker s. Blkins, 1 Johns. Ch. 
 465; Windwart v. Allen, 13 Md. 196; Katz s. 
 Moore, 13 Id. 566; Lyday v. Douple, 17 Id. 188; 
 Methodist Church s. Baltimore, 6 Gill, 391, 
 Bateman v. Willse, 1 Sch. A Lef. 201, 206; 
 Hungerford v. Sigerson, 20 How. (U. S.) 156; 
 Dunn V. Fish, 8 Blackf. (Ind.) 407; Vaughn v. 
 Johnson, 1 Stock. (N. J.) 173; Stockton s. 
 Briggs, 5 Jones (N. Car.) Bq. 309; Reynolds v. 
 Horine, 13 B. Mon. (Ky.) 234; Cassel s. Scott, 
 17 Ind. 514; De Haven v. Covalt, 83 Ind. 344; 
 Mo. Pao. R. Co. V. Reid, 34 Kans. 410; Cloptou 
 s. Carloss, 42 Ark. 560; Hazeltine s. Reusch, 51 
 Mo. 50; Mo. Pac. E. Co. s. Reid, 34 Kans. 410; 
 Slacks. Wood, 9 Gratt. (Va.) 40; De Haven d. 
 Covalt, 83 Ind. 344; Ableman s. Roth, 13 Wis. 
 81; Stillwell v. Carpenter, 59 N. Y. 414; Holmes 
 
 567 
 
§ 490 
 
 EQUITY JUKISPRUDENCE. 
 
 [CH. XXVII. 
 
 no ground for the intervention of a court of equity, if the defendant 
 had a good defense, which was not properly presented to the court, 
 either through his own neglect or the negligence or other omission of 
 his attorney.' Ignorance of the facts which constitute the defense 
 would not furnish the ground for equitable intervention, unless it be 
 shown that the party could not have acquired the information by the 
 exercise of due diligence, and an opportunity for reversing the decis- 
 ion of the lower court by an appeal to the higher court has been lost 
 or denied to him.^ So, also, as a general rule, a court of equity will 
 not restrain parties from proceeding in some other court of equi- 
 table jurisdiction; but where the suit in one court is instituted only by 
 some of the parties,^ and it is necessary for the purpose of preventing a 
 multiplicity of suits to cause all of the cases to be consolidated into one, 
 then one court of equity may restrain proceedings in another court 
 of similar jurisdiction.' 
 
 § 490. When the jurisdiction may be exercised. — Under the 
 earlier law, where the two courts were separate, there were three 
 classes of cases in which equity might interfere by injunction to 
 restrain the parties from pursuing their remedies at law. The first 
 class of cases constitutes litigations over purely equitable rights, or 
 where the defendant in a legal action had an equitable defense which 
 he could not make use of in the action at law. In either case, a court 
 
 V. Steele, 28 N. J. Eq. 173; Cairo R. Co. v. Titus, 
 12 C. B. Green, (N. J.) 102; Vanarsdelen v. 
 Whitaker. 10 Phila. (Pa.) 153; Kobuck v. Hark- 
 ins, S Mont. 447. 
 
 1 Marine Ins. Co. «. Hodgson, 7 Cranch, 333; 
 Day V. Cummings, 19 Vt. 496; Peace v. Nailing, 
 1 Dev. Eq. 289; Champion v. Cabal's Adm'r, 2 
 Swan, 550; Warner v. Conant, 24 Vt. 351; Bur- 
 ton «. Wiley, 26 M. 430; Emerson «. Udall, 13 Id. 
 477; Powell v. Stewart, 17 Ala. 719; Jamison v. 
 May, 13 Ark. 600; Graham v. Roberts, 1 Head, 
 56; Barker!). Elkins, 1 Johns. Oh. (N. T.) 466; 
 see Matson v. Field, 10 Mo. 100; Hill v. Harris, 
 51 Ga. 628; Dodget). Strong, 2 Johns. Ch. (N.Y.) 
 228; Holmes v. Stateler, 57 111. 309; Meredith ». 
 Benning, 1 Hen. <fc M. (Va.) 585; Stanard v. 
 Rogers, 4 Hen. A M. (Va.) 438; Turpin v. 
 Thomas, 2 Hen. AM. (Va.) 139; Ponder d. Cox, 
 26 Ga. 485; Beaird v. Foreman, Breese, (111.) 
 3a5; Gott V. earn, 6 Gill & J. (Md.) 309; Bwin 
 17. Mickle, 45 Md. 413: Still well v. Carpenter, 
 .59 N. Y. 414, reversing s. c, 1 Thomp. <& C. (N. 
 T.) 615; Shields v. McClung, 6 W. Va. 79; 
 ■O'Connor v. Sheriff, 30 La. An. pt. 1, 441; 
 Menifee v. Myers, 33 Tex. 690; Jones v. Cam- 
 eron, 81 N. Car. 154; Blandry v. Felch, 47 Cal. 
 183; Abrams v. Camp, 3 Soam. (111.) 290; Lucas 
 V. Spencer, 27 111. 15; Albro v. Dayton, 28 111. 
 325; Schricker «. Field, 9 Iowa. 366; Wilsey v. 
 Maynard, 21 Iowa, 107; Hendrlcksonv. Hinck- 
 ley, 17 How. (U. S.) 443; Grim ». Handley, 4 
 Otto, (U. S.) 653; Hungerford ». Slgerson, 20 
 How. (D. S.) 161; Katz v. Moore, 13 Md. 366; 
 Lyday ». Double, 17 Md. 188; Brandon v. Green, 
 
 568 
 
 7Humph. (Tenn.) 130; Emerson®. Udall, 13 Vt. 
 477; Clute v. Potter, 37 Barb. (N. Y.) 199; Pet- 
 tes V. Bank of Whitehall, 17 Vt. 435; Windwart 
 V. Allen, 13 Md. 196; Bateman v. Willoe, 1 Sch. 
 & Lef . 201; Lafonv. Dessessart, 1 Mart. (La.) 
 N. s., 21; Commissioner, &c. u. Patrick, Sm. & 
 M. Ch. 110; Duckworth?). Duckworth, 35 Ala. 
 70; Brown v. Wilson, 56 Ga. 534; Shricker v. 
 Field, 9 Iowa, 367; Meem v. Rucker, 10 Gratt. 
 (Va.)506; Risher v. Roush, 2 Mo. 95; Hubbard 
 V. Martin, 8 Terg. (Tenn.) 498. 
 
 2 Allen V. Hamilton, 9 Gratt. 255; Miller «. 
 Gaskins, Sm. <& Mar. Ch. 524; Moran «. Wood- 
 ward, 8 B. Mon. 537; Smith v. Allen, 63 111. 474; 
 Holmes u. Stateler, 57 Id. 209; Hinrichsen v. 
 Van Winkle, 27 Id. 334; Ocean Ins. Co. v. Fields, 
 2 Story, 59; Truly t). Wanzer, 5 How. (U. S.) 
 141; Emerson v. Udall, 15 Vt. 477; Slack «. 
 Wood, 9 Gratt. 40 ; Ware v. Harwood, 14 Ves. 31 ; 
 Cairo, &e. E. Co. v. Titus, 12 C. E. Green, (N. 
 J.) 102; Crim v. Handley, 4 Otto, (U. S.)653; 
 Campbell v. Briggs, 3 Rob. (La.) 110 ; compare 
 Brown «. Luehrs, 79 111. 575; Hlckerson v. 
 Ralguel, 2 Heisk. (Tenn.) 329; Baltzell v. Ran- 
 dolph, 9 Fla. 366; Ludington v. Handley, 7 W. 
 Va. 269; Ferrell «. Allen, 5 W. Va. 43; East v. 
 Ware, 6 Gratt. (Va.) 50; BiUupa ». SearS, 5 
 Gratt. (Va.) 31 . 
 
 8 See Erie Ey. v. Ramsey, 45 N. T. 637, per 
 Folger, J. ; but see Endter ». Lennon, 40 Wis. 
 299; Wright ®. Fleming, 76 N. T. 517; Pruden- 
 tial Ass. Co. !). Thomas, L. E. 3 Ch. 74; Mann v. 
 Fowler, 26 Minn. 479; Bond v. Greenwald, 7 
 Baxt. 466; Haeselg v. Brown, 34 Mich. 503. 
 
CH. XXVn.J INJUNCTION. § 490 
 
 of equity assumed jurisdiction because the equitable right or defense 
 could not be asserted successfully in the court of law.' And, on the 
 same general ground, have courts of equity enjoined actions at law, 
 where that is necessary to avoid a multiplicity of suits, and to enable all 
 of the questions involved in the dispute, and in respect to all of the 
 parties, to be settled in one action.^ Courts of equity have also 
 assumed jurisdiction when it is necessary to obtain a discovery in aid 
 of a defense at law.' Thus, in cases of interference for the purpose of 
 securing to the defendant the protection of his equitable rights, the 
 defense will only be available when the equitable defense or right is 
 inseparably connected with the legal cause of action of the plaintiff, 
 and the enforcement of the legal cause of action would necessarily 
 involve a loss of the equitable right. When, however, the same 
 subject-matter or transaction contains separate and distinct legal and 
 equitable questions or causes of action, a court of equity, in taking 
 jurisdiction over the equitable actions, will not be permitted to restrain 
 proceedings at law on the legal cause of action.* 
 
 The second class of cases is of those in which the courts of equity 
 and of law have concurrent jurisdiction to grant their several reme- 
 dies, m cases of fraud, for example; and in actions upon instruments, 
 whose execution has been procured by fraud, both courts of law and 
 of equity have jurisdiction, but their remedies are different. A court 
 of equity will not interfere with the prosecution of the action at law, 
 whenever the legal remedy proves to be adequate to the protection of 
 the interest of the parties at issue. It will only interfere where the 
 court of law cannot furnish the protection required by the parties and 
 a resort to the equitable remedy is necessary; and in that case, the 
 court of equity will enjoin the prosecution of the action at law, and 
 thus enable the matter to be brought before the court of equity for a 
 full and complete settlement by the emplojmient of the more effective 
 
 1 Moses V. Sanford, 2 Lea. 655; Breeden v ' 3nmel v. Jumel, 7 Paige, 591; Heyer v. 
 
 Grigg, 8 Baxt. 163; Deaderick «. Mitchell, 6 Id. Pruyn, 7 Id. 465; Marsh v. Pike, 10 /d. 595; 
 
 35; Franks v. Morris, 9 W. Va. 664; Hill v. Bill- Woodruff v. Fisher, 17 Barb. 384; Third Ave. 
 
 ingsly, 53 Miss. Ill; Texas Land Co. v. Turman, E. R. v. The Mayor, &c., 54 N. T. 159; Paterson, 
 
 S3 Tex. 619; Earl of Aylesford v. Morris, L. E. &c. E. R. i/. Jersey City, 1 Stockt. Ch. 434; 
 
 S Ch. 484; Lord Tredegar v. Windus, L. E. 19 Stevenson v. Black, Saxton, 338; Klapworth v. 
 
 Eq. 607; Crofts v. Middleton, 8 De G. M. <fc G. Dressier, 2 Beasl. 68; Woods v. Monroe, 17 
 
 193; Evans ®. Bremridge, 8 iB. 100; Pollock«. Mich. 238; Scott ii. Shreeve, 42 Wheat. 605; Oel- 
 
 Gllbert, 16 Ga. 398; Frith v. Eoe, 23 Id. 139; richs v. Spain, 15 Wall, 211, 388; Penn., &.O. Co. 
 
 Greenlee T. Gaines, 13 Ala. 198; Henwood v. v. Delaware, &c. Co., 31 N. Y. 91; Eldridge v. 
 
 Jarvis, 27 N. J. Eq. 247; Wyooff v. Victor, <Sco. Hill, 2 Johns. Ch. 281; Tice v. Annlu, 2 Id. 125; 
 
 Co, ,43 Mich. 309; Scrlvin v. Hursh, 39 Id. 98; Trustees, &c. v. NicoU, 3 Johns. 566; West v. 
 
 Detroit, &0. E. E. «. Brown, 37 Ja. 533; Haescig The Mayor, &c., 10 Paige, 539. 
 
 V. Brown, 34 Id. 503; Pindell v. Quinn, 7 111. ' Boughton v. Phillips, 6 Paige, 433; Kilg v. 
 
 App. 605; Hager». Buechler, 6 7(i.462;"Hibbard Clark, 3 Id. 76; Williams u. Harden, 1 Barb. 
 
 V. Estman, 47 N. H. 507; Ross V. Harper, 99 Ch. 298. 
 
 Mass. 175; Panning v. Dunham, 5 Johns. Ch. * Mitchell v. Oakley, 7 Id. 68; Eagsdale v. 
 
 132; Skinner v. White, 17 Johns. 357; Varick v. Hagy, 9 Gratt. 409; Justice v. Scott, 4 Ired. Eq. 
 
 Edwards, Hoff. Ch. 382; 11 Paige, 289; 5 Denio, 108; Hill v. Billingsly, 53 Miss. Ill ; see Williams 
 
 664; County of Armstrong v. Brinton, 47 Pa. St. v. Earl of Jersey, Cr. & Ph. 91; Gridley v. Gar- 
 
 367, 374; Jones v. Slubey, 5 Har. <& J. 372; White rison, 4 Paige, 647. 
 ■v. Crew, 16 Ga. 416. 
 
 569 
 
§ 490 
 
 EQUITY JUKISPKUDENCE. 
 
 [CH. XXVU. 
 
 equitable remedy.^ Where, however, the origmal action is instituted 
 in a court of equity, instead of being brought in a court of law, the 
 question as to adequacy of the remedy would not arise; because the 
 court of equity first took jurisdiction over the cause of action, it will 
 be permitted, without question, to retain an exclusive control of the 
 issues.' But where the court of law first assumed jurisdiction, then 
 the justification for the intervention of a court of equity is to he found 
 in the inadequacy of the legal remedy to furnish ample protection to 
 the parties suffering from the wrongful acts of the other. Thus, for 
 example, to prevent negotiable paper, which has been procured by 
 fraud, from passing into the hands of a iona fide purchaser, a court 
 of equity will assimie jurisdiction and enjoin the further transfer of 
 such paper.'* 
 
 In the third class of cases are to be found all those cases in which a 
 legal judgment has been obtained through some fraud, mistake or 
 accident, or where the defendant, having a legal defense, has been 
 prevented from making a successful use of such defense by fraud, 
 mistake or accident; and even in cases of negligence or laches on his part 
 or on the part of his attorney or agent, a court of equity will never be 
 prevented from restraining the enforcement of the judgment. But in 
 order that a court of equity may on this ground interfere, the judg- 
 ment must have been rendered and the action at law terminated.* 
 
 ' Scott V. Seott,33Ga. 102; CovUle v. Gllman, 
 13 W. Va. 314; Herwood v. Jarvis, 27 N. J. Eq. 
 247; Boyce's Ex'rs v. Grundy, 3 Pet. 810, 215j 
 London, &c. Ins. Co. v. Seymour, L. R. 17 Eq. 
 85; Traill v. Baring, 4 De G. J. <fe S. 318; Athe- 
 naeum L. Ass. Soc. V. Pooley, 3 De G. & J. 294; 
 Camden, <fce. K. E. v. Stewart, 18 N. J. Eq.489; 
 Gould V. Hayes, 19 Ala. 438; Bumpass v. Beams, 
 1 Sneed, 595: Mason v. Piggott, 11 111. 85; Boss 
 V. Buchanan, 13 Id. 55; Southerland i>. Harper, 
 83 N. C. 200; Glastenbury j). McDonald's Adm'r, 
 44 Vt. 453; Atlantic, &0. Co. v. Tredick, 5 E. I. 
 171; Bissell«. Beckwith, 33Conn. 357; Hamil- 
 ton V. Cummings, 1 Johns. Ch. 517; Bushnell®. 
 Harford, 4 Id. 301; Dale v. Eoosevelt, 5 Id. 174; 
 Metier v. Metler's Adm'rs, 19 N. J. Eq. 457; 
 Morris v. Barnwell, 60 Ga. 147; Mitchell v. 
 Word, 60 Id. 525; RadcliflFe v. Varner, 56 Id. 
 ^SSi; see ante, %% 220, 221, and cases cited; In- 
 surance Co. V. Bailey, 13 Wall. 616; Grand 
 Chute ». Winegar, 15 Id. 373; Hipp v. Babin, 19 
 How. (U. S.)271; Smith v. Mclver, 9 Wheat. 
 532; Eussell u. Clark's Ex'rs, 7 Cranch, 69; 
 Bank of Bellows Palls v. Rutland, &c. E. E., 28 
 Vt. 470; Hazard v. Irwin, 18 Pick. 95; Fleming 
 V. Slocum, 18 Johns. 403; Roberts?). Anderson, 
 3 Johns. Ch. 371; 18 Johns. 515; Crane «. Bun- 
 nell, 10 Paige, 333. 
 
 2 Winn V. Albert, 8 Md. Ch. 42; Merrill o. 
 Lake, 16 Ohio, 373; Thompson v. Hill, 3 Yerg. 
 167; Mallett v. Dexter, 1 Curtis, 178; Steams ». 
 Steams, 16 Mass. 167, 171. 
 
 8 Ferguson v. Fisk, 28 Conn. 601 ; Hamilton v. 
 Cummings, 1 Johns. Ch. 617; Dalafield o. Illi- 
 
 570 
 
 nois, 26 Wend. 192; Van Doren v. The Mayor, 
 Ac, 9 Paige, 888; Cox «. Clift, 2 N. Y. 118; Met- 
 ler's Adm'rs ®. Metier, 18 N. J. Eq. 870; 19 Id. 
 457; Bell v. Gamble, 9 Humph. 117; Poor v. Car- 
 leton, 3 Sumner, 70 ; Glastenbury v. McDonald's 
 Adm'r, 44 Vt. 453; Bank of Bellows Palls v. 
 Rutland, &c. R. , R. 28 Id. 470; Franklin »..Green, 
 2 Allen, 519; Sherman «. Fitch, 98 Mass. 59. 
 
 < Humphries v. Bartee, 10 Sm. & Mar. S82, 
 296; Pelham v. Moreland, 11 Ark. 442; Nelson 
 ». Rockwell, 14 111. 375; How v. Mortell, 28 Id. 
 479; New Orleans v. Morris, 3 Woods, 103; 
 Smith V. McLain, 11 W. Va. 654; Shields v. 
 MoClung, 6 Id. 79; Crim v. Haudley, 4 Otto, 658; 
 Mann v. Worrall, 16 Barb. 221 ; Poster v. Wood, 
 6 Johns. Ch. 87; Tomkins v. Tomkins, 3 Stockt. 
 512, 514; Giflford v. Thom, 1 Id. 703; Moore v. 
 Gamble, Id. 246; Glover v. Hedges, Saxton, 113, 
 119; Bolton't). Scott's Adm'rs, 2 Green Ch. 831, 
 236, 841; Wistar v. McManes, 54 Pa. St. 318; 
 Webster v. Skipwith, 26 Miss. 341; Traly ,/. 
 Wanzer, 5 How. (U. S.) 141 ; David v. Tileston, 
 6 Id. 114; Hendrickson v. Hinckley, 17 Id. 4«j 
 5 McLean, 211; Marine Ins. Co. t>. Hodgson, 7 
 Cranch, 338; Ocean Ins. Co. v. Fields, 2 Story, 
 59; Eobinson i>. Wheeler, 51 N. H. 384; Wingate 
 V. Haywood, 40 Id. 437, 441; Emerson v. Udall, 
 13 Vt. 477; Gainty v. Eussi, 40 Conn. 450; Dob- 
 son V. Pearce, 12 N. Y. 156; Tomkins «. Tom- 
 kins, 11 N. J. Eq. (3 Stock.) 512; Daugherty v. 
 Scudder, 17 N. J. Eq. 248; Skillman «. Hol- 
 comb, 13N. J. Eq. (1 Beas.) 131; Williamson ». 
 Johnson, 5 N. J. Eq. (1 Hals.) 537; Smith t). 
 Hays, 1 Jones (N. Car.) Eq. 381 : Partin v. Lut- 
 
CH. xxvn.J 
 
 mJUNCTION. 
 
 § 49a 
 
 Among other examples of cases, where a judgment at law will be 
 restrained, wiU be found those cases where the defendant has been 
 prevented from defending in the suit by a false misrepresentation by 
 the plaintijff, that the action would not be prosecuted. ^ So, also, where 
 through sickness the defendant has been prevented from making a 
 legal defense,^ or where there has been a failure to properly serve the 
 defendant with process.' But in order that one suffering from the 
 judgment wrongfully recovered at law may secure relief by injunc- 
 tion, he must exercise the utmost diligence in appealing to the court 
 of equity for aid.* And he must also be able to show that if he had 
 
 terlot, 6 Jones (N . Car.) Eq. 341 ; Habbard v. 
 Martin, 8 Yerg. (Tenn.) 498; Richmond, &c. E. 
 Co. V. Shippen, 2 Patt. & H. (Va.) 327 j Nunn v. 
 Matlock, 17 Ark. 512; Jamison v. May, 13 Ark. 
 600; Bibend i>. Kreutz, 30 Gal. 109; Carter v. 
 Bennett, 6FIa. 214; Nelson v. Eookwell, 14 111. 
 375; Hinrichsen v. Van Winkle, 27 111. 334; 
 Pearce v. Chastain, 3Ga. 226; Crumpton v. Bald- 
 win, 42 111. 165; Dickerson v. Ripley Co., 6 Ind. 
 128; Porter v. Moffett, 1 Morr. (Iowa,) 108; 
 Books V. Williams, 13 La. An. 374; Falls v. 
 Koblnson, 5 Md.36S; Ford v. Weir, 24 Miss. 563; 
 Andrews v. Fenter, 1 Ark. 186; Watson v. 
 Palmer, 5 Ark. 501 ; Conway v. Ellison, 14 Ark. 
 360; Nevins v. McKee, 61 Tex. 412; Wingate v. 
 Haywood, 40 N. H. 437; Pearce V. Olney, 20 
 Conn. 544; Stanton -ti. Embry, 46 Conn. 595; 
 Slack V. Wood, 9 Gratt. (Va.) 49; Cotton v. 
 Hiller, 52 Miss. 7; Newman v. Morris, 52 Miss. 
 402; Collier v. Falk, 66 Ala. 223; Walton v. Bon- 
 ham, 24 Ala. 513; Marriott v. Givens, 8 Ala. 694; 
 Holmes v. Stateler, 57 111. 209; Bateman v. Wll- 
 loc, 1 Seh. & Lef. 201; McClnre v. Miller, 
 Bailey's Eq. (S. Car.) 107; Graham v. Roberts, 1 
 Head, (Tenn.) 56; Comstock«. Henneberry, 66 
 111. 212; La Crosse, &c. Co. v. Reynolds, 12 
 Minn. 213; Wright v. Eaton, 7 Wis. 595; Able- 
 man V. Both, 12 Wis. 81 ; MoCauu ». Otoe Co., 
 9 Neb. 324; Little v. Price, 1 Md. Ch. 182; Dn- 
 gan V. Cureton, 1 Ark. 31. 
 
 1 Scrivin V. Hursh, 39 Mich. 98; Harris v. West- 
 em & At. E. R., 59 Ga. 830; Baker v. Redd, 44 
 Iowa, 179; Markham v. Angier, 67 Ga. 43 ; Ellis 
 V. Kelly, 8 Bush, 621, 631 ; Pearce v. Olney, 20 
 Conn. 544; Huggins v. King, 3 Barb. 616; Powers' 
 Ex'rs V. Butler's Adm'r, 3 Green Ch. 465; Hol- 
 lands. Trotter, 22 Gratt. 136; Booth v. Stamper, 
 6 Ga, 172; Brooks v. Whitson, 7 Sm. & Mar. 513; 
 How«. Mortell, 28 111. 479; Perry ». Siter, 37 
 Mo. 273; Jarboe v. Kepler, 4 Ind. 177; McLeran 
 V. McNamara, 55 Cal. 508; Miller v. Harrison, 
 32 N.J. Eq. 76; Cregar v. Cramer, 31 Id. 375; 
 Purviance u. Edwards, 17Fla. 140; Hiokleyv. 
 Miles, 15 Hun, 170. 
 
 2 Roach V. Duckworth, 61 How. Pr. 128; Bev- 
 eridge«. Hewitt, 8111. App. 467; Milleri;. Har- 
 rison, 32 N. J. Eq. 76; Stanton v. Embry, 46 
 Conn. 65; Markham v. Angier, 67 Ga. 43; Smith 
 n. Pearce, 6 Baxt, 72; Belli). Cunningham,! 
 Sumner, 89; DevoU !). Scales, 49 Me. 320; Car- 
 ilngtom V. Holablid, 17 Conn. 530; 19 Id. 87; 
 
 Forrester V. Wilson, 1 Duer, 624; Griffith «. 
 Brown,3Eobt. 627; Aaron v. Baum, 7 7ii. 340; 
 Owen ti. Banstead, 22 111. 161; Eioe». E. R. 
 Bank, 7 Humph. 39. 
 
 s Harshey v. Blackmarr, 20 Iowa, 161 ; Walker 
 V. Gilbert, Freem. (Miss.) Ch. 85; McNeill v. 
 Edie, 24 Kans. 108; Eyau v. Boyd, 33 Ark. 778; 
 Blakeslee J). Murphy, 44 Conn. 188; see Graham 
 ». Eoberts, 1 Head, 56, 59; Crafts «. Dexter, 8 
 Ala. 767; Stubbs ». Leayitt, 30 Id. 352; Belli). 
 Williams, 1 Head, 229; Eldgeway v. Bank of 
 Tenn., 11 Humph. 523, 525; Owens v. Ran- 
 stead, 22 111 161. 
 
 * Earl of Matheney, 60 Ind. 202; Kern v. 
 Strausberger, 71 111. 413; Higgins«. Bullock, 73 
 JB. 205; Fullers. Little, 69 Id. 229; Newman v. 
 Morris, 52 Miss. 402; New Tork, &o. B. B. v. 
 Haws, 56 N. Y. 175; Eiohmond Enquirer Co. a. 
 Eobinson, 24 Gratt. 548; Rogers v. Parker, 1 
 Hughes, 148; Deyinney s. Mann, 24 Kans. 682; 
 Noble D. Butler, 25 Id. 645; Burke v. Wheat, 22 
 la. 722; Wilson V. Coolidge, 42 Mich. 112; Han- 
 noni). Maxwell, 31 N. J. Eq. 318; Jackson ». 
 Bell, 31 Id. 654; 32 Jd. 411; Holmes v. Steele, 28 
 Id. 173; Thompson v. Meek, 3 Sneed, 271 ; Smith 
 V. Allen, 63 111. 474; Smith v. Powell, 50 Id. 21; 
 Euppertsberger v. Clark, 53 Md. 402 ; Klrby V. 
 Pascault, 53 Id. 531 ; Hays v. Urquhars, 63 Ga. 
 323; Carolus v. Koch, 72 Mo. 645; Foster i). 
 Wood, 6 Johns. Ch. 87; Duncan v. Lyon, 3 Id. 
 351; Graham v. Stagg, 2 Paige, 321; Vilas a. 
 Jones, 1 N. Y. 274; Vaughn v. Johnson, 1 
 Stockt. 173; Bierne i). Mann, 5 Leigh, 364; 
 Meem v. Eucker, 10 Gratt. 506; Bellamy v. 
 Woodson, 4 Ga. 175; Eobb!). Halsey, 11 Sm. & 
 Mar. 140; Williams V. Jones, 10 Id. 108; Con- 
 way «. Ellison, 14 Ark. 360; Paynter v. Evans, 
 7B. Mon. 420; Fletcher v. Warren, 18 Vt. 45; 
 Emerson v. Udall, 13 Vt. 477 ; Warner v. Con- 
 ant, 24 Id. 351 ; Floyd i>. Jayne, 6 Johns. Ch. 479 ; 
 Fuller 1). Melrose, 1 Allen, (Mass.) 166; Busst). 
 Wilson, 22 Me. 207; Blnney's Case, 2 Bland, 
 (Md.) 99; Sedam v. Williams, 4 McLean, (U. S.) 
 51; Pillow)). Thompson, 20 Tex. 206; Callaway 
 V. Alexander, 8 Leigh, (Va.) 114; Northern 
 Pao. B. Co. V. St. Paul, &c. E. Co., 2 McCrary, 
 (U. S.) 260; Jones v. Cameron, 81 N. Car. 154; 
 American Dock and Imp. Co. v. School Trus- 
 tees, 35 N. J. Eq. 181; Parker v. Spillin, 10 
 Phila. (Pa.) 8; Wynn d. Wilson, Hempst. (U. 
 S.) 698 ; Gibson ii. Moore, 22 Tex. 611 ; FItzhugh v. 
 
 571 
 
§ 491 EQUITY JUKISPKUDENCE. [CH. XXVn. 
 
 not been prevented by fraud, accident or mistake from presenting his 
 defense to the cause of action, the judgment which had been rendered 
 against him would have been denied to the plaintiff, and that a re-exam- 
 ination and a re-trial of the case, and an opportunity to make his 
 defense would result in a refusal of the judgment. If the court is not 
 satisfied that the re-trial of the case would produce different results, 
 it would refuse to enjoin the enforcement of the judgment.' In these 
 causes of action for avoiding the enforcement of judgment obtained 
 through fraud, accident or mistake, the equitable jurisdiction is 
 assumed for the purpose of supplementing the provisions which have 
 been made for the grantiug of new trials at law, and the revision on 
 appeal of errors made in the judgment. Where, therefore, the reme- 
 dies for correcting errors by way of granting new trials or by appeals 
 are sufficiently adequate to secure the ends of justice, a court of equity 
 would not assume jurisdiction; so that it is very rarely employed at 
 the present time in courts in the United States. 
 
 § 491. Equitable jurisdiction to restrain actions at law under 
 modern procedure.— It is very well known that under the modern 
 precedure, both in England and in most of the American states, not 
 only have the two courts of law and of equity become merged into the 
 one court of general procedure, but also under the reformed procedure, 
 which was first adopted in New York, all forms of action previously 
 in use have been abolished, and the one single cause of action known 
 as a civil action, has been made to take their place; and in that action 
 the court has been authorized to entertain both legal and equitable 
 causes of action and to consider legal and equitable defenses indiscrim- 
 inately. In consequence of this radical change in the character of 
 civil remedies and of the civil courts, very little opportunity is now 
 presented for the intervention by injunction of courts of equity to 
 
 Orton,12 Tex. 41 ; Musgrove ».Chambers,12 Tex. Kingsbury, 32 Ga. 60; Vaughn r>. Fuller, 83 Ga. 
 
 32; Crawford ti.Winfleld, 25 Tex. 414; Kidwells. 366; Cleckley «. Beall, 37 Ga. 383; Eamsey t>. 
 
 Masterson v. Masterson, 3 Cranch (U. S.) C. C. Perley, 34 ni. 504j Titoomb v. Potter, 11 Me. (8 
 
 52; Wells u. Wall, 1 Oreg. 895; Grey v. Ohio, Palrb.) 218; raulkner». Campbell, Morr.(Iowa,) 
 
 <&c. E. Co., 1 Gratt. Cas. (Pa.) 412; Pensacola, 148; Atty.-Gen. v. Sheffield, 3 De G. M. & G. 304; 
 
 <io. E. Co. «. Jackson, 21 Pla. 146; Logansport Dulin v. Caldwell, 28 Ga. 117; Griffin d. Au- 
 
 «. LaEose. 99Ina. 117; Brown ». Merrick Co. gusta, &e. E.Co., 70 Ga. 164; Morris». Edwards, 
 
 Comm'rs, 18 Neb. 355; Dlerks i/. Martin, 16 62 Tex. 206; Dana v. Valentine, 5 Met. (Mass.) 
 
 Neb. 120; Miller v, McGuire, Morr. (Iowa,) 150; 8; Central E. Co. v. Standard Oil Co., 33 N. J. 
 
 Kriechbaumi). Bridges, 1 Iowa, 14: PnynteTv. Eq. 127; United Co. v. Standard Oil Co., 33 N. 
 
 Evans, 7 B. Mon. (Ky.) 420; Todd v. Fisk, 14 J.Eq. 123; Atty.-Gen. v. TJticalns. Co.,2 Johns. 
 
 La. An. 13; Williams ^. Jones, 18 Miss. (10 Ch. (N. T.) 379; Van Bergen v. Van Bergen, 3 
 
 Smed. & M.) 108; Semple ». McGatagan, 18 Johns. Ch. (N.Y.) 282; Eeidti. Giflford,6 Johns. 
 
 Miss. 98; Bruner ». Planters' Bank, 83 Miss. Ch. (N. Y.) 19; Brafield v. Dewell, 48 Mich. 9; 
 
 614; Shipp v. Wheeless, 33 Miss. 646; Jordan®. Hill v. Harris, 51 Ga. 628. 
 
 Thomas, 34 Miss. 72; Brandon ». Green, 7 i Way v. Lamb, 15 Iowa, 79, 83; Stokes r. 
 
 Humph. (Tenn.) 130; Champion;?). Miller, S Knarr, 11 Wis. 389; Payne «. Dudley, 1 Wash. 
 
 Jones (N. Car.) Eq. 194; Vaughn ». Johnson, 9 (Va.) 196j Sauer ». Kansas, 69 Mo. 46; Lemon 
 
 N. J. Eq. (1 Stock.) 173; Schroeppel v. Shaw,' 3 Sweeney, 6 111. App. 507; Bradley v. Eichard- 
 
 N. T. 446; Sample V. Barnes, 14 How. (U. S.) 70; son, 23 Vt. 720; Tomklns v. Tomkins, 3 Stockt. 
 
 Parker ». Winnipiseogee, &c. Co., 2 Black, (U. 512,514; Eeeyes v. Cooper, I Beasl. 223; Daw- 
 
 S,) 545; Burden v. Stein, 27 Ala. 104; Dibble v. son v. Merch., <&o. Bk., 30 Ga. 664; Saunders v. 
 
 Truelock, 12Fla. 125; Traverr. McKay, 15 Ga. Albritton,37 Ala. 716. 
 550; Water Co. v. Bucks, 5 Ga. 315; Rogers v. 
 
 572 
 
CH. XXVn.J INJUNCTION. § 491 
 
 restrain actions at law; and the original importance of this equitable 
 jurisdiction has, in consequence, been actually diminished. But it 
 would be misleading and wrong to conclude that at the present time 
 the injunction to restrain actions pending in other courts could never be 
 profitably employed. There are some cases in which, nevertheless, the 
 court of equity, or a court having equitable jurisdiction, would neces- 
 sarily interfere by injunction in the restraint of actions at law, in order 
 that substantial justice might be done between the parties. The cases 
 in which the injunction of these courts may still be necessary may be 
 divided into three classes: First, a court of equity may be called 
 upon to enjoin the prosecution of actions in other courts, in order to 
 avoid a multiplicity of suits, in which the same cause of action between 
 different parties is adjudicated.^ The second class of cases will be 
 f oimd to include those in which the action which is pending in the one 
 court cannot be fully settled because it is necessary to bring in new 
 parties; and in order that the new parties may be added to the cause 
 of action, and a judgment in the one court may be made to bind them 
 all, a resort to some other court having equitable jurisdiction is nec- 
 essary, because the same judgment cannot be obtained in the court of 
 limited jurisdiction in which the suit was first brought, then the court 
 of equitable jurisdiction may restrain the further prosecution of the 
 action in the other courts.^ In the third class of cases will be included 
 all those in which a resort to the equitable suit is required under the 
 rules of procedure of the state, in which the question is raised, in order 
 to make an equitable defense eflfective against the plaintiff's legal cause 
 of action. In some of the states, in order that an equitable defense may 
 be set up against a legal cause of action, it is necessary, as a foundation 
 for such equitable defense, that the defendant should have a counter- 
 claim against the plaintiff, which entitles him to an affirmative judgment 
 against the plaintiff. And where he is not permitted by the court, on 
 the equitable defense, to claim affirmative relief, under the reformed 
 procedure of the state, he is not permitted to resist the prosecution of 
 the plaintiff at law by setting up the equitable defense; in such a case, 
 he would have to apply to a court of equity for an injunction against 
 the further prosecution of the suit at law.^ This, however, is not the 
 general rule of law in the states, in which the reformed procedure has 
 been adopted. On the contrary, in some of the states, the equitable 
 defense, which is permitted by the rules of the reformed procedure to 
 be set up in actions at law, may be used not only in those cases, in 
 
 1 Erie By. v. Hamsey, 45 N. Y. 637; Uhlf elder v. Briggs, 6 Greg. 31; Ten Broeck v. Orchard, 
 
 S.Levy, 9 Gal. 607, 615; Engels ». Lubeok,4 1(2. 31. 74 N. C. 409; PoUett d. Heath, 15 Wis. 601 ; Lom- 
 
 ' See 3 Pomeroy Eq. Jur., § 1372. bard v. Cowham, 34 Id. 486, 492; Du Pont v. 
 
 3 Webster ». Bond, 9 Hun, 437; Quebec Bank Davis, 35 Id. 631, 639; Hicks v. Sheppard, 4 
 
 V. Weyand, 30 Ohio St. 126; Hinkle v. Mar- Lans. 335, 337; Cramer*. Benton, 60 Barb. 216; 
 
 gerum, 50 Ind. 240; Winslow ». Winslow, 53 Dewey ». Hoag, 15 i3. 365; Conger u. Parker, 29 
 
 Id.8; Hampsons. Fall, 64 M, 382; Pennoyer?;. Ind. 380; Kenyon u. Quinn,41 Cal. 325; Brucki). 
 
 Allen, 51 Wis. 360; 50 /d. 308; Lawe v. Hyde, 39 Tucker, 43 Id. 346, 352; Miller v. Fulton, 47 Id, 
 
 Id 345; Kentfield D.Hayes, 57 Gal. 409: Hatcher 146; McClane ». White, 5 Minn. 178, 190. 
 
 578 
 
§ 491 EQUITY JURISPRUDENCE. [OH. XSVn. 
 
 which the equitable defense will furnish the foundation for affirmative 
 relief, but also in those cases, in which such defense simply gives to 
 the defendant the negative relief of putting an end to the plaintiff's 
 cause of action.^ In these latter states, of course, there would be no 
 need to resort to the court of equity for an injunction to restrain the 
 prosecution of the action at law in any case where the defendant has 
 an equitable defense; for in those states such equitable defense can 
 always be effectively applied in the ordinary legal action. 
 
 'Dobsonji. Pearee, 12N. Y. 156, 168j Chase?). Crary ». Goodman, 13 N. Y. 366; Seeleyo. En- 
 Peck, 81 N. Y. 581, 586j Wlsneri). Ocumpaugh, gell, 13 Id. 542; N. Y. Cent. Ins. Co. v. Nat. 
 71 Id. 113, 117; Webster V. Bond, 9 Hun, 437; Protec. Ins. Co., 14 Id. 85; Despard i>. Wal- 
 Wa Ching ». Conatantine, 1 Idaho, 866; Bar- bridge, 15 Id. 374; Carpenter o. Oakland, 30 Cal. 
 Tington D. Fortner, 58 Mo. 468, 474; Holland v. 439,443;Harris». Vinyard,42Mo. 568; Kennedy 
 Johnson, 51 Ind. 346; Maxwell v. Campbell, 45 v. Daniels, 30 Id. 104; Carman n. Johnson, 30 
 10. 360, 363; Hammond v. Perry, 38 Iowa, 317; Id. 108. 
 
 574 
 
CHAPTER XXVin. 
 
 SPECIFIC PERFORMANCE OF CONTRACTS AND FIDUCIART OBLIGATIONS. 
 
 Section 
 
 General statement as to ground of juris- 
 diction 498 
 
 Inadequacy of action for damages for 
 breach of contract. — Distinction be- 
 tween sales of real estate and personal 
 property 493 
 
 Impracticability, or want of a legal rem- 
 edy 
 
 Specific performance of verbal contracts 
 partly performed ..... 
 
 Jurisdiction discretionary .... 
 
 Essential elements to the exercise of juris- 
 diction 
 
 4»4 
 
 495 
 496 
 
 497 
 
 Section 
 
 Performance by plaintiff how far a con- 
 dition precedent 498 
 
 When tender of performance by plaintiff 
 is necessary 499 
 
 How far right to specific performance is 
 affected by time 500 
 
 The effect of events occurring without the 
 agency of the parties in contract for 
 the sale of lands 501 
 
 Damages when given in place of decree 
 for specific performance .... 502 
 
 Specific performance of trustees . . 503 
 
 Suits against corporations to compel trans- 
 fer or issue of stock 504 
 
 § 492. General statement as to ground of jurisdiction. — In deter- 
 mining the cases in which a court of equity will interfere, for the- 
 purpose of securing or compelling a specific performance of contracts 
 and fiduciary obligations, we find the clear and satisfactory explana- 
 tion in the inabUity of the parties litigant to find a complete and satis- 
 factory remedy at law. Except in the case of actions for the recovery 
 of the possession of specific property belonging to the plaintiff, and 
 unlawfully withheld from him by the defendant, the common law does 
 not know of any other remedy for the enforcement of contracts and 
 other obligations than a judgment for damages for their breach. In 
 many cases, probably in the majority of cases even at the present day, 
 the judgment for damages would be considered a sufficient remedy; 
 but there are many cases where the judgment for damages, or the com- 
 mon law action in general, would prove for some reason or other 
 inadequate, and the necessity for equitable intervention be manifest. 
 Whatever may be the cause for holding the action at law insufficient 
 or impracticable, having assumed jurisdiction over the cause of action, 
 it will apply whatever remedy may be found to furnish the best pro- 
 tection to the rights of the parties litigant.' 
 
 § 493. Inadequacy of action for damages for breach of con- 
 tract. — Distinction between sales of real estate and personal 
 property. — The most common ground for the intervention of equity 
 
 1 Hopper ». Hopper, 16 N. J. Bq. 147; but see 
 Jones V. Newhall, 115 Mass. 844; Old Colony E. 
 K. V. Evans, 6 Gray, 25; Brown v. Haff, 5 Paige, 
 235- Sohroeppel V. Hopper, 40 Barb. 425; 
 Blanohard v. Detroit, &o. E. E., 31 Mich. 43; 
 Bogan V. Daughdrill, 51 Ala. 312; Willard v. 
 
 Tayloe, 8 Wall. 557; Somerby v. Buntln, 118; 
 Mass. 379; McGarvey v. Hall, 23 Cal. 140; Har- 
 nett V. Yielding, 2 Sch. & Lef . 549, 553; Phyfe 
 V. Wardell-2 Bdw. Ch. 47; Stuyvesaut v. The 
 Mayor, &c., 11 Paige, 414; Eiohmond v. Du- 
 buque, <fcc. E. B., 33 Iowa, 442. 
 
 575 
 
§ 493 EQUITY JUEISPEUDENCE. [CH. XXVm. 
 
 to secure the specific performance of the contract is, as already- 
 explained, the inadequacy of the judgment for damages as a remedy 
 for a breach of the contract. Whenever causes of action arise in 
 which that conclusion is reached, the court of equity will generally 
 assume jurisdiction and decree a specific performance, unless some 
 special reason exists for the refusal of equitable relief in the par- 
 ticular case. In this connection, in the determination of the cases in. 
 which the judgment for damages would prove an inadequate relief, 
 an important distinction is made between cases of contracts for the 
 sale or purchase of real estate on the one hand, and of personal prop- 
 erty on the other; *'. e., the law presumes in every case of a contract 
 for the sale or purchase of real estate or of any interest in lands, that 
 the judgment for damages at law is inadequate, and the very nature 
 of the contract itself furnishes the justification for the intervention of 
 a court of equity with the decree for specific performance, without 
 any positive proof that in that particular case the judgment for 
 damages would prove inadequate. In regard to contracts for the sale 
 of lands, the presumption as to the inadequacy of the judgment for 
 damages is conclusive.^ The decree for specific performance will not 
 only be given where the contract is for the sale of lands in fee, which, 
 of course, is the ordinary case of the decree for specific performance,* 
 but it will be found that the same presumption as to inadequacy of 
 the judgment for damages, and the consequent necessity for the decree 
 for specific performance, exists in the case of contracts to give or 
 renew a lease,' a marriage settlement,* and contracts for mortgages.^ 
 And a court of equity will also decree specific performance of contracts 
 for the sale of lands, whether these lands be situated in the same 
 state or country or in some foreign land; provided, of course, that the 
 
 1 Olney v. Eaton, 66 Mo. 563; Gartrell v. Staf- &o. R. E., 33 Iowa, 432; Blanchard ». Detroit, 
 
 ford, 12 Heb. 545; Wonnley i>. Wormley, 98 111. &c. E. E., 31 Mich. 43; Willard v. Tayloe, 8 
 
 544; Bonner v. Little, 38 Ark. 397; Cofeman v. Wall. 557; Somerby v. Buntin, 118 Mass. 279; 
 
 Bobbins, 8 Oreg. 278; Wright v. Puoket, 22 Harnett t). Yielding, 2 Sch. & Lef. 549,553, 554; 
 
 Gratt. 370; Ambrouse's Heirs v. Keller, 22 Id. Adderley ». Dixon, IS. &S. 607; Cud v. Eutter^ 
 
 769; Chartier v. Marshall, 51 N. H. 400; Hayes 1 P. Wms. 570, 571; Hollis v. Edwards, 1 Vem. 
 
 II. Harmony Grove Cemetery, 108 Mass. 400; 159; Duff i>. Fisher, 15 Cal. 375; McGarveyr.. 
 
 McClaskey v. Mayor, &o., 64 Barb. 310; Warren Hall, 23 Id. 140; Kirksey v. Fike, 27 Ala. 383. 
 
 V. EwJng, 34 Iowa, 168; Laws. Henry, 39Ind. ^xjnder this heading will also be included 
 
 414; AuGresBoom Co. v. Whitney, 26 Mich. the decree for specific performance of a bond 
 
 42; Williams «. McGuire, 60 Mo. 254; Kuhn v. to conveyed land. Ewin v. Gordon, 49 N. H. 
 
 Freeman, 15 Kans. 423 ; Reese v. Board of Police, 444. 
 
 &0., 49 Miss. 639; Grier v. Ehyne, 69 N. C. 346; s Fumival v. Crew, 3 Atk. 83, 87; Tritton ». 
 Eogers v. Williams, 8 Phila. 123; Green v. Eich- Foote, 2 Bro. Ch. 636; Burke v. Smith, 3 Jo. & 
 ards, 23 N. J. Eq. 32, 536; Colgate's Ex'r v. Col- Lat. 193; Moss». Barton, L. R. 1 Eq. 474; Buck- 
 gate, 23 Id. 372; Reynolds v. O'Nell, 26 74 223; land ». Papillon, L. R. 2Ch. 67; Clark v. Clark, 
 Wynn v. Smith, 40 Ga. 457; Porter v. Allen, 54 49 Cal. 586; Switzer v. Gardner, 41 Mich. 164. 
 id. 623; Riddle ». Cameron, 50 Ala. 263; Warren * Henry i>. Henry, 27 Ohio St. 121- Wistar's 
 V. Daniels, 72 111. 272j Yoakum ». Yoakum, 77 Appeal, 80 Pa. St. 484. 
 
 Id. 85; Page Co. v. American, &c. Co., 41 Iowa, « Dean v. Anderson, 34 N. J. Eq. 496; MoClln- 
 
 115; Johnson V. Johnson, 40 Md. 189; Mc- tock ti. Laing, 23 Mich. 212; St. Paul Division 
 
 Namee v. Withers, 37 Id. 171; Bleakley's Ap- &c. v. Brown, 11 Minn. 356; City, Ac. Ins. Co! 
 
 peal, 66 Pa. St. 187; Seichrist's Appeal, 66 Id. v. Olmsted, 33 Conn. 476; De Pierres v. Thorn" 
 
 237; Bogan v. Daughdrill, 61 Ala, 312; Barnes v. 4 Bosw. 266; Hermanns v. Hodges, L. R. 16 Eql 
 
 Barnes, 66 N. C. 261; Richmond v. Dubuque, 18; Ashton o. Corrigan, L E 13Eq 76 
 
 r)76 
 
CH. xxvrn.] specific pekfoemancb of contracts. § 493 
 
 court making the decree has jurisdiction over the person of the 
 defendant.' 
 
 But where the contract is for the sale or purchase of personal 
 property in general, the presumption is that the judgment at law for 
 damages is adequate, and consequently there is no need for the inter- 
 vention of the court of equity with its decree for specific performance. 
 In the ordinary case of a contract for the sale of personal property, if 
 the proper judgment for damages is obtained, which, of course, would 
 be the difference between the contract price and the market price of the 
 goods contracted to be sold or bought, is recovered by the party plaint- 
 iff, he could with these damages thus recovered, ^Ztfs the price which he 
 had agreed to pay for the goods bought or sold, go into the market and 
 there sell or buy similar goods, and obtain a value equivalent to the 
 performance of the ordinary contract. It is therefore a presumption 
 of the law that the judgment for damages is an all-sufficient remedy in 
 contracts for the sale or purchase of personal property. '^ But this 
 presumption is not conclusive; it may be rebutted by positive proof 
 that the particular case of a sale of chattels falls within the require- 
 ments for the intervention of a court of equity, viz. : that the judgment 
 for damages would prove inadequate, either because the value which 
 the plaintiff justly places upon the thing is the appreciation of affec- 
 tion or attachment which finds no expression in a pecuniary estima- 
 tion, or where the thing which constitutes the subject-matter of the 
 contract is so rare and unique that it cannot be dupKcated, as in the 
 case of paintings or statuary. In either of these two cases, a special 
 case of inadequacy of the judgment for damages is made out, and the 
 court of equity will assume jurisdiction and decree specific perform- 
 ance.' On the same general principle, a decree for specific perform- 
 ance -will be given to compel a delivery to the lawful owner of deeds. 
 and other muniments of title.* The same rule prevails in determining; 
 the circumstances, under which contracts for the sale or assignment 
 • of things in action, shall require a decree for specific performance, 
 the decree being given whenever the judgment for damages at law 
 would prove uncertain or inadequate.^ Whether a contract for the 
 
 1 Sutphen v. Fowler, 9 Paige, 280; Brown v. 3 Ves. 70; Sarter v. Gordon, 3 HIU, 121; Young 
 Desmond, 100 Mass. 267; Daris v. Parker, 14 v. Barton, 1 McMuU. Bq. 255; Blnney v. Annan, 
 Allen, 94;' Penn v. Lord Baltimore, 1 Ves. Sen. 107 Mass. 95; Cowles v. Whitman, 10 Conn. 131; 
 44- Lord' Portarlingtou ». Soulby, 3 My. & K. Hill v. Kocklngham Bk., 44 N. H. 567; MoGowin 
 jqI v. Remington, 12 Pa. St. 56; Abbott's Ex'r v, 
 
 2 Pierce i>. Plumb, 74 111. 326; Collins v. Beeves, 49 M 494; Peer r. Kean, 14 laioh. 354; 
 Karatopsky 36 Ark. 316; Bubler v. Bubier, 34 Wood v. Rowcliffe, 3 Hare, 304; 2 Phil. 382; 
 Me 43- Cowles v. Whitman, 10 Conn. 131, 134; Pooley v. Budd, 14 Beav. 34; Stanton v. Perci- 
 rram v Stebbins, 6 Paige, 134; Cud v. Kutter, val, 5 H. L. Cas. 357, 368; Clark v. Flint, 33 Pick. 
 IP Wms 570- Nutbrown v. Thornton, 10 Ves. 231 ; Corbin v. Tracy, 34 Conn. 325; Satterthwait 
 159- Adderley v. Dixon, 1 S. & S. 607, 610; Bax- v. Marshall, 4 Del. Ch. 337; Sumerby v. Buutin, 
 ton'« Lister, 3 Atk. 383: Phillips v. Berger, 2 118 Mass. 287. 
 
 L^h'ms- 8 Id 53r; Scott u. Billgerry, 40 Miss. "Brown v. Brown, 1 Dick. 62; Tanner v. 
 
 fio TvrcLaughlin v. Piatti, 37 Gal. 451; Ashe v. Wise, 3 P. Wms. 394, 296; Cowles «. Whitman, 
 
 John^n's Adm'r, 2 Jones Eq. 149. 10 Conn. 121; Hill v. Rockingham Bk., 44 N. 
 
 s Pusev V. Pusey, 1 Vem. 273; Duke of Som- H. 567. 
 
 erset v. Cookson, 3 P. Wms. 389; Pells v. Bead, « Adderley v. Dixon, IS & S. 607; Cutting v. 
 
 D i i 
 37 
 
§ 493 EQXTITY JUKISPKUDENCE. [CH. XXVlU. 
 
 sale or purchase of shares of stock of a corporation will be specifically 
 enforced, has been differently decided by the different courts. It is 
 generally held _that in regard to securities in general the decree for 
 specific performance will be denied/ In England and in some of the 
 American states, it is held that contracts for the sale or purchase f 
 corporation stock will be specifically enforced.^ But in America the 
 general rule seems to be that contracts for the sale or purchase of 
 stocks and bonds of private corporations will not be specifically 
 enforced, any more than contracts for the sale or purchase of govern- 
 ment securities.' Specific performance will also be decreed on a con- 
 tract for the submission to arbitration and award, and in consequence 
 specific enforcement of the award itself, whenever the contract which 
 is submitted to arbitration and award is itself subject to or capable of 
 specific performance; as, for example, where the award directs the 
 conveyance of land.* But if the award does not call for the perform- 
 ance of a contract which could itself be specifically enforced in equity, 
 as where the award calls for or requires the payment of a sum of 
 money; then, a court of equity will not grant a decree for specific 
 performance. For such an award could be just as well enforced in a 
 judgment at law for damages as in an equitable decree. ^ A court of 
 equity will also grant specific performance in any kind of contract, 
 whatever may be its character, provided the legal remedy is inade- 
 quate and the party cannnot secure substantial protection at law. The 
 cases are very numerous and of great variety; but the general rule is 
 as just stated." Among the examples of contracts which can be 
 specifically enforced may be enumerated the following: ante-nuptial 
 contracts concerning property; ^ contracts for the support and main- 
 Dana, 25 N. J. Eg. 265; Wright v. Bell, 5 Price, ville v. Truman's DeTisees, 4 Har. & McH. 43; 
 325; Hughes v. Piedmont, &c. Ins. Co., 55 Ga. Cook v. Viok, S How. (Miss.) 888; Story ». Nor- 
 111; Tuttle V. Moore, 16 Minn. 133; Woodward wlch, &c. E. E., 24 Conn. 94; Kirksey v. Pike 
 «. Harris, 3 Sandf. 872. 87 Ala. 383; McNeil ». Magee, 5 Mason, 844; 
 
 1 Dolorat v. Eothschild, 1 S. & S. 590; Shaw v. Jones v. Boston Hill Corp., 4 Pick. 507; Hall v. 
 Fisher, 5 De G. M. <fe G. 596. Hardy," 3 P. Wms. 187; Memphis, <ito. E. E. v. 
 
 2 Hawkins v. Maltby, L. E. 3 Ch. 188; Oheale Scruggs, 50 Miss. 284; Overby v. Thrasher, 47 
 V. Kenward, 3 De G. & J. 27; Shaw v. Fisher, 5 Ga. 10; Blackett v. Bates, L. E. 1 Oh, 117; Nor- 
 De G. M. & G. 596; Duncuft v. Albrecht, 13 Sim. ton v. Mascall, 2 Veru. 24. 
 
 189; Baldwin v. Common'th, 11 Bush, 417; ' Hall d. Hardy, 3 P. Wms. 187; Story ■». Nor- 
 
 Treasurer v. Commercial, &o. Co., 23 Cal. 390; wich, &e. E. E., 24 Conn. 94; Bubier v. Bubier, 
 
 Todd V. Taft, 7 Allen, 571; Ashe v. Johnson's 84 Me. 42. 
 
 Adm'rs, 2 Jones Bq. 149; Boardman v. Lake ° Steward ». Winters, 4 Sandf. Ch. 587; Stuy- 
 
 Shore, Ac. Ey.,84N. Y. 157; Leach ». Fobes, 11 vesant v. Mayor, &c., 11 Paige, 414; Hall v. 
 
 Gray, 506; Todd »;. Loft, 7 Allen, 371 ; Frue «. Hiles, 8 Bush, 532; MoMuUen ».Vanzant, 73X11. 
 
 Houghton, 6 Col. 318; Ashe v. Johnson, 2 190; Ashe «. Johnson's Adm'r, 2 Jones Eq. 149; 
 
 Jones Bq. 149; Johnson v. Brooks, 93 N. Y. 337. Sullivan v. Tuck, 1 Md. Ch. 59; Hall v. Joiler, 1 
 
 * Grajm v. Stebblns, 6 Paige, 134; Carpenter S. C. 186; Starnes v. Newsom, 1 Tenn. Ch. 239- 
 -«. Mut.,&c. Ins. Co.,4Sandf. Ch.408; Lowrys. Furman «. Clark, 3 Stockt. 306; Thorn v. 
 Muldrow, 8 Eioh. Bq. 241; Fallon d. E. E. Co., Com'rs,&c., 32 Beav.490; Schotmans ». Lanoa- 
 1 Dill. 131; Eoss v. Union Pac. Ey., 1 Woolw. shire, &,c. Ey., L. E. 8 Ch. 332; Very v. Levy, 13 
 26, 36; Bissell v. Farm. & Merch. Bk., B Mc- How. 345; Kirksey v. Fike, 27 Ala. 383- Mo- 
 Lean, 495; Cowles ». Whitman, 10 Conn. 181, Knight v. Bobbins, 1 Halst. Ch. 229 648. 
 
 124; Strasburg E. E. i;. Bchternacht, 21 Pa. St. ' Gough v. Crane, 3 Md. Ch. 119; 4 Md. 316- 
 
 •820; Sullivan «. Tuck, IMd.Ch. 59; Fergusons. SuUings v. SuUings, 9 Allen, 834; Tarbell J 
 
 Paschall, 11 Mo. 867. Tarbell, 10 Allen, 878. 
 
 * Davis V. Havard, 15 S. & E. 165, 171 ; Somer- ' 
 
 578 
 
CH. XXVIII. J SPECIFIC PEKFOKMANCE OF CONTRACTS. § 494 
 
 tenance of one; ' contracts or agreements to cancel judgments; " an 
 agreement to apply land for payment of debts; ' agreements to indem- 
 nify one against a possible or contingent loss;* agreements between 
 parties to pay off or discharge a mortgage; ^ contracts to insure; " 
 agreements between riparian owners for diversion of the water.' 
 
 Contracts for personal service will be specifically enforced where 
 the action for damage would prove an inadequate remedy, and the 
 service required is of such a nature, that a court of equity may see to 
 the rendition of the service; the general rule as to contracts for per- 
 sonal service being, that the court cannot enforce the decree and hence 
 will refuse to grant it, as in the case of contracts for building and 
 construction.' But where there has been a part performance; ' or 
 where an agreement to erect a building is definite and certain; ^^ or 
 where the defendant has agreed to establish some definite or certain 
 structure on his own land in which the plaintiflf has a material inter- 
 est; " or where the defendant has contracted to erect some structure on 
 land acquired by him from the plaintiflf; ^^ in all these cases, the court 
 will decree specific performance wherever the judgment for damages 
 at law proves inadequate. At least, these exceptions are recog- 
 nized by the English courts and a few of the American courts, as 
 set forth and explained in the cases cited. The agreement of husband 
 and wife for a separation will also, if valid, be specifically enforced." 
 
 § 494. Impracticability, or want of a legal remedy. — The cases, 
 in which the decree for specific performance will be rendered under 
 this heading, may be divided into two classes: First, where, on account 
 of a failure to observe some legal formality or condition in the contract, 
 no action at law can be maintained. Second, where from some 
 peculiar characteristic, either in the subject-matter or the terms of the 
 contract, or in the relations of the parties, it would be impossible to 
 obtain any estimate at all of the damages suflfered by them in the 
 
 1 Watson ». Smith, 7 Oreg. 448. Marble Co. v. Ripley, 10 Wall. 339; Pollard u. 
 
 2 Phillips V. Berger, S Barb. 608; 8 Id. 527. Clayton, 1 K. & J. 462. 
 
 3 Shields V. Whitaker, 82 N. C. 516. e Price v. Corpor. of Penzance, 4 Hare, 508, 509 ; 
 
 4 Eeybold v. Herdman, 2 Del. Ch. 34. see, also, Stuyvesant v. Mayor, &c., 11 Paige, 
 « Stark V. Wilder, 36 Vt. 752; Howe v. Nicker 414; Birchott v. Boiling, 5 Munf 442; Whitney 
 
 son, 14 Allen, 400; Weir «. Mundell, 3 Brews. V. New Haven, 23 Conn. 62i; Gregorys. Ingwer- 
 
 594; Bennett?!. Abiams, 41 Barb. 619; Barkley sen, 32 N. J. Eq. 199. 
 
 V. Barkley, 14 Rich. Eq. 12. '» Phillips V. Soule, 9 Gray ,233; and see Brace 
 
 « Neville's. Merch., &c. Ins. Co., 19 Ohio, 452; v. Wehnert, 25 Beav. 348; Mosely v. Virgin, 3 
 
 Woody V. Old Dominion Ins. Co., 31 Gratt. 362; Ves. 184, 185; Flint v. Brandon, 8 Id. 159, 164; 
 
 Tayloe v. Merch., &c. Ins. Co., 9 How. (U. S.) Cubitt v. Smith, 10 Jur., s. s., 1133. 
 
 390- Carpenter v. Mut., &e. Ins. Co., 4 Sandf. " Storer v. Great W. Ry., 2 Y. & C. Ch. 48; 
 
 Ch'408 Sanderson*. Cookermouth, &c. Ry., 11 Beay. 
 
 I'coffman v. Eobbins, 8 Oreg. 278. 497; Franklyn v. Tuton, 5 Madd. 469. 
 
 8 South Wales Ry. v. Wythes, 1 K. & J. 186; 5 12 So. Wales Ry. v. Wythes, 1 K. & J. 186, 200j 
 
 De G M & G. 880; Port Clinton R. E. „. Cleve- Price -0. Corpor. of Penzance, 4 Hare, 506; Wil- 
 
 land &c R. R-, 13 Ohio St. 544; Fallon v. R. E. son v. Fumess Ry., L. R. 9 Eq. 28; Hood v. 
 
 Co i Dillon 131; Ross v. Union Pac. Ry., 1 North East. Ry., L. R. 5 Ch. 525; 8 Eq. 666. 
 
 Wo'olw 26- Errington v. Aynesly, 2 Bro. Ch. « McCrooklin 1). McCrocklin, 2 B. Mon. 370; 
 
 341- Lucas '«! Commerford, 3 Id. 166; Paxton v. Wilson v. Wilson, 1 H. L. Gas. 538; 5 Id. 40; 14 
 
 Newton 2 Sm. &. Gif. 437; Mosely v. Virgin, 3 Sim'. 405; Gibbs v. Harding, L. R. 5 Ch. 336; 8 
 
 -VPS 184'- Booth v. Pollard, 4 Y. & C. Ex. 61; Eq. 490. 
 
 ves. 1 g^g 
 
§ 495 EQUITY JUEISPEUDENCB. [CH. XXVIU. 
 
 breach of the contract. Where the contract cannot be enforced at 
 law, because the plaintiff has not performed and cannot perform all 
 the conditions on his part, there are circumstances under which the 
 court of equity may nevertheless treat the contract as binding more or 
 less, and enforce such a contract as far as it can be performed, making 
 allowance for compensation to the defendant for whatever possible 
 damage he might suffer, from the failure of the plaintiff to strictly 
 comply with the conditions of the contract.^ And this is permitted in 
 peculiar cases, even where the partial failure or inability of the plaint- 
 iff to fuUy perform his contract results from the plaintiff's own fault. ^ 
 The most notable example of this intervention of a court of equity is 
 in the case of a mortgagor's equity of redemption, which has been 
 already fiilly explained in a preceding chapter.' Decrees for specific 
 performance are also granted in ordinary cases of contracts which are 
 incomplete in their terms, and it is impossible to arrive at a legal 
 measure of damages.* And so, likewise, in respect to contracts of 
 various sorts which are void according to the old common law, but 
 which may be enforced in equity; as in the case of agreements to assign 
 things in action, and contracts between a man and woman who sub- 
 sequently intermarry.' But the more common cases of specific per- 
 formance are contracts which cannot be enforced at law because they 
 are verbal contracts for the sale or purchase of land, which will be the 
 subject of the next paragraph. 
 
 § 495. Specific performance of verbal contracts partly per- 
 formed. — It has long been settled in England, and in all of the Amer- 
 ican states, with a few exceptions, ° that while a verbal contract for the 
 sale or leasing of lands, or a similar contract for a marriage settle- 
 ment, cannot be enforced at law, because of the failure to conform to 
 the requirements of the Statute of Frauds in respect to a memorandum 
 of such contract in writing, yet if such contract has been partly per- 
 formed by the party seeking an equitable remedy, under circumstances 
 which the court of equity would consider a sufficient substitute for the 
 conformity with the requirements of the Statute of Frauds, the court 
 of equity will specifically enforce such verbal contract.' The founda- 
 tion for this equitable doctrine is the construction which the court of 
 
 1 Mortlock V. BuUer, 10 Ves. 292, 305, 306; tuoky, It is either altogether denied, or only 
 Stewart v. Alllston, 1 Meriv. 26, 38. admitted in very special oases. 
 
 2 Coale V. Barney, 1 Gill <t J. 324; MeCorkle ' Wharton v. Stouteuburgh, 35 N. J. Eq. 266; 
 V. Brown, 9 Sm. & Mar. 167; Davis v. Hone, 2 Sherman ». Scott, 27 Hun, 331; Barnes «. Bos- 
 Sch. & Lef. 341, 347; Voorheea «. De Meyer, 2 ton, Ac. E. E., 130 Mass. 388; Manly v. Howlett, 
 Barb. 37. 55 Cal. 94; Hanlon v. Wilson, 10 Neb. 138; Hib- 
 
 3 See ante, §§ 412, 433. bert v. Aylott, 62 Tex. 530; Juyd v. Gilbert, 77 
 1 Phillips «. Thompson, 1 Johns. Ch. 131; Ind. 96; Lamb «. Hinman, 48 Mich. 112; Jami- 
 
 Doloret r. Eothschild, 1 S. & S. 590; Buxton «. son v. Dimock, 95 Pa. St. 52; Newkumet ». 
 
 Lister, 3 Atk. 383. Kraft, 10 Phila. 137; Marshall v. Peck, 91 111' 
 
 6 Cannel v. Buckle, 8 P. Wms. 243; Gould v. 187; Laird v. Allen, 82 la. 43; Wallace '« Eap- 
 
 Womack, 2 Ala. 83. pleye, 103 Id. 22S; Littlefleld v. Littlefie'ld, 5l' 
 
 «The doctrine was not recognized, until Wis. 23; Seaman ». Aschermann, Jtf. 678; Nor- 
 
 recentlegislation,in Massachusetts and Maine; throp v. Boon, 66 111. 368; Pall v. Hazelrigg, 45 
 
 while, in North Carolina, Tennessee and Ken- Ind. 576; Grant v. Eamsey, 7 Ohio St 157' Ames. 
 
 580 ■ ' 
 
CH. XXVIII.] SPECIFIC PERFORMANCE OF CONXEACTS. § 496 
 
 equity places upon the attempt of the other party to the contract to 
 receive the benefit obtained by the part performance of the contract, 
 and escape his liabilities under the contract by pleading the Statute of 
 Frauds. The court pronounces such an act to be itself a fraud, and 
 denies the right of such a party to resort to the Statute of Frauds as 
 a defense.* But it is not every part performance which would be con- 
 sidered by a court of equity as sufficient to take the case out of the 
 Statute of Frauds, and justify the grant of a decree of specific perform- 
 ance. The mere payment of the consideration, or the measuring of the 
 land or drawing up deeds or doing any other act, which is merely pre- 
 paratory to the actual performance of the contract, would not of itself 
 be sufficient to justify a court to decree specific performance; there 
 must be something more than that. As a general rule, in order that 
 the part performance of a contract for the sale of lands may furnish 
 the foundation for the decree for specific performance of a contract, 
 there must be an actual transfer of the possession of the land,* or the 
 making of valuable improvements,' or a combination of both. Under 
 peculiar circumstances, special acts and personal service may serve as 
 a sufficient justification of the court in decreeing specific performance.* 
 § 496. Jurisdiction discretionary. — So far, it has been explained 
 what is absolutely required as a justification for the assumption by a 
 court of equity of jurisdiction for the specific performance of con- 
 tracts. But it must now be noticed that, although the inadequacy of 
 the judgment for damages or the impracticability or want of legal reme- 
 
 V. Blgelow, 3 McArtli. 442; Hiatt v. Williams, 72 Brown, 4 N. Y. 403; Eeed v. Eeed, IS Pa. St. 117; 
 
 Mo. 214; Bolianan v. Bohanan, 96 111. 591; Mc- Danforth v. Laney, 28 Ala. 274; Cattlett v. Ba- 
 
 Dowell V. Lucas, 97 M. 489j Jefferson v. Jeffer- con, 33 Miss. 269; White V. Watkins, 23 Mo. 423; 
 
 son, 96 Iff. 551; Ford «. Finney, 35 Ga. 358; John- Anderson v. Simpson, 21 Iowa, 399; Pains, 
 
 son V. Bowden, 37 Tex. 621; Farrar ■». Patton, Coombs, 1 De G. & J. 34; Shillibeer«. Jarvls, 8 
 
 20 Mo. 81; Feusieri;. Sneath, 3 Nev. 120; Mor- De G. M. <fc G. 79; Coles v. Pilkington, L. R. 19 
 
 gan V. Bargen, 3 Neb. 209; Gregg v. Hamilton, Eq. 174. 
 
 12Kans. 333; Cole«. Cole, 41 Md. 301; Semmes » Gregg*. Hamilton, 12 Kans. 333; Poland ti. 
 
 ■D. Wortbington, 38 Id. 298; Pierce's Heiis v. O'Conner, 1 Neb. 50; Hoffman v. Fett, 39 CaL 
 
 Catron's Heirs, 23 Gratt. 483; Lowiy ». Buffing- 109; McCarger v. Rood, 47 IiZ. 138; Neales v. 
 
 ton, 6 W. Va. 249; Church of the Advent v. Neales, 9 Wall. 1; Green «. Finln, 35 Conn. 178; 
 
 Farrow, 7 Rich. Eq. 378; Tilton 0. Tilton, 9 N. Mims». Lockett, 33 Ga. 9; Wimberly v. Bryan, 
 
 H. 385; Eaton v. Whitaker, 18 Conn. 222; Hall 55 M. 198; Sackett v. Spencer, 65 Pa. St. 89; 
 
 V. Whittier, 10 R. I. 530; Freeman v. Freeman, Moss v. Culver, 64 Id. 414; Ingles v. Patterson, 
 
 43 N. Y. 34; Welsh v. Baynaud, 21 N. J. Eq. 186; 36 Wis. 373; Miller v. Tobie, 41 N. H. 84; Potter 
 
 Greenlee v. Greenlee, 22 Pa. St. 225; Lester ». v. Jacobs, 111 Mass. 32; Freeman v. Freeman, 
 
 Foxcroft, CoUes' P. C, 108, cited 2 Vem. 456; 1 43 N. Y. 34; Cagger ». Lansing, 43 Id. 550; 
 
 Eq. Lead' Cas. 1027, 1038, 1042 (4th Am. ed.); Adamsr. Fullam, 43Vtj592;Peokhami!.Parker, 
 
 Cllnan v Cooke, 1 Sch. <fc Lef. 22; Newton V. 8 K. I. 17; Wells t). Stradling, 3 Ves. 378; Stpck- 
 
 Swazey, 8 N. H. 9. ley »• Stockley, 1 V. & B. 23; Mundy v. Jolliffe, 
 
 1 Pierce's Heirs ». Catron's Heirs, 23 Id. 588; 5 My. <fe Or. 167; Surcome v. Penniger, 3 De G. 
 
 Semmes v. Wortbington, 38 Md. 298; Horn v. M. & G. 671; Crook v. Corpor. of Seaford, L. R. 
 
 Lufflngton,32Wla. 73; Morgans. Bergen,3Neb. 6Ch.551; 10 Eq. 678; Williams «. Evans, L. R. 
 
 209- Clinan •!■ Cooke, 1 Sch. & Lef. 413, 433; 19 Eq. 547. 
 
 Clinan». Cooke, 1 Id. 22, 41; Mundy v. Jolliffe, * See Twiss «. George, 33 Mich. 253; Johnson 
 
 6 Mv &' Ct 167, 177; Parkhurst ■». Van Cort- i>. Hubbell, 2 Stockt. Ch. 332; Cronk v. Trum- 
 
 .7' J Johns. Ch. 273; Wright v. Pucket, 22 ble, 63 111. 482; Edwards v. Estell, 48 Cal. 194; 
 
 G att' 270 274; Haigh v. Kaye, L. K. 7 Ch. 469; Rhodes v. Rhodes, 3 Sandf. Ch. 279, 284; Davl- 
 
 c t 17 Catou, L. R. 1 Ch. 137, 147; Bond v. son v. Davison, 2 Beaal. 246; Vafiduyne v. 
 
 HopTin''s,lSch.'&Lef.413,433. ' "- 
 
 zTlIton V. Tilton, 9 N. H. 385, 390; Malms v. 
 
 Vreeland, 1 M. 142, 151. 
 
 581 
 
§ 497 EQUITY JURISPRUDENCE. [CH. XXVIII. 
 
 dies exists as a ground for assuming jurisdiction over the case, yet that 
 circumstance alone will not enable the party plaintiff to ask of the 
 court, as a matter of course, a decree for specific performance. It is 
 still discretionary with the court, whether it will grant the decree, *'. e. , 
 there may be other circumstances in the case besides the want of 
 a sufficient remedy at law, which would militate against the equitable 
 claim of the plaintiff to specific performance. "When it is stated 
 that the exercise of jurisdiction for specific performance is discretion- 
 ary, it is meant that a court will refuse to grant its decree, although 
 the remedy at law may be inadequate, whenever the case is tainted 
 with some inequitable feature or quality, and, in consequence, would 
 make the specific enforcement of the contract inequitable or unjust, 
 although the grounds for that conclusion are not such as would sup- 
 port the charge of fraud. ^ 
 
 § 497. Essential elements to the exercise of jurisdiction. — In 
 further explanation of the doctrine, that it is discretionary with the 
 court whether a decree for specific performance shall be granted, it 
 must be explained that the court will refuse to grant the decree for 
 specific performance, unless the contract contains certain essential 
 elements. Some of these elements affect the validity of the contract, 
 both at law and in equity; others are purely of an equitable character. 
 Thus, the contract must be based upon a valuable and substantial con- 
 sideration, and the seal of the contract would not so far import a 
 consideration as to dispense with the necessity of proving its existence 
 and character.^ The contract must also be reasonably certain as to its 
 subject-matter, and stipulations, and parties.'' It has also been held 
 
 1 Seaman ». Van Rensselaer, 10 Barb. 81; Gratt. 23, 29; Eadcliffe t). Warrington, 12 Ves. 
 Plummer v. Keppler, 26 N. J. Eq. 481 j Crane v. 326, 332; Joynes v. Stathanj, 3 Atk. 388; TJnder- 
 Decamp, 21 Id. 414; Merritt v. Brown, Id. 401; wood». Hitchcox, 1 Ves. Sen. 279; Willard v. 
 Smootj). Ehea, 19 Md. 398; Godwin v. Collins, Tayloe. 8 Wall. 557, 565; Marble Co. v. Bipley, 
 4Houst. 28; Humbard's Heirs v. Humbard's 10 Id. 339, 356; Lowry v. Buffington, 6 W. Va. 
 Heirs, 3 Head, 100; Lamare v. Dixon, L. E. 6 249, 255; Fisli v. Lighter, 44 Mo. 268, 272. 
 H. L. 414, 423; Tilley i). Thomas, L. R. 3 Ch.61, 2 Vasser r. Vasser, 23 Miss. 378; Estate of 
 72; Mississippi, &c. E. E. v. Cromwell, 1 Otto, Webb, 49 Cal. 541, 545; Murphy v. Eooney, 45 Id. 
 643; Eastman v. Plumer, 46 N. H. 464; Sharp's 78; Minturn v. Seymour, 4 Johns. Ch. 497; Bur- 
 Eifle M. Co. V. Eowan, 35 Conn. 127; Sherman ling v. King, 66 Barb. 633; Butman v. Porter, 
 V. Wright, 49 N. T. 227; Cuflf ». Borland, 55 lOO Mass. 337; Jefiferys v. Jefferys, Or. & Ph! 
 Barb. 481; Blackwilder v. Loveless, 21 Ala. 371, 138; Ord «. Johnston, 1 Jur., n. s., 1063, 1065j 
 374; Port Clinton E. E. o. Cleveland, <feo. E. E., Houghton v. Lees, 1 Id. 862, 863. 
 13 Ohio St. 544, 649; Eogers v. Saunders, 16 Me. s Long v. Duncan, 10 Kans. 294; Agard v. Val- 
 92, 97; Seymour v. Delanoey, 6 Johns. Ch. 222, encia, 39 Cal. 292; Odell v. Morln, 6 Oreg. 96; 
 224; 3 Cow. 445; Hale ». Wilkinson, Gratt. 75, Lynes V. Hayden, 119 Mass. 482; Hyde v. 
 80; Cooper®. Pena, 21 Cal. 403, 411; Brack v. Cooper, 13Eich. Eq. 250; Bowman t>. Cunning- 
 Tucker, 42 Cal. 346, 353; Bogan v. Daughdrill, ham, 78 111. 48; Miller v. Campbell, 52 Ind. 125; 
 51 Ala. 312, 314; Aston v. Eobinson, 49 Miss. Munsell ». Loree, 21 Mich. 491; McClintock». 
 348,351; Daniel ». Frazier, 40 Irf. 50V; Weise's Laing, 22 Jii. 212; Wright ». Wright, 31 /d. 380; 
 Appeal, 72 Pa. St. 351, 354; Snell ». Mitchell, Tieman «. Gibney,24 Wis. 190; Mastins. Hal- 
 65 Me. 48, 50; Phillips v. Stanch. 20 Mich. 369; ley, 61 Mo. 196; Carr v. Passaic, &c. Co., 22 X. 
 Bowman?). Cunningham, 78 III. 48; Auter ». J. Eq. 85; 19 Id. 424; Potts ». Whitehead, 20 /(f. 
 Miller, 18 Iowa, 405; St. Paul Division, &c. v, 55; Eeese v. Eeese, 41 Md. 554; Hardesty v. 
 Brown, 9 Minn. 157; Burke v. Seely, 46 Mo. 334; Eiohardson, 44 Id. 617; Pierce's Heirs v. Cat- 
 Taylor V. Williams, 45 Id. 80; Pish v. Leser, 69 ron's Heirs, 23 Gratt. 588; Allen v. Webb, 64 111. 
 111. 394, 395; Stone V. Pratt, 25 Id. 25, 34; Quinn 348, Marsh v. Milligan, 3 Jur., n. a., 979; Mor- 
 Boath, 37 Conn. 16.24; McComas i). Easly, 21 risen ». Barrow, 1 De Q. P. &J 633; Taylor i) 
 
 582 
 
CH. XXVm.] SPECIFIC PERFORMANCE OF CONTRACTS. § 497 
 
 by some of the cases, that the contract must be mutual in its obliga- 
 tions; " but this is not to be understood as holding that there cannot be 
 a specific performance of a unilateral contract.* It is also provided 
 that no contract will be specifically enforced by equity, where such 
 contract has been procured by fraud, or misrepresentation of any 
 sort; or where it is the result of a mistake or accident, or is tainted 
 with illegality. The right to specific performance as affected by fraud, 
 mistake or illegality, has been already fully explained in preceding 
 chapters on mistake and fraud.' The court of equity will also refuse 
 to grant a decree for specific performance whenever the contract is 
 attended with some inequitable feature which would, nevertheless, not 
 furnish a ground for avoidance or defense at law. Thus, in order 
 that a court of equity may decree a specific performance, it is required 
 that the contract must be perfectly fair, equal and just in all its terms. 
 Any unfairness or inequality in such terms, which would be pronounced 
 to be unjust or unfair by the court of equity, would be a justification for 
 refusing the decree for specific performance, although the same contract 
 will not be invalid at law on the same grounds.* These, of course, 
 are cases in which there is no charge of actual fraud, and where 
 the non-performance of the contract would not operate as a breach of 
 trust. ^ Courts of equity will also refuse specific performance, where 
 the performance of the contract will work an injury to third persons.** 
 Another requirement is, that the remedy of performance vrill not be 
 harsh or oppressive. The oppression or hardship, which may furnish 
 a reason for refusing specific performance, may either result from the 
 fact that the contract itself is an unconscionable bargain, or from the 
 very nature of the terms of such contract or the circumstances sur- 
 rounding the parties or the subject-matter of the contract.' A com- 
 
 ^ Fortington, 7 De G. M. & G. 328; Pearoe v. diet, 6 Id. Ill; Acker v. Phcenix, 4 Paige, 305; 
 
 Watts, L. E. 20 Eq. 492; Tallmant). Franklin, Howard v. Moore, 4 Sneed, 317; Bowman v. 
 
 14 N. Y. 584; Stanton v. Miller, 58 Id. 192; Nioh- Cunningham, 78 111. 48; Twining v. Morrioe, 2 
 
 ols V. Williams, 22 N. J. Eq. 63; McGuire v. Bro. Ch. 326; Revell ». Hussey, 2 Ball & B. 280, 
 
 Stevens, 42 Miss. 724; Bell ». Bruen, 1 How. 288; Willard i>. Tayloe, 8 Wall. 557; Marble Co. 
 
 (TJ. S.) 169; Hopkins ». Eoberts, 54 Md. 312; Mo- «. Ripley, 10 W. 339; Jackson v. Ashton, 11 
 
 Comack ti. Sage, 87 111. 484. Peters, 229; McNeil v. Magee, 6 Mason, 244; 
 
 1 Butman ti. Porter, 100 Mass. 337; SuUings i>. Margraf v. Muir, 57 N.Y. 155; see Vigers «. 
 
 Sullings, 9 Allen, 234; Moore's Adm'rs «. Pitz Pike, 8 CI. <Sc Fin. 562,645, per Lord Cottenham; 
 
 Randolph, 6 Leigh, 175; Flight v. Bolland, 4 Willan v. Willan, 16 Ves. 72, 83; Savage v. 
 
 Euss. 298; Blanchard v. Detroit, &c. R. E., 31 Brocksopp, 18 Id. 335; Tam v. Lavalle, 92 111. 
 
 Mich. 43; Maynard «. Brown, 41 M 298; Hop- 263; Foil's Appeal, 91 Pa. St. 434; Brake u. Bal- 
 
 kins «. Eoberts, 54 Md. 312; Beard v. Linthi- lou, 19 Kans. 397; Hims v. Vaughn, 40 Mich, 
 
 cum, 1 Md. Ch. 345; Eeese i>. Reese, 41 Md. 554; 356; Fitzpatrick v. Dorland, 27 Hun, 291; 
 
 Benedict v. Lynch, 1 Johns. Ch. 370; German Sohuessler v. Hatchett, 59 Ala. 181; Race v. 
 
 V. Machin, 6 Paige, 288; Meason v. Kaine, 63 Pa. Weston, 86 111. 91; Shriver v. Seiss, 49 Md. 384; 
 
 St. 335; Bromley v. Jeffries, 2 Vern. 415; Eogers Abbott v. L'Hommedieu, 10 W. Va. 677; White 
 
 0. Saunders, 16 Me. 92; Duvall ». Meyers, 2 Md. v. McGannon, 29 Gratt. 511; Shaddle v. Dis- 
 
 Ch. 401. borough, 30 N. J. Eq. 370; Coe ». N. J. Midland 
 
 2Ewins V. Gordon, 49 N. H. 444; Jones «. Eob- Ry., 31 Id. 105; Tillotson v. Gesner, 33 Id. 313; 
 
 bins, 29 Me. 351; Barnard V. Lee, 97 Mass. 92; Chicago, Ac. R. R. v. Schoeneman, 90 111. 258. 
 
 Palmer ■». Scott, 1 Russ. & My. 391. 6 Harnett v. Yielding, 2 Sch. & Lef. 548, 553 ; 
 
 3 As to accident and mistake, see § 198. As White v. Cuddon, 8 CI. & Fin. 766. 
 
 to fraud, see §216. 'Thomas v. Dering, 1 Keen, 729; Currant. 
 
 40sgood V. Franklin, 2 Johns. Ch. 1,23; Min- Holyoke W. Co., 116 Mass. 90. 
 
 tarn v. Seymour, 4 Id. 497; St. John v. Bene- " Cannaday v. Shepard, 2 Jones Eq. 224; Bar- 
 
 583 
 
§ 498 EQUITY JUEISPKUDENCE. [CH. XXVHI. 
 
 mon explanation of the refusal of a court of equity to grant specific 
 performance on account of the hardness of the remedy in the par- 
 ticular case, will be shown in the attitude of a court of equity in 
 respect to the enforcement of conditions or forfeitures. .It is an inya- 
 riable rule of equity, in respect to conditions, that it will never 
 enforce a forfeiture.^ 
 
 § 498. Performance by plaintiff, how far a condition precedent. 
 — ^It is a fundamental rule of law and of equity that, in order that a 
 plaintiflf may sustain an action for the breach of a contract of the 
 defendant, the plaintiflf must either have actually performed his part 
 of the contract or must be ready, willing, and able to do so. If he is 
 unwilling or unable to do all the acts required of him under the con- 
 tract, then he cannot lay claim to any specific performance of such 
 contract by the other party; for the performance of at least some of 
 his obligations under the contract is a condition precedent to his claim 
 for specific performance of the contract by the defendant." Among 
 the illustrations of a failure or inability of the plaintiff to perform the 
 contract, which would be considered as a bar to the. action for specific 
 performance of contracts, is in the sale of lands, where the vendor 
 fails to make a good title to the land or is unable to do so. His fail- 
 ure of title to the subject-matter of the contract would be a bar to a 
 decree of specific performance; the vendee, in other words, is not 
 compelled to take a defective title to the property.'' But if the defect 
 or failure of title is partial and immaterial, so that the title which he 
 tenders in the performance of his contract is substantially what is 
 agreed upon by the parties, the court may, nevertheless, grant the 
 decree with compensation to the purchaser for that partial defect or 
 
 nett V. Spratt's Adm'r, 4 Ired. Eq. 171; Stone Vailti. Nelson, 4 Band. 478; Blackmer v. Phll- 
 
 V. Pratt, 25 HI. 25 ; Chicago, &c. R. E. i). Schoe- lips, 67 N. C. 340 ; King v. Euckman, 21 N. J. Bq. 
 
 neman, 90 HI. 258; Coe v. N. J. Midland Ey. , 31 599j Thorp v. Pettlt, 16 Id. 488; Crane v. De- 
 
 N. J. 105; Cathoart v. Eobinson, 5 Peters, 263; camp, 81 Id. 414; Longworth v. Taylor, 1 Mc- 
 
 Tobey v. County of Bristol, 3 Story, 800; Mai- Lean, 395; SuUinga v. Sailings, 9 Allen, 234; 
 
 graf V. Muir, 57 N. Y. 155; Clark v. Rochester, Wood v. Perry, 1 Barb. 114; Burling v. King, 66 
 
 <tc. R. R., 18 Barb. 350; Weise's Appeal, 72 Pa. Id. 633; Van Campen v. Knight, 63 Id. 205; 
 
 St. 351; see cases cited ante, under § 1404; Reeves v. Kimball, 40 N. Y. 299; Murray v. 
 
 Gould V. Kemp, 2 My. & K. 304, 308; Kimberley Spicer, L.E. 5Eq.527,537; Colsont). ThomiMon, 
 
 V. Jennings, 6 Sim. 340; Willard ». Tayloe, 8 2 Wheat. 336; Watts V. Waddle, 6 Pet. 389; 
 
 Wall. 557; Marble Co. i.. Ripley, 10 1(f. 339. Boone i/. Mo. Iron Co., 17 How. (U. S.) 340; 
 
 iSee ante, § 37. McNeil v. Magee, 5 Mason, 244. 
 
 2Ludlum V. Buckingham, 35 N. J. Eq. 71; ^Lyies v. Kirkpatrick, 9 S. C. 265; Eaderv. 
 Kinney v. Redden, 2 Del. Ch. 46; Eogers v. Neal, 13 W. Va. 373; Hymers «. Branch, 6 Mo. 
 Taylor, 40 Iowa, 193; Wass «. Mugridge, 128 App. 511; Chrismans.Partee, 38 Ark. 31; Mitch- 
 Mass. 394; Jenkins «. Harrison, 66 Ala. 345; ell «. Steinmetz, 97 Pa. St. 251; Jenkins V. 
 Selleck v. Tallman, 87 N. Y. 106; McHugh v. Eahey, 73 N. Y. 355; Bensel v. Gray, 80 Id. 517; 
 Wells, 39 Mich. 175; Russell B.Nester, 46 Zd. 290; Swepson ii. Johnston, 84 N. C.449; Hancooki). 
 Secrest 8. McKenna, 1 Strobh. Eq. 356; Brown Bramlett, 8& Id. 393; Cunninghams. Sharp, 11 
 «. Hayes, 33 Ga. (Supp.) 136; Tyler«. McCardle, Humph. 116, 121 ; Jeffries v. Jeffries, 117 Mass. 
 9 Sm. & Mar. 230; Richardson v. Linney, 7 B. 184; Dobbs v. Noroross, 24 N. J. Eq. 327; Vree- 
 Mon. 571; O'Kane ». Kiser, 25 Ind. 168; Aliens. lands. BlauTelt„23/d. 483; Cornell ». Andrews, 
 Atkinson, 21 Mich. 351 ; Lloyd v. Collett, 4 Bro. 35 M. 7; King v. Knapp, 59 N. Y. 468; Hepburn 
 Ch. 469; 4 Ves. 690 n; Harrington v. Wheeler, v. Auld, 5 Cranoh, 262; Hooyer s. Calhoun, 16 
 4 Ves. 686; Merritt v. Brown, N. J. Eq. 401; Earl Gratt. 109; Jackson s. Ligon, 3 Leigh, 160 j Bryan 
 V. Halsey, 1 MoCart. 332; Buchanan v. Lorman, v. Read, 1 Dev. & Bat. Eq. 78. 
 3G111,51, 77; McComas s. Easley, 21 Gratt. 23; 
 
 584 
 
CH. XXVIII. J SPECIFIC PERFORMANCE OF CONTRACTS. § 499 
 
 failure of the subject-matter of the contract.' But the defect or fail- 
 ure must be immaterial in extent or quantity, as in the case of a 
 quantity of land, in. order that such failure may not operate as a bar 
 to the decree for specific performance. If the failure in the amount 
 of land, or the defect of title to such land, is material, and under 
 the circumstances a decree for specific performance would work a 
 positive injury to the defendant, then a decree would be refused." In 
 order that the defendant might successfully resist the decree for 
 specific performance of a contract for the sale of land, it is not neces- 
 sary for such defendant to show a proof positive of a material defect 
 in the title or quantity ef such land. It is sufficient, as a defense to 
 the plaintiff's cause of action, if upon the face of the pleadings, or by 
 the evidence introduced by the plaintiff, there is a reasonable doubt as 
 to the character or extent of the plaintiff's title to the land; the exist- 
 ence of a reasonable doubt in itself is a reasonable objection to the 
 decree for specific performance. The burden is on the plaintiff, in all 
 suits for a decree for specific performance, of proving that he has the 
 perfect title to the land; and as long as there is any reasonable doubt 
 remaining, as to his title to the property, the decree for specific per- 
 formance will be denied.' 
 
 § 499. When tender of performance by plaintiff is necessary. — 
 The rules of equity, in respect to the necessity of the tender or per- 
 formance of a contract by the plaintiff, are generally not so stringent 
 as in law. Where the stipulations of the contract are mutual and 
 actually dependent upon the other; as, for example, where the deed 
 is to be delivered upon the payment of the price; there is no breach of 
 the contract by one until there has been a tender of performance of the 
 contract by the other: and hence it is necessary for such tender or 
 demand of performance to be shown as a ground for application to 
 equity for specific performance.* And so, also, where the time of pay- 
 ment by the vendee is made an essential element, so that if the payment 
 is not actually made on the day mentioned or within the time agreed 
 
 iHalsey v. Grant, 13 Ves. 73, 77; Guest v. Eby, 67 Id. 396; Walsh v. Hall, 66 N. C. 233j 
 
 Homfray, 5 Id. 818; Mortlook v. BuUer, 10 Id. Allen v. Atkinson, 81 Mich. 351 ; Powell v. Co- 
 
 292, 306; McQueen v. Farquhar, 11 Id. 467 i Foley nant, 33 Id. 296; Morgan's Heir's v. Morgan, 2 
 
 V. Crow, 37 Md. 51. Wheat. 290; liOngworth V. Taylor, 1 McLean, 
 
 2 Havens©. Bliss, 26 N.J. Eq. 363; Gregory®. 395; Bates «. Delavan, 5 Paige, 299; Seymour*. 
 
 Perkins, 40 Iowa 82; Walsh «. Barton, 24 Ohio Delancey, Hopk. Ch. 436; Jeffries ». Jeffries, 
 
 St. 28; Bogan v. Daughdrili, 51 Ala. 312; Peers 117 Mass. 184; Sturtevant v. Jaques, 14 Allen, 
 
 •B. Lambert, 7 Beav. 546; Howard V. Kimball, 523; Vreeland v. Blauvelt, 23 N. J. Bq. 483; 
 
 65 N. C. 175; Griffin's Bx'ri». Cunningham, 19 Dobbs v. Noroross, 24 Id. SSfT; Pyrke v. Wad- 
 
 Gratt. 571j Smith v. Turner, 50 Ind. 367. dingham, 10 Hare, 1 ; Radford v. Willis, L. R. 7 
 
 aChrismani). Partee, 38 Ark. 31; Hymers v. Ch. 7; Alexander v. Mills, L. E. 6 Ch. 124; 
 
 Branch, 6 Mo. App. 511; Luse ». Deitz, 46 Iowa, Beioley v. Carter, L. R. 4 Ch. 230; Collier v. 
 
 205; Rader v. Neal, 13 W. Va. 373; Swepson v. McBean, L. B. 1 Ch. 81; Rede v. Cakes, 4 De G. 
 
 Johnston, 84 N. C. 449; Hancock v. Bramlett, J. & S. 505; Bensel V. Gray, 80 N. Y. 517. 
 
 85 N. C. 393; Lylest). Kirkpatrick, 9 S. C. 265; 4 Van Campen v. Knight, 63 Barb. 205; Irvin 
 
 Watts V. Waddle, 1 McLean, 200; Jenkins ». v. Bleakley, 67 Pa. St, 24, 28; Crabtree v, Leav- 
 
 Fahey, 73 N. Y. 355; Cornell v. Andrews, 35 N. ings, 53 111. 526; Hubbel v. Von Schoening, 49 N. 
 
 J. Eq. 7; Mitchells. Steinmetz, 97 Pa. St. 251; Y. 326, 331 Leaird v. Smith, 44 Id. 618. 
 Kostenbader ». Spotts, 80 Pa. St. 430; Pratt ». 
 
 585 
 
§ 499 EQUITY JURISPRUDENCE. [CH. XXVin. 
 
 upon, the vendee may treat the contract as at an end; in such a case, 
 the actual tender of payment within the time agreed upon is essential, 
 and must be proved before the decree for specific performance can be 
 granted.^ Where time is not essential in the performance of the con- 
 tract, and the stipulations are not exclusively dependent one upon the 
 other, but only presumptively so, the cases are conflicting as to whether 
 a tender of performance is required to be made by the plaintiflf before 
 bringing his suit. Some maintain that a tender must be made and per- 
 formance demanded by the plaintiff before he brings his suit, whether 
 the suit be brought by the vendee,^ or by the vendor.' Some of 
 the cases, however, cited in the preceding notes, require tender but 
 dispense with the necessity of a demand of performance by the vendee. 
 According to another set of decisions, an actual tender or 
 demand by the plaintiff, prior to the bringing of his suit for specific 
 performance, is not necessary, where the time of performance is not 
 stipulated, and he is ready and willing at the time of bringing his 
 suit to perform his part of the contract; and this is the rule, as main- 
 tained by those cases, whether the action for specific performance is 
 brought by the vendee,* or by the vendor.^ An actual tender of per- 
 formance is never required by the plaintiff prior to the institution of 
 the action for specific performance, where the acts of the defendant, 
 or the situation of the property, show that such tender would be alto- 
 gether useless or impossible. Thus, for example, if the defendant 
 has openly refused to perform his part of the contract, it would be 
 useless for the plaintiff to make the required tender of performance 
 on his part.* So, also, if, at the time stipulated, the vendor was 
 unable to convey title on account of a defect of title, the tender would 
 not be required,' unless the terms of the contract made the time of 
 performance of the contract essential.* 
 
 iHeuer v. Eutkowskl, 18 Mo. 216; Duffy!). 336; St. Paul's Division, &o. «. Brown, 9 Minn. 
 O'Donovan, 46 N. Y. 223; Tobey ». Foreman, 79 157; Wells v. Smith, 8 Edw. Ch. 78; 7 Paige, 22; 
 111. 489 ; Gale v. Archer, 42 Barb. 320 ; Wells v. Irvin v. Gregory, 13 Gray, 315, 218 ; Park v. John- 
 Smith, 2 Edw. Ch.78; Kimball i). Tooke, 70 111. son, 4 Allen, 259; Stevenson v. Maxwell, 3 N. 
 553; Phelps 'C. Illinois Cent. R. R., 63 Id. 468. Y. 408, 415; Bruce v. TUson, 25 Id. 194, 197, 203. 
 
 2 Deichmann t). Deichmann, 49 Mo. 107 ; Brock » Winton v. Sherman, 20 Iowa, 295 ; Seeley v. 
 
 V. Hidy, 13 Ohio St. 306,310; Rngers v. Taylor, Howard, 13 Wis. 336; Woodson's Adm'rs v. 
 
 40 Iowa, 193; Bearden v. Wood, 1 A. K. Marsh. Scott, 1 Dana, 470; Stevenson ». Maxwell, Bruce 
 
 450; Hall v. Whittier, 10 E. I. 530; Duff v. ». Tilson, Freeson ». Bissell, supra; Hawk v. 
 
 Fisher, 15 Cal. 375, 381; Mather ». Scoles, 35 Greensweig, 2 Barr. 295. 
 
 Ind. 1; Fall v. Hazelrigg, 45 Id. 576; Lynch ». eWaite t). Dobson, 17 Gratt. 262; Brook V. 
 
 Jennings, 43 Id. 276, 286; Hart v. McClellan, 41 Hidy, 13 Ohio St. 306, 310; Brown v. Eaton, 21 
 
 Ala. 851; Bell ». Thompson, 34 M. 633; Klyces. Minn. 409, 411; Gill v. Newell, 13 73. 468,473; 
 
 Broyles, 37 Miss. 524; Mhoon v. Wilkerson, 47 Deichmann v. Deichmann, 49 Mo. 107; Grays. 
 
 M. 633; Grays. Dougherty, 25 Cal. 266, 278, 282; Dougherty, 85 Cal. 866, 280, 281; Hunter v. 
 
 Jones V. Petaluma, 36 Id. 230, 232; Marshall v. Daniel, 4 Hare, 420, 433; Mattocks v. Young, 66 
 
 Caldwell, 41 /(i. 611,615. Me. 459,467; Craryw. Smith, 2 N. Y. 60, 65; Kerr 
 
 SKlyce v. Broyles, 37 Miss. 524; Ex parte v. Purdy, 50 Barb. 24; Maxwell ». Pittenger, 2 
 
 Hodges, 24 Ark. 197; Corbas v. Teed, 69 111. 205; Green Ch. 156. 
 
 Thompson *. Smith. 63 N. Y. 301. 7 Young o. Daniels, 2 Iowa, 126; Gray v. 
 
 * Freeson v. Bissell, 63 N. Y. 168, 170; Chess' Dougherty, 25 Cal. 266, 280; Karker v. Haverly, 
 
 Appeal, 4 Barr, 58; Smoot v, Rea, 19 Md. 398, 50 Barb. 79; Delavan v. Duncan, 49 N. Y.486, 
 
 410; Maughlin D. Ferry, 35 73. a52; Morris ». 487; Hall s. Whittier, IDE. I. 530. 
 
 Hoyt, 11 Mich. 9, IB; Seeley «. Howard, 13 Wis. 8 Kimball ji Tooke 70 III K3 
 
 586 
 
CH. XXVIII. J SPECIFIC PERFORMANCE OF CONTRACTS. § 500 
 
 § 500. How far right to specific performaHce is affected by- 
 time. — Delay in the performance of a contract by the plaintiff will 
 affect the right to its specific enforcement more or less, according to 
 the character of the provision of the contract, in respect to the time in 
 which the contract must be performed; and in this connection, the 
 stipulations as to time of performance will vary in effect and value, 
 according to whether such stipulation is pronounced to be essential, 
 material, or immaterial. In all ordinary cases, as in contracts for the 
 sale of lands, if there is nothing special in its terms which would make 
 it necessary or reasonable for a court to presume that the time of per- 
 formance is essential, the court of equity will rather presume the stip- 
 ulation as to time to be more formal than essential; and will permit 
 the party, who has allowed the period of performance to pass by, to 
 perform such acts after the lapse of such time, and to compel the per- 
 formance by the other party, notwithstanding the delay. ' Mere delay, 
 in other words, in the performance of a contract by the plaintiff, will 
 not in itself ordinarily furnish any ground for refusing specific per- 
 formance, unless such delay was unreasonably long or was intentional. 
 Where the delay is accounted for, and is shown to have worked no 
 injury to the other party which is beyond the means of reparation, a 
 a court of equity will, notwithstanding such delay, decree specific per- 
 formance and grant in such decree an allowance to the defendant, for 
 whatever injury he might have suffered from or through such delay.* 
 The time of performance is essential, whenever the intention of the 
 parties to make it so is clear; and when that is the case, the perform- 
 ance of the contract within the time stipulated is absolutely essential, 
 and a failure to perform within that time will defeat the right to a 
 decree for specific performance.' The intention to make the time of 
 performance essential may be shown by the express stipulations of the 
 contract; but no particular form of expression is required to manifest 
 that intention, provided the contract shows in its terms the intention 
 
 • 
 
 1 Van Campen «. Knight, 63 Barb. 205; Sharp Davisons. Jersey Co. Ass., VIN. Y.333; Wonson 
 V. Trimmer, 24 N. J. Eq. 422; Kings. Euckman, ». Fenno, 129 Mass. 405; Snider v. Lehnherr, 5 
 20iir. 316; Smooth. Rea, 19 Md. 399; Scarlett «. Greg. 385; Peck «. Brighton Co., 69 111. 200; 
 Stein, 40 Id. 512; Brock v. Hidy, 13 Ohio St. 305; Beach i). Dyer, 93 Id. S95; Tilton v. Stein, 87 Id. 
 Keller r. Fisher, 7 Ind. 718; Shafer v. Niver, 9 123; Jones v. Jones, 11 Phila. 559; Russell v. 
 Mich. 253; Snyder «. Spaulding, 57 111. 480; Setou Baughman, 94 Pa. St. 400; Converse «. Blum- 
 V. Slade, 7 Ves. 265, per Lord Eldon; Decamp v. rich, 14 Mich. 109, 114 ; Shortall v. Mitchell, 57 
 Feay, 5 Serg. & E. 323, jj«f Gibson, J.; Vyse s. Ifl. 161; Decamp «. Feay. 5 Serg. <fc E. 323, 337; 
 Foster, L. E. 7 11. L. 318; Spaulding v. Alex- Edgerton v. Peckham, 11 Paige, 352, 359; Me- 
 ander, 6 Bush, 160; Walton v. Wilson, 30 Miss. Clartey v. Gokcy, 31 Iowa, 505: Grey i). Tubbs, 
 576; Morgan v. Bergen, 3 Neb. 209; Prince ». 43 Cal. 359; Longworth v. Taylor, 1 McLean, 
 Griffin, 27 Iowa, 514 ; Knott v. Stephens, 5 Greg. 395 ; 14 Peters, 173, per Story, J. ; Moote v. Scri- 
 235- Steele «. Branch, 40 Cal. 3; Hulls. Sturdi- yen, 33 Mich. 500; BrasseU ». McLemore.50 Ala. 
 vant,46Me.34;Dresel?). Jordan, lOlMass. 407; 476; Sharp u. Timmer, 24 N. J. Eq. 428; Pritoh- 
 Quinn». Eoath, 37 Conn. 16; Edgerton v. Peck- ard v. Todd, 38 Conn. 413. 
 
 ham, 11 Paige, 352; Hubbell v. Von Sohoening, s King v. Euckman, 20 N. J. Eq. 316; Prince v. 
 
 49 N. Y. 326. Griffin, 27 Iowa, 514; Knott o. Stephens, 5 Greg. 
 
 2 Parsons®. Gilbert, 45 Iowa, 33; Chadwell v. 235; Grey v. Tubbs, 43 Cal. 369; Hipwell v. 
 Winston, 3 Tenn. Ch. 110; Henderson v. Hicks, Knight, 1 Y. & C. Ex. 401; Quinn v. Eoath, 37 
 58 Cal 364; Burton v. Adkins, 2 Del. Ch. 125; Conn.l6; Miller'sAdm'r!).MilIer,25N.J.Eq.354. 
 
 587 
 
§ 601 EQUITY JUKISPRUDENCE. [CH. XXVIII. 
 
 of the party to consider such contract null and void, unless it be per- 
 formed within the stipulated time.' So, also, time may be made 
 essential by a notice given by one party to the other, subsequent to 
 the execution of the contract, that if the contract is not performed 
 within a prescribed period, it will be abandoned.^ But the time of 
 performance may also be considered essential, and the intention of the 
 parties to make it so may be inferred from the subject-matter and 
 object of the contract; as, for example, where the market price of the 
 sulDJect-matter of the contract fluctuates rapidly, and any delay would 
 involve great damage or injury to the parties through these fluctu- 
 ations in value. Time may be inferred, from this circumstance, to have 
 been intended by the parties as an essential element of the contract.' 
 Distinction must be made here between the stipulations as to time of 
 performance which are essential, and those which are material. 
 Although the time of performance is not ordinarily essential, or in the 
 nature of an absolute condition precedent, yet it is, as a general rule, 
 material; and where it is material, it is necessary for the party plaintiff, 
 who is charged with delay in the performance of his part of the con- 
 tract, to give a reasonable account of the cause of such delay, in order 
 to lay claim to the right to the decree for specific performance. 
 If the delay is not shown by the plaintiff to be reasonable, the court 
 wdll refuse the specific performance; for the plaintiff must show him- 
 self to have been ready, desirous and able to perform his part of the 
 contract.* 
 
 § 501. The effect of events occnrring without the agency of 
 the parties in contracts for the sale of lands. — In contracts for 
 
 the sale of lands, the court of equity applies the doctrine of equitable 
 
 • ■ 
 
 1 Goldsmith ». Guild, 10 Allen, 239; Hoyt i!. Smith, 2 Edw. Oh. 78; 7 Paige, 23; Barnard s. 
 
 Tuxbury, 70 111. 331 ; Holt v. Rogers, 8 Pet. 420; Lee, 97 Mass. 92; Goldsmith v. Guild, 19 Allen, 
 
 Brashler «. Grata, 6 Wheat. 528; Hepburn v. 239; Quinn v. Eoath, 37 Conn. 16. 
 
 Auld, 5 Cranch, 263; Jennisons v. Leonard, 21 * Henderson v. Hicks, 58 Gal. 364; Burton ». 
 
 Wall. 302; Jones V. Bobbins, 29 Me. 351; Hipwell Adkins,2Del. Oh. 125; Wonson ». Fenno, 129 
 
 •». Knight, 1 Y. & C. Ex. 491, 496; Doloret v. Mass. 405; Russell v. Baughman, 94 Pa. St. 400; 
 
 Eothschild, IS. <fc S. 590; McKay t). Carrington, Jones ». Joilbs, 11 Phila. 559; Lloyd i>. CoUett, 4 
 
 1 McLean, 50. Bro. Ch. 469; Alley v. Deschamps, 13 Ves. 225: 
 
 , 2 Thompson v. Dulles, 5 Rich. Eq. 370; Smith MoMurray v. Spicer, L. E. 5 Eq. 527, 537; Hub- 
 
 V. Lawrence, 15 Mich. 499; Reed v. Breeden, 61 bell v. Von Schoening, 58 Barb. 498; 49 N. Y. 
 
 Pa. St. 460; Reynolds v. Nelson, 6 Madd. 18; 326; Eppinger V. McGreal, 31 Tex. 147; Camp- 
 
 Eads V. Williams, 4 De G. M. & G. 674; Rogers bell v. Hicks, 19 Ohio St. 433; Mix v. Baldue, 78 
 
 V. Saunders, 16 Me. 92; Wiswell «. MoGowan, 111. 215; Kinney v. Redden, 3 Del. Ch. 46; EuB- 
 
 Hoflf. Ch. 125. sell v. Nester, 46, Mich. 290; Beach v. Dyer, 93 
 
 ' Phelps V. 111. Cent. E. E., 63 m. 468; Peck v. 111. 295; Tilton v. Stein, 87 Id. 132; Parsons v. 
 
 Brighton Co., 69 111. 200; Kimball v. Tooke, 70 Gilbert, 45 Iowa, 33; Chadwell v. Winston, 3 
 
 Jd. 553; Davis v. Stevens, 3 Iowa, 158; O'Fallon Tenn. Ch. 110; Peck v. Brighton Co., 69 111. 200; 
 
 V. Kennerly, 45 Mo. 124; Morgan ». Bergen, 3 McDermld v. McGregor, 21 Minn. Ill; Eitson 
 
 Keb. 209; Snider ». Lehnherr, 5 Oreg. 385; Grey «. Dodge, 33 Mich. 463; Delaven ». Duncan, 49 
 
 ■0. Tubbs, 43 Cal. 359; Baldwin v. Van Vorst, 8 N. Y. 485; Finch v. Parker, Id. 1; Hawley v. 
 
 Stockt. Ch. 577; Bullock v. Adams' Ex'is, 20 N. Jelly, 25 Mich. 94; McLaurie v. Barnes, 73 111. 
 
 J. Eq. 367, 371; Seed v. Breeden 61 Pa. St. 73; Roby «. Cossit,78 W. 638; Ludlum B. Buck- 
 
 460; Jackson v. Breeden, 61 Pa. St, 460; Ingham, 35 N. J. Eq. 71 ; Davison ». Jersey Co. 
 
 Jackson v. Ligon, 3 Leigh, 160, 187; Kirby v. Ass., 6 Hun, 470; 71 N. Y. 333; Boyd». Schles- 
 
 Harrison, 2 Ohio St. 326, 333; Scott v. Fields, 7 singer, 59 N. Y. 301, 305; Williams v. Hart, 116 
 
 Ohio, 424j Hudson v. Bartram, 3 Madd. 440; Mass. 513; Steele ». Branch, 40 Cal. 3; Green t>. 
 
 Benedict ». Lynch, 1 Johns. Ch. 370; Wells v. Covillaud, 10 Cal. 317. 
 
 588 
 
CH. XXVm.] SPECIFIC PEKFOEMANCB OF CONTEACTS. § 601 
 
 conversion and treats the vendor of such contract as trustee for the 
 vendee, who bears to the land and the vendor the character of a cestui 
 que trust; while the vendee is trustee for the vendor, in respect 
 to the purchase price, and the vendor the cestui que trust as 
 to such purchase price.* The performance of this executory 
 contract then operates only to transfer to the vendee the legal 
 title to the land, and to the vendor the legal title to the pur- 
 chase price; hence, the vendee, in respect to the equitable owner- 
 ship in the land acquired through the executory contract of sale, 
 assumes all of the risks of losses or damages that might befall the 
 subject-matter of the contract. And such loss, therefore, falls upon 
 him whenever it occurs either through fire or other damage due to the 
 elements, and cannot, under a claim of being a failure of the subject- 
 matter of the contract, serve as a defense to the action for specific - 
 performance, as long as such loss cannot be laid to the negligence of 
 the plaintiff in the performance of his duty as a trustee; in other 
 words, the destruction of the subject-matter, wholly or in part, pend- 
 ing the completion of the contract of sale, will not be a defense to the 
 action for specific performance of such a contract, as long as such 
 losses are not the consequence of the negligence, or default, or 
 unwarrantable delay of the vendor.'' 
 
 A right to a decree for specific performance also depends upon the 
 ability of the court to enforce its decree. Not only will a court ©f 
 equity refuse its relief in cases where the legal remedy is adequate, 
 but it will also refuse to make a decree where, either on account of its 
 character or on account of the character of the contract, the decree for 
 specific performance would be nugatory. There are three classes of 
 cases in which the nugatory character of the decree for specific per- 
 formance would be a ground for refusing such equitable relief: One 
 class includes the cases where, by the other terms of the contract, the 
 defendant would be entitled at any time to terminate the agreement, 
 and thus avoid the performance of the contract in obedience to the 
 decree of the contract; as in the case of partnership agreements,' and 
 agreements for submission of contracts to arbitration, before an 
 award has been made.* The second class of cases includes those 
 
 1 See ante, % 166; Coroan o. Lakey, 80 N. T. 6 B. Mon. 422; Cooperu. Pena, SI Cal. 403; Wil- 
 345, 350: Pelton v. Westchester F. Ins. Co., 77 lard v. Tayloe, 8 Wall. 558, 571; Marble Co. v. 
 Id. 605,607. Ripley, 10 /d. 339; Hale «. Wilkinson, 21 Gratt. 
 
 2 Paine v. Meller, 6 Ves. 349; Cass v. Eudele, 75; Ambrouse's Heirs v. Kellgr. 2S Id. 769. 
 
 2 Vem. 280; Mortimer v. Capper, 1 Bro. Ch. » Meason v. Kaine, 63 Pa. St. 335; Manning v. 
 
 156; Jackson v. Lever, 3 Id. 605; Eicbter v. Wadsworth, 4 Md. 59; Eeed f. Vldal, 5 Eich. 
 
 Selin, 8 Serg. & E. 425, 440; Brewer ». Herbert, Bq. 289; and see Eust«. Conrad, 47 Micb. 449; 
 
 30 Md. 301; Robb v. Mann, IJones, (Pa.) 300; Scott «i. Eayment, L. R. 7 Bq. 112; Hercy v. 
 
 Wyvill ». Bp. of Exeter, 1 Price, 292; Paine v. Birch, 9Ves. 357; Sheffield, &o. Co. v. Harrison, 
 
 Meller, 6 Ves. 349; Christian ». Cabell, 22 Gratt. 17 Beav. 294; England o. Curling, 8 Id. 129; 
 
 82; Griffin's Ex'r «. Cunningham, 19 Id.m\\ Tobey». Co. of Bristol, 3 Story, 800; Bucko. 
 
 Booten ». Sheffer, 21 Id. 474; Merritt v Brown, Smith, 29 Mich. 166. 
 
 19 N. J. Bq. 286; Kirby v. Harrison, 2 Ohio St. < Noyes v. Marsh, 123 Mass. 286; Conner v. 
 
 326; Andrews ». Bell, 56 Pa. St. 343; Lee v, Drake, 1 Ohio St. 166; King D. Howard, 27 Mo. 
 
 Kirby 104 Mass. 430,428; Ewing i>, Beauchamp, 21; Price v. Williams, cited 6 Ves. 818; Street 
 
 589 
 
§ 601 EQUITT JUEISPRUDENCE. [CH. XXVm. 
 
 in which the defendant is not at the time of the decree in a posi- 
 tion to carry out the decree of the court. The common illus- 
 tration of this class of cases is where the contract is for the sale 
 of a specific property, and the decree is for a specific perform- 
 ance of that contract; and at the time, when the decree was 
 rendered, the vendor or defendant had neither the possession nor 
 title of such property, and thus was unable to comply with the 
 decree for specific performance. The fact that the defendant did 
 not know or possess the subject-matter of the contract when that con- 
 tract was made, is no ground for refusing a decree for specific perform- 
 ance, if such property and its possession is acquired prior to the 
 rendition of the decree.^ But if, at the time the decree is asked for, 
 the vendor has not the title and possession, as where he has sold the 
 same and transferred it to another honafide purchaser, the court will 
 not decree specific performance, on the ground that the superior title 
 to the property has thus been acquired by a honafide purchaser, which 
 would supersede the claim of the plaintiff to the same property under 
 the executory contract of sale.^ But if a vendor, after the execution 
 of his contract of sale, should undertake to transfer or sell the same 
 property to another, who takes it with the knowledge of the prior con- 
 tract of sale of the same property, he cannot claim to be a hcma fide 
 purchaser, although he pays full value for the same. It is a case of 
 constructive fraud upon the prior vendee, which would enable such 
 vendee to claim a superior right to such property; and the fact that 
 this subsequent sale was made under these circumstances would not be 
 any ground for refusing the decree for specific performance, which 
 would operate not only against the vendor, but against the second 
 purchaser. In order that a subsequent sale of the subject-mat- 
 ter of the contract, for which specific performance is asked, may 
 operate as a bar to the decree for specific performance, the sec- 
 ond sale must have been made to one who can strictly call 
 himself a Txyna fide purchaser for value. ^ Finally, the third 
 class of cases in which the court of equity will refuse to graiit 
 a decree for specific performance, on account of the nugatory 
 character of the decree, would include all those cases in which the 
 decree would call for the rendition of personal service, the successful 
 performance of which would require the exercise of skill and good 
 faith on the part of the defendant, or where the performance of the 
 
 V. Elgby, Ves. 815; Tobey v. Co. of Bristol, 3 258; Greenawayu. Adams, 12 Ves. 395,400; Fer- 
 
 Story, 800, 820, 823. guson v. Wilson, L. E. 2 Ch. 77; Smith ». Kel- 
 
 1 HaUett V. Middleton, 1 Euss. 343; Green- ley, 56 Me. 64; Little v. Thurston, 58 Id. 86. 
 
 away v. Adams, 12 Ves. 395, 401; Phillips v. » Bryant ». Booze, 55 Ga. 438; Johnson v. 
 
 stanch, 20 Mich. 369; Burke «. Seely, 46 Mo. Bowden, 37 Tex. 621; Bird v. Hall, 30 Mich. 
 
 334 ; Burton D. Shotwell, 13 Bush, 271 ; Green i>. 374 ; Youell «. Allen, 18 lA. 107 ; Gregg i>. Hamll- 
 
 Smith, 1 Atk. 572; Columbine «. Chichester, 2 ton, 12 Kans. 333; Snowman v. Harford, 57 Me. 
 
 Pbil. 27. • 397; Fullerton ». McCurdy, 4 Lans. 123; Haugh. 
 
 « Warren i>. Eichmond, 53 111. 52; Gupton ». woutr. Murphy, 22 N. J. E(J. 531; 21 Id. 118; 
 
 Gupton, 47 Mo. 37; Denton ». Stewart, 1 Cox, Cole t>. Cole, 41 Md. 301. 
 
 590 
 
CH. XXVIII. J SPECIFIC PEEFORMANCE OF CONTRACTS. § 501 
 
 contract would require such a supervision by the court or an officer of 
 the court as to make it impracticable for the court to attempt the 
 enforcement of the contract. The single fact, that the court is unable 
 to secure an enforcement of its decree for specific performance, is the 
 explanation in every one of these cases of a refusal to issue a decree. 
 Thus, contracts for personal service will not ordinarily be specifically 
 enforced by a court of equity; that is, affirmatively, because it is 
 impossible for a court to compel one to employ his skill or powers 
 successfully in the performance of such a contract.^ But in the chap- 
 ter on injunctions, it has been already explained to what extent, by the 
 means of an injunction, such contracts may be enforced,^ and nothing 
 further need be stated here. 
 
 For the same reason, contracts for the sale of the good- will of a 
 l)usiness, separate from and unconnected with the business or the 
 premises in which the business is conducted, are not the subject of a 
 decree for specific performance.^ But where the good- will of a busi- 
 ness is sold in connection with the transfer of the business itself, 
 while a specific performance cannot be secured affirmatively, the con- 
 tract is negatively enforced by means of an injunction.* A court of 
 equity also refuses to grant a decree for specific performance, where 
 the contract which is to be specifically enforced relates to the manu- 
 facture of goods, which are composed of ingredients which are 
 required by the parties to be kept a secret. The court could not 
 specifically enforce such a contract except in express violation of its 
 provision as to secrecy.' Finally, courts will refuse to grant a decree 
 for specific performance in the case of continuing covenants," where 
 such contract calls for a continuing performance of a more or less 
 protracted character, and requires a long-continued supervision and 
 direction by the court, as in the case of contracts for building, for 
 construction of bridges, and railroads and the like; the ground for 
 refusal being the inability of the court of equity to undertake a busi- 
 ness of such character.'' 
 
 iRandall v. Latham, 36 Conn. 48; Richmond 334; Burton v. Shotwell, 13 Bush, 871; Green V. 
 
 V. Dubuque, <fee. E. E., 33 Iowa, 423; De Elvafl- Smith, 1 Atk. 572; Columbine v. Chichester, 
 
 noli V. Corsetti, 4 Paige, 264; Hamblin v. Din- 2 Phil. 27. 
 
 neford,2 Edw. Ch. 529; Halghts. Badgely, 15 « Collins*. Plumb, 16 Ves. 454; City of Lon- 
 
 Barb 499; Palmer®. Scott, 1 Euss. & My. 391; dons. Nash, 3 Atk. 512, 516; Caswell v. Gibbs, 
 
 Mair'i.. Himalaya Tea Co., L. E. 1 Eq. 411; 33 Mich. 331; Earl of Damley v. London, &,c. 
 
 Marble Co. v. Eipley, 10 Wall. 339; Ford v. Ey., 3 De G. J. & S. 24; L. E. 2 H. L. 43; Hop- 
 
 Jermon, 6 Phila. 6; Cooper v. Pena, 21 Cal. 403, kins v. Oilman, 22 Wis. 476. 
 
 .J. 7 Atlanta, &c. B. R. v. Speer, 32 Ga. 550; Cin- 
 
 a'see om<«, § 482. cinnati, Ac. R. E. v. Washburn, 25 Ind. 259; 
 
 SBozon V. Parlow, 1 Merlv. 459; Baxter ». Columbus, &a. E. E. 11. Watson, 26 Id. 50; 
 
 Conolly 1 J & W. 576; Coslake v. Till, 1 Rusa. Gregory v. Ingwersen, 32 N. J. Bq. 199; Dan- 
 
 gl forth B.Philadelphia, &C.Ey., 30 JA 12; Beck 
 
 iDarbey ii. Whltaker, 4 Drew. 134, 139, 140; «. Allison, 56 N. Y. 366; Mastin «;. Halley, 61 
 
 Chlssum «. Dewes, 5 Euss. 29; Whittaker v. Mo. 196; Eandall v. Latham, 36 Conn. 48; 
 
 Howe, 3 Beav. i 
 
 Stames v. Newsom, 1 Tenn. Ch. 239; Columbia 
 
 SHallett V Mlddleton, 1 Euss. 243; Green- Water Co. i>. Columbia, 5 S. C. 225; Wharton?;, 
 away * Adams, 12 Ves. 395, 401; Phillips V. Stoutenburgh, 35 N. J. Eq. 266; Eoberts v. 
 Stauch,'20 Mich. 269; Burke v. Seely, 46 Mo. Kelsey, 38 Mich. 602. 
 
 591 
 
§ 503 EQUITY JURISPRUDENCE. [CH. XXVni. 
 
 § 502. Damages when giren in place of decree for specific per> 
 formance. — "Where it is impossible, on the ground explained in the 
 preceding paragraph, for a court of equity to decree specific perform- 
 ance, and the inability to render a decree for specific performance 
 is not disclosed until the hearing of the cause; and the vendor had 
 commenced his suit for specific performance in good faith and under 
 the belief, that it was a cause in which the court of equity could grant 
 the remedy asked for; in such a case, instead of dismissing the suit 
 and forcing the plaintiff to proceed in an independent action for dam- 
 ages, it will at once award to the plaintiff the damages which he could 
 have obtained in the action at law. This is especially the case, where 
 the contract is for the sale of lands, and the vendee brings the action 
 for specific performance, without knowing that the vendor has sold and 
 transferred such land to someone else.^ But if the plaintiff was aware 
 of the inability of a court of ec[uity to grant the decree for specific 
 performance when he brought his suit, he will not be entitled to the 
 award for damages in the same suit; but the court of equity would 
 dismiss such suit and compel the plaintiff to resort to his remedy at 
 law.^ It will, of course, be remembered that this distinction between 
 actions at law and in equity, and the necessity of the vendee to resort 
 to the action at law for the recovery of damages for the breach of the 
 contract, when he knows that the vendor has disposed of the property 
 to a hona fide purchaser, has been modified in the states in which the 
 modern or reformed civil procedure has been adopted. Under that pro- 
 cedure, there is but one civil action, in which the plaintiff will secure 
 every relief, legal and equitable, to which he may be able to show 
 himself entitled in the presentation of his case. Under the reformed 
 procedure, of course, the principle referred to has no application.' 
 
 § 503. Specific performance of trustees. — The ordinary cases, in 
 which the decree for specific performance is rendered, are those of 
 ordinary contracts involving the prayer for the performance of an 
 executory contract; but the same relief, or practically the same relief, 
 is accorded to the cestui que trust against the trustee; in other words, 
 the cestui que trust may secure from the court of equity a decree 
 against the trustee for the specific performance of the trust. That is 
 necessarily the appropriate remedy in every attempt of a court of 
 equity to compel the performance of a trust by a trustee.' This 
 application of the remedy for specific performance does not need any 
 
 1 Wooaman v. Freeman, 25 Me. 531, 532, 543 j Paige, 277; Berry v. Van Winkle, 1 Green Oh. 
 
 Tenney u. State Bk., 20Wls. 152; McQueen u. 269; Hopkins «. Gllman, 22 Wis. 476. 
 
 Chouteau's Heirs, 20 Mo. 222; Hamilton)). ^Hatchs. Cobb, 4 Johns. Ch. 559; Kempshall 
 
 Hamilton, 59 Id. 232; Gupton v. Qupton, 47 Id. v. Stone, 5 Id. 193; Smith v. Kelley, 56 Me. 64; 
 
 37, 47; Harrison o. Deramus, 33 Ala. 453; Carroll Stembergeru. McGovern, 56N. T. 12,20. 
 
 ». Wilson, 22 Ark. 32; Foley tr. Crow, 37 Md. 51 ; 3 Cowles ». Whitman, 10 Conn. 121; Hill v. 
 
 Milkman ». Ordway, 106 Mass. 232, 253; Char- Eookingham Bk., 44 N. H. 567; McGowin i). 
 
 tier V. Marshall, 56N. H. 478; Wiswall c. Mo- Remington, 12 Pa, St. 56; Abbott's Ex'r V. 
 
 Gowan, Hoff. Ch. 125; Parkhurst v. Van Cort- Reeves, 49 H. 494; Peer v. Kean, 14 Mich. 354 ; 
 
 landt, IJohns. Ch. 273;Morss». Elmendorf, 11 Woods. Rowcliffe, 3 Hare, 304; 2 Phil. 382; 
 
 592 
 
CH. XXVIII.] SPECinO PEEFORMANCE OF CONTRACTS. § 504 
 
 more specific or detailed explanation; the same principles attain here, 
 as in the case of specific performance of contracts, in determining 
 when, and under what circumstances, the decree will be made. 
 
 § 504. Suits against corporations to compel transfer or isssue of 
 stock. — It often occurs that the directors, and other officers of a cor- 
 poration, wiU refuse to recognize the rights of assignees of stock to the 
 transfer of such stock on the books of the company in their names, 
 and to a participation of the business of such corporation. In such 
 a case, it is well settled that, although the common law remedy, for 
 damages is available, it is inadequate; the only effective remedy is 
 an order of the court of equity to compel such officers to make the 
 transfer of the stock on the books of the company to the assignee, and 
 thus enable such assignee to enjoy all of the rights of the stockholder 
 in such corporation; and likewise to compel such officers to issue new 
 certificates of stock upon the surrender of the old ones.^ So, also, 
 where the corporation has wrongfully cancelled old certificates of 
 stock and issued new certificates of stock in place of them to one who 
 is not a lawful assignee, the old stockholder may, under these circum- 
 stances, obtain a decree from the court, compelling the officers of the 
 corporation to replace the old stock upon the books of the company 
 and issue new stock to the original owners, or if this cannot be done, 
 to pay to them the value of such stock. ^ In the latter class of cases, 
 the remedy would be applied whenever there has been an issue of new 
 certificates to one who claims to be the lawful assignee and represents 
 himself to be so entitled on the forged assignment of such stock. 
 There is no lawful transfer in such a case; and hence the cancellation 
 of the old certificate and issue of the new certificate to the assignee 
 would be in violation of the rights of the old stockholder, for which 
 there is no effective remedy at law. 
 
 Pooleyi). Budd, 14 Beav. 34; Stanton ». Peroi- ^sewall v. Boston, &c. Co., 4 Allen, 377; 
 
 val, 5 H. L. Cas. 257, 268; Clark v. Flint, 22 Pratt r. Taunton Copper Co., 123 Mass. 110; 
 
 Pick. 231; Peyser v. Wendt, 87 N. Y. 322; Pratt v. Boston, &a. B. E., 126 Jd. 443; Tele- 
 
 II 1089-1096; BrlnkerhofiF v. Bostwick, 88 N. Y. graph Co. v. Davenport, 7 Otto, 369; Taylor v. 
 
 52 ; Van Dyck v. MoQuade. 86 Id. 38, 45, 46. Midland Ey. Co. , 28 Beav. 287 ; 8 H. L. Cas. 761 ; 
 
 1 Cushman v. Thayer Man. Co., 76 N. T. 365; PoUoek v. National Bk., 7 N. Y. 274; Chew v. 
 
 MiddlebrookB. Merchants' Bank, 41 Barb. 481; Bk. of Baltimore, 14 Md. 299; Hildyard ». 
 
 3 Abb. App. Dec. 295; Purchase v. N. Y. Exch. South Sea Co., 2 P. Wms. 77; Ashby v. Black- 
 
 Bk., 3 Eobt. 164; Bnirall v. Bushwlck K. E., 75 well, 2 Eden, 299; Sloman v. Bk. of England, 
 
 N. T. 311. 1* Sim. 475. 
 
 38 
 
 593 
 
CHAPTER XXIX. 
 
 EEFOEMATION AND CANCELLATION OF LEGAL INSTRUMENTS. 
 
 
 Section 
 
 ments 
 
 . 507 
 
 Cancellation and 
 
 surrender of instru- 
 
 ments . 
 
 . 508 
 
 Section 
 General statement as to the nature and 
 
 object of the remedy ... .506 
 
 Heformatlon and re-execution of instru- 
 
 § 506. General statement as to the nature and object of the 
 remedy. — The application to a court of equity for either the reforma- 
 tion or cancellation of a legal instrument is never made for the pur- 
 pose of securing thereby any definite settlement or enforcement of 
 rights; the remedy is rather auxiliary to the determination of the fact 
 that the instrument as it appears either does not represent the true 
 condition of the rights of the parties or their intention, or that the 
 instrument itself is void or invalid, and as such should not be per- 
 mitted to continue in existence. The two classes of remedies discussed 
 in this connection are reformation and cancellation; the one is affirma- 
 tive in its rehef, the other is negative. The general grounds upon 
 which reformation and cancellation will be decreed are, that the trans- 
 action through accident, mistake or fraud does not represent the 
 intention of the parties. The general subject of accident, mistake and 
 fraud, and other effects upon the contract which result therefrom, 
 have been already fully explained in preceding chapters.^ 
 
 § 607. Reformation and re-execution of instruments. — A legal 
 instrument is a proper subject for reformation or re-execution, when- 
 ever the instrument itself does not show and reproduce the actual 
 contract of the parties; but it is only possible for a written contract to 
 be reformed, when the parties have actually made a contract which is 
 different in its terms from the contract which has been reduced to 
 writing. In other words, in order that an instrument may be 
 reformed, the error or mistake, which has been committed in reducing 
 the contract to writing, must be either a mutual mistake of both par- 
 ties, or it must be a mistake on the part of one of them, accompanied 
 by the fraud of the other party. ^ The cases in which instruments 
 
 i As to accident and mistake, see Chapt. XI. 
 As to fraud, see Chapts. XII and XIII. 
 
 2 Whittemore v. Farrington, 76 N. Y. 453; 
 Moran v. McLarty, 75 M. 25: Paine v. Jones, 75 
 Id. 593 j Ramsey v. Smith, 32 N. J. Eq. 28; Real 
 Estate Trust Co. v. Baloh, 13 J. & S. 588; Rob- 
 ertson V. Walker, 51 Ala. 484; Kilmer v. Smith, 
 77 N. Y. 226; Albany Sav. Inst. v. Burdlck, 87 
 Id. 40; Paine v. Upton, 87 Id. 387; Arthur v. 
 Homestead P. Ins. Co., 78 Id. 462; Ford „. 
 
 594 
 
 Joyce, 78 Id. 618; Steinbach v. Relief F. Ins. 
 Co., 77 Id. 498; Sutherland v. Sutherland, 69 
 III. 481; Evarts ». Steger, 5 Oreg. 147; Brad- 
 ford V. Bradford, 54 N. H. 463j Botsford v. 
 McLean, 42 Barb. 445; 45 Id. 478; Snell ». In- 
 surance Co., 8 Otto, 85; Stockbrldge Iron Co. v. 
 Hudson Iron Co., 107 Mass. 290; Mcintosh v. 
 Saunders, 68 111. 128; Toops v. Snyder, 70 Ind. 
 554; Witthaus v. Schack, 57 How. Pr. 310; Sable 
 . Maloney, 48 Wis. 331 ; McPadden v, Rogers, 
 
CH. XXIX.] KEFOEMATION AND CANCELLATION LEGAL INS'tS. § 508 
 
 can be reformed are numerous. All sorts of legal instruments may 
 be reformed by equity, when the errors, which have been committed 
 in the execution of them, are mutual mistakes or a mistake of one 
 party combined with the fraud of the other. Thus, reformation has been 
 decreed of all kinds of deeds of conveyance,^ including leases,^ mort- 
 gages,' deeds of trust,* marriage and family settlements.^ Likewise, 
 bonds of all kinds," policies of insurance,' assignments or release of 
 mortgages,' executory contracts for the sale of lands,'' the indorsement 
 of a note," agreements for the establishment of a highway," military 
 orders. ^^ So may, also, judgments and other records be corrected or 
 be reformed." 
 
 § 508. Cancellation and snrrender of instruments. — A court of 
 equity also has the authority to order a cancellation and surrender of 
 any legal instrument, whenever such a decree is necessary to the pro- 
 tection of the rights and interests of the parties which are threatened 
 by the continued existence of an instrument, inconsistent with such 
 
 "70 Mo. 421; Snyder v. Ives, 42 Iowa, 157; NicoU 
 ». Mason, 49 111. 358; Hutson v, Furnas, 31 Iowa, 
 154. 
 
 1 Froman v. Froman, 13 Ind. 317; Bandall v, 
 Ghent, 19 Id. 271 ; Hunt v. Frazier, 6 Jones Eq. 
 90; Heaton ». Fryberger, 38 Iowa, 185; Leonis v. 
 LazzaroTich, 55 CaL 52; Styers v. Bobbins, 76 
 Ind. 547; Purcell v. Goshorn, 17 Ohio, 105; Har- 
 ris V. Pepperell, L. E. 5 Eq. 1 ; Bloomer v. Spit- 
 tle, L. E. 13 Eq. 427; White v. White, L. E. 15 
 Eq. 247; Gillespie v. Moon, 2 Johns. Ch. 585; 
 Gerald v. Elley, 45 Iowa, 322; Parish v. Scott, 
 10 Heisk. 438; Dart v. Barbour, 32 Mich. 267; 
 Cummings «. Freer, 26 Mich. 128; Burr v. 
 Butchinson, 61 Me. 514; Huss v. Morris, 63 Pa» 
 St. 367; Blakeman «. Blakeman, 39 Conn. 330; 
 Clayton v. Freet, 10 Ohio St. 544, Deford V. 
 Mercer, 24 Iowa, 118; Mattingly v. Speak, 4 
 Bush, 316; Lestrade v. Barth, 19 Cal. 660; 
 Brown v. Balen, 33 N. J. Bq. 469; Weston ■!). 
 Wilson, 31 Id. 61; Day v. Day, 84 N. 0. 408; 
 Johnson v. Johnson, 8 Baxt. 261 ; Blackburn v. 
 Eandolph, 33 Ark. 119; Michel *. Tinsley, 69 
 Mo. 442; Baker V. Massey, 50 Iowa, 399; Bullen- 
 tine V. Clark, 38 Mich. 395; Pasman v. Mon- 
 tague, 30 N. J. Eq. 385; Fly v. Brooks, 64 Ind. 
 50; Nicholson v. Caress, 59 Id. 39; Sawyer v. 
 Hanson, 48 Wis. 611; Kilmer v. Smith, 77 N. Y. 
 226; Jackson v. Andrews, 59 Id. 244; Bush r. 
 Hicks, 60 W. 298 ; Albany Sav. Inst. V. Burdlcli, 
 S! N. Y. 40; Crippen «. Baums, 15 Hun, 136. 
 
 * Henry v. Smith, 76 N. C. 311; Mays v. 
 Dwlght, 82 Pa. St. 462; Murray v. Dake, 46 Cal. 
 644 ; Campbell v . Hatohett, 55 Ala. 548. 
 
 3 Baskins v. Calhoun, 45 Ala. 582; Alexander 
 ■». Rea, 50 Id. 450; Goodman v. Randall, 44 
 Conn. 321: Milmine v. Bumham, 76 111. 363; 
 Quivey v. Baker, 37 Cal, 465; Ruhling v. Haok- 
 ett, 1 Nev. 360- Petesch v. Hambach, 48 Wis. 
 443; First Nat. Bk. v. Gough, 61 Ind. 147; Wil- 
 son ». Stewart, 63 Id. 294; Exchange Bk. v. 
 Russell, 50 Mo. 331; Schwickerath v. Cooksey, 
 S3 Id. 75; Parlln v. Stone, 1 McCrary, 443; Mil- 
 
 ler V. Davis, 10 Kans. 541 ; Albany Sav. Inst. v. 
 Burdiok, 87 N. Y. 40; Coe v. N. J. Midland Ry., 
 31 N. J. Eq. 105; Wilson v. King, 27 Id. 374; 
 Wheeler D. Kirtland, 23 Id. 13. 
 
 * Allen V. McGaughey, 31 Ark. 252; Young v. 
 Coleman, 45 Mo. 179; Haynes v. Seachrest, 13 
 Iowa, 455. Negotiable instruments, Otten- 
 heimer i. Cook, 10 Heisk. 309; Loomis v. 
 Freer, 4 111. App. 547; Potter v. Potter, 27 
 Ohio St. 84; Druiflf v. Lord Parker, L. R. 5 Eq. 
 131; Bostford v. McLean, 42 Barb. 445; 45 Id. 
 478; Talley v. Courtney, 1 Heisk. 715; Gammage 
 «, Moore, 42 Tex. 170. 
 
 6 Clark ». Girdwood, L. E. 7 Ch. D. 9; Lovesy 
 ■li. Smith, L. E. 15 Ch. D. 655; Welman v. Wel- 
 man, L. E. 15 Ch. D. 570; Hanley v. Pearson, L. 
 
 E. 13 Ch. D. 545; Lister v. Hodson, L. R. 4 Eq. 
 30; see Pomeroy Eq. Jur., Vol. 2, §§ 850,855, 871. 
 
 « Pickersgill v. Lahens, 15 Wall. 140; Garnar 
 V. Bird, 67 Barb. 277; Emery ?). Mohler, 69 111 
 221; Evarts v. Sterger, 5 Oreg. 147; Craft v[ 
 Dickens, 78 111. 131 ; State v. Frank's Adm'r, 51 
 Mo. 98; Schwear v. Haupt, 49 Mo. 225. 
 
 ' National Traders Bk. v. Ocean Ins. Co., 62 
 Me. 519; Keith v. Globe Ins. Co., 52 111. 518; 
 Miaghan v. Hartford F. Ins. Co., 12 Hun, 321; 
 Mackenzie v. Coulson, L. B. 8 Eq. 368; Brugger 
 V. State Invest. Ins. Co., 6 Sawy. 304; Hay v. 
 Star F. Ins. Co., 77 N. Y. 235; Mercantile Ins. 
 Co. V. Jaynes, 87 111. 199 ; Mead v. Westchester, 
 Ac. Ins. Co., 64 N. Y. 453; Knox v. Lycoming 
 
 F. Ins. Co., 50 Wis. 671; Heam v. Equitable, 
 &c. Ins. Co., 4 Cliflf. 192; Dean v. Equitable P. 
 Ins. Co., 4 Id. 575. 
 
 8 Moran v. McLarty, 75 N. Y. 25; Hervey v. 
 Savery, 48 Iowa, 313. 
 ' Kelley ». McKinney, 5 Lea. 164. 
 i» Stafford v. Fetters, 55 Iowa, 484. 
 
 11 Mastelar v. Edgarton, 44 Iowa, 495. 
 
 12 Thomas v. Raymond, 4 S. C. 347. 
 
 " Snyder ». Ives, 42 Iowa, 157; Cohen v. Du- 
 bose. Harp. Eq. 103; Partridge %. Harrow, fS7 
 Iowa, 96. 
 
 595 
 
508 
 
 EQUITY JUEI8PRUDENCE. 
 
 [CH. XXIX. 
 
 legal rights and interests. The common cases, in which decree for 
 cancellation may be rendered, are those in which through accident, 
 mistake or fraud, an instrument has been executed which did not rep- 
 resent the real intentions of the parties and whose continued existence 
 threatened to affect such injured parties injuriously. The subject of 
 cancellation, as a remedy for contracts and other legal instruments 
 executed by mistake or tainted with fraud, has been already fully 
 discussed in the preceding chapters.* It was supposed at one time 
 that it was impossible for the decree of cancellation to be made when 
 the instrument was absolutely void at law and not merely voidable, on 
 the ground that the legal defense of invalidity would be sufficient in 
 such cases. ^ But the general rule as now laid down by the courts is, 
 that the jurisdiction will be exercised in all cases of void deeds and 
 other legal instruments, whenever the invalidity does not appear upon 
 the face of the instrument.' 
 
 As in the case of reformation, cancellation of legal instruments wiU. 
 be decreed in behalf of the parties to all sorts of legal instruments, 
 including deeds of conveyance of land in general,* leases,' mortgages,* 
 and aU other contracts which affect or concern lands.' So, also, will 
 the decree for cancellation be given in the case of negotiable paper 
 
 iSee§§17B, 196, S22. 
 
 a Bromley ». Holland, 5 Ves. 610, 618; Franco 
 V. BoUon, 3 Id. 368; Eyan v. Mackmath, 3 Bro. 
 Ch. 15 J Hilton V. Barrow, 1 Ves. 284. 
 
 ' Ryan ». Mackmath, cited 13 Ves. 584; Jack" 
 man v. Mitchell, ja. 581 ; PeirsoU «. Elliott, 6 
 Pet. 95, 98; Chennel v. Churcliman, 3 Bro. Ch. 
 16 n; Mlnshaw v. Jordon, Id. 16 n; Pierce v. 
 Webb, Id. 16 n; Lisle «. Liddle, 3 Anstr. 649; 
 Hamilton ». Cummings. 1 Johns. Oh. 517, 520; 
 Lord St. John v. Lady St. John, 11 Ves. 536; 
 Jervis ». White, 7 Id. 413; Simpson v. Lord 
 Howden, 3 My. & Or. 97,102; Mayor of Col- 
 Chester V. Lowten, 1 V. A B. 226, 244; Bromley 
 V. Holland, 7 Ves. 316; Hayward v. Dims- 
 dale, 17 Id. Ill; In re Cooper, L. E. 20 Ch. 
 D 611; Remington Paper Co. i). O'Dougherty, 
 81 N. Y. 474; Strausburgh v. Mayor, &c., 87 
 N. T. 452; Dederer v. Voorhles, 81 N. Y. 153; 
 Wells V. Buffalo, 80 Id. 253 ; Townsend v. Mayor, 
 &0., 77 Id. 542; Gray v. Mathias, 5 Ves. 286; 
 Simpson v. Lord Howden, 3 My. & Cr. 97; 
 Smyth V. Griffln, 13 Sim. 245; Bromley v. Hol- 
 land, 7 Ves. 8, 21 ; Van Doren v. Mayor, &c., 9 
 Paige, 388. 
 
 *Lindsey v. Lindsey, 50 111. 79; Bayliss v. 
 Williams, 6 Coldw. 440; Parrott v. Parrott, 1 
 Heisk. 681; Bogle v. Hammons, 2 Id. 136; Hyer 
 V. Little, 20 N. J. Eq. 443; Benson v. Cowell, 52 
 Iowa, 137; Cook v. Moore, 39 Tex. 255; Mattair 
 V. Payne, 15 Fla. 682; Morrison v. Morrison, 27 
 Gratt. 190; Stearns v. Beckham, 31 Id. 379; 
 Biglow V. Leabo, 8 Or. 147; Bishop v. Aldrich, 
 48 Wis. 619; Remington Paper Co. v. O'Dough- 
 erty, 81 N. Y. 474; Eeid v. Bumes, 13 Ohio St. 
 49; Hamilton v. Batlin, 8 Minn. 403; Woodruff 
 
 V. Garner, 27 Ind. 4; Shewmake v. Williams, 54 
 Ga. 206; Walton v. Tusten, 49 Miss. 589; Case 
 V. Case, 26 Mich. 484; Ritter v. Ritter, 42 Id. 108; 
 Rath ». Vanderlyn, 44 Id. fffl ; Smith v. Rowley, 
 66 Barb. 502! Larsen u. Burke, 39 Iowa, 703; 
 Montgomery v. Shockey, 37 Id. 107 ; Wamock 
 Campbell, 25 N. J. Eq. 485; Mead v. Coombs, 26 
 Id. 173; Lyons v. Van Riper, 26 /d. 337; Yard 
 V. Yard, 27 Id. 114; Turner v. Turner, 44 Mo. 
 535; Davis v. Fox, 59 Id. 125; Hightower v. 
 Nuber, 26 Ark. 604; Freeman ». Reagan, Id. 
 373; Seymour v. BeJding, 83 111. 228; Stone i>. 
 Wilbem, Id. 105; Hough i>. Cook, &c. Co., 73 Id. 
 23; WUeys). Ewalt, 66I(i.26; Pickerell o. Morss, 
 97 Id. 220; HoUocher v. HoUocher, 62 Mo. 267; 
 Davis V. Luster, 64 Id. 43; Dean v. Younelt's 
 Adm'r, 8 Wall. 14 n; Murphy -o. Paynter, 1 
 Dill. 333; AUore v. Jewell, 4 Otto, 506; Barfield 
 ■o. Price, 40 Cal. 535; Hearst v. Pujol, 44 Id. 230. 
 
 'Wilson V. Deen, 74 N. Y. 531; Watson, Ac. 
 Co. 1). Casteel, 68 Ind. 476; Wood ». Hubbell, 
 10 N. Y. 479; Field v. Herrick, 5 111. App. 54; 
 Arnold V. Bright, 41 Mich. 207. 
 
 « Connelly*. Fisher, 3 Tenn. Ch. 382; Schenck 
 V. O'Neill, 23 Hun, 209; Foote v. Beecher, 78 N. 
 Y. 155; Schaper v. Schaper, 84 111. 603; Starr ». 
 Ellis, 6 Johns. Ch. 393 ; Spurgin v. Traub, 65 111. 
 170; Burlington Tp. t). Cross, ISKaus. 74; Dolan 
 V. Kehr, 9 Mo. App. 351. 
 
 ' McGuire v. Bowman, 6 Bush, 550; Belknap 
 V. Sealey, 14 N. Y. 143; Young ti. Hughes, 32 N. 
 J. Eq. 372; Roy v. Haviland, 12 Ind. 364; Mat- 
 lock V. Todd, 25 Id. 128; Wambaugh v. Bimer, 
 Id. 368; Brainard v. Holsaple, 4 Greene, (Iowa,) 
 
 596 
 
CH. XXIX. J REFOEMATION AND CANCELLATION LEGAL INS'tS. 
 
 508 
 
 before maturity, ' of bonds of all sorts, ^ policies of insurance,' judg- 
 ments which have been issued or procured through fraud,* and fraud- 
 ulent sales under a judicial decree. ° 
 
 1 Crowe i>. Peters, 63 Mo. 489; Hosleton v. 
 Dickinson, 51 Iowa, 244 j Fuller v. Peroival, 
 136 Mass. 381; Fowler v. Palmer, 62 N. Y. 533; 
 Hughes V. United States, 4 Wall. 233; Ferguson 
 V. Fisk, 28 Conn. 501; Lewis v. Tobias, 10 Cal. 
 574; Smith v. Smith's Adm'r, 30 N. J. Eq. 564; 
 Town of Wellsborough v. N. T. & C. E. R.,76 
 Id. l§a; Western E. R. v. Bayne, 75 Id. 1 ; Gould 
 ■u. Cayuga Co., &o. Bk., 86 Id. 75; Metler's Adm'rs 
 -». Metier, 18 N. J. Eq. 270; 19 Id. 457; Mlnshaw 
 V. Jordan, 3 Bro. Ch. 17 n; Jervis v. White, 7 
 Ves. 413; Bishop of Winchester ». Fournier, 2 
 Ves. Sen. 445; Wynne v. Callander, 1 Euss. 293; 
 Town of Sprlngport v. Teutoula Sav. Bk., 75 
 N. T. 397. 
 
 » Town of Sprlngport v. Teutonia Sav. Bk., 
 75 N. Y. 897; Town of Wellsborough v. N. Y. 
 
 & C. E. E. , Kid. 182; Western E. R. .;. Bayne^ 
 75 Id. 1 ; Gould v. Cayuga Co., &o. Bk., 86 Id. 75; 
 Jackman v. Mitchell, 13 Ves. 581; Hamilton «. 
 Cummings, 1 Johns. Ch. 517; Town of Venice 
 V. Woodruff, 62 N. Y. 463. 
 
 8 Tabors. Mich., &c. Ins. Co., 44 Mich. 324; 
 Globe, &c. Ins. Co. v. Reals, 48 How. Pr. 502; 79 
 N.Y. 202; Commercial, &c. Ins. Co. •!). McLoon, 
 14 Allen, 351; Insurance Co. v. Bailey, 13 Wall. 
 616; Derrick t). Lamar Ins. Co., 74111.404; Life 
 Ins. Co. V. Bangs, 13 Otto, 780 ; Whittingham V. 
 Thornburgh, 2 Vem. 206; Traill v. Baring, 4 
 De G. J. & S. 318. 
 
 1 United States v. Throckmorton, 8 Otto, 61; 
 Kellys. Christal, 81 N. Y. 619. 
 
 sPomeroy Eq. Jur., Vol. 2, §§871, 914, 919; 
 Fisher v. Hersey, 78 N. Y. 387. 
 
 597 
 
CHAPTER XXX. 
 
 BILLS OF PEACE, OE CASES OF EQUITABLE JURISDICTION IN AVOID- 
 ANCE OF A MULTIPLICITY OF SUITS. 
 
 Section 
 Multiplicity of suits as a ground for equi- 
 table jurisdiction ..... 511 
 Original application of the principle. — 
 
 Bills of peace and to quiet title . . 512 
 Cases in wMch the principle will now be 
 
 applied 513 
 
 First class of cases 514 
 
 Second class 515 
 
 Section- 
 Third and fourth classes .... 516 
 Several proprietors injured by the one 
 
 wrong 517 
 
 Equitable relief from illegal taxes and 
 
 assessments 518 
 
 Additional cases under the third and 
 
 fourth classes ... . . 519 
 
 § 511. Multiplicity of suits as a ground for equitable jurisdic- 
 tion. — In a previous •connection,^ it has already been stated in general 
 terms, that a court of equity will assume jurisdiction over a cause of 
 action in order to secure a joinder of many distinct causes of action in 
 one equitable suit, and thus avoid a multiplicity of suits that would fol- 
 low the relegation of these causes of action to the common law juris- 
 diction. The px'evention of this multiplicity of suits is recognized as a. 
 distinct ground for the assumption by the court of equity of jurisdic- 
 tion, even though the causes of action be legal and the remedies sought 
 for be purely of "a legal character, such as the recovery of dam- 
 ages or of a sum of money. But when the jurisdiction is once acquired 
 for the purpose of preventing this multiplicity of suits, the court of 
 equity proceeds to consider the rights of the parties and administers, 
 whatever relief the court may deem necessary, irrespective of the 
 kind of remedy or relief which the common law courts would have 
 afforded in the same suit. The cases, in which the multiplicity of suits 
 will furnish the ground for the assumption of jurisdiction by a court of 
 equity, have been enlarged and the principles applied by modern 
 courts to a great variety of cases; with, however, considerable con- 
 fusion and contradiction among the modern cases, as to the exten to 
 which the principle might be judiciously applied, in the extension of 
 the equity jurisdiction. 
 
 § 512. Original application of the principle. — Bills of peace 
 and to quiet title. — The original case, in which a court of equity 
 assumed jurisdiction, simply to prevent a multiplicity of suits, is that 
 of a dispute between the landlord of the manor and his tenant, in 
 determining and settling the rights of the parties, which rest upon the 
 customs of the manor, or to determine the conflicting rights of the 
 tenants of two adjoining manors. The court of equity would enter- 
 tain a bill, which was known as a "bill of peace," at the instance of 
 
 See ante, % 
 
 598 
 
CH. XXX. J AVOIDANCE OF A MULTIPLICITY OF SUITS. § 512 
 
 one of the parties, who were interested in the settlement of the legal 
 question involved in the controversy; and in that one suit the entire 
 controversy as to all parties would be settled, and thus a multiplicity 
 of suits be prevented, and peac« restored to the agricultural com- 
 munity.^ The other early application of the principle was to the case 
 of repeated ejectment suits being brought by one party against the 
 possessor of the land, in which the same question of title was raised 
 and contended. When the action of ejectment was introduced as a 
 substitute for the old common law real action, as a remedy for the 
 recovery of the possession of lands which were illegally withheld from 
 the true owner, a wide difference was effected in respect to the con- 
 sequence of the judgment of the court. In the common law real action, 
 as in all other common law actions involving questions of title, the 
 judgment of the court constituted a decision on the question of title 
 which became then res adjiodicata, and precluded any further litiga- 
 tion over the same question of title between the same parties. But 
 when the action of ejectment, which was first instituted as a remedy 
 for the tenant for years to resist all attempts at disturbance of his 
 possession, was by a fiction made applicable to all questions of dispute 
 over the right of possession of lands, irrespective of the relation of 
 landlord and tenant, the form of the action remained the same, and 
 the declaration continued to state that the plaintiff was entitled on a 
 given date to the possession of the land in question, and that the 
 defendant was unlawfully withholding the possession from him. The 
 judgment in the action of ejectment, if it were favorable to the 
 plaintiff, announced the fact that the plaintiff was entitled to the pos- 
 session on the day in question, and called for a surrender of the 
 possession of the plaintiff in compliance with that judgment. And, on 
 the other hand, if the verdict were against the plaintiff, the result of 
 such verdict was simply that the plaintiff was not entitled on the date^ 
 mentioned to the possession of the land in question. After the result. 
 of such an action the party plaintiff or defendant, who was unsuccess- 
 ful in the first action, could institute a second action of ejectment in 
 respect to the possesion of the same land, only changing the time 
 when he claimed to be entitled to the possession, and the judgment in 
 the prior action against his claim would not operate as any defense in 
 the second suit. These actions of ejectment could be instituted in great 
 numbers successively in respect to the same land, and by and between 
 the same parties, without limitation, so far as any rules of the common 
 law are concerned. In order to prevent the vexatious resort to the 
 
 1 1 Spence Eq. Jurisd. 657. In Lord Tenham peace ; and the court will direct an issue to de- 
 
 V. Herbert, 2 Atk. 483, Lord Hardwloke thus de- termine the right, as In disputes between lords 
 
 scribed these bills: "It is certain that where and manors and their tenants, and between 
 
 a man sets up a general and exclusive right, tenants of one manor and another; for, In 
 
 and where the persons who controvert it are these cases there would be no end in bringing 
 
 very numerous, and he cannot by one or two actions of trespass, since each action would 
 
 actions at law quiet that right, he may come ■ determine only the particular right in question 
 
 into this court first, which is called a bill of between the plaintiff and the defendant." 
 
 599 
 
§ 613 EQUITY JUBISPKUDENCE. [CH. XXX. 
 
 action of ejectment and the annoyance resulting to the lawful owner 
 from such a multiplicity of suits, at a very early day a court of equity 
 entertained a bill which was known as a "bill to quiet title," the 
 decree of which was an injunction restraining the opposite party from 
 further actions at law in ejectment/ 
 
 § 513. Cases in which the principle will now be applied. — As 
 has been already stated in a preceding paragraph, the court of equity 
 has extended the range of the doctrine, that a court of equity will 
 assume jurisdiction for the purpose of avoiding a multiplicity of suits, 
 and applies the principle to a great variety of cases which did not orig- 
 inally fall within the scope of the doctrine. But the same principle 
 underlies all the cases, and the assumption of jurisdiction rests upon a 
 similar state of facts, as in the original cases. Without at present refer- 
 ring to a cause of dispute and contradiction between the authorities, 
 which will be explained in a subsequent connection, it may be stated 
 that in all these cases, in which a court of equity grants relief in order 
 to prevent a multiplicity of suits, the jurisdiction is assumed only where 
 the successive suits at law, which are to be prevented by the equitable 
 action, involve the consideration of the same question of law and a 
 similar state of facts, so that the one judgment in the one equitable 
 suit would necessarily have the effect of substantially settling the 
 cause of dispute in each of the successive suits, and in respect to each 
 individual Ktigant. But the court will not assume jurisdiction in any 
 case, where the parties litigant have no cause of action independently 
 of the equitable jurisdiction, i. e., if the cause of dispute is purely of 
 a legal character, and it is of such a character that a court of law does 
 not recognize in connection therewith any kgal cause of action, then a 
 court of equity wiU not assume jurisdiction for the purpose of pre- 
 venting a multiplicity of suits, because under that state of facts no suit 
 whatever could be entertained by any one of the parties concerned in 
 a court of law. Thus, for example, where a common injury is caused 
 by a public nuisance and no particalar individual has suffered any 
 special injury from the existence of such public nuisance, no suit at 
 law can be maintained by any one individual, the only common law 
 remedy being a public action for the abatement or removal of the 
 public nuisance; and hence there would be no multiplicity of suits to 
 be prevented by a bill of peace, brought in a court of equity. The 
 court, therefore, would in such a case refuse to entertain a bill of 
 peace for the abatement of a public nuisance, where there is no 
 special injury suffered by any number of individuals." If there be a 
 legal cause of action, the fact that the needed relief in equity would 
 
 1 Mitford (Lord Redesdale) on Eq. PI., pp. Miss. R. R., 1 Handy, 60 Ohio, ^; Carpenter ». 
 143, 144; 1 Spence's Eq. Jurisd., p. 658j Earl of Mann, 17 Wis. 160; Kittle v. Fremont, 1 Neb. 
 Bath V. Sherwln, Preo. Ch. 261; 10 K^d. Ij 1 329, ;337; Craft v. Oomm'rs, &c., 5 Kans. 518; 2 
 Bro. P. C. 266, 270; 2 M 217. Story Eq. Jur., § 358, citing Hilton v. Lord 
 
 2 Doolittle V. Supervisors, 18 N. Y. 155; Roose- Scarborough, 2 Eq. Cas. Abr. 171, pi. 2; Mltford's 
 TClt V. Draper, 23 M. 318; Sargent v. Ohio & Eq. PL, (ed. by Jeremy,) p. 148. 
 
 600 
 
OH. XXX.] AVOIDANCE OF A MULTIPLICITY OF SUITS. 
 
 § 514 
 
 be different from what could be obtained in a court of law, would 
 not be a circumstance in any way controlling the power of the court 
 of equity either to assume jurisdiction, or to determine what kind of 
 relief should be granted to the parties. The cases in which equity 
 will assume jurisdiction for the purpose of preventing a multiplicity 
 of suits may be divided, as has been done by Mr. Pomeroy, into four 
 classes, which will be explained in regular order. 
 
 § 514. First class of cases. — The first class of cases, according to 
 this subdivision, includes all those cases of litigation between the same 
 individual parties, in which the plaintiff would be obliged, for the 
 protection of his interests against the wrongful acts of the defendant, 
 to institute a succession of actions at law, in order to obtain the desired 
 relief and secure full protection to his rights. They are cases ia which 
 there is a continuance or repetition on the part of the defendant of 
 the wrongful act which produces the injury, and the action at law is 
 inadequate, inasmuch as the judgment which may be thereby obtained 
 involves only the recovery of damages for the injury sustained by the 
 past wrongful act, but supplies no means to prevent its further com- 
 mission. 
 
 The more common class of such cases is the equitable action to 
 restrain and abate private nuisances, particularly when the nui- 
 sance consists of an infringement upon some easement.^ Actions to 
 restrain the continuous waste, ^ suits to restrain continuous trespass,' 
 and to settle disputed boundaries between adjoining properties.* 
 
 Under the same heading may be classified suits where the plaintiff 
 would be compelled to bring several actions at law against the same 
 adversary, and in respect to the same subject-matter, in order to 
 recover all that he is entitled to.^ It is, however, in this case as else- 
 
 1 Sheldon ». Eockwell, 9 Wis, 166, 179; Bast- 
 man V. Amoskeag, &c. Co., 47 N. H. 71, 79, 80 
 Coming V. Troy Iron Factory, 39 Barb. 311, 327 
 8. c, 34 Barb. 485, 493; Webb v. Portland Man. 
 Co., 3 Sumner, 189 ; Lyon v. McLaughlin, 32 Vt. 
 423,425,426; Sheetz's Appeal, 35 Pa. St. 88, 95 
 Holsman v. Boiling Spring Co., 1 McCartePi 
 335; Parker ». Winnipiseogee, &c. Co., 2 Black, 
 (U. S.) 545, 651; Carlisle v. Cooper, 21 N. J. Bq. 
 <6 C. E. Green,) 576, 579; McEoberts «. Wash- 
 bume, 10 Minn. 23, 30; Letton v. Goodden, L, 
 E. 3 Eq. 123, 130; Eeld v. Gifford, Hopk. 416, 
 419, 420; Cardigan v. Brown, 120 Mass. 493, 495 
 Ballou V. Inhabitants of Hopkinton, 4 Gray, 
 324, 328; Murray v. Hay, 1 Barb. Ch. 59. 
 
 2 Hughlett V. Harris, 1 Del. Ch. 349, 352. 
 
 s Hanson v. Gardiner, 7 Ves. 305, 309, 310; Liv- 
 ingston 1/. Livingston, 6 Johns. Ch. 497, 500; 
 Hacker v. Barton, 84 111. 313. 
 
 * Hill V. Proctor, 10 W. Va. 59, 77. 
 
 e Eichmond v. Dubuque, &0. E. E., 33 Iowa, 
 422, 487, 488; Black v. Shreeve, 3 Halst. Ch. 440> 
 456, 457; Biddle V. Eamsey, 52 Mo. 153, 159. In 
 Biddlec. Eamsey, the facts were as follows: 
 Plaintiff had leased the premises to the de' 
 
 fendant, between whom it was stipulated at 
 the close of the term that the landlord and 
 tenant would each select an appraiser, and 
 the two appraisers thus select a third, who 
 should unanimously assess the value of the 
 improvements which the tenant had made to 
 the estate and yearly rental. After such as- 
 sessments, the plaintiff should have the option 
 of either paying for such improvements or 
 granting a new lease of the premises for the 
 defendant, and the rental determined by the 
 appraisers. The plaintiff in the suit alleged, 
 that the defendant by his fraud had prevented 
 any unanimous action of the appraisers, and 
 had retained possession in this unsettled con- 
 dition of affairs for three years after the ter- 
 mination of the lease without paying any 
 rent. If the plaintiff had been forced to re- 
 sort to legal actions in order to acquire full 
 relief, he would have been obliged, in the first 
 place, to institute an action of ejection to re- 
 cover the possession, and then other cases 
 would have had to follow for the purpose of 
 settling the question as to the rights of the 
 parties in and to the improvements. The 
 
 601 
 
§ 515 EQUITY JUEISPKUDENOE. [CH. XXX. 
 
 where, the rule of equity, that the court of equity will not undertake 
 to try disputed questions of legal title to the property. If, therefore, 
 there be any dispute as to the legal titles of the parties to the land, 
 they must first be settled in a common law action, before the court of 
 equity would entertain a suit for the purpose of preventing a multi- 
 plicity of suits. It is, however, not required that there should be a 
 number of successful successive actions at law; or, for that matter, it 
 is not to be taken as an iron-cast rule that a judgment at law, even 
 when in settlement of a disputed title, should be had before the court 
 of equity would assume jurisdiction. This statement must be taken 
 only as a declaration of the policy which has been established by the 
 court of equity, but which may, under extraordinary cases, be dis- 
 pensed with.^ 
 
 § 515. Second class. — ^The second class of cases consists of two 
 branches: the first of them has been already explained, in respect to 
 the bill to quiet title and to restrain the institution of successive actions 
 in ejectment, for the recovery of the possession of the same tract of 
 land, and involving the same question of title. That has been the 
 frequent source of the equitable jurisdiction. But a court of equity 
 will never interfere in this class of cases, until at least there has been 
 one judgment between the parties in an action of ejectment, in favor of 
 the rights of the party who applies to a court of equity for protection.^ 
 
 In analogous cases the same principle would be applied; as for 
 example, where the city officials had assessed property of the railroad 
 for taxes both in state, county and city, and the supreme court, on a 
 writ of certiorari, had held that these taxes were invalid; but the 
 authorities, notwithstanding that decision, proceeded to levy the same 
 taxes in successive years, when the court of equity was asked to 
 restrain this levy which was declared to be invalid by the judgment 
 in a previous cause of action between the same parties. 
 
 court held that under the equitable Jurlsdic- Harris, 1 Del. Ch. 349, 352; Parker i). Winnl- 
 tlou for the preTentlon of a multiplicity of plseogee, &o. Co., 2 Black, .545, 551; Hanson v. 
 suits, the court may entertain a bill for the Gardiner, 7 Ves. 305, 309, 810; Livingston V. 
 settlement of all those questions between the Livingston, 6 Johns. Ch. 497, 500; Hacker v. 
 parties. The facts of this case have been set Barton, 84 111. 313; Carlisle v. Cooper, 21 N. J. 
 forth somewhat in detail in order to point out Eq. (6 C. E. Green,) 576, 579; Coming «. Troy 
 to what an extreme the principle involved in Iron Factory, 39 Barb. 311,327; s. c, 34 1(2. 485, 
 this phase of equitable jurisdiction has been 492,493; Webb t>. Portland Man. Co., 3 Sum- 
 applied. In Black!). Shreeve, the case was ner, 189. 
 
 one of complicated and numerous claims of ^ Trustees of Huntington v. NicoU, 3 Johns, 
 contribution between parties which would 566,589,591,601,602;Eldrldge«. Hill,2John8.Ch. 
 have involved the institution of many actions 281; Woods v. Monroe, 17 Mich. 238; Knowles 
 at law, had not the court of equity assumed v. Inches, 12 Cal. 218; Patterson v. McCamant, 
 jurisdiction and maintained one suit for the 28 Mo. 210; Bond v. Little, 10 Ga. 395, 400; Bar- 
 settlement of the rights of all the parties. mer v. Gwynne, 5 McLean, 313, 315 ; Lelgbton v. 
 1 See Lyon «. McLaughlin, 32 Vt. 423,425,428; Lelghton, 1 P. Wms. 671; Earl of Bath v. Sher- 
 Sheetz"B Appeal, 35 Pa. St. 88, 95; Holsman ». win, Prec. Ch. 261; 10 Mod. 1; IBro. P. C. 266, 
 Boiling Spring Co., 1 MoCarter, 3a5; Sheldon 270; 2 Id. 217 (Toml. ed.) ; Devonsher v. Newen- 
 V. Rockwell, 9 Wis. 166, 179; McRoberts v. ham, 2 Sch. & Lef. 208, 309; Wcllerv. Smeaton, 
 Washburne, 10 Minn. 23, 30; Letton ». Good- 1 Cox, 102; 1 Bro. Ch. 573; Eari of Darlington ». 
 den, L. R. 2 Eq. 123,130; Eastman v. Amos- Bowes, 1 Eden, 270, 371, 272; Alexander e. 
 keag, &c. Co., 47 N. H. 71, 79, 80; Hughlett v. Pendleton, 8 Cranch, 462, 468. 
 
 602 
 
CH. XXX.] AVOIDANCE OF A MULTIPLICITY OF SUITS. § 516 
 
 In the second branch of this second class of cases, the single defend- 
 ant has simultaneously brought a number of actions at law against the 
 defendant, involving the same legal question and resting upon similar 
 facts and circumstances. In these cases a court of equity may, and 
 does interfere, on the ground of preventing a multiplicity of suits, to 
 restrain the prosecution of these actions, and to compel the plaintiff at 
 law to bring all of these cases into the one equitable proceeding, and 
 have these matters finally settled between the parties. The equitable 
 jurisdiction, of course, would only apply where these actions could 
 not be joined in one common law action.^ 
 
 § 516. Third and fourth classes. — The third class of cases includes 
 all those in which a number of persons, having separate and distinct 
 interests of a similar character against one party, bring an action 
 jointly against that party, for the purpose of settling all of the individ- 
 ual claims of the plaintiffs against such defendant in one suit. 
 
 The fourth class includes all those cases in which one party has 
 distinct and separate claims against two or more parties affecting each 
 of them individually; but each individual claim rests upon a similar 
 statement of facts and involves the same question of law; and for that 
 reason the one suit is brought by the claimant against all of them, for 
 the settlement of his claims against each, without the resort to succes- 
 sive suits against each of them. Manifestly, this cause for the 
 assumption of the equitable jurisdiction could only exist, where the 
 joinder of action was impossible at common law. In this connection, 
 we find a serious contradiction of the authorities as to the extent to 
 which the questions of law, and the rights of the parties, should be com- 
 mon to each other, in order that a court may entertain an equitable 
 suit for the settlement of all of the claims, or refer the parties to their 
 individual causes of action. Some of the cases maintain that, in order 
 that the court of equity may assume jurisdiction and settle the contro- 
 versies in which the parties are interested in one suit, and thus avoid a 
 multiplicity of suits, the same cause of action must be raised against 
 all of them on the same principle of law, and on the same statement of 
 facts. On the other hand, the other cases hold that, in order that the 
 equitable action may be instituted against all of them for the purpose 
 of preventing a multiplicity of suits, it is not necessary that there 
 should be any common tie binding them, as long as the same question of 
 law is raised between them on a similar state of facts, so that the judg- 
 ment of the court in one of these cases, as applied to the particular 
 
 1 Third Ave . R. E. v. Mayor of N. T., 54 N. Y . cause of dispute between tlie parties 1 n all of 
 
 159,168,163; Kensingtoni;. White, 3 Price, 164, the cases, viz.: the fraud of the surety and 
 
 167; West v. Mayor of N. Y., 10 Paige, 539. In the effect of such fraud on the obligation of 
 
 Kensington v. White, supr", five different the insurer on the policy of insurance. A 
 
 actions at law had been instituted by the de- court of equity entertained a bill of peace in 
 
 fendant against the plaintiff on live different that case, in order to compel all of the actions 
 
 policies of insurance between the same parties at law and all facts involved in the contro- 
 
 at the same time, and the same question of versy to be settled by one suit. 
 
 law and the same state of facts constituted the 
 
 603 
 
§ 617 BQUirr jubispkudence. [oh. xxx. 
 
 facts of that case, will establish the rule of law, by which the rights 
 of all of them may be determined without further controversy. The 
 fact, that their interests are absolutely distinct and separate instead of 
 being joint, will not interfere with the equitable jurisdiction, as long as 
 the one judgment in the determination of the one question of law fur- 
 nishes the means of settling the cause of contention between all of them. 
 In the one class of cases, a community of interests in the cause of action 
 is required; while, according to the other set of cases, nothing more is 
 required than a community of interest in the consequence of the 
 judgment, as an adjudicated rule of law.' These cases are more clearly 
 distinguished in the succeeding paragraphs. 
 
 § 517. Several proprietors injured by the one wrong.— The court 
 of equity has quite frequently interfered, with a bill of peace, for the 
 settlement of controversies between one wrong-doer and several claim- 
 ants, where each of them in their separate and distinct interests has 
 suffered damage from the same wrong, in order that the annoyance 
 from a multiplicity of suits may thereby be avoided; for example, 
 where a number of different owners of mills, upon the banks of some 
 stream, have been individually injured by the erection by another 
 party of a dam across the stream, in consequence of which the water 
 has been diverted from the regular channel. In this case the one unlaw- 
 ful act has resulted in separate causes of action, on the part of each one 
 of the individual mill owners. If they were confined to their common 
 law remedies, each would be obliged to enter a separate action against 
 the wrong-doer for the recovery of the damages which he has suffered; 
 but the court of equity would assume jurisdiction, in order that all of 
 them may secure redress in the one action, in which they would appear 
 as joint plaintiffs against the same defendant. And, after the estab- 
 lishment of the tort by the defendant, the court of equity would pro- 
 ceed to furnish to each a judgment for damages, or whatever relief 
 may be needed for the due protection of his rights." In this case there 
 
 1 Mr. Pomeroy explains the point of dispute action, and In fact that they all Involye or 
 between the authorities as follows: "Is It depend upon similar questions of fact, and 
 necessary that the common bond, element, or the same question of lawj so that while the 
 feature should Inhere In the very rights, inter- same positive legal relation exists between the 
 ests, or claims themselves which subsist be- single determined party on the one side and 
 tween the body of persons on the one side, each individual of the body of persons on the 
 and a single party on the other, and should other, no such legal relation exists between 
 affect the nature and form of those rights, the Individual members themselves of that 
 Interests, or claims to such an extent that they body; as among themselves, their respective 
 create some positive and recognized existing rights, interests, and claims against the corn- 
 legal relation or privity between the Individ- men adversary party, otherwise than above 
 ual members of the group of persons, as well stated, are wholly separate and distinct? " See 
 as between each of them and the single de- Pomeroy Equity Jurisprudence, Vol. 1,8 255. 
 termlned party to whom they all stand in an 2 Kensington v. White, 8 Price, 164; Mills «. 
 adversary position ? Or, is it enough that the Campbell, 2 Y. & C. Exch. 389; Eeid v. GlfiBordj 
 common bond or element consisting solely in Hopk. 416; Trustees of Watertown v. Cowen 4 
 the fact that all the rights. Interests, or claims Paige, 510; Cadlgan v. Brown, 130 Mass. 493 
 subsisting between the body of persons and 495; Ballou v. Inhabitants of Hopkinton 4 
 the single party have arisen from the same Gray, 324, 328; Murray v. Hay, 1 Barb. Ch. 59; 
 source, from thesameevent,orthesame trans- but see Marselis ». Morris Canal Co Saxton 31 
 
 604 
 
CH. XXX. J AVOIDANCE OF A MULTIPLICITY OF SUITS. § 518 
 
 is a community of interest, resting upon the fact that the injurious 
 consequences have been suffered by each of them, resulting from the 
 commission of the one wrong. 
 § 518. Equitable relief from illegal taxes and assessments. — 
 
 The more common cases, in which the equitable relief in one suit is 
 given as a substitute for a multiplicity of common law actions between 
 several parties, are those of illegal taxation or assessment against 
 property for local improvements. The authorities provide for the 
 levy of a tax or an assessment which is illegal, because it violates some 
 provision of the general law of the state, or of the constitution. The 
 enforcement of these legal taxes against a gi'eat number of citizens 
 would involve the infliction of a separate injury upon each one of 
 them; and if they were compelled to resort to the common law reme- 
 dies, each would be obliged to procure protection against the enforce- 
 ment of the unlawful levy of taxes in a separate action. There is, of 
 course, in such a case, a community of interest between the parties 
 who have thus suffered, resulting from the fact that each has suffered 
 an injury in consequence of the same unlawful act, or from the exer- 
 cise of the same unlawful power. In those states in which the court 
 declares the true rule to be, that a court of equity can assume jurisdic- 
 tion for the purpose of preventing a multiplicity of suits, whenever 
 the parties are interested in the general result of the successive suits 
 at law, which they would bring in a court of law for the redress of 
 wrongs suffered from the one wrongful act, it is held that the equity 
 court could assume jurisdiction for the purpose of deciding, for all the 
 tax-payers who have suffered from the illegal levy, the extent to which 
 such levy has been unlawful, and furnishing to each of them in the 
 one action the appropriate remedy for the recovery of the money 
 which has been illegally obtained from them, and for the protection 
 of each of them against the fui'ther attempt at enforcement of such 
 illegal taxation. These equitable suits have been entertained, where 
 the suit was by a number of tax-payers as plaintiff, or by one suing on 
 behalf of all the others; ^ and, also, where the suit was instituted by only 
 one tax-payer, purporting to sue for himself alone. ** There are, how- 
 
 1 Vieley 17. Thompson, 44 111. 9,13; Allisons. 28; Zorger v. Township of Rapids, 36 Id. 175 
 
 Louisville, &c. R. E., 9 Bnsh, 247, 252; Lane v. 180; Board of Commissioners v. Brown, 28 Ind. 
 
 Schomp, 5 C. E. Green, (20 N. J. Bq.) 82, 89; 161; Lafayette v. Fowler, 34 Id. 140; Noble v. 
 
 Noesen v. Port Washington, 37 Wis. 168; Web- Vlncennes, 42 Id. 125; Board of Commissioners 
 
 ster V. Town of Harwinton, 32 Conn. 131, 140; v. Markle, 46 Id. 96, 103-105; Galloway v. Chat- 
 
 Terrett v. Town of Sharon, 34 Id. 105; Scofleld ham R. B., 64 N. C. 147, 149, 150; Brodnax v. 
 
 V. Eighth District School, 27 Id. 499, 504; Colton Groom, 64 Id. 244, 246, 247; Vanover v. Davis, 
 
 ■u. Hanchett, 13 111. 615, 618; Robertson V. City 27 Ga. 36i, 358; Mott v. Penn. E. R., 30 Penn. St. 
 
 of Rockford, 21 Id. 451 ; Perkins v. Lewis, 24 a 9; Newmeyer v. Mo. and Miss. R. R., 52 Mo. 81, 
 
 208; Butler v. Dunham, 27 Id. 474; Drake V. 84-89;' Rice v. Smith, 9 la. 570, 576; Stokes v. 
 
 Phillips, 40 Id. 388, 393; Sharpless v. Philadel- Scott Co., 10 Id. 166; McMillan v. Boyles, 14 Id. 
 
 phia, 21 Penn. St. 148; Moers v. Reading, 21 Id. 107; Rock v. Wallace, 14 Id. 593; Ten Byck v. 
 
 188; Bulls. Read, 13 Gratt. 78, 86, 87; Mayor of Keokuk, 15 Id. 486; Chamberlain v. Burllng- 
 
 Baltimore v. Gill, 31 Md. 375, 392-395; Barr v. ton, 19 Id. 395; Williams v. Pelnny, 25 Id. 436. 
 Deniston, 19 N. H. 170, 180; Merrill v. Plain- 2 Williams v. Pelnny, 25 la. 438; Hanson v. 
 
 field, 45 Id. 126, 134; New London V. Brainard, Vernon, 27 Id. 28; Zorger v. Township of Eap- 
 
 22 Conn. 552, 556, 557 ; Hanson «. Vernon, 27 la. ids, 36 Id. 175, 180 ; Merrill v. Plainfleld, 45 N. H. 
 
 605 
 
518 
 
 EQUITY JURISPRUDENCE. 
 
 [oh. XXX. 
 
 evor, on the other hand, a great many cases which have declared that 
 the court of equity cannot assume jurisdiction for the purpose of 
 reKeving a number of tax-payers from the enforcement of an illegal 
 assessment, on the ground that a multiplicity of suits may thereby be 
 prevented, for the reason that there is no community of interest of the 
 several tax-payers, where each is declared to have a different and sep- 
 arate cause of action at law. In some of the cases, the general doctrine 
 is laid down that an equitable suit may be entertained for the purpose of 
 preventing an illegal taxation on the ground of avoiding a multiplicity 
 of suits; but the courts, instead of deciding when, and under what 
 circumstances, a case would fall within the general rule which they 
 recognize, have hold that, in the particular case in which there was an 
 illegal levy affecting a number of tax-payers, there was not such a com- 
 munity of interests as would justify the entertainment of a .suit in 
 equity to which all of them were made parties. ' But other cases have 
 gone beyond that position, and have declared the inability of a court 
 of equity to entertain suits in any case where the public action of some 
 officer has involved injury to many, there being held to be no community 
 of interests sufficient to enable the court of equity to assume jurisdic- 
 tion." This rule has been applied to cases concerning local assessments 
 brought by numerous lot-owners.' So, likewise, cases concerning 
 illegal taxation, whether brought by a number of tax-payers * or by a 
 single tax-payer." It is impossible to secure any reconcilement of the 
 
 1S6, 134 J Webster v. Town of Harwinton, 82 
 Conn, 131, 140; Terrett t>. Town of Sharon, 34 
 JcC. 105) Board of Commissioners v. Templeton, 
 51 Ind. 206; Board of Commissioners v. Mo- 
 Clintoolf, Bl Id. 325, 328; Board of Commission- 
 ers V. MarlJle, 46 Id. 96, 103-105; Lafayette v. 
 Cox, bld.SS; Nill v. Jenkinson, 15 Id. 485; Pret- 
 tyman v. Supervisors, 19 111. 406; Clarice v. 
 Supervisors, 27 W. 305, 311; Taylor v. Tliomp- 
 Bon, 48 Id. 9; Cleghorn v. Postlewaite, 43 Id. 
 428, 431 ; Veiley v. Thompson, 44 Td. 9, 13; Alli- 
 son V. Louisville, &c. K. R., 9 Bush, 247, S52; 
 CofFman v. Keightley, 24 Ind. 509; Oliver v. 
 Kelghtley, 24H. 514; Navel). King,27 Id.SM; 
 Board of Commissioners v. MoCarty, 27 Id. 475; 
 Harney v. Indianapolis, &o. R. R., 83 Id. 844, 
 347, 248; English v. Smook, 34 Id. IIB. 
 
 1 Bouton 11. Brooklyn, IB Barb. 375, 387, 393; 
 Ewing V. St. Louis, 5 Wall. 413, 418; Doas V. 
 Chicago, 11 Id. 108, 110, 111; Soribner v. Allen, 
 12 Minn. 148; Minnesota Oil Co. v. Palmer, 20 
 Id. 468; White v. Sulphur Springs Co v. HoUey, 
 4 W. Va. 597; Harkness V. Bd. of Pub. Works, 
 1 McArthur, 121, 131-133; Mayor i>. Mererole, 26 
 Wend. 132, 140; Hoywood v. Buffalo, 14 N. Y. 
 634, 541; Guest iJ. Brooklyn, 69 Id. 508. 
 
 ' Dooiittle V. Supcrvlsora, 18 N. Y. 155; Roose- 
 velt V. Draper, 23 Id. 818. 
 
 s Howell r. City of BuiTalo, 2 Abb. App. Doo. 
 412, 416; Bouton v. Brooklyn, IB Barb. 375, 887, 
 392-394; Uodd V. Hartford, 25 Conn. 232, 238. 
 
 * Kilbourne v. St. John, 59 N. Y. 81, 27 ; Ayres 
 
 606 
 
 V. Lawrence, 63 Barb. 454; Tift. %,. BuSEalo, 1 
 T. & C. 150; Comins v. Supervisors, 3 Id. 296; 
 Barnes v. Belolt, 19 Wis. 93; Newcomb v. Hor- 
 ton, 18 Wis. 566, 568, B69; Cuttings. Gilbert, B 
 Blatoh. 259, 361-263; Youngblood v. Se.xton, 32 
 Mich. 406; Sheldon v. School District, 26 Conn. 
 224, 228; Harkness v. Bd. of Pub. Works, 1 Mc- 
 Arthur, 121, 127-133. 
 
 "Phelps V. Watertown, 61 Barb. 121, 123; 
 Ayers v. Lawrence, 63 Irf. 454; White Sulphur 
 Springs Co. „. Holley, 4 W. Va. 597. In Young- 
 blood i;. Sexton, Judge Cooley explains the 
 position of this class of courts as follows: 
 "The Jurisdiction cannot be rested on the 
 doctrine of preventing a multiplicity of suits, 
 because the principles that govern that juris- 
 diction have no application in this case. It Is 
 sometimes admissible when many parties are 
 alike afiFooted or threatened by one illegal act, 
 that they shall unite in a suit to restrain it; 
 and this has been done in this state in the 
 case of an illegal assessment of lands (Scofleld 
 V. Lansing, 17 Mich. 437). But the cases are 
 very few and very peculiar, unless each of the 
 complainants has an equitable action on his 
 own behalf. Now, the nature of this case is 
 such that each of these complainants, if the 
 tax is invalid, has a remedy at law ; which is 
 HS complete and ample as the law gives in any 
 other oases. He may resist the sheriff's pro- 
 cess as ho might any other trespass; or he may 
 pay the money under protest, and at once sue 
 
CH. XXX.] AVOIDANCE OF A MULTIPLICITY OF SUITS. § &19 
 
 authorities on any common ground; their contradiction is profound and 
 radical; and each court, when the question is raised before it, must 
 decide for itself which of the two principles it will adopt and follow, in 
 determining upon its jurisdiction. It seems, however, manifest that 
 those courts, which recognize and adopt the broader rule as to the 
 equity jurisdiction, are more rational in their position, and furnish to 
 parties htigant a more complete remedy than they can obtain under 
 the narrower doctrine of the opposing courts. Certainly, nothing but 
 technical objections can be raised to the accuracy of the position taken 
 by the more liberal coiirts. 
 
 § 519. Additional cases under the third and f onrth classes. — ^In 
 addition to the cases already referred to — -in illustrating the principle 
 involved in the third and fourth classes of cases, in which the court of 
 equity will assimie jurisdiction for the purpose of preventing a multi- 
 plicity of suits — may be mentioned suits by a number of judgment 
 creditors to reach the property of the same judgment debtor and to 
 enforce their judgment against him ; ^ suits for setting aside and restrain- 
 ing the collection of an illegal assessment for local improvements in 
 municipal communities; * suits by a corporation, public or private, 
 against the holder of a fraudulent issue or certificate of stock, or of 
 bonds, for the recovery and surrender and cancellation of such illegal 
 issue ;^ and for other similar causes of action where the one party, like 
 a municipality, has similar claims for relief against several persons, 
 who have no other common tie between them than that of being liable 
 to claims of the same character and origin.* It may be stated in con- 
 clusion, that in two of the states, viz. : California and Dakota, and 
 perhaps in others, provisions have been added to the codes of pro- 
 cedure, which declare the prevalent rule, as to the power to entertain 
 one action for the settlement of several separate controversies between 
 different parties. The declaration, found in these codes, is hardly 
 more than a confirmation of the general doctrine, in respect to the 
 
 and recover It back. But no other complain- ' New Tork & X. H. E. E. v. Schuyler, 17 N. 
 
 ant has any joint interest with him In resist- Y. 583, 599, 600, 6(6-608 j 34 Id. 30, 44-46. 
 
 ing this tax. The sum demanded of each is * Sheffield Water Works v. Yeomans, L. E. 2 
 
 distinct and separate, and it does not concera Ch. 8, 11; Black ji. Shreeve, 3 Halst Oh. 440, 
 
 one of the complainants whether another pays 456,457; Board of Supervisors v. Deyoe, 77N. 
 
 or not. All the joint interest the parties have Y. 219, 225; Mayor of Sew York v. Pilkington, 
 
 is a joint Interest in a question of law; just 1 Atk. 282; City of London v. Perkins, 3 Bro. 
 
 such an Interest as might exist in any case P. C. 602 (Toml. ed.); 4 Id. 157; per contra, 
 
 where separate demands are made of several DlUey v. Doig, 2 Ves. 486; Budges. Hopkins, 
 
 persons." Eq. Cas. Abr. 170, pi. 27; Pawlet v. Ingres, 1 
 
 1 Brinkerhoffi v. Brown, 6 Johns. Ch. 139, 151, Vem. 308; Weeks v. Staker, 2 Id. 301 ; Ar- 
 
 156. thington v. Fawkes, 2 Id. 356; Conyers V. 
 
 ' Ireland «. City of Eochester, 51 Barb. 41.5, Abergavenny, 1 Atk. 284; Poor v. Clarke, 
 4S5; Scofield v. City of Lansing, 17 Mich. 437; 2 Id. 515; Duke of :Norfolk v. Myers, 4 Madd. 
 City of Lafayette v. Fowler, 34 Ind. 110; Ken- 83; Bouverlne v. Prentice, 1 J5ro. Ch. 200; Lord 
 nedyc. City of Troy, 14 Hun, 308, 312; Clarke. Tenham v. Herbert, 2 Atk. 483; How ». Ten- 
 Village of Dunkirk, 13 Id. 181, 187; but see per ants of Bromsgrove, 1 Vem. 22; Ewelme Hos- 
 contra, Dodd v. Hartford, 25 Conn. 232, '£in; pital v. Andover, 1 Id. 266; Corp'n of Carlisle 
 Howell ». City of Buffalo, 2 Abb. App. Deo. v. Wilson, 13 Ves. 276, 279; New River Co. ti. 
 412,416; Bouton v. City of Brooklyn, 15 Barb. Graves, 2 Vem. 431; Brown v. Vermuden, 1 
 375! 387! 392-394. Chan. Cas. 273. 
 
 607 
 
§ 519 
 
 EQUITT JUBISPEUDENCB. 
 
 [CH. XXX. 
 
 equitable jurisdiction, that such jurisdiction rests upon the principle 
 of avoiding a multiplicity of suits.' 
 
 1 Gtorham v. Toomey, 9 Cal. 77; Anthony ». 
 Sunlap, 8 Id. 26; Bickett v. Johnson, 8 Id. 34, 
 36; EeTalk v. Kraemer, 8 Id. 66, 71 ; Chlpman v. 
 Hlbbaid, 8 Id. 268, 270; Agard v. Valencia, 39 
 
 608 
 
 Id. 292, 303; Flaherty v. KeUy, 51 Id. 145; Uhl- 
 f elder «. Levy, 9 CaL 607, 614, 615; Crowley B. 
 Davis, 39 Id. 268, 269; Pixly ». Hugglns, ISiiJ. 
 134; Eockstackei v. Levy, 11 Id. 76. 
 
CHAPTER XXXI. 
 
 CONCUEEENT EQUITABLE REMEDIES FOR THE ENFORCEMENT AND 
 EECOVERT OF LEGAL RIGHTS AND INTERESTS. 
 
 
 SEc'n<)N 
 
 General statement . 
 
 . 521 
 
 Assignment of dower . 
 
 . 522 
 
 Partition of lands . 
 
 . . . 523 
 
 Partition of personal property 
 Establishment of disputed boundaries 
 
 Section 
 
 § 621. General statement. — In this connection will be discussed 
 those equitable remedies, whereby legal interests and rights are pro- 
 tected and enforced; the remedies being of the same character as the 
 legal remedies, with the single difference that, on account of the 
 superiority of the technics of the equitable jurisdiction, the courts of 
 equity can furnish a remedy of a similar character, but more adequate 
 and satisfactory in its results. The inadequacy of the similar common 
 law remedy is the ground for the assumption of jurisdiction over these 
 causes of action. Four such remedies are found within this group, 
 viz. : First, suits for assignment of dower. Second^ partition of joint 
 estates in land. Third, partition of personal property. Fov/rth, 
 establishment of disputed boundaries. 
 
 § 522. Assignment of dower. — The common law action for the 
 assignment of the widow's right of dower, like all the early com- 
 mon law actions, was extremely cumbersome and poorly adapted 
 to the rendition of justice and a thorough settlement of the rights 
 of the widow. Not only on that account, but also because the 
 title deeds of the property of the deceased father and husband 
 were in the possession of the heir, and for that reason it was 
 impossible for the widow to prove the extent of her claim of dower, 
 except by obtaining access to these title deeds. In order that she 
 may accomplish this purpose, a bill of discovery would frequently 
 be filed in equity; and having acquired jurisdiction for the purpose of 
 discovery, the court of equity claimed the right to retain jurisdiction 
 for the purpose of setting out the dower thus ascertained. ' If her 
 title to the dower was denied, then it was incumbent upon her to 
 establish it in an action at law; but pending the result of the action at 
 law, the court of equity would retain the bill for assignment for a 
 reasonable time and, at the termination of the action at law in favor 
 of the widow, would proceed to administer final relief.^ The jurisdic- 
 
 JShute ®. Sbute, Prec. Cb. Ill; Wallis v. 
 Everard, 3 Ob. Hep. 161; Moor v. Black, Cas. 
 temp. Talb. 126 j Curtis v. Curtis, 2 Bro. Ob. 620, 
 631, 632. 
 
 39 
 
 s Dormer ti . Forteseue, 3 Atk. 124, 130 ; Chase 's 
 Case, 1 Bland Ch. 206; Wells v. Beall, 2 Gill & 
 J. 458; Keith v. Trapier, Bailey Eq. 63; Hazen 
 V. Tburber, 4 Johns. Cb. 604; Curtis V. Curtis, 2 
 
 609 
 
§ 522 EQUITY JUEISPKUDENOE. [CH. XXXI. 
 
 tion, therefore, at the present time in regard to the assignment of dower 
 is concurrent; both courts of law and of equity having the right to 
 proceed to a final settlement.* But the equitable procedure has the 
 advantage over the action at common law in very many respects. It 
 is more advantageous where an outstanding term of years has to be 
 removed and satisfied before the assignment of dower,' or where 
 fraudulent conveyances have to be set aside,' or a partition is first to 
 be decreed; * and where aU sorts of antagonistic claims of title to the 
 land have to be settled. The general principle for the assumption of 
 jurisdiction in all these cases is the avoidance of a multiplicity of suits. ^ 
 The equitable remedy is also superior to the action at law, in that 
 equity could award damages for the delay in the assignment of the 
 dower, even where a similar recovery could not be had at law. Thus, 
 if the tenant dies after the rendition of the judgment, and the damages 
 have been assessed, the widow at law loses her claim to damages. 
 And so, also, if she dies before the damages have been assessed, her 
 personal representative could not recover the same. In both these 
 instances, however, the widow, or her personal representative, as the 
 case may be, may in equity proceed to obtain an assessment of the 
 damages and to recover the same.' It is also an important reason for 
 a court of equity to assume jurisdiction over suits for assignment of 
 dower, that the dower interest attaches to both legal and equitable 
 interests, and, as a matter of course, the action for assignment of 
 dower in equitable estates could be entertained only in courts of equity, 
 or a court having equitable jurisdiction. Thus, a court of equity, or 
 one having equitable jurisdiction, can alone entertain a suit for the 
 assignment of dower, in the absence of statutory modifications, wnere 
 the estate of the husband, out of which the dower claim issued, was an 
 equity of redemption; ' or where the husband's estate was in an inter- 
 est in a piece of partnership property; * or where the property of the 
 husband had to be, for any purpose, converted into money and the 
 dower interest attached to the proceeds of sale.' The assignment 
 of dower is usually accomplished by a reference of the case to a mas- 
 ter or referee, who ascertains the best mode of an assignment and 
 
 Bra. Ch. 620, 631, 632; Mundy i). Mundy, 2 Ves. SGoodbum v. Stevens, 1 Md, Ch. 420. 
 
 122, 128; D'Aroy v. Blake, 2 Sch. & Lef. 387; 'Dormer v. Fortescue, 3 Atk. 124, 130; Mor- 
 
 Swalne v. Ferine, 6 Johns. Ch. 482; Hartshome dant v. Thorold, 3 Lev. 275; Curtis v. Curtis, 2 
 
 i>. Hartshorne, 1 Green Ch. 349; Rockwell V. Bro. Ch. 620, 632. 
 
 Morgan, 2 Beasl. 384. ' Farwell v. Getting, 8 Allen, 211 ; Chiswell v. 
 
 1 Mundy v. Mundy, 2 Ves. 122; Pulteny v. Morris, 1 McCarter, 101; Eldrldge v. Bldridge, 
 
 Warren, 6 Ves. 73, 89; Strickland «. Strickland, Id. 95; Dawson v. Bank of Whitehaven, L. E. 4 
 
 a Beav. 77; Herbert v. Wren, 7 Cranch, 370; Ch. D. 639; Anderson v. Pignet, Id. 11 Eq. 329; 
 
 Powell V. Monson, &c. Man. Co., 3 Mason, 347; Gibson v. Crehore, 3 Pick. 475; Danton v. 
 
 Hazeni;. Thurber, 4 Johns. Ch. 604; Swaine V. Nanny, 8 Barb. 618; Thompson v. Cochran, 7 
 
 Ferine, 5 Id. 482; Badgley V. Bruce, 4 Paige, Hump. 72; Daniel v. Leitch, 13 Gratt. 195. 
 
 :98; Hartshome v. Hartshome, 1 Green Ch. 349. SGoodbnrn V. Stevens, 1 Md. Ch. 420. 
 
 s Dormer v. Fortescue, 3 Atk. 124, 130. > Lawrence v. Miller, 1 Sandf . 516 ; In re Hall's 
 
 » Swaine v. Ferine, 5 Johns. Ch. 482. Estate, L. E. 9 Eq. 179; Higbie v. Westlake, 14 
 
 -»Hill V. Gregory, 56 Mies. 341 ; Nye v. Patter- N. Y. 281. 
 son, 35 Mich. 413 ; Herbert ». Wren, 7 Cranch,370. 
 
 610 
 
"CH. XXXI. J CONOUEKENT EQUITABLE EEMEDIES. § 623 
 
 reports to the court his conclusion. The court will then render a 
 ■decree, in accordance with the conclusion of the master or referee or 
 commissioner, unless objections are raised against his proposition for 
 the assignment. It is not necessary, in this connection, to give any 
 fuller explanation of the assignment of a dower. A fuller discussion 
 ■of such matter would be found in works upon real property.^ 
 
 § 523. Partitions of lands. — At common law, the action for par- 
 tition could only lie in case of lands held in coparcenary, but sub- 
 sequently this remedy was extended by statute to all joint estates, 
 except tenancies in entirety.^ But notwithstanding this statutory 
 extension of the common law writ of partition, the legal action was 
 still inadequate, in consequence of the inability of the court of law to 
 <ieal fully and adequately in the same suit with all the conflicting 
 claims which arose in the course of the action; and for that reason at 
 an early day, viz. : in the reign of Elizabeth, the court of equity 
 assumed jurisdiction; and since then the jurisdiction has become estab- 
 lished as a matter of right, in both England and in this country.' The 
 remedy in equity is not confined to the tenant in possession, but is so 
 ■extended as to enable the parties interested in the property, either 
 as tenant in possession, in remainder or in expectancy, to be made 
 parties to the suit and to be bound by the decree of partition thus 
 obtained.* But while all persons who are interested in the land, 
 whether in possession or in expectation, may be made parties defend- 
 ant to the suit for partition, and therefore bound by the decree, yet 
 aU actions for partition can only be instituted by one in possession." 
 In general, if tenants in common or joint tenants should be made 
 parties, then one or more will be required to appear as plaintiff, and 
 those objecting to partition must be made parties defendant." Mort- 
 gagees and joint creditors are not necessary parties, but they may be 
 made parties, so that the decree for partition vnll be binding upon 
 
 1 See Tledeman's Real Prop., par. 134-146. Id. 59; Gregory v. Gregory, 69 N. C. 522; Tabler 
 
 2 Tledeman's Real Prop., § 361. ■:'■ Wiseman, 2 Ohio St. 207; Williams v. Van 
 sHarwood v. Klrby, 1 Paige, 469; Teal v. Tuyl, 2 Icf. 336. 
 
 Woodworth, 3 Id. 470; Wilkinson v. Parish, 3 * Wotten v. Copeland, 7 Johns. Oh. 140; Mead 
 Id. 653; Burhams v. Burhams, 3 Barb. Ch. 398; -a. Mitchell, 17 N. Y. 310, 214; Clemens v. Clem- 
 Van Arsdale v. Drake, 2 Barb. 599; Green «. ens, 37 Id. 59; Striker v. Mott, 3 Paige, 387, 389; 
 Putnam, 1 Id. 500; Tanner ■». Niles, 1 Id. 560; Woodworth r. Campbell, 5 Id. 518; Gaskell v. 
 Scott V. Guernsey, 60 Id. 163; 48 N. Y. 106; Agar Gaskell, 6 Sim. 643; see Pomeroy on Remedies, 
 ■V. Fairfax, 17 Ves. 533; 2 Eq. Lead Cas. 866, 880 § 254; Lord Brook v. Lord Hertford, 3 P. Wms. 
 894 (4th Am. ed.); Baring v. Nash, 1 V. B. 551; 518; Hobson v. Sherwood, 4 Beav. 184; WUlsw. 
 Parker r. Gerard, Ambl. 336; Wood «. Little, 35 Slade, 6 Ves. 498. 
 
 Me. 107- Gregory!). High,29Ind. 527; Milligan 6 Wotten v. Copeland, 7 Johns. Ch. 140; 
 
 •V. Poole, 35 Id. 64; Lamed v. Eenshaw, 37 Mo. Evans v. Bagshaw, L. E. 8 Eq. 469; L. R. 5 Ch. 
 
 458; Waugh v. Blumenthal, 28 Id. 462; Rein- 340; Agarc. Fairfax, 2 Eq. Lead. Cas. 880, 894. 
 
 har'dt v Wendeck, 40 Id. 577; De Uprey v. De " Sullivan «. Sullivan, 4 Hun, 198; Baring ». 
 
 Uprey 37Cal. 329; Gates «. Salmon, 35 Id. 576; Nash, 1 V. A B. 551; Heaton v. Dearden, 16 
 
 Baileys. Sisson, 1 R. L 233, Donnell v. Hateer, Beav. 147; Anon., 3 Swanst. 139 n; Cornish v. 
 
 7 Ired Eq 94' Holmes'!;. Holmes, 2 Jones Eq. Gest, 2 Cox, 87; Brashear u. Macey, 3 J. J. 
 
 334- Howey v Goings, 13 111. 95; and see Wot- Marsh. 89; Baker v. Devereaux, 8 Paige, 513; 
 
 ten c Copeland. 7 Johns. Ch. 140; Sebringj). Borah v. Archers, 7 Dana, 176; Rosekrans v. 
 
 ' Mersereau, Honk. Ch. 501 ; 9 Cow. 344; Mead v. White, 7 Lans. 486; Scott o. Guernsey, 60 Barb. 
 
 JUitchell, 17 >'. V. 210; Clemens v. Clemens, 37 163, 181. 
 
 611 
 
§ 523 EQUIXT JURISPRUDENCE. [CH. XXXI. 
 
 them.^ If the mortgagee holds a mortgage over an undivided share 
 of one of the co-tenants, and he is made a party to the suit, the decree 
 in partition will transfer the lien of the incumbrance to the part allotted 
 to the tenant, whose share in the joint estate was incumbered. 
 Another advantage of the equitable action over the legal action for 
 partition is the fact, that in the action for partition it is necessary to 
 prove the title of the plaintiff and of the defendant; and that was 
 often impossible in the action at law, inasmuch as the auxiliary remedy 
 of discovery could only be employed in the court of equity. By 
 means of the bill of discovery, the complainant was enabled to furnish 
 the proof of title of the defendant as well as of himself, and thus estab- 
 lish his claim to partition; and the court of equity, having assumed 
 jurisdiction for the purpose of discovery, would retain it until the final 
 relief had been granted.^ If, however, the complainant's title to the 
 property was disputed, then the court of equity would, as in the case 
 of the assignment by dower, refuse to proceed to the settlement of 
 the case and of the dispute, and suspend the equitable action for 
 partition, until the party plaintiff had in an action at law settled 
 this dispute as to his title in his favor, when the further prosecu- 
 tion of the equitable suit would be resumed and carried to com- 
 pletion.' Of course, if the dispute as to title relates to an equitable 
 estate or title, it being an interest cognizable solely in equity, the court 
 of equity would itself determine the question and not wait for a settle- 
 ment in a court of law.* 
 
 Another reason for the assumption of jurisdiction by equity, in cases 
 of partition of lands, is to be found in the necessity at times of making 
 a pecuniary compensation, in addition to the allotment of a part of the 
 land, when an equal partition of such land is an impossibility. In 
 such a case, the court of equity is empowered to make the assignment 
 as equal as possible, and equalize the partition by decreeing the owdty 
 of pcm-tition, which was a charge of a sum of money upon the larger 
 share of the land partitioned in favor of the co-tenant who receives the 
 smaller share of land, and which was sufficient in amount to equalize 
 the value of the allotments. This could not be done in the action at 
 law.' So, also, could the court of equity direct an accounting to be 
 
 1 Whitton 1). Whitton, 38 N. H. 12V, 135. 7 Coldw. 20j Ross «. Cobb, 48 111. Ill; Foust ». 
 
 » Jope D. Morsherd, 6 Beav. 213; Parker v. Moorman, 2 Ind. 17 j Donnell ». Mateer, Tired. 
 
 Gerard, Ambl. 236 j Agar v. Fairfax, 2Eq. Lead. Eq. 94; Carter v. Taylor, 3 Head, 30; Obert v. 
 
 Gas. 880, 894. Obert, 2 Stookt. 98 ; Longwell v. Bentley, 23 Pa. 
 
 'Hardy v. Mills, 35 Wis. 141; Hoffman „. St. 99. 
 
 Beard, 22 Mich. 59; Wilkin v. Wilkin, 1 Johns. ^ Norwood v. Norwood, 4 Ha'r. & 1. 112; War- 
 
 Ch. Ill, 118; Manners v. Manners, 1 Green Ch. field v. Warfield, 5 Id. 459; Cox«. MoMullin, 14 
 
 384; Currin v. SprauU, 10 Gratt. 145; Slade v. Gratt. 82; Wynne v. Tunstall, 1 Dev. Eq. 83; 
 
 Barlow, L. R. 7 Eq. 296; Glffard v. Williams, L. Graydon v. Graydon, McMull. Eq. 63; Oliver ». 
 
 E. 5 Ch. 546; Bolton o. Bolton, L. R. 7 Eq. 298 n; Jerrigan, 48 Ala. 41 ; Mole v. Mansfield, 15 Sim. 
 
 Potter V. Waller, 2 De G. & Sm. 410; Simp- 41; Smith v. Smith, 10 Paige, 470; Larkin ti. 
 
 son «. Wallace, 83 N. C. 477; Mattair v. Paine, Mann, S M. 27; Phelps ti. Green, 3 Johns. Ch. 
 
 15Fla. 688. 302; Haywood ». Judson, 4 Barb. 228; Earl of 
 
 * Hitchcock V. Skinner, Hoff. Ch. 21; Crosier Clarendon «. Hornby, 1 P. Wme. 446; Turner 
 
 V. McLaughlin, 1 Nev. 348; Leverton v. Waters, «. Morgan, 8 Ves. 143; Story v. Johnson, 2 Y. <fc 
 
 612 
 
CH. XXXI.] CONCUKRENT EQUITABLE KEMEDIE8. § 624 
 
 made in the same suit, where one of the joint owTiers had received 
 more than his share of the rents and profits,^ or where one of these 
 parties had made improvements upon the land, for which he had 
 received no special return or compensation. In the last case, the court 
 would award the pecuniary judgment, sufficient in amount to equalize 
 the pecuniary returns from the joint property of all the co-tenants." 
 Any inconvenience or difficulty in attaining the partition is never any 
 ground for refusing this relief.' It is also impossible, at times, to 
 effect an actual partition of the land between the two co-tenants with- 
 out materially destrojdng the value of the property of both, and the 
 best results can only be attained by a sale of the property, and the par- 
 tition or division between them of the proceeds of sale. In the action 
 at law that was impossible; but the court of equity claimed and exer- 
 cised the power to decree a sale of the whole property, which would 
 be binding on the co-tenants and other persons interested in the joint 
 estate, who had been properly made parties to the suit for partition.* 
 Originally, the assent of the parties suijv/ris to such a partition by sale 
 was necessary.^ But this was not long the rule, either in England or 
 in the United States, the requirement of the consent of such parties to 
 the decree of sale having been abolished by statute." Where, how- 
 ever, it is possible for a partition to be made without sale and by actual 
 division of the land, it is the duty of the court of equity to decree an 
 actual partition instead of a sale.' 
 
 § 524. Partition of personal property. — Personal property can be 
 held in common as well as real property; but at common law no power 
 was recognized in the co-tenant of personal property to compel a 
 partition of the same. He could bring an action against the co-tenant 
 for damages, in case of the loss or destruction or sale of the joint prop- 
 erty, but the common law did not give him any right whatever to 
 maintain an action for partition.' The court of equity, however, 
 recognized, in regard to the joint holding of personal property, the 
 
 C. Ex. 586; Homcastre v. Charlesworth, 11 Sim. < Davis v. Turvey, 32 Beav. 554; Hubbard v. 
 
 315. Hubbard, 8 Hem. & M. 38; Thackeray v Parker, 
 
 1 Hitchcock V. Skinner, Hoflf. Ch. 21; Early 1 N.E. 587. 
 
 •B. Friend, 16 Gratt. 21 ; Carter's Ex'r v. Carter, « Codman v. Tinkham, 15 Pick. 384; Wood V. 
 
 SMunf. 108; Backlerr. Farrow,2Hill Ch. Ill; Little, 35 Me. 107; Griffles ». Griffles, 11 W. R. 
 
 Eozier v. Griffith, 30 Mo. 171 ; Lorimer v. Lor- 943. 
 
 lmer,5Madd. 363; Hili ». Pulbrook, Jac. 574; » Graham «. Graham, 8 Bush, 334; Welsh®. 
 
 Story V. Johnson, 2 Y. & C. Ex. 586; Leach V. Freeman, 21 Ohio St. 402; Eoyston «. Royston, 
 
 Seattle, 33 Vt. 195. 13 Ga. 425; Wilson v. Duncan, 44 Miss. 642; Hlg- 
 
 ^Sneed's Heirs v. Atherton, 6 Dana, 276; ginbottom v. Short, 25 Id. 160; Thompson ». 
 
 Borah v. Archers, 7 JA 176; Respassc. Brecken- Hardman, 6 Johns. Ch. 436; McCall's Appeal, 
 
 ridge's Heirs, 2 A. K. Marsh. 581; Dean «. 56 Pa. St. 363; Matter of Skinner's Heirs, 2 Dev. 
 
 O'Meara, 47 111. 120; Martindale v. Alexander, & Bat. Eq. 63; Steedmau v. Weeks, 2 Strobh. 
 
 26 Ind. 104; Swan v. Swan, 8 Price, 518; Green Eq. 145. 
 
 V. Putnam, 1 Barb. BOO; Conklin «. Conklln, 3 ' Thruston v. Minke, 32 Md. 571; Graham v. 
 
 Sandf. Ch. 64; St. Felix v. Rankin, 3 Edw. Ch. Graham, 8 Bush, 334; Davidson v. Thompson, 
 
 323; Brookfleld®. Williams, 1 Green Ch. 341; 22 N. J. Eq. 83. 
 
 Obert V. Obert, 1 Halst. Ch. 397. ' Cowles v. Garrett's Adm'rs, 30 Ala. 341 ; 
 
 8 Turner v. Morgan, 1 Ves. 143; Hobson v. Hinds v. Terry, Walker, (Miss.) 80; Gilbert v. 
 
 Sherwood, 4 Beav. 184; Warner v. Baynes, Dickerson, 7 Wend. 449; Tinney V. Stebbins, 28 
 
 Ambl. 589; Parker v. Gerard, Id. 236. Barb. 290. 
 
 613 
 
§ 525 EQUITY JURISPRUDENCE. [CH. XXXI.. 
 
 same reason for conceding the right of compulsory partition, as in 
 the case of joint ownership of lands. Here, it is not simply the ques- 
 tion of inadequacy of the legal remedy; there was no legal remedy at 
 all, so that in regard to personal property, the court of equity, in the 
 absence of modern statutes, has exclusive jurisdiction. The court of 
 equity will decree the partition of personal property under the same 
 circumstances, as it would give a similar decree in the case of joint 
 estates in lands. ^ It has been explained in the preceding paragraph, 
 that a court of equity will not entertain an inquiry into the title of the 
 plaintiff of the suit for partition where his title is disputed by the 
 defendant, and it is a case of joint ownership of lands. Inasmuch, 
 however, as the right of partition of joint ownership of personal prop- 
 erty is not recognized at all by the common law, if there is a dispute 
 raised as to the title of the plaintiff, in an equitable action for partition 
 of personal property, instead of referring such suit for settlement to a 
 court of law, the court of equity would proceed to settle such dispute; 
 and if it is settled in favor of the plaintiff, grant the decree in partition.^ 
 § 525. Establishment of disputed boundaries. — Where the bound- 
 aries between two parcels of land have become obscure or confused, 
 equity assumed jurisdiction to settle them at a very early date.' But 
 it is not simply because of the existence of a dispute as, to such bound- 
 aries, that a court of equity can assume such jurisdiction. If nothing 
 more than a dispute can be shown in respect to them, the parties would 
 be left to their remedies at law. But in order that the court of equity 
 will interpose to determine such dispute, there must, in addition to suck 
 doubt as to the true boundary, be some peculiar equity connected witk 
 the controversy, which arises out of the conduct or relation of the 
 parties.* A fraudulent changing of boundaries is one ground for the 
 assumption of equitable jurisdiction. ° And in England, it has been 
 held to be a sufficient ground for the assumption of jurisdiction by 
 equity, where one of the parties, like a tenant, or the owner of land, 
 in the case of a rent charge, has the duty imposed upon him of main- 
 taining the boundaries, and he fails to do so; and it becomes necessary 
 
 1 Tripp ». Riley, 15 Barb. 333, Fobes r. Shat- Cal. 249; Tillmes ». Marsh, 67 Pa. St. 507; Mei^ 
 
 tuck, 82 Id. 568; Tinney v. Stebbins, 28 Id. 290; rlman v. Eussell, 2 Jones Eq. 470; Hill v. Proo- 
 
 Wetmore v. Zabriskie, 29 N. J. Eq. 62; Crapster tor, 10 W. Va. 59; St. Luke's s. St. Leonard's, 
 
 ».Griffltli,2Bland, 625; Smiths). Smith, 4 Band. 0ited2Anstr. 395; Perry ». Pratt, 31 Conn. 433f 
 
 95, 102;K6rley«. Clay, 4Bibb, 241; Marshall »• Wolcott B. Bobbins, 26 iS. 236; De Veney ». 
 
 Crow's Adm'r, 29 Ala. 278; Conover v. Earl, 26 Gallagher, 20 N. J. Eq. 33; Norrls' Appeal, 64 
 
 Iowa, 167. Pa. St. 275; Wake v. Oonyers, 1 Eden, 331; Mil- 
 
 8 Weeks 0. Weeks, 5 Ired. Eq. Ill ; Edwards u. ler v. Warmlngton, 1 J. & W. 484; Speer ». 
 
 Bennett, lOIred. 365; Smith ii. Dunn, 27 Ala. 315. Crawter, 8 Meriv. 410, 417; Atkins v. Hatton, a 
 
 8 Mullineux ». Mullineux, Toth. 39; Pecker- Anstr. 386; O'Hara v. Strange, 11 Ir. Eq. E. 262; 
 
 Ing u. Kimpton, Id. 39; Boteler ». Spelman, Ireland ife Wilson, 1 Ir. Ch. E. 623. 
 
 Finch, 96; Perry v. Pratt, 31 Conn. 433; Wake ' Duke of Leeds v. Earl ot StaBEord, 4 Ves. 
 
 V. Conyers, 1 Eden, 331; 2 Eq. Lead. Cas. 850, 180; Grierson v. Eyer, 9 Id. 341, 345; Pratt «. 
 
 853, 860 (4th Am. ed.). Bryant, 20 Vt. 333; Perry v. Pratt, 31 Conn. 433} 
 
 *Fraley v. Peters, 12 Bush, 469; Doggett v. Fraley o. Peters, 12 Bush, 469; Atkins V. Hat- 
 Hart, 5 Pla. 215; Wolfe V. Scarborough, 2 Ohio ton, 2 Anstr. 386 ; Rous v. Barker, 4 Bro. P. C 
 St. 361; Haler. Darter, 5 Humph. 79; Topp t). 660; Speerti. Crawter, 2 Meriv. 410, 418. 
 Williams, 7 Id. 669; Wetherbee c. Dunn, 36 
 
 614 
 
CH. XXXI.] CONCUKRKNT EQUITABLE REMEDIES. § 525 
 
 for the court of equity to compel such party to perform his duty in 
 regard to such boundary.^ In all these suits for the establishment of 
 the boundary, one essential requirement is that some portion of the 
 land, in respect to which the relief for the establishment of the bound- 
 aries is sought, is possessed by the defendant.^ 
 
 1 Kennedy v. Trott, 7 Moo. P. C. 449, 467; B. 263; Speer v. Crawter, 17 Ves. 216; Duke of 
 
 Bowman v. Yeat, cited 1 Ch. Cas. 145; Duke of Leeds v. Earl of Stafford, i Id. 180; Godfrey V. 
 Leeds B. Powell, 1 Ves. Sen. 171 J Norths. Earl ■ Llttel, 1 Buss. & My. 59; 2 Id. 630; Clayton 
 
 of Stafford, 3 P. Wms. 148; Duke of Leeds v. v. Cookes, 8 Atk. 449; Spike v. Harding, L. B. 7 
 
 Corp. of New Eadnor, 2 Bro. Ch. 338; Atty.- Ch. D. 871. 
 
 Gen. </. Stephens, 6 De G. M. & G. Ill; Mayor, ^ Speer ». Crawter, 3 Meriv. 410, Atty. -Gen. ». 
 
 &c. V. Lord Bolton, 1 Drew. 270, 289; Aston v. Stephens, 6 De G. M. A G. Ill; Pope v. Melone, 
 
 Lord Exeter, 6 Ves. 888; MiUerii. Wannington, 8 A. K. Marsh. 839; Godfrey v. Littel, 1 Rubs. & 
 
 IJ. & W. 484; Atty.-Gen. v. FuUerton, 3 V. & My. 59; 2 Id. 630. 
 
 615 
 
CHAPTEE XXXII. 
 
 EQUITABLE SUITS FOB THE RECOVERY OF PECUNIAEY RELIEF. 
 
 Subdivision of subject 
 Suits for foreclosure 
 Creditor's suits .... 
 Exoneration and contribution 
 
 guished .... 
 Subrogation 
 
 Section 
 
 . 527 
 
 . 528 
 
 539 
 
 distin- 
 
 530 
 . 531 
 
 Marshaling of securities 
 Suits for accounting 
 Accounting between partners 
 
 Section 
 • 532 
 . 533 
 . 531 
 . 535 
 
 Taking the account 
 
 . . 538 
 
 § 527. Subdmsion of subject. — Under the heading of the present 
 chapter will be included all those suits of various sorts, in which the 
 relief prayed for is the recovery of money due to the complainant. 
 The fact that the relief prayed for is what ordinarily can be recovered 
 in an action at law, necessitates the presence in the equitable suit of 
 some peculiar circumstance which, by pointing out a substantial 
 defect in the action at law, furnishes to the court of equity a satisfac- 
 tory ground for assuming jurisdiction. These suits may be divided 
 into two classes: First, those in which the recovery of money is to 
 be obtained by the enforcement of a lien or charge upon some specific 
 fund or property. The second class^ would include all those suits in 
 which a similar relief is obtained, but only by the enforcement of a 
 general pecuniary obligation. The first class includes all foreclosure 
 suits, creditor's suits, and suits for the marshalling of securities. The 
 second class includes all suits for exoneration, contribution, subroga- 
 tion and accounting. 
 
 § 528. Suits for foreclosure. — The character of these suits has 
 been already explained in the chapters upon real estate and chattel 
 mortgages. It is a remedy by which a court of equity undertakes to 
 foreclose or cutoff the title or right of redeeming the property which 
 he has subjected to the mortgage, lien or charge. The property is 
 sold under the decree, and the proceeds of sale applied by the officers 
 of the court to the liquidation of the debt, the surplus proceeds, if 
 any, being turned over to the debtor. A full and ample explanation 
 has been given of these suits for foreclosure in the preceding chapters, 
 in which the mortgages, liens or charges, recognized by equity, have 
 been explained, and with a reference to these various chapters, nothing 
 more need be added concerning the subject of foreclosure in the present 
 connection.' 
 
 § 529 Creditor's suits. — The ordinary remedy, which the creditor 
 has at his command in a court of common law, is generally ample and 
 
 1 See ante. Foreclosure of mortgages of lands, §§ 440.450; Of chattel mortgages, § 469; Pledges, 
 § 470; Equitable liens, §§ 391, 404. 
 
 61 6 
 
CH. XXXII.] KECOVEKT OF PECUNIARY. BELIEF. § 529 
 
 adequate to his needs, but there are cases in which this remedy will prove 
 unavailing. Whenever the inadequacy of the common law remedy is 
 established, the court of equity will readily assume jurisdiction, and 
 entertain what is known as a creditor's bill. There are three cases, 
 in which it is possible for the common law remedies to prove inade- 
 quate: First, where the creditor cannot discover any property upon 
 which to levy for the satisfaction of his judgment, but he desires to 
 subject to his claim equitable and other interests, which cannot be 
 reached by a levy and sale under execution.* Secondly, where the 
 property of the debtor has been fraudulently conveyed to others, and 
 the creditor desires to reach this property in the hands of the grantee 
 and transferee. The court of equity alone can furnish an adequate 
 proceeding for setting aside such fraudulent conveyances.^ Thirdly, 
 where the creditor does not know of the existence of any property 
 whatever, but in order that he may ascertain whether the debtor has 
 property which may be subjected to the claims of his creditors, he 
 asks the aid of the court of equity for the purpose of making the dis- 
 covery of such assets.^ In aU of these cases the ground for assuming 
 jurisdiction is the inadequacy of the legal remedies. Proceeding on 
 that principle, in order that this extraordinary aid of the court of 
 equity may be obtained, the plaintiff must have exhausted the common 
 law remedies. In the first place, he must have reduced his claim to a 
 judgment; and, as a general proposition, he must have had an execution 
 issued and a return of nulla hona made.* This rule, however, is not 
 uniform, at any rate to the extent of requiring the return of nulla 
 hoTM to the writ of execution. Thus, it has been held that where the 
 creditor seeks to reach equitable interests of the debtor in real 
 property, or to set aside fraudulent conveyances of the same, the 
 courts are inclined to hold that, while an execution must have issued 
 on the judgment, the return of nulla hona is not necessary. ° The 
 reason for that distinction is, that the judgment creates a lien upon 
 
 1 Hadden B. Spader, 20 Johns. 554; 5 Johns. Eoy®. Rogers, 3 Paige, 234; Trego i>. Skinner, 
 
 Ch. 280; Bayard v. Hoffman, 4 Johns. Ch. 450; 42 Md. 426. 
 
 Tompkins «. Fonda, 4 Paige, 448; Lackland v. * Parshall v. Tillon, 13 How. Pr. 7; Scott v. 
 
 Garesche, 56 Mo. 287; Harris «. Aleock, 10 Gill Wallace, 4 J. J. Marsh. 654; Wooley s. Stone, 
 
 <fe J. 226; Eose v. Beyan, 10 Md. 466; Halsted v. 7 Id. 302; Morgan v. Crabb, 3 Port. 470; Brown 
 
 Davison, 2 Stockt. 290; Montgomery ii. McGee, v. Bk. of Mississippi, 31 Miss. 454; Suydam v. 
 
 7 Humph. 234; Wallace v. Smith, 2 Handy, 78; North West. Ins. Co., 51 Pa. St. 394; MoElwaiu 
 
 Galveston, &o. By. ». McDonald, 53 Tex. 510. v. Willis, 9 Wend. 548, 562, 565, 569; Beardsley 
 
 ■• McCaffrey v. Hickey, 66 Barb. 489; Tantum Scythe Co. v. Foster, 36 N. Y. 561; Dunleyy V. 
 
 V. Green, 21 N. J. Bq. 364; PuUiam v. Taylor, 50 Tallmadge, 38 Jd. 457; Crippen v. Hudson, 13 
 
 Miss. 551 ; Trego v. Skinner, 42 Md. 426; Beck v. Id. 161; Beck ». Burdett, 1 Paige, 305, 309; WIl- 
 
 Burdett, 1 Paige, 305; Gates v. Boomer, 17 Wis. lis v. Moore, Clarke Ch. 150; Spader v. Davie, 
 
 455;Haganv. Walker, 14 How. (U. S.) 29; Ham- 5 Johns. Ch. 280; 80 Johns. 554; Brinkerhofif ». 
 
 mond V. Hudson Elver, &c. Co., 20 Barb. 378. Brown, 4 Johns. Ch. 671. 
 
 8 Bay state Iron Co. v. Goodall, 30 N. H. 223; ' Hendricks v. Robinson, 2 Johns. Ch. 283, 
 
 Miers v. ZanesvUle, &c. Co., 11 Ohio, 273; Cad- 296; Beck v. Burdett, 1 Paige, 305, 308; McEl- 
 
 walladers. Granville, <fcc. Soc, 11 JA292; Had- wain v. Willis, 9 Wend. 548, 568; Buswell v. 
 
 den J). Spader, 20 Johns. 554; 5 Johns. Ch. 280; Lincks, 8 Daly, 518; Geery ». Geery, 63 N. T. 
 
 Hendricks v. Robinson, 2 Johns. Ch. 283; Gor- 252; Jones v. Green, 1 Wall. 330; Neate v. Duke 
 
 don r. Lowell, 21 Me 251; Thomas «. Adams, 30 of Marlborough, 3 M. & Cr. 407; Shirley v, 
 
 111. 37; Clarke v. Webb, 2 Hen. & Mun. 8 ; Le Watts, 3 Atk. 200; North American F. Ins. Co. 
 
 617 
 
§ 629 EQXJITT JUKISPKUDENCE. [CH. XXXH. 
 
 the real estate interests of the debtor; and that, in pursuing the 
 equitable remedy, it is not simply an enforcement of a general 
 claim of indebtedness against the debtor, but of a specific lien. It is 
 accordingly held, that wherever the judgment itself constitutes a 
 specific lien, in order that that lien may be enforced in equity, even 
 the execution is unnecessary/ But where no lien is created by the 
 judgment before a resort can be made to the equitable creditor's suit, 
 the execution must have been issued and a return of nulla hona made 
 as in the case of personal property.'' There are exceptions to the 
 general rule here laid down. Thus, it has been held that where an 
 execution has been issued in the county, where the debtor resides, 
 and has been returned unsatisfied, it is unnecessary to have an execu- 
 tion issued in the county in which the land is situated, in order that an 
 equitable suit may be entertained for setting aside fraudulent con- 
 veyances of the same.^ It has also been held that, where a judgment 
 was obtained against one of two persons who were sued as joint debtors 
 and the execution of such judgment had been returned unsatisfied, the 
 creditor could pursue his equitable remedy against the other joint 
 debtor, without first proceeding to judgment and execution.* Whether 
 the debtor's insolvency and consequent inability to respond to the 
 satisfaction of the. execution would dispense with the proceedings at 
 law, has been differently decided. Some of the cases hold that the 
 insolvency does dispense with the necessity of prbceeding to judgment 
 at law;° while, on the other hand, cases are cited which declare that 
 the legal action is nevertheless necessary." 
 
 The question has also been raised as to what is the effect of an attach- 
 ment of the property, to answer the claim of creditors, upon the require- 
 ment of first resorting to the common law action and an unsatisfactory 
 employment of the writ of execution, before the creditor's suit can be 
 entertained by the court of equity. Inasmuch as the attachment of 
 property to answer the claims of creditors has the effect of subjecting 
 the property attached to a lien in favor of the attached creditor, which 
 gives him priority of claim of satisfaction out of such property as 
 against the general creditors, it has been held that the court of equity 
 may interfere for the purpose of enforcing such a lien in a creditor's 
 suit, without the requirement of obtaining a judgment at law and the 
 
 V. Graham, 5 Sandf. 197; McCuUougli v. Colby, 57 Id. 270, 272; Webster v. Clark, 25 Me. 313j 
 
 5 Bosw. 477; Manchester v. MoKee, 4 Gilm. 511 ; Dana v. Haskell, 41 Id. 25. 
 
 Thurmond t!. Eeese, 3 Ga. 449; Newman w. Wil- = Shaw «. Dwight, 27 N. T. 244; Payne -o. 
 
 letts, 58111.98; Loving v. Pairo, 10 Iowa, 882; Sheldon, 63 Barb. 169. 
 
 Miller V. Dayton, 47 Id. 312. * H"<='' "• Hetteriok, 5Daly, 33j see Voorhees 
 
 iMcNairy v. Estland, 10 Terg. 310; Mont- ^^T^J.^* ^^^V"" ""'• ^03 ; Webster «. 
 
 Clark, 25 Me. 313; Dana «. Haskell 41 Id 2.=)- 
 
 gomery .. McGee, 7 Humph. 234; Cornell v. HartsLorn .. Eames, 31 74 93; Corey „ Gl^e. 
 
 Eadway, 82 Wis. 260; Fleming v. Grafton, 54 51 ja. 115; Dookray?) Mason, ^ Id. 178; Grif- 
 
 Miss. 79. fin v. Nitcher, 57 Id. 870, 278. 
 
 2 Hiler «. Hetteriok, 5 Daly, 33; see Voorhees 6 Tabb v. Williams, 4 Jones Eq. 352; Turner 
 
 V. Howard, 4Abb. App. Deo. 503; Hartshorn u. v. Adams, 46 Mo. 95. 
 
 Eames, 31 Me. 93; Corey v. Greene, 51 Id. 115; Mixon v. Dunklin, h8 Ala. 455; Parish u. 
 
 Dookrayu. Mason, 48M. 178;Griflanu.Kitcher. Lewis, Freem. (Miss ) Oh 399 
 
 618 
 
CH. XXXII. j EECOVEEY OF PECUNIAEY RELIEF. § 530 
 
 issue of execution thereon.* And on the same general grounds it has. 
 been held by some of the cases that the court of equity may interfere, 
 without obtaining judgment, by a proceeding that may be called an 
 equitable attachment, for the purpose of setting aside fraudulent con- 
 veyances, where the debtor has absconded or resides outside of the 
 state. ^ And a similar conclusion is reached in respect to the right of 
 a creditor, in a creditor's suit, to reach the money of an absconding 
 debtor which is not subject to garnishment at law.' But the doctrine, 
 that an attachment, because it operates as a lien, dispenses with the 
 judgment and execution at law as a prerequisite of a resort to the court 
 of equity for aid, is denied by some of the courts.* 
 
 Whenever a creditor's suit is filed — ^in conformity with the equitable 
 doctrine that equality is equity — it is required that all the parties 
 interested in the subject-matter of the suit, should be made parties; 
 and all the creditors of the defendant debtor may be joined at their 
 request, in order to secure a. pro rata distribution of the property.' 
 
 § 530. Exoneration and contribution distinguished. — Although 
 both exoneration and contribution are claims of one party to be reim- 
 bursed by another party, for money which the former has been com- 
 pelled to pay out in satisfaction, in whole or in part, of an obligation of 
 the latter, they arise in different cases, and are distinguishable. Exoner- 
 ation is where a surety or some other party, who is secondarily liable 
 for the debt, has been compelled to pay it through the failure or 
 default of the primary debtor. The secondary obligor has the claim 
 against the primary debtor of being completely exonerated; and in. 
 order that that claim may be enforced, he may resort to an action in 
 equity for recovery from such primary debtor of the full amount, 
 which he has been called upon to pay in consequence of the latter' s 
 default." It is only the amount, however, which the secondary obligor 
 has been actually obliged to pay in performance of the obligation of 
 
 1 Dodge v. Griswold, 8N. H. 425; Stone V. ^ipom. Eq. Jur., § 410. "The practice of 
 Anderson, 26 Id. 506; Sheafe u. Sheafe, 40 1(^. permitting judgment creditors to come in and 
 516; see Castle ». Bader, 23 Cal. 76; Hunt v. make themselves parties to the bill, and 
 Field, 1 Stockt. 36; Williams u. Michenor, Sid. thereby obtain the benefit, assuming at the 
 520; Ward v. McKenzie, 33 Tex. 297; Tappan v. game time theirportion of the costs and expen- 
 Evans, 11 N. H. 311; Kelly v. Lane, 42 Barb. ^gg ^j (jjg litigation, is well settled." Nelson, 
 594; Mechanics', &e. Bk. v. Dakin, 51 N. Y 619; j ^^ ^^^^^ „_ ^^^^^ 5 ^all. 207; see, also, 
 Heyneman « Dannenberg 6 Cal. 376; Scales r. Henry Iron Co., 12 Barb. 27; Dan. 
 Scott, 13I& 76; Robert i.. Hodges, 16N.J. Eq. 2,7. see also arUe S 21 
 
 299; Curry ». Glass, 25 /(Z. 108; Falconer ». Free- „^- ^"^^ ^^T w! 1 '.r^r I L tt „ 
 
 man, 4 ^ndf. Ch. 565; Greenleaf v. Munford, « Townsend v. Whitney, 75 N. Y. 425; Harris 
 
 19 Abb. Fr. 469; Skinner v. Stewart, 15 Id. 391 ; "■ Warner, 13 Wend. 400; Neimcewicz v. Gahn, 
 
 Bates V. Plonsky, 62 How. Fr. 429. 3 Paige, 614 ; 11 Wend. 312; Wesley Church v. 
 
 2 Peay v. Morrison's Ex'rs, 10 Graft. 149 ; Pope Moore, 10 Barr. 273 ; Dering v. Earl of Winchel- 
 V. Solomon, 36 Ga. 541 ; Scott v. McMillen, 1 sea, 1 Cox, 318; 1 Eq. Lead. Cas. 120, 124, 134 (4th 
 Lift. 303; Kipper ». Glancey, 2 Blaekf. 356. Am. ed.); Baxter v. Moore, 5 Leigh, 219; But- 
 
 apendleton v. Perkins, 49 Mo. 565. ler v. Butler's Adm'r, 8 W. Va. 674; Hare V. 
 
 4 Weil V. Lankins, 3 Neb. 384; Bigelow v. Grant, 77 N. C. 203; Moore u. Young, 1 Dana, 
 
 Andress, 31 III. 323; Martin v Michael, 23 Mo. 516; Hamilton v. Johnston, 82 111. 39; Hearne i>. 
 
 50;McMinni;, Whelan, 27 Cal. 300; Thurber u. Keath, 63 Mo. 84; Craythorne v. Swinbum, 
 
 Blanck, SON. Y. 80; Lawrence v. Bk. of Eepub- ^^ ygg igj). Hazelton «. Valentine, 113 Maes. 
 
 lic,35/<«. 320; Greenleaf u. Mumford, 50 Barb. ^,^3 ^^g. gavage v. Winchester, 15 Gray, 453t 
 
 543; GrifSn v. Nitcher, 57 Me. 270; Tennent v. jjonitzky ». Meyer, 48N. Y. 571. 
 
 Battey, 18 Kan. 334. 
 
 619 
 
§ 630 EQUITT JUKI8PKUDENCE. [CH. XXXH. 
 
 the primary debtor, that may be recovered in a suit for exoneration. 
 If, therefore, the surety or other secondary obligor should, in satis- 
 faction of the primary debt, pay less than its full amount, the benefit 
 of the compromise of the transaction must be given to the debtor; and 
 only the actual amount paid by the surety can be recovered by him.^ 
 It is not necessary that the surety, or secondary obligor should wait, 
 before paying the debt, until he has been sued and a judgiiient obtained 
 against him. He can pay it immediately, and then recover of the 
 primary debtor. Not only that, but even before he has been called 
 upon to pay, he may institute an equitable action against the debtor, 
 in the nature of a bill quia tvmet, to compel the primary debtor to pay 
 such bill. In such a case, the creditor is made a co-defendant with the 
 primary debtor.^ 
 
 Contribution, on the other hand, is the claim of partial reimburse- 
 ment between joint secondary obligors, where one of them has been 
 called upon to pay the entire debt, for which all are jointly responsible, 
 in consequence of the default of the primary debtor. In such a case, 
 the secondary obligor, who has paid the whole debt, has his action 
 against the other joint secondary obligors for a pro rata contribution 
 towards the payment of the debt, each joint debtor being called on to 
 pay to the secondary obligor, who has paid the debt, his proportion- 
 ate share of such debt. As a general proposition, it seems to be 
 necessary that the obligor who has paid the debt should first resort 
 to the primary debtor ; and when he has failed to obtain exoneration 
 from the primary debtor, then the action for contribution will lie 
 against the joint secondary obligors. But the right of contribution 
 is not confined simply to cases of secondary joint obligors, but to all 
 cases of joint obligations, whether primary or secondary, where one 
 of the joint debtors has been compelled to pay/ The advantage of 
 the equitable remedy over the common law action of contribution is 
 
 1 Eeed v. Norrls, 2 My. & Cr. 361, 375; Bonney Hyde, 19 Vt. 59; Strong v. Mitchell, 19 Id. 644; 
 D. Seeley, 2 Wend. 481; Blow f. Maynard, 2 Wayland ». Tucker, 4 Gratt. 267; Campbell v. 
 Leigh, 30. Mesler, 4 Johns. Oh. 334; 6 Id. 21j Bering v. 
 
 2 Padwicks. Stanley, 9 Hare, 627; Wooldrldge Earl of Winchelsea, 1 Cox, 318; 1 Eq. Lead. 
 ■». Norris, L. E. 6 Eq. 410; Beaver v. Beaver, 23 Gas. 120, 124, 134; Jenkins v. Lockard's Adm'r, 
 Pa. St. 167; Ardesco Oil Co. v. N. A. Oil, &c. Co., 66 Ala. 377; Magruder v. Admire, 4 Mo. App. 
 «6 Itf. 375,381: Irick v. Black, 17 N. J. Eq. 189; 133; Stephens v. Meek, 6 Lea. 226; Oldham v. 
 Stephenson v. Taverners, 9 Gratt. 389; Rice v. Broom, 28 Ohio St. 41 ; Camp v. Bostwick, 20 
 Downing, 12 B. Mon. 44; Dempsey ». Bush, 18 M. 337; Kobertson *. Deatherage, 82 III. 511; 
 Ohio-St. 376; Fame Ins. Co.'s Appeal, 83 Pa. St. Conover ». Lill. 76 Id. 342; Wagenseller ». 
 396, 405; Deringo. Earl of Winchelsea, 1 Cox, Prettyman,? 111. App. 192; Curtis v. Parks, 55 
 318; Notes in 2 Eq. Lead. Cas. 378, 280, 283, 306, Cal. 106; Taylor v. Reynolds, 53 Id. 686; Powell 
 1896 (4th Am. ed.); Nisbet i). Smith, 8 Bro. Ch. v. Powell, 48 Iif. 234; Dussolo. Bruguiere, 50 1(f. 
 579, 582; Comes Ranelaugh v. Hayes, 1 Vern. 456; Whiting v. Burke, L. H. 6 Ch. 342; Hich- 
 189; Antrobusv. Davidson, 3 Meriv. 569; Bishop born v. Fletcher, 66 Me. 209; Morgan v. Smith, 
 V. Day, 13 Vt. 81 ; Hayes v. Ward, 4 Johns. Ch. 70 N. Y. 537; Wells v. Miller, 66 Id. 255; John- 
 123, 13] ; King v. Baldwin, 2 Id. 554; 17 Johns. son v. Harvey, 84 Id. 363; Smith v. State, 46 Md. 
 384; Norton v. Reid, 11 S. C. 593; White v. 617; Nally D.Long, 56 W. 567; Bright v. Len- 
 Schurer, 4 Baxt. 23; Gilliam v. Esselman, 5 non, 83 N. C. 183; Scofield ». Gaskill, 60 Ga. 
 Sneed, 86. 277; Owen v. McGehee, 61 Ala. 440; Broughtou 
 
 3 See, in general, Black «.Shreeve,3Halst.Ch. "■ Wimberly, 65 Jtf. 549. 
 440; Bowen v. Hoskins, 45 Miss. 183; Mills v. 
 
 620 
 
CH. XXXII.] HECOVEKY OF PECUNIARY BELIEF. § 531 
 
 to be found especially in the ability of the court of equity to provide 
 for an increase in the contribution of the other co-obligors, where one 
 of them is insolvent and consequently cannot be compelled to make a 
 contribution. That is, where one of three or more joint obligors, who 
 can be called on to contribute towards the settlement of the debt, which 
 has already been paid up by one of them, is insolvent, the other solvent 
 obligors will be compelled by equity to divide among them the share 
 of the insolvent obligor, so that the payment of such share shall not 
 fall altogether on the one obligor, who has been compelled by the 
 creditor to pay the debt.^ And where a joint obligor has died before 
 the suit for contribution has been instituted, his estate is Kable in his 
 stead. ^ The claim of contribution is very commonly enforced in con- 
 nection with the settlement of mortgages of lands; and a more detailed 
 discussion of the right of contribution, is, therefore, to be found in 
 the chapter on mortgages of real estate.' 
 
 § 531. Subrogation. — The doctrine of subrogation maybe defined 
 to be the right of all parties, who are interested in the payment and 
 satisfaction of a debt or obligation, to share in the protection afforded 
 by the possession by either of them of any securities or pledges, which 
 the debtor has provided for securing the payment of the debt. That 
 is, if a debt has been contracted in which there are secondary obligors, 
 as well as a pledge or other security given, it matters not whether it 
 be given to the secondary obligor, the surety or grantor, on the one 
 hand, or to the creditor; in every case, the security is held to be the 
 principal fund out of which the debt is to be paid; and being the prop- 
 erty of the debtor, all parties have a right to secure payment by the 
 enforcement of the lien on such pledge against the debtor. If the 
 creditor has possession of this pledge or security, then the secondary 
 obligor has a right to be subrogated to the creditor's claim against this 
 pledge, on the principle that he has a right to be exonerated by the 
 debtor, and by the debtor's property, from the obligation to pay the 
 debt.* On the other hand, if the pledge or security has been given to 
 
 1 Burrows v. McWhann, 1 Desau. 409; Breok- 15 Hun, 93; Van Santen v. Standard Oil Co., 81 
 Inridge v. Taylor, 5 Dana, 110; Hitehman i>. N. Y. 171; Cole u. Malcolm, 66 Id. 363; Lewis i). 
 Stewart, 3 Drew. 271 ; Mayor, Ac. v. Murray, 5 Palmer, 28 Id. 871 ; Steele's Appeal, 72 Pa. St. 
 DeG. M. &G. 497; Magruderu. Admire, 4Mo. 101; Bleakley's Appeal, 66 M. 187, 191; Prices. 
 App. 133. Tnisdell, 28 N. J. Eq. 300; Allen v. Henley, 2 
 
 2 Johnson v. Harvey, 84 N. Y. 363; Stephens Lea 141; Harlan v. Sweeney, 1 Id. 682; Kirk- 
 B. Meek, 6 Lea. 226 ;, Primrose v. Bromley, 1 man ». Bk. of America, 2 Coldw. 397; Smith t). 
 Atk. 89; Duesol v. Brugulere, 50 Cal. 456. Bumsey, 33 Mich. 183; Keith v. Hudson, 74 Ind. 
 
 3 See ante, §§ 451^57. 333 ; Prout v. Lomer, 79 111. 331 ; Hollingsworth 
 * Lidderdale's Ex'rs v. Ex'r of Robinson, 13 v. Pearson, 53 Iowa, 53; McArthur v. Martin, 23 
 
 Wheat. 594; Norwood ii. Norwood, 3 Har. & J. Minn. 74; Eaton ». Hasty, 6 Neb. 419 ; Van Or- 
 
 238; Wright v. Grover, 82 Pa. St. 80; Marsh v. den v. Durham, 35 Cal. 136; Receivers of N. Y., 
 
 Pike, 10 Paige, 595; McDougal v. Dougherty, 14 &c. Ry. v. Wortendyke, 27 N. J. Eq. 658; Irick 
 
 Ga. 674; Neilson v. Pry, 16 Ohio St. 552; Dear- v. Black, 17 Id. 189; Dent v. Wait's Adm'r, 9 W. 
 
 bom V. Taylor, 18 N. H. 153; Pierson v. Catlin, Va. 41 ; Hevener v. Berry, 17 Id. 474; York v. 
 
 18 Vt. 77j Hayes v. Ward, 4 Johns. Ch. 133; Laudis, 65 N. C. 535; SafEold v. Wade's Ex'r, 
 
 Scribner v. Adams, 73 Me. 541; Kelly v. Her- 51 Ala. 214; Knighton v. Curry, 62 Id. 404; Os- 
 
 rick, 131 Mass. 373; Thompson v. White, 48 bom «. Noble, 46 Miss. 449; Davis ti. Walker, 51 
 
 Conn. 509; Townsend v. Whitney, 75 N. Y. 425; Id. 659; Talbot v. Wilkins, 31 Ark. 411; Plsh- 
 
 621 
 
§ 632 EQUITY JUEISPKDDENCE. [CH. XXXn. 
 
 the surety or other secondary obligor, then that constitutes an addi- 
 tional fund to satisfy the primary obligation; and the creditor may 
 likewise claim the benefit of the existence of such security, and the 
 right of subrogation to such securities, by an appropriate equitable 
 action.' The same claim of subrogation can be asserted by one joint 
 secondary obligor against another; as, for example, by one surety 
 against a co-surety; all the sureties or other secondary obligors are 
 entitled to the protection afforded by the existence of the pledge or 
 other security.^ 
 
 § 532. Marshaling of securities. — Where one creditor has two 
 funds, out of which he may satisfy his claim against the debtor, and a 
 second creditor has a claim of satisfaction of his debt against only one 
 of these funds, and his lien or claim against such fund is second in 
 order to th^ other creditor, the court of equity does not permit the 
 party, having the claim of satisfaction against both funds, to defeat or 
 prevent the satisfaction of the claim of the other creditor, by enforcing 
 his lien against the property, to which both claims are attached. The 
 second creditor can, by applying to the court of equity, secure a satis- 
 faction of his debt, not by compelKng the first creditor to enforce his 
 lien on the other property, but by being subrogated to the additional 
 security of the first creditor over the other property.' But the rules, 
 involved in the doctrine of marshaling of securities, as it is called, must 
 be taken with the modification, that the paramount creditor shall not 
 he delayed or inconvenienced in any way in the collection of his debt.* 
 Pinally, it is necessary, in order that the doctrine may apply at all, 
 that the parties themselves should be creditors of the same debtor.' 
 The rule of marshaling of assets has a general application to all sorts 
 
 back V. Weaver, 34 Id. 569; Farmers', &c. Bk (Miss.) Ch. 419 j Tidd v. Lister, 10 Hare, 140, IST; 
 
 V. Sherley, 13 Bush, 304; Storms v. Storms, 3 3 De G. M. <fe G. 857; Averall v. Wade, Lloyd & 
 
 M. 77. G. 252; Gibson v. Seagrlm, 20 Beav. 614; Hales 
 
 1 Wallace's Appeal, 5 Barr. 103; Bjirwell's ». Cox, 32 W. 118; ^a!pa?'<e Alston, L. E. 4 Oh. 
 Adm'rs v. Fauber, 21 Gratt. 446; Osborn v. No- 168; Heyman v. Dubois, L. E. 13 Eq. 158; Lanoy 
 ble, 46 Miss. 449; Eardini). Walpole, 38 Ind. 146; v. Duke of Athol, S Atk. 444,446; Aldrioh v. 
 Moses V. Murgatroyd, 1 Johns. Ch. M9; Phillips Cooper, 8 Ves. 382, 395; 2 Eq. Lead. Gas. (4tli 
 V. Thompson, 2 Id. 418, 421; Eioe's Appeal, 79 Am. ed.) 2880, notes; Exparte Kendall, 17 Ves. 
 Pa. St. 168. 514, 520; Baldwin v. Belcher, 3 Dru. & War. 173, 
 
 2 Copis V. Middleton, T. & E. 224, 231 ; Fish- 176; Hughes v. Williams, 3 Maon. & G. 683. 
 back V. Weaver, 84 Ark. 669; Brown v. Ray, 18 *Coker v. Shropshire, 59 Ala. 642; Sweet v. 
 JT. H. 102; Adm'r of Aldrioh v. Hapgood, 39 Vt. Redhead, 76 111. 374; Wolf v. Smith, 36 Iowa, 
 617; Elwood v. Deifendorf, 5 Barb. 398; Par- 454; Jervis v. Smith, 7 Abb. Pr., n. a., 217; 
 ham V. Green, 64 N. 0. 436; McCune v. Belt, 45 Briggs v. Planters' Bk., Freem. (Miss.) Ch. 574; 
 Mo. 174. Denham v. Williams, 39 Ga. 312; Calloway 
 
 SHerriman v. Skillman, 33 Barb. 378; Bk. of v. People's Bank, 54 Id. 572; Walker v. Covar, 
 
 Kentucky v. Vance's Adm'rs, 4 Litt. 168; Ram- 2 S. C. 16; Evertson v. Booth, 19 Johns. 486, 493; 
 
 sey's Appeal, 2 Watts, 228; Cheesebrough v. Woolcooks «. Hart, 1 Paige, 185. Or that the 
 
 Millard, 1 Johns. Ch. 409; Hunt t). Townsend, rights of third parties should be prejudiced 
 
 4Sandf. Ch. 510; Glass v. Pullen, 6 Bush, 346; thereby, Cannons. Kreipe, 14 Kans. 324; Lelb 
 
 Russell V. Howard, 2 McLean, 489; Eoss v. v. Stribbling, 51 Md. 285; McArthur v. Martin, 
 
 Duggan, 5 Col. 85; Terry v. Bosell, 32 Ark. 478; 23 Minn. 74; Marr ». Lewis, 31 Ark. 203; Barnes 
 
 Hawley «. Manoius, 7 Johns. Ch. 174, 184; Evert- v. Raoster, 1 Y. & C. Ch. 401; Averall V. Wade, 
 
 son V. Booth, 19 Johns. 486, 492; Besley i. Lloyd <& G. 252. 
 
 Lawrence, 11 Paige, 581; York, &o. Ferry Co. » Rogers v. Meyers, 68 111. 92; Ex parte Ken- 
 
 », Jersey Co., Hopk. Ch. 460; Zeiglerw. Long, 2 dall, 17 Ves. 514, 520; Dorr v. Shaw, 4 Johns. 
 
 Watts, 205; Fallen u. Agricultural Bk., Freem. Ch 17; Stevens t) Church, 41 Conn 369 
 
 622 
 
OH. XXXII.] EECOVERT OF PECUNIARY RELIEF. § 633 
 
 of securities, but the most common application of the principle is to 
 the case of successive mortgagees and judgment creditors. In the 
 chapter on mortgages a further explanation of the subject is to be 
 iound.^ 
 
 § 533 Suits for accounting. — The common law had an action 
 which was known under the name of accownt render; but in view of 
 the limitations of the common law jurisdiction, and the inability of the 
 common law courts to obtain a discovery of essential facts from the 
 defendant under oath, an additional difficulty and obstacle in the way of 
 making the common law remedy inadequate and satisfactory, the com- 
 mon law action of account render fell into disuse, and instead thereof 
 the equitable suit for an accounting took its place. ^ The suit for an 
 accounting is very commonly employed as ancillary to some general 
 equitable action; but the equitable jurisdiction is not confined to these 
 cases. The court may institute the suit independently of any other 
 ground for assuming jurisdiction. The general ground for assuming 
 jurisdiction is the inadequacy of the legal remedy. The cases in 
 which the equitable remedy is deemed to be necessary, because of the 
 inadequacy of the common law remedies, are as follows: First, 
 where the accounts are all on one side, but there are circumstances 
 connected with the transaction which create great complications or 
 difficulties in the way of a settlement at law, and the more elastic 
 inquiry by a master or referee is necessary, to definitely settle upon 
 the limitations of the claims of the parties.' Secondly^ where there 
 are mutual accounts between plaintiff and defendant, and there have 
 been mutual pajonents made by each of them, and the jurisdiction is 
 exercised on account of the difficulty of securing a satisfactory 
 accounting.* Thirdly, where the monetary obligations arise between 
 the parties out of a fiduciary relation. Under this heading, the sub- 
 ject of accounting as it relates to trustees and administrators would 
 fall, but it has been already explained in other connections. But the 
 same principle is applied to every case where the fiduciary relation 
 prevails, but which is not considered as falling strictly under the 
 
 ' See an<«, § 458. Ala. 638; Avery », Ware, 58 7(Z. 475; Garner v. 
 
 "1 Spence Eq. 649; Mltf. Eq. PI. 120, 123j Eeis, S5 Minn. 475; Haywood ». Hutchins, 65 N. 
 
 Bacon Abr. tit. Accompt. 0. 574; Hay«. Marshall, 3 Humph. 623; Wilson ». 
 
 8 Ward ». Peek, H4 Mass. 121; Farmers', &c. Mallett, 4 Sandf. 112; Durant ». Einstein, 5 
 
 Bk. v. Polk, 1 Del. Ch. 167; Trapnall v. HUl, 31 jjobt. 423; Salter v. Ham, 31 N. Y. 331; Walker 
 
 Ark. 345; Nesbit v. St. Patrick's Church, 1 ,;. Cheever, 35 N. H. 339 ; Gloninger ». Hazard, 
 
 Stockt. 76; Seymour ». Long Dock Co., 20 N. J. 43 ^a.. St. 389; North Eastern Ey. „. Martin, 2 
 
 Eq.,296; contra, Norwich, &c. R. R. v. Storey, pj^jj ,^53. Kennington v. Houghton, 2 Y. & C. 
 
 17 Conn. 364; Watt v. Conger, 13 Sm. & Mar. 412; ^^ ^^ ^^. ^^^^^ ^_ Spencer, 2 Johns. Ch. 
 
 Kirkman v. Vanlier. 7 Ala. 217; Prlntup «. g^.^j^ ^_ ^ ^ ^^^^ ^ Hickman v. 
 
 Mitchell, 17 Ga. 558; Wilson v. Riddle, 48 M. g^ ' 3 ^^^^^^ ^^^^^ ^_ McNamara, 2 Dev. 
 
 «09; Lafever v. BiUmyer, 5 W. Va. 33; Blood v. ^ ^^^ j,^ ^. jjinwlddie v. Bailey, 6 Ves. 136; 
 
 Blood, 110 Mass. 546; Frue, v. Lorlng, 120 Id. ^^^^^ ^^ Cooper, cited 6 Id. 139 ; Allison v. Her- 
 
 507; Taffi Vale By. v. Nixon, 1 H. L. Cas. 110; ^^^^^ g gj^^^^ ggj. pijniips „_ Phillips, 9 Hare, 
 
 Mitchell V. Great Works, &o. Co., 2 Story, 648; ^^^ . pa^^jcij ^. Hurst, 18 Beav. 575; Fluker v. 
 
 Governor ». McEwen, 5 Humph. 241. Taylor, 3 Drew. 183. 
 
 4 Phillips V. Phillips, 9 Hare, 471; Passyunk 5 g^^ ^^^^^ ^^ ^^ trustees, § 323; as to execu- 
 
 Buildlng As8n.'s Appeal, 83 Pa. St. 441 ; Carter ^^^ ^^^ administrators, § 329. 
 
 *. Bailey, 64 Me. 458; Dickinson v. Lewis, 34 
 
 623 
 
§ 534 EQUITY JURISPKUDENCK. [CH. XXXH. 
 
 head of trusts; as in the case of principal and agent. But in order 
 that suits for an accounting may be instituted between principal and 
 agent, it must be shown that the character of the accounts make it 
 necessary for the parties to resort to the extraordinary jurisdiction of 
 the court of equity, on account of the complications involved in the 
 account.^ But the mere fact, that the parties sustain to each other the 
 relation of principal and agent, does not in itself justify the principal 
 in maintaining an equitable suit for an accounting against his agent.* 
 The agent may likewise maintain a suit for an accounting against a 
 principal, whenever such suit is necessary; as, for example, where the 
 agent's salary depends upon the profits made by his employer.' But 
 the general rule is, that the agent does not need to resort to this 
 remedy; and hence the remedy will generally be denied to him, in the 
 absence of proof by him of special grounds for equitable consideration.* 
 
 The suit for accounting will also be entertained between joint 
 owners of property in general, for the purpose of determining the 
 amount of the profits of the joint transaction and the proportionate 
 share of each in the same.* But one co-tenant cannot in equity insti- 
 tute a suit for the recovery of his share of the profit, where the 
 character of the transaction itself does not involve an account which 
 requires the aid of equity.^ 
 
 § 534:. Accounting between partners. — The most frequent appli- 
 cation to the court of equity for an accounting is between partners, in 
 the settlement of the partnership affairs. In consequence of the more 
 ready facihties of the court of equity to deal with the matter of 
 accounting, it is held to be an almost universal rule that, in the settle- 
 ment of partnership affairs, the resort to a court of equity is indis- 
 pensable. Modern statutes have given probate courts jurisdiction over 
 the settlement of partnership affairs where one of the partners dies; but 
 that extension of the probate jurisdiction does not deprive the court of 
 equity of its power in any case to wind up the affairs of the firm.' 
 As a general rule, probate courts do not have jurisdiction over the set- 
 tlement of partnership affairs in other cases than the death of one of the 
 partners.* The equitable jurisdiction is also in nowise affected by the 
 
 iDabbsc. Nugent, llJur.,N. s., 643; Coffman iPadwicko. Stanley, 9 Hare, 687j Smith v. 
 
 V. Sangston, 21 Gratt. 263; Kennington v. Leveaux, 2 De 6. J. & S. 1. 
 
 Houghton, 2 T. & C. Ch. 620, 62?; Taff Vale Ry. * Darden v. Cowper, 7 Jones L. 210; Wright 
 
 V. Nixon, 1 H. L. Cas. 110; Foley v. Hill, 2 Id. V. Wright, 59 How. Pr. 176; Hodges v. Pingree, 
 
 28,46; O'Connor u. Spaight, 1 Sch. & Lef. 305, 10 Gray, 14; Blood d. Blood, 110 Mass. 545; 
 
 per Lord Eedesdale; South Eastern Ey. v. Gates «. Fraser, 9111. App. 624; Strelly »^ Wln- 
 
 Brogden, 3 Maon. &G. 8. son, 1 Vern. 297; McLellan v. Osborne, 51 Jle. 
 
 2 Ooquillard v. Suydam, 8 Blactf. 24; Blake- 118; Dyckman v. Valiente, 42 N. T. 549, 563; 
 
 ley V. Bisooe, 1 Hempst. 114 ; Powers v. Gray, 7 Early v. Friend, 16 Gratt. 21 ; Leach v. Beattie, 
 
 Ga. 206; Long v. Lochran, 9 Phila. 267; County 33 Vt. 195; Wiswell v. Wilkins, 4 Id. 137. 
 
 of Clinton v. Schuster, 82 111. 137 ; King v. Eos- » pico v. Columbet, 12 Cal . 414. 
 
 sett, 2 Tou. & J. 33; NevulshawB. Brownrigg, 1 'Griggs v. Clark, 23 Cal. 427; Scott v. Buf- 
 
 Sim., N. s., 573; R. De G. M. & G. 441 ; Hemings f um, 52 N . H. 345; Perrin v. Lepper, 49 Mich. 
 
 ».PHgh,4 GifF.456 ; Moxon i).Bright,L.E.4 Ch.292. 347. 
 
 "Harrington!). Churchward, 6 Jur., u. 8., 576; *Andersoni;. Beebe, 22 Kans. 768; Blake u. 
 
 Shepard v. Brown, 4 Glff. 208; Buel v. Selz, 5 Ward, 137 Mass. 94; Booth v. Todd, 8 Tex. 137; 
 
 m. App. 116. but see, to the contrary, Ensworth v. Curd, 68 
 
 624 
 
CH. XXXn.J RECOVEKT OF PECUNIARY BELIEF. § 634 
 
 fact that an action of account could lie at law between the partners. ' The 
 assumption of jurisdiction by a court of equity over an accounting is 
 also not limited to the settlement of the interests of the parties in 
 property situated within the state and county, in which the action is 
 brought. If the parties are within the jurisdiction of the court, the 
 decree in accounting can provide for the settlement of the conflicting 
 claims of the parties in all classes of property, wherever situated.^ 
 And this is the case, even though some of the parties are non-resident.' 
 In the case of an accounting between partners, it is the general rule, 
 that a biU for accounting will not be entertained, except where the 
 accounting is prayed for as a means of procuring the final settlement 
 of the partnership affairs, and the dissolution of the partnership.* 
 No specific prayer for dissolution of the partnership is necessary, 
 where a pleading by a general bill for accounting is interpreted to 
 include by presumption a prayer for dissolution; ° although a con- 
 trary rule obtained at an earlier day, particularly in the English 
 courts. ° But while this is the general rule, that the dissolution of the 
 partnership is presumed to be contemplated, when the bill for account- 
 ing is filed, yet a court of equity will entertain the suit for accounting 
 without a dissolution of the partnership in special cases; as, for exam- 
 ple, where one partner excludes another from a reasonable participation 
 in the affairs of the firm, in order to force him to a dissolution of the 
 partnership; '' or where one of the co-partners has, by a series of secret 
 transactions, attempted to defraud the other partner of his just share 
 of the profits of the business.' So, also, where the agreement of part- 
 nership calls for a periodical settlement, or for settlements of distinct 
 transactions, a court of equity will entertain an accounting for the 
 purpose of ascertaining the periodical or special claims of the partner 
 to shares in the profits of the business.' And it has also been held that 
 an accounting may be had, when the partnership business is a failure, 
 
 Mo. 282; see Eoulston v. Washington, 79 Ala. Miss. 615j Glynn u. Phetteplace, 20 Mich. 383j 
 
 529; Vincent ». Martin, 79 Ala. 540; Culley v. Phillips v. Blatchford, 137 Mass. 510; and see 
 
 Edwards, 44 Ark. 423; Tiner v. Christian, 27 Roberts j>. Eldred, 73 Cal. 394. 
 
 Ark. 306 ; Theller v. Sutt, 57 Cal. 447. ^ Coville v. Gilman, 13 W. Va. 314; Werner v. 
 
 "Gillett V. Hall, 13 Conn. 426; Niles ». Will- Leisen, 31 Wis. 169; Loscombe v. Russell, 4 
 
 iams, 24 Conn. 279; Bennett ». Woolfolk, 15 Sim. 8; Ambler «. Whipple, 20 Wall. (TJ. S.) 546. 
 
 Ga. 213; Lllliendhal v. Stegnar, 45 N. J. Bq. 648; » Foreman v. Homf ray, 2 Ves. & B. 329; Kne- 
 
 Reed v. Johnson, 24 Me. 322; Krutz v. Paola bell v. White, 2 Y. & G. Ex. 16; Loscombe v. 
 
 Town Co., 20 Kans. 397; Glenn v. Hebb, 12 Gill Russell, 4 Sim. 8. 
 
 & J. (Md.) 271; see Huyler v. Westervelt, 7 'Fairthorn v. Weston, 3 Hare, 387; Harrison 
 
 Paige, (N. Y.) 155. v. Anuitage, 4 Mad. 143; Blisset v. Daniel, 10 
 
 ^Bracken v. Kennedy, 4111.558; Bispham's Hare, 493; Richards v. Davies, 2 R. & M. 347; 
 
 Eq. Jur., I 505; Christy's Appeal, 92 Pa. St. 157; and see Inglis v. Floyd, 33 Mo. App. 565. 
 
 Epping i;. Aiken, 71 Ga. 682. 'Smiths). Fitchett, 56 Hun, 473; Davis v. 
 
 3Near v. Lowe, 49 Mich. 482; Waugh v. Davis, 60 Miss. 615; Traphagen ti. Burt, 67 N. 
 
 Schlenk, 33 111. App. 433. Y. 30; Hitchens v. Congreve, 1 R. & M. 160; 
 
 *McMahon v. Thornton, 4 Mont. 46; Balrd v. Fawcett v. Whitehouse, 1 R. & M. 132; Beck v. 
 
 Baird, 1 Dev. &. B. Eq. (N. Car.) 524; McRae v. Kantorowicz, 3 K. & J. 230; Society, &c. v. Ab- 
 
 McKenzie, 2 Dev. & B. Eq. {N. Car.) 232; Coville bott, 2 Beav. 559. 
 
 V. Gilman, 13 W. Va. 314; Clark v. Gridley, 41 » Patterson v. Ware, 10 Ala. 444; and see 
 Cal. 119; Nisbet v. Nash, .52 Cal. 540; Thomp- ' Wadley v. Jones, 55 Ga. 329; Attorney-Gen. v. 
 
 son u. Lowe, 111 Ind. 272; Davis v. Davis, 60 State Bank, 1 Dev. & B. Eq. (N. Car.) 146. 
 
 40 
 
 625 
 
§ 534 EQUITY JURISPRUDENCE. [CH. XXXH. 
 
 and the partners are so numerous, that it is impossible or difScult for 
 them all to be made parties to the action. In such a case, a special bill 
 for accounting will be permitted to one or more of the partners, to 
 be brought in their behalf against the managing partners. Any mem- 
 ber of the firm, of course, has the right to maintain a bill for account- 
 ing,' whether such partner be active or dormant, known or silent, 
 general or special. So, also, can the bill for accoimting be filed by the 
 executor or administrator of a deceased partner,'' or by an assignee, 
 mortgagee or pui'chaser from one partner of his share in the partner^ 
 ship affairs.' Inasmuch as the administrator or executor of the 
 deceased partner is given the power to maintain a suit for accounting, 
 the general rule is that a similar suit cannot be maintained by the 
 widow, legatee, distributee or creditors of the deceased partner.* But 
 if it can be established that the relation between the executor or 
 administrator and the surviving partners is of such a nature, that the 
 rights and interests of these parties, who are the beneficiaries of the 
 deceased pai'tner, wiU not be substantially protected and cared for by 
 such executor or administrator, then the court of equity will, on 
 this special ground, permit such parties to maintain a suit for account- 
 ing.* This is especially the case, where fraud or collusion is proven 
 to exist between the personal representatives of the deceased partner 
 and the surviving partners.' And where the executor or administrator 
 is likewise the surviving partner, and more likely still, where he is 
 the surviving managing partner, the reason for denying the widow and 
 heirs and distributees of the deceased partner the right to maintain the 
 suit for accounting against the partnership, would disappear altogether. 
 In such cases, the accounting can always be had at the instance of the 
 parties and beneficiaries who are interested in the estate of the deceased 
 
 1 Clarke v. Gridley, 41 Cal. 119j Qulnlivan v. E. I. 452; Driggs v. Merely, 2 Finn. (Wis.) 403; 2 
 
 English, 48 Mo. 368; Harvey*. Barney, 98 Mass. Chand. (Wis.) 59; Donaldson «. Bank of Cape 
 
 118; Simonton v. McLaln, 37 Ala. 663; Sharp ®. Fear, 1 Dev. Eq. (N. Car.) 103j 18 Am. Dec. 577; 
 
 Hlbbins, 42 N. J. Eq. 543. Farley o. Moog, 79 Ala. 148; Nichol v. Stewart, 
 
 2 Freeman ». Freeman, 138 Mass. 280; Cheese- 36 Ark. 612; Miller v. Brlgham, 50 Cal. 615; 
 
 man v. Wiggins, 1 Thomp. & C. (N. Y.) 595; Strong ». Clawson, 10111. 346; Gyger's Appeal, 
 
 Pitt ». Moore, 99 N. Car. 85; Wickliffe v. Eve, 63 Pa. St. 73; 1 Am. Eep. 382. 
 
 17 How. (U. S.) 468; Denver v. Roane, 99 U. S. * Vienne v. McCarty, 1 Dall. (Pa) 154; Har- 
 
 355; Z» re Clap, 2 Low. (U. S.)168; Heyne ». rison ». Elghter, 11 N. J. Eq. 389; Staintono. 
 
 Middlemore, 1 Ch. Eep. 138; Hockwells. Eust- Carron Co., 18 Beav. 146; Davies v. Davies, 2 
 
 man, Cro. Jac. 410; McLaughlin v. Simpson, 3 Keen, 539; Rosenzweig v. Thompson, 66 Md. 
 
 stew. &■ P. (Ala.) 85; Costley v. Towles, 40 Ala. 593; Tate v. Tate, 35 Ark. 289; Hutton v. Laws, 
 
 600; Tate v. Tate, 35 Ark. 289; Miller v. Jones, 55 Iowa, 710; Hyer v. Burdett, 1 Edw. Ch. (N. 
 
 39 111. 54; Atkinson v. Rogers, 14 La. Ann. 643; Y.) 325; Ludlow v. Cooper, 4 Ohio St. 1. 
 
 Grim's Appeal, 105 Pa. St. 375; TlUinghast v. 5 Bausher c.Klrby, 1 Euss. & M. 277; Yatemen 
 
 Champlin, 4 E. I. 173; Watklns v. Fakes, 5 «. Yatemen, 7 Ch. Div. 210; Travis «. Milne, 9 
 
 Heisk. (Tenn.) 185; Jennings v. Chandler, 10 Hare, 141; Stainton v. Carron Oo., 18 Beav. 146; 
 
 Wis. 21. and see Rosenzweig v. Thompson, 68 Md. 593; 
 
 s Fourth Nat. Bk. „. CarroUton R. Co., 11 Forward n. Forward, 6 Allen, (Mass.) 494; Law 
 
 Wall. (U.S.)624; Fawcett i;. Whitehouse, 1 E. «. Law. 2 Coll. 41 ; Gedge u. Traill, 1 Euss. & M. 
 
 & M. 138; Eedmayne v, Forster, L. E. 2 Eq. 281; but see, to the contrary, Eavenscraft v. 
 
 467; Fellows ». Greenleaf , 43 N. H. 421; Marxv. Pratt, 22 Kans. 20; Dampf's Appeal, 106 Pa. 
 
 GoodnougR, 16 Oregon, 26; Clagett u. Kil- St. 78. 
 
 bourne, 1 Black, (U. S.) 346; Mathewson D. eNewland «. Champion, 1 Ves. Sr. 105; Seeley 
 
 Clarke, 6 How. (U. S.) 122; Stiness v. Pierce, 13 v. Boehni, 2 Madd. 176. 
 
 626 
 
CH. XXXII.] EEOOVEET OF PECUNIARY BELIEF. § 535 
 
 partner.^ It has also been held to be the right of an employee of a 
 firm to maintain a bill for accounting against such firm, whenever the 
 wages of the employee depend upon the profit of the concern and 
 constitute a proportionate share or percentage of the same.* * 
 
 § 535. Accounts stated. — "Where the parties, whether they be part- 
 ners or other persons jointly interested, or having mutual accounts with 
 each other, have already reached a settlement of the accounts and a 
 settlement between them of the balance found to be due one to the 
 other, that fact generally constitutes a good defense to a suit for 
 accounting.^ But in order that a widow's settlement may operate 
 as a good defense to such a suit, it must be in writing, alliiough no 
 signature or subscription by the parties seems to be required. For 
 while such signature is the ordinary and customary mode of proving 
 the acquiescence of the parties in such settlement, yet such acquies- 
 cence may be shown to exist by parol evidence. * Mere statements, made 
 by the party who has possession of the books of account, will not in 
 themselves constitute what is known in the law as an account stated, 
 until all the parties have acquiesced in the statement so made, and mani- 
 fested by such acquiescence their determination to consider such state- 
 ment as a final settlement of their joint affairs.' Nor does it constitute 
 an account stated where, in consequence of the custom of a firm that 
 new books are to be opened every ten years, in closing the old books 
 balances are struck, and only such balances transferred to the new 
 books. The partners could, notwithstanding this custom, file a suit 
 for accounting, which would involve an inquiry into the items of 
 accounts which are to be found in the older set of books, unless the 
 balances obtained at the time of closing the old books were accepted by 
 such partners as a final settlement of their affairs.' So, likewise, will 
 
 iPointon e. Pointon, L. H, 12 Eq. 547; Crop- 548; Ledyard ». Bull, 119 N. T. 62; Kidder ». 
 
 per V. Knappman, 9 G. & C. Ex. 338; and see MoHenry, 81 N. Car, 123; Boyles. Hardy, 21 Mo. 
 
 Sanderson n. Sanderson, 17Fla. 820; Forward 68; Davies v. Atkinson, 124111.474; Wagnerv. 
 
 •p. Forward, 6 Allen, (Maes.) 494; Hyer ». Bur- Wagner, 50 Gal. 76; Cayton ». Walker, 10 Cal. 
 
 dett, 1 Edw. Ch. (N. Y.) 325; Fiske v. Hills, 11 450; Gage v. Parmalee, 87111. 329; Hanks ». Bar- 
 
 Biss. (U. S.) 294; Boyle v. Boyle, 4 B. Mon. ber, 53 ni. 298; Wood V. Fox, 1 A. K. Marsh. 
 
 <Ky.) 570. (Ky •) 451; Wells». Brstine, 84 La. Ann. 317. 
 
 STumey v. Bayley, 4 De G. J. & Sm. 332; *Correll v. Freeman, 29 App. 39; Ex parte 
 Klnlock V. Greg, 4 Euss. 285; but see MuUioI- Barber, L. E. 5 Ch. App. 687; Walker v. Con- 
 land V. Eapp, 50 Mo. 42; Channon v. Stewart, sett, Forrest, 157; and see Eaymond v. Vaughn, 
 103 111. 541; Eishton v. Grissell, L. E. 5 Bq. 128 III. 250; Groenendyke v. Coffeen, 109 111. 
 326; Harrington v. Churchward, 29 L. J. Ch. 325; Hopley i;. Wakefield, 54 Iowa, 711; Warden 
 621; 6 Jur., u. s., 567; 8 Weekly Eep. 302; Hal- V. Marcus, 45 Cal. 594; Ehyne v. Love, 98 N.Car. 
 lett 17. Cumston, 110 Mass. 32; Hargraye v. 486; Zerano v. Wilson, 8 Cush. (Mass.) 424; 
 Conroy, 19 N. J. Bq. 281; Osbrey v. Eelmer, 61 Wood v. Gault, 2 Md. Ch. 433; Jessup v. Cook, 
 N. Y. 630; Bentley v. Harris, 10 E. L 434; 14 6 N. J. L. 434; Martin v. Smith, (N. J. 1888) 13 
 Am. Eep. 695. Atl. Eep. 398; Main v. Howland, Eich Bq. Cas, 
 
 » Anld V. Butcher, 2 Kans. 135; Neil v. Green- (S. Car.) 358; Hunt v. Belcher, 8 De G. J. & ^m. 
 
 leaf, 26 Ohio St. 567; see, also, Edgar v. Baca, 194; Morris ». Harrison, Colles, 157; Willis v. 
 
 IN.Mex. 613; Dignan v. Dignan, (N.J. 1888) Jernegan, 2 Atk. 251; Coventry v. Barclay, 3 
 
 14 Atl. Eep. 887; Levi v. Karrlck, 13 Iowa, 344; De G. J. & Sm. 320. 
 
 Denton ». Erwin, 6 La. Ann. 317; Groenendyke ^ Irwin v. Young, 1 Sim. & S. 333; Mourain 0. 
 
 V. Coffeen, 109111. 325; Dials. Eogers,4 Desau. Delamre, 4 La. Ann. 78. 
 
 (S. Car.) 175; Silver v. St. Louis, &c. E. Co., 5 " Buckingham ». Ludlum, 39 N. J. Eq. 346. 
 Mo App. 381; Bassett ®. Henry, 34 Mo. App. 
 
 627 
 
§ 535 EQiriTr jueisprudence. [ch. xxxn. 
 
 there have been no account stated, where the mere results are assumed 
 by a general statement of balances, made without a formal exami- 
 nation by the parties into the affairs, and without the acceptance of these 
 general statements as a final settlement of their accounts.^ There may 
 also be partial settlements of partnership affairs, either as to particular 
 branches of business or the entire business for a particular time; and 
 these partial settlements, so far as they extend, will constitute such an 
 account stated as would operate as a good defense to a suit for account- 
 ing.^ An account stated, or a final settlement made by a majority of 
 the partners, wiU be binding upon the minority; ' and nothing but sub- 
 stantial charges of fraud, collusion or mistake, will permit such final 
 settlement to be re-opened.* Where the ground for opening the 
 account is a mistake, the errors of law may be corrected, as well as 
 errors of fact.^ But where a fraud or mistake has been com- 
 mitted or made in the preparation of the account, and the settlement 
 of their affairs, the intentional, even though improper, omission of an 
 item, or its improper insertion, will not be suflicient to correct such, 
 account. This wrongful result must be obtained by fraud or mistake." 
 And in order that the charge of fraud or mistake may result in re-open- 
 ing an account stated, the specific acts of fraud or mistake must be 
 established, and the proof as to them must be clear and free from doubt. ' 
 An action for re-opening the account must be brought within a rea- 
 sonable time after the settlement has been made, and any unreasonable 
 delay will result in a denial to the parties of the right to re- open the 
 account.' When an account stated is re-opened, it may require that 
 all of the items of the transaction should be canvassed and presented; 
 
 1 Lynch ». Bitting, 6 Jones Bq. (N. Car.) 238. Ga. 649; Jolinston v. Freer, 51 Ga. 313; Wag- 
 
 2Holyoke». Mayo, 50 Me. 385; Eakin u. Knox, goners. Minter, 7 J. J. Marsh. (Ky.) 173. 
 
 6 Eloh. (S. Car.) 14; Thompson v. Walker, 39 » Roberts v. Cuffln, 2 Atk. 112; Cobb v. Cole, 
 La. Ann. 892; Thomas v. Gaboury, 80 Ga. 443; 44 Minn. 278; Evans v. Clapp, 123 Mass. 165j 
 Home ». Ingraham, 125 III. 198; Parkhurst v. Smiths. Ayrault, 71 Mioh. 475; Bankhead o. 
 MiJir, 7 N. J. Eq. 307; Moore v. Wheeler, 10 W. Allaway, 6 Coldw. (Tenn.) 56; Clouch v. Moyer, 
 Va. 35; Foster v. Eison, 17 Gratt. (Va.) 321; 23Kans.404; Eakin».Knox,6Rleh. (S. Car.) 14. 
 Newen v. Wetten, 31 Beav. 315; Milford v. Mil- o Maund v. Allies, 5 Jur. 860; Laing v. Camp- 
 ford, McCl. & T. 150; Clark ». Gridley, 41 Gal. bell, 36 Beav. 3; Nicholson©. Janeway, 16 N. J. 
 119; Stretele v. Talmadge, 65 Cal. 510. Eq. 285; Stettheimerc. Killip, 75 N. Y. 282. 
 
 s See Klase v. Bright, 71 Pa. St. 186; Robinson ' Lambert v. Griffith, 44 Mich. 65; Johnson v. 
 
 O.Thompson,! Vern. 465; Kent ii. Jackson, 2 Curtis, 2 Bro. C. C. 311; Furham v. Brooks, & 
 
 DeG. M. & G. 46; Stupart v. Arrowsmith, 3 Pick. (Mass.) 212; Taylor i>. Haylin, 2 Bro. C. C. 
 
 Sm. &. G. 176. 310; Dawson v. Dawson, 1 Atk. 1; Kinsman v, 
 
 *Main«. Howland, Rich. Eq. Cas. (S. Car.) Barker, 14 Ves. 579; Parkinson v. Hanbury, L. 
 
 352; Hoyt v. McLaughlin, 58 Wis. 280; Taylor E. 2 H. L. 1; Thomtoa v. McNeill, 23 Miss. 
 
 ». Shaw, 2 Sm. & Stu. 12; Bdno jj. Caleham, 389; Wilde v. Jenkins, 4 ' Paige, (N. Y.) 481; 
 
 Ton. 306; Nichels c. Mooring, 16 Fla. 76; Bill- Chubbuck». Vernam, 42N. Y. 432; Augsburyti.. 
 
 Ingslea v. Ware, 32 Ala. 415; Wells v. Erstine, Flower, 68 N. Y. 620; Mahnke v. Neale, 23 W. 
 
 24 La. Ann. 317; Rlggs «. Hawley, 116 Mass. Va. 57; Blrkett ». Hird, 55 Wis. 650; Honoiec. 
 
 596; Stettheimer v. Killip, 75 N. Y. 282; Stead- Colmesnil, 1 J. J. Marsh. (Ky.) 506; Winter©^ 
 
 well V. Morris, 61 Ga. 97; Quinlln v. ICeiser, 66 Wheeler, 7 B. Hon. (Ky.) 25; Loesser v. Loes- 
 
 Mo. 603; Donehue v. McCosh, 70 Iowa, 733; ser, 81 Ky. 139; Bry i>. Cook, 15 La. Ann. 493; 
 
 Pettett V. Crawford, 51 Miss. 43; Roach v. Ivey, Harrison v. Dewey, 46 Mich. 173. 
 
 7 S. Car. 434; McLucas v. Durham, 20 S. Car. » Toogood v. Swanston, 6 Ves. 485; Maund v. 
 302; Burdine v. Shelton, 10 Yerg. (Tenn.) 41 ; Allies, 5 Jur. 860; Millar ». Craig, 6 Beav. 433; 
 Getting v. Keighley, 9 Ch. Div. 547; but see Brownell v. Brownell, 2 Bro. C. C. 61 ; Leroy ». 
 Belt V. Mehen, 2 Cal. 159; Herty v. Clark, 46 Lowber, 1 Abb. Pr. (N. Y.) 67. 
 
 628 
 
CH. XXXn.j RECOVERY OF PECUNIARY RELIEF. § 536 
 
 and when the justice of the case requires it, a full accounting between 
 the parties will be made/ and not merely the errors in the account 
 which are to be corrected.* Where the loss of the books of account 
 make it impossible to secure a full accounting/ the court wiU proceed 
 to inquire into the special items of error and wrongful statement in the 
 account, and leave the general account undisturbed.* 
 
 § 536. Taking the account. — Where any disputed questions of 
 fact are raised by the pleadings in other suits for accounting, the 
 court may direct an issue out of chancery to try such questions by 
 means of a sheriff's jury.^ But, generally, in suits for accounting 
 between partners, the partnership and the dissolution of such partner- 
 ship are admitted facts, and in consequence there is nothing to be 
 done but to secure an accounting. The court in that case will decree 
 an accounting to be had by some officer of the court: by the master, 
 if the master in chancery is still retained as an officer of the court in 
 the modern practice; or, in the absence of such an officer, the case 
 would be referred for accounting to the referee or commissioner, who 
 is specially appointed by the court for that purpose. * The master, 
 referee or commissioner, in assuming charge of the case referred to 
 him, proceeds at once to an examination of all the affairs of the parties, 
 in relation to which the accounting is asked for, in all the details.' 
 And it is the duty of the parties to the suit for accounting to bring 
 before him and for his examination all the papers and books of account 
 and agreements of partnership or joint action, as the case may be, or 
 which are in any way whatever related to the subject-matter of the 
 business, in respect to which the accounting is to be had.' The books 
 of account, which contain the statement of the business affairs of the 
 parties, are presumed to contain a correct and true statement of 
 
 iBotifeur v. Weyman, 1 McCord Eq. (S. ^33; Brownell v. Brownell, 2 Bro. C. C. 61; 
 
 Car.) 156 J Gray v. Washington, Cooke, (Tenn.) I-eroy v. Lbwber, 1 Abb. Pr. (N. T.) 67. 
 
 321; Vemon v. Vawdrey, 2 Atk. 119; Mat- ^ carlin u. Donegan, 15 Kans. 495; French o. 
 
 thews V. Wallwyn, 4 Ves, 118; Middleditoh v. ^all, 2 Tex. 288; Setzer v. Beale, 19 W. Va. 274; 
 
 Sharland, 5 Ves, 87; Stainton ». Carron Co. , 24 Carlmj. Donegan, 15 Kans 495. 
 
 Beav. 346 AUfriy v. Allfrey, 1 Mac. & G. 87; ^ .^"^T ^^ ^^'Z^^' ^ i J' T' f°°"^' 
 
 , ' „^ W.J. ^ ^ field «. Buchanan, 14 Oregon, 181; Pordyce t). 
 
 see, also, Wharton .;. May, 5 Ves 27; Bean- ^^^^^^^ ^^^ jy_ ^3 ^^^ ^^^ Qrawshay «. Col- 
 
 niont«.Boultbee,5Ves.485;7Ves.599;Keough Ur^s, 2 -Rubs. 3i7 ; Morgan «. Adams, 37 Vt. 233; 
 
 V. Foreman, 33 La. Ann. 1434; Roberts v. Tot- jjewen v. Wetter, 31 Beav. 315; and see Blifflns 
 
 ten, 13 Ark. 609; Black v. Merrill, 65 Cal. 90; ^ Wilson, 113 Mass. 248; Smith v. Barringer, 74 
 
 Bailey v. Moore, 25 111. 306; Hunt v. Stuart, 53 u. Car. 665. 
 
 Md. 225; Leonard v. Leonard, 1 W. <fc S. (Pa.) 7 Brookman v. Aulger, 12 111. 277; Bernie v. 
 
 342; Gething v. Keighley, 9 Ch. Div. 547. Vandever, 16 Ark. 616; and see Killefer t). Mo- 
 
 2Bnrdine v. Shelton, 10 Yerg. (Tenn.) 41; Lain, 70Mich.508; Eaton's Appeal, 66Pa. St.483. 
 
 Pitt V. Cholmondeley, 8 Ves. Sr. 565; Vemon v. * Ashley v. Williams, 17 Oregon, 441 ; Maupin 
 
 Vawdrey, 2 Atk. 119; Van Horn v. Van Horn, v. Daniel, 3 Tenn. Ch. 223; Van Horn i>. Van 
 
 52 N. J. L. 284; Chubbuck v. Vernam, 42 N. Y. Horn, 52 N. J. L. 284 ; Adams v. Funk, 53 111. 219; 
 
 432, Wheatleyc. Wheeler, 34 Md. 62; Brockman ». 
 
 3 Millar V. Craig, 6 Beay. 433; Branch ». Auger, 12111. 277; Montanye v. Hatch, 34 HI. 
 
 Cooper, 82 Ga. 512; Smith v. Fitohett, 56 Hun, 394; Succession of Andrew, 16 La. Ann. 197; 
 
 (N. T.) 473; Appeal of Vamer, (Pa. 1888) 16 Atl. Kelley v. Bckford, 5 Paige, (N. T.) 548; Steb- 
 
 Eep. 98. bins ». Harmon, 17 Hun, (N. Y.) 445; Galloway 
 
 * Toogood V. Swanston, 6 Ves. 485; Maund v. v. Tate, 1 Hen. & M. (Va.) 9; Clark v. Gridley, 
 
 Allies, 5 Jur. 860; see Millar v. Craig, 6 Beav. 49 Cal. 105. 
 
 629 
 
§ 536 
 
 EQUITY JUKISPBUDENCE. 
 
 [cH. xxxn. 
 
 accounts between the parties.^ This presumption in favor of the 
 accuracy of the books of account is not overthrown by the fact, that 
 they have been badly kept;"" or that one partner has had exclusive 
 possession of such books; ' or because some of the books have been 
 lost, and it is impossible for the presumption of a balance to be applied 
 to the remaining books.' Where the statement of account assumes 
 the form of an account stated, the presumption of correctness becomes 
 still stronger." And until the accuracy of the statements in the books 
 has been disproved, the books themselves are primary evidence of the 
 facts stated in them, without special proof of these items by other 
 evidence." But if the partner, having possession of the books, refuses 
 to give to the other partners during the course of the business, any 
 opportunity to inspect and examine the books of account, the presump- 
 tion of the accuracy of the statements in such books is overthrown. ' 
 And even when there has been sufficient opportunity given to all parties 
 to inspect such books of account, even then they are oviij prima facie 
 evidence of the business affairs of the parties, and are also subject to 
 the charge and proof of inaccuracy.' On the other hand, any charge 
 of error, made by the partner whose duty it was to keep the books, 
 will be closely scrutinized, and the presumption will be against the 
 existence of such an error.' And if such partner should destroy or 
 otherwise dispose of the books, the presumption of the law will be 
 against his claims.'" In all cases, whether the books have been regu- 
 
 1 Carpenter v. Camp, 39 La. Ann. 1084; Parker 
 V. Jonte, 15 La. Ann. 290; Foster v. Fifield, 29 
 Me. 136; Wheatleyr. Wheeler, 34 Md. 62; Top- 
 liff V. Jackson, 12 Gray, (Mass.) 565; Lambert v. 
 Griffith, 44 Mich. 65; Tucker u. Peaslee, 36 N. H. 
 167; Dunnell v. Henderson, 23 N. J. Eq. 174; 
 Heartto. Corning, 3 Paige, (N. Y.) 566; Allen v. 
 Coit, 6 Hill, (N. Y.) 318; Fairchild v. Fairchild, 
 64 N. T. 471 ; ChecTcr v. Lamar, 19 Hun, (N. Y.) 
 130; Philips v. Turner, 2Dev. & B. Eq. (N. Car.) 
 123; Desha v. Smith, 20 Ala. 747; Kahn v. Boltz, 
 39 Ala. 66; Hallers. Williamowlcz, 23 Ark. 566; 
 Hale V. Brennan, 23 Gal. 511 ; Pond v. Clark, 24 
 Conn. S70; Stuart v. McKlohan, 74 111. 122; 
 AVaeev. Waohter, 74 111. 173; O'Brien ». Hanley, 
 86 111. 278; Kitner v. Whltlock, 88 111. 513; Eden 
 V. Lingenfelter, 39 Ind. 19; Hunter v. Aldrich, 
 53 Iowa. 442; Cunningham v. Smith, 11 B. Mon. 
 (Ky.) 325; Boire o. McGinn, 8 Oregon, 466; 
 Bichardson v. Wyatt, 2 Desau. (S. Car.) 471; 
 Myers v. Bennett, 3 Lea. (Tenn.) 184; Shoe- 
 maker Piano Mfg. Co. 7>. Bernard, 2 Lea. (Tenn.) 
 258; Saunders v. Duval, 19 Tex. 467; Fletcher 
 V. Pollard, 8 Hen. & M. (Va.) 544; Brickhouse 
 V. Hunter, 4 Hen. & M. (Va.) 363; Shackleford v. 
 Shaokleford, 32 Gratt. (Va.) 481; Withers v. 
 Withers, 8 Pet. (U. S.) 355; U. S. Bank v. Bin- 
 ney, 5 Mason, (U. S.) 176. 
 
 SToplifft). Jackson, 12 Gray, (Maes.)565j Fos- 
 ter V. Fifield, 29 Me 136. 
 
 ' Moon V. Story, 8 Dana, (Ky.) 226. 
 
 • Sangston «. Hack, 58 Md. 173. 
 
 'Desha v. Smith, 20 Ala. 747; Pond V. Clark, 
 
 630 
 
 24 Conn. 370; Kitner v. Whitlock, 88 111. 513j 
 Gage V. Parmalee, 87 111. 329; Richardson v. 
 Wyatt, 2 Desau. (S. Car.) 271. 
 
 ' Powers V. Dickie, 49 Ala. 81 ; Brickhouse V. 
 Hunter, 44 Hen. & M. (Va.) 363; Fletcher v. 
 Pollard, 8 Hen. & M. (Va.) 544. 
 
 ' Layton v. Hall, 25 Tex. 404; Withers v. 
 Withers, 8 Pet. (U. S.) 355; U. S. Bank v. Bin- 
 ney, 5 Mason, (U. S.) 176; and see Taylor v. 
 Herring, 10 BoBW. (N. Y.)447; Sutton v. Mande- 
 ville, 1 Cranch, (0. C.) 2; Haller*. Williamo- 
 wicz, 23 Ark. 566; Wheatley ». Wheeler, 34 Md. 
 62; Philips v. Turner, 2 Dey. & B. Eq. (N. Car.) 
 123; Shoemaker Piano Mfg. Co. ». Bernard, 2 
 Lea. (Tenn.) 358; Saunders !!.DuTal,19 Tex. 467. 
 
 'Hunter v. Aldrich, 58 Iowa, 442; ToplifE v. 
 Jackson, 12 Gray, (Mass.) 565; Lambert v. Grif- 
 fith, 14 Mich. 65; Boire v. McGinn, 8 Oregon, 
 466; Heartt v. Coming, 3 Paige, (N. Y.) 566; 
 Scott V. Shipherd, 3 Vt. 104. 
 
 "Pierce v. Scott, 37 Ark. 308; Bevans v. Sul- 
 livan, 4 Gill, (Md.) 383; Harvey v. Varney, 104 
 Mass. 436; Brown v. Haynes, 6 Jones, (N. Car.) 
 49 ; Moon v. Story, 8 Dana, (Ky .) 226 ; Dimond v. 
 Henderson, 47 Wis. 172 ; Van Ness v. Van Ness, 
 32 N. J. Eq. 669; Gage v. Parmalee, 87 111. 329; 
 McCabe «. Franks, 44 Iowa, 208; Leftwitch v. 
 Leftwich, 6 La. Ann. 346; Hall v. Clagett, 48 
 Md. 223. 
 
 10 Gage V. Parmalee, 87 ni. 329 ; Askew w.Oden- 
 heimer, Baldw. (U. S.) 380; Robertson v. Gibb, 
 38 Mich. 165; see Gray v. Haig, 20 Beav. 819; 
 Walmsley v. Walmsley, 3 Jo. & Lat. 556; Pome- 
 
CH. XXXII.] RECOVERY OF PECUNIARY RELIEF. § 536 
 
 larly or irregularly kept, inaccuracy may be charged and proven by 
 parol evidence. ^ 
 
 After making a thorough examination of 'the accounts of the parties, 
 the duty of the master or referee is to strike a balance and ascertain 
 what is due by one party to another, or what are the shares of each 
 party in the joint estates, as the case may be, and make a report to the 
 court of his conclusions of fact. And when the report is presented, 
 and is not contested by any of the parties, or if contested, when such 
 contest has been settled, the report, as corrected under the judicial 
 inquiry, or as it stands when presented to the court without contest, 
 will then be confirmed by the court; and the court then issues a 
 writ or decree directing the parties to perform the pecuniary obliga- 
 tions, which the report has shown to be due one to the other. 
 
 roy V. Benton, 77 Mo. 64 j Johnson v. Garrett, 23 325 ; Flannigau v. Maddin, 81 N. Y. 623 ; Honore 
 
 Minn. 465j Wallace v. Berger, 14 Iowa, 183j v. Colmesnil, 1 J. J. Marsh. (Ky.) 506j and see 
 
 Churchman B. Smith, 6 Whart. (Pa.) 146 j White McCabes. Franks, 44 Iowa, 208; Jessupti. Cook, 
 
 V. Magann, 65 Wis. 86. 6 N. J. L. 434; Barry v. Barry, 3 Cranch, (C. C.) 
 
 ' Maddox «. Stephenson, 60 Ga. 135s Milleri). 120; Eandle ». Richardson, 63 Miss. 176 ; Seltzer 
 
 Howard, 26 N. J. Eq. 166; Boire v. McGinn, 8 V. Brundage, (Pa. 1889) 17 Atl. Eep. 9. 
 
 Oregon, 466; Cunningham v. Smith, 11 B. Men. 
 
 631 
 
CHAPTER XXXIII. 
 
 BILLS QUIi TIMET, INCLUDING BILLS TO PERPETUATE TESTIMONY AND 
 TO BEMOVE CLOUDS FROM TITLE. 
 
 Section 
 
 General statement 539 
 
 Covenants to indemnify. — Bonds of in- 
 demnity. — Eiglits of sureties in lespect 
 
 thereto 540 
 
 Trust estates and estates for life . . 541 
 
 Bills to perpetuate testimony 
 Bills to remove cloud from title 
 Statutory suits to quiet title 
 Suits to interpret and construe wills 
 Belief granted in bills quia timet 
 
 Sbotioh 
 . 542 
 . 543 
 . 544 
 . 545 
 . 546 
 
 § 539. General statement. — The peculiar characteristic of all 
 common law remedies is the postponement of all opportunity to 
 resort to such remedies, until the injury complained of has been suf- 
 fered; and the party suffering then appeals to the court, not for an 
 avoidance or prevention of the future injury, but damages for the 
 injury already suffered. On the other hand, a court of equity acts 
 upon the familiar maxim, "An ounce of prevention is worth a pound 
 of cure," and prefers a resort to remedies preventive in their nature, 
 instead of compensatory for past injuries. The equitable remedy of 
 injunction, which has been already fully explained in a previous chap- 
 ter, constitutes one branch of such preventive remedies. But there 
 are other cases, in which the remedy of injunction, as commonly 
 applied, would prove inefficacious or insufficient to reach the needed pro- 
 tection to rights, which are threatened. The injunction can only be 
 employed for preventing the commission of injuries which appear to be 
 imminent and certain. Where there is a serious and well grounded fear 
 of the commission of an injury or the suffering of damages, but this 
 injury or damage is not imminent or certain, the injunction cannot be 
 resorted to; and, in consequence of the irreparable damages that 
 would flow from the happening of the threatened injury, there is a caU 
 for the interference by the court in some way, so as to prevent the 
 injury which is threatened. In order to supply that want, courts of 
 equity have in times past consented to hear and receive, what are 
 known as bills quia timet; a bill which prays the intervention of the 
 court and the application to the case of some appropriate relief, not 
 because some party plaintiff has suffered an injury, or is in imminent 
 'danger of suffering an injury from the wrongful acts of another; but 
 isimply because he fears, or has reasonable cause to fear, that if he is 
 compelled to wait until the danger becomes imminent, or the injury 
 actually committed, the damage thus suffered by him would prove 
 irreparable. The court will for such reasons entertain the case and 
 igrant the relief, which is most appropriate to the needs of the 
 particular party. 
 632 
 
CH. XXXin.] BILLS QUIA TIMET. § 540 
 
 § 540. CoTenants to indemnify. — Bonds of indemnity. — Bights 
 of sureties in respect tliereto. — Among the cases, in which the 
 court of equity will entertain a bill quia timet, are the cases of 
 covenants or bonds of indemnity, where there is danger of an 
 irreparable injury, if the court does not interfere to compel a specific 
 performance of such covenant or bond, in consequence of the possible 
 change in the financial condition of the parties and the consequent 
 inability at a subsequent time of securing a specific performance of 
 the covenant.^ But there must be something more than mere appre- 
 hension of damage, in order that a court may interfere with any ordin- 
 ary covenant of indemnity; as for example, in the case of covenants 
 in deeds of conveyance against incumbrances. The general rule is, 
 that a court of equity will not grant the relief under the quia timet 
 jurisdiction against the possible damage on the breach of the covenant 
 against incumbrances, but the parties will ordinarily be left to their 
 ordinary actions at law.^ In order that the equitable relief may be 
 applied to such cases, the circumstances must be unusual and contain 
 some element involving a peculiar and extraordinary danger.' Of the 
 same character are the cases of sureties against debtors and other 
 obligors. The bill quia timet is very often employed for the protec- 
 tion of the sureties against the primary debtor and creditor, looking 
 towards an immediate settlement of the debt, for which the surety is 
 secondarily responsible. Thus the surety, who apprehends loss or 
 injury from a delay in the settlement of the debt, files a bill quia timet 
 against the creditor, and compels the creditor to enforce his claim 
 against the primary debtor immediately, provided such a decree will 
 not operate injuriously to the interests of the creditor. If there is any 
 • doubt as to such danger resulting from the enforced sale of the assets 
 of the debtor, a decree will be issued against such creditor, only upon 
 the execution to him by the surety of a bond of indemnity against 
 such possible loss.* But, perhaps, the more common case is where a 
 surety files a bill quia timet to compel the primary debtor to pay the 
 ■debt immediately and without delay. ^ Ordinarily, these cases of bills 
 
 1 Flight V. Cook, 2 Ves. 620; Burroughs •.. "■ Hogue, 8 Jones Eq. (N. C.) 479j Henry v. 
 
 -.1 -KT -Ti I.T. t ij t -!!.„ /-NT n \ <xw. -D<,r>o EUiott, 6 Joues Eq. (N. C.) 175 J MillCF 1). Loug, 
 
 McNeill, 2Dev. & Bat. Eq (N. C.) 29T; Eane- ^ ^^^ .^' ; Tlmberlake, 6 
 
 laughs. Hayes, IVem. 189; Hemming®. Mad- Marsh (Ky) 233 
 
 dick, L. E-;? Ch 395; Champion .. Brown, 6 sgelbyr. Marskall, 1 Blackf. (Ind.)385; Jones 
 
 Johns. Ch. (N.T.) 406. i;. Waggoner, 7 J. J. Marsh. (Ky.) 144 ; Eef eld ». 
 
 SBusby V. Tredwell, 24 Ark. 457; Bark- ^^odfolk, 22 How. (U. S.) 318; Tallman v. 
 
 hamstedr. Case,5Conn.528;PerciTal«.Hurd, ^^^^^^ 3 g^^^j (jj y^ 437. g^g ■R^^'i.ox of 
 
 5 J. J. Marsh. (Ky.) 670; Hall ». Pnest, 6 Bush, Trinity Church v. Higglns, 4 Rob. (N. Y.) 372; 
 
 (Ky.) 14; Young v. Butler, 1 Head, (Tenn.) 646; Tjnte v. Miller, 10 Ohio, 382; Watkins v. Owen, 
 
 Mlddlekuffti.Barrick, 4 6111, (Md.) 290; Timms 2 J. J. Marsh. (Ky.) 142; Barnett v. Mont- 
 
 ■V. Shannon, 19 Ind. 296; Harris v. Eanson, 24 gomery, 6 Monr. (Ky.) 327. 
 
 Miss. 234; Glenn v. Whipple, 1 Beasley's Ch. * Hayes «. Ward, 4 Johns. Ch. (N. Y.) 123; see 
 
 <N. J.)50; Akerlyi). Vilas, SlOhio, 88; Weaver Stephenson v. Taverners, 9 Gratt. (Va.) 398; 
 
 V. Wilson, 48 111. 128; Eawle on Covenants of King v. Baldwin, 2 Johns. Gh. 561; Wright v. 
 
 Title, (4th ed.) 681; Whitwortho. Stuokey, 1 Simpson, 6 Ves. 734; Rees «. Berrington, 2 Ves. 
 
 Rich. Eq. (S. C.) 408; Beal v. Seiveley, 8 Leigh, Jr. 540. 
 
 (Va.) 658; Clanton v. Burgess, 2 Dev. Eq. 15; ' Cox«. Tyson, 1 Turn. A Euss. 395; Nisbet v. 
 
 Merritt v. Hunt, 4 Ired Eq. (N. C.) 406; Wilkins Smith, 2 Bro. Ch. 579. 
 
 633 
 
§ 641 EQUITY JUBISPRUDENCE. [CH. XXXHI. 
 
 qwia timet, brought by the surety, are instituted after the debt falls due; 
 but it is not without precedent that, under extraordinary circumstances, 
 the court will entertain the bill quia tvmet brought by the surety, even 
 before the notes representing the debt have fallen due, in order to 
 give to the surety whatever benefit he may obtain, through the biU 
 quia Umet, in securing the subject-matter of the transaction.' 
 
 § 641. Trust estates and estates for life.^The same remedy is 
 sometimes resorted to for the protection of the interests of the benefic- 
 iary, where his property, in the hands of a trustee or agent for a partic- 
 ular purpose, is in danger of being misappropriated to the prejudice of 
 the beneficiary, and the intervention of a court of equity is sought for, 
 to prevent such threatened misappropriation or misapplication. This 
 principle is apphed to all parties, who have possession of property in 
 a fiduciary character, whether they be technical trustees, or agents or 
 executors, and the Hke.^ But the danger must be imminent and the 
 damage resulting from the threatened injury irreparable, in order that 
 the intervention of a court of equity by a biU quia timet may be had.* 
 
 So, also, where personal properly has been limited for life with the 
 remainder over, and there is danger of irreparable injury to such 
 property by the life tenant, the court of equity will entertain a bill 
 quda timet, for the purpose of pifeventing such threatened injury by 
 the application of the necessary equitable remedies.* But the court 
 will not interfere in the exercise of this extraordinary jurisdiction, 
 merely for the purpose of declaring the future rights of the parties in 
 and to the personal property, except in the one case of suits brought 
 for the purpose of construing a will, or to determine the proper dispo- 
 sition of property by the executor under the will.^ Of the same 
 character, also, is the application to the court by a biU quia timet for the 
 protection of property claimed by two or more parties during the 
 pendency of a suit, in which the Question of titie is to be deter- 
 mined." 
 
 »Walkert>. Miller, 11 Ala. 1067. §843j Emmons v. Caims, 2 Sandf. Ch. 369; 
 
 'Taylor®. AIlen,2Atk.313j UtteiBonB. Mair, Covenhaven ». Shuler, 2 Paige, 123; Jamesv. 
 
 4Bro.Ch.2r7j Middletoni). Dodswell, 13Vesey, Scott,9 Ala. 579; Plight ». Cook, 3 Ves. Sr. 619; 
 
 266j Elmendorf v. Lansing, 4 Johns. Ch. (N. Cranston v. Plumb, 54 Barb. (N. T.) 59; Pres- 
 
 Y.)562; see Eous ti. Noble, 2 Vern. 249; Bat- ton v. Smith, 23 Fed. Rep. 737; Vanduyneo. 
 
 ten V. Earnley, 2 P. Wms. 163. Vreeland, 1 Beasl. (N. J.) 142, McDougal B. 
 
 8 Mandeville ■!). Mandeville, 8 Paige Ch. (N. Armstrong, 6 Humph. (Tenn.) 428; Bowling D. 
 T.) 475; Shields v. Shields, 60 Barb. (N. Y.) 56; Bowling, 6 B. Monr. (Ky.) 31; McNeill v. Brad- 
 Watson v. Bothwell, 11 Ala. 650; Blalock v. ley, 6 Jones Eq. (N. C.)41. 
 Hardy, 37 Miss. 615; Camp*. Elston, 48Ala. 81; ^Blaok v. Fleece, 2 Lea. (Tenn.) 566; Cross®. 
 Elmendorf v. Lansing, 4 Johns. Ch. (N. T.) De Valle, 1 Wall. 14; Lorillard ». Coster, 5 
 563; see Rous v. Noble, 2 Vern. 249; Batten v. Paige, 172; Hawley v. James, 5 Paige, 443; Gir- 
 Eamley, 2 P. Wms. 163; Taylor ». Allen, 2 Atk. ard «. Philadelphia, 7 Wall. 1; see Grove v. 
 313; Utterson®. Mair, 4Bro. Ch.277; Middle- Bastard, 2 Phillips, 621 ; Langdale B. Briggs, 39 
 ton®. Dodswell, 13 Vesey, 266. Eng. Law& Eq. 314; 8 De G. M. & G. 391; 
 
 4 Sandersons. Jones, 6 Fla. 430; Gibson v. Perry on Trusts, § 17; Baylies «. Payson, 5 
 
 Jayne, 37 Miss. 164; Collins v. Barksdale, 33 Ga. Allen, (Mass.) 473; Price v. MInot, 107 Mass. 62. 
 
 602; Champlain®. Champlain, 4Edw. Ch. (N. As to'bills for construing a will, see § 545. 
 
 Y.)228; Pattison ». Gilford, L. H. 18 Eq. 259; "Building Assn. i-. Ashmead, 7 Phlla, (Pa.) 
 
 Clark V. Clark, 8 Paige, 152; 2 Story Eq. Jur., 272; Peak«. Hayden, 3 Bush, (Ky.) 135. 
 
 634 
 
CH. XXXIII.] BILLS QUIA TIMET. § 543 
 
 § 542. Suits to perpetuate testimony. — A suit to perpetuate testi- 
 mony could be maintained in equity, whenever the plaintiff at the time 
 of bringing the suit had some vested or contingent right, which could 
 not then be investigated, established or defended by an action at law; 
 and such right is one which did not involve the immediate possession 
 of the property alone, but some future interest which is to take effect 
 upon the happening of some future event. But while the plaintiff, in 
 a suit to perpetuate testimony, need not, and in fact does not, have an 
 immediate cause of action, or the immediate right to the possession or 
 enjoyment of his interest in the property, yet there must be some 
 fixed interest in such property claimed by the plaintiff; it must be an 
 interest which is recognized and maintained by the law, although it 
 might be contingent or conditional.^ Thus, for example, the plaintiff 
 cannot bring suit to perpetuate testimony in respect to the possibility 
 of an interest which he may have in the property of his ancestors, in 
 his character as an heir at law. " In England this rule has been changed 
 by statute, so that the plaintiff in a suit to perpetuate testimony is not 
 required to have any positive or actual legal interest in the property; 
 but a mere possibility as an heir at law would be sufficient to support 
 the suit, where such suit to perpetuate testimony could be shown to 
 be needful in the future.^ 
 
 The plaintiff's interest may be in any kind of property, either real 
 or personal, corporeal or incorporeal.* But it must be a right or 
 interest which could not possibly be the subject of an immediate action 
 at law or in equity. Where the party can bring the suit immediately 
 to an issue, there is no reason why the testimony should be perpetuated, 
 and hence a suit for that purpose would not be entertained. ^ As soon 
 as the testimony is obtained, then the purpose of the suit has been 
 fully performed, and it comes to a close; nothing more is needed or 
 required to be done, except the publication of the evidence, as it is 
 called in chancery practice, which constitutes in fact a filing or record- 
 ing of such evidence. It is only done, however, in aid of a special 
 cause of action, or upon the death of the witness whose testimony has 
 thus been obtained." This equitable remedy for the perpetuation of 
 testimony is now very generally superseded in all the American states, 
 where the civil code of procedure has been adopted, by statutory rem- 
 edies of a simpler and more convenient character. 
 
 § 543. Bills to remove clond from title. — The principle, involved 
 in the equitable bill qma timet, has also been applied to cases where 
 
 1 Earl of Belfast v. CMcliester, 2 J. & W. 451, « Angell v. Angell, 1 S. & S. 83 j EUioe v. Rou- 
 
 452; Townshend Peerage Cases, 10 CI. & Pin. pell, 32Beav. 299; Earl Spencer ». Peek, L. R. 
 
 289; Dursley v. Fitzhardlnge, 6 Ves. 251; Allan 3 Eq. 415. 
 
 ». Allan, 15 /(£ 134, 135, 136. « Morris ». Morris, 2 Ph. 205; Atty.-Gen. ». 
 
 s Inre Tayleur, L. E. 6 Ch. 416; Saokville v. Ray, 2 Hare, 518; Beavan v. Carpenter, 11 Sim. 
 
 Ayleworth, 1 Vern. 105, 106. 22; Wright ti. Tatham, 2 Ja. 459; Angelic. 
 
 s Campbell «. Earl of Dalhousie, L. E. 1 H. Angell, 1 S. & S. 83; Morrison v. Arnold, 19 Ves. 
 
 L. Sc. App. 462. 670; Bamsdale v. Lowe, 2 Russ. & My. 142. 
 
 * Earl of Suffolk v. Green, 1 Atk. 450. 
 
 635 
 
§ 543 EQUITT JUKISPEUDENCE. [OH. XXXm. 
 
 the question of an incumbrance, or apparent defect in the title to prop- 
 erty, throws upon the property a cloud or objection, which detracts 
 from the salableness of the land. In such cases the bill will be enter- 
 tained by a court of equity to remove the so-called cloud from the title, 
 and restore to it its marketable character.' And the relief is granted, 
 on the ground that the debt, or other instrument which constitutes 
 the cloud, may, if not removed, be asserted to the injury or vexation 
 or embarrassment of the plaintiff, in the enjoyment or disposition of 
 his property.^ In order that the jurisdiction to remove the cloud from 
 the title may be exercised by a court of equity, either the interest or 
 title must be equitable; or if the title be legal, then the remedies at 
 law must be inadequate to the protection of the interest.' The gen- 
 eral principle, in respect to the hmitation of the equitable jurisdiction, 
 applies here, viz. : that a court of equity will never interfere for the 
 purpose of trying disputed questions of title. And as long as there is 
 no legal adjudication of the right to the legal title, it will generally 
 refuse to entertain a biU to remove a cloud upon the title. In the appli- 
 cation of this principle to the particular case, the authorities have been 
 at variance as to the extent, to which it would be necessary for the 
 plaintiff to have possession of the premises, in respect to whose title the 
 relief is sought, in order to support his claim to the equitable relief. 
 Some authorities state without qualification, that a plaintiff, seeking to 
 have a cloud removed from his title, should under all circumstances have 
 the possession of the property.* While, on the other hand, other cases 
 state that possession is never necessary in the plaintiff. ' But, probably, 
 the true rule is to be found midway between these two extremes, and 
 certainly the great maj ority of the cases are found keeping to the middle 
 ground. The general rule is, that where a plaintiff asks for the equi- 
 table relief from a cloud upon a legal title, when he is out of possession, 
 he is left to his remedy by ejectment.' And, on the other hand, if he 
 
 1 Hayward ». Dlmsdale, 17 Ves. Ill ; Mayor of Long, 13 Pla. 288; Lockwood v. City of St. 
 Colchester v. Lowten, IV. & B. 228, 244; Pettlt Louis, 24 Mo. 20. 
 
 ■V. Shepherd, 5 Paige, 493, 501 ; Apthorp v. Com- * Miller v. Neiman, 2Y Ark. 233; Kearne v. 
 
 stock, 2 7(r. 482; Peirsoll«.-Elliott, 6Pet. 95, 98. Kyne, 66 Mo. 216; Haythorn %,. Margerem, 3 
 
 2 Hagem. SMndler, 29 Cal. 47, 55; Eckman v. Halst. Ch. 324; Busbee v. Lewis, 85 N. C. 332; 
 Eckman, 55 Pa. St. 269, 273; 1 Fonbl. Eq. Bk. 1, Herrington v. Williams, 31 Tex. 448; Clark v. 
 Ch. 1, § 8, and n. (y.) ; see, also. Shell v. Martin, Covenant, &c. Ins. Co., 52 Mo. 272; Orton v. 
 19 Ark. 139, 141. Smith, 18 How. (TJ. S.) 263; Daniel ». Stewart, 
 
 a Grigg V. Swindal, 67 Ala. 187; Miller V. Nei- gg j^j^. g^g. ^rnett v. Bailey, 60 M 435; Tyson 
 
 man, 27 Ark. 233; Crane v. Randolph, 30 M. 579; ^_ Bto^, 64 Id. 244; Baines v. Barnes, 64 Id. 
 
 Munsonc. Munson, 28 Conn. 582; Common- 375; Smith's Ex'r )). Cockrell, 66 /d. 64. 
 
 wealth .,. Smith, 10 Allen, 448; Kennedy v. 6 Almony v. Hicks, 3 Head, 39; Hager «. 
 
 Northnp, 15 111. 148; Moran v. Palmer, 13 Mich. shindler,29 Cal.47; Thompson «. Lynch, 29 /d 
 
 367; King*. Carpenter, 37 Id. 363; Branch^. 189 ; Buch». Gallagher, 5 Blatch. 481; Jones ». 
 
 Mitchell, 24 Ark. 431; Hall v. Whiston, 5 Allen, gmith 22 Mich. 360. 
 
 126; Hinckley v. Greany, 118 Mass. 595; Daniel crane V. Randolph, 30 Ark. 579; Munson v. 
 
 •B.Stewart, 55 Ala. 378; Redmond v. Packen- Munson, 28 Conn. 582; Kings. Carpenter, 37 
 
 ham, 66111. 434; Martini). Graves, 5 Allen, 601; jiieh. 363; Lawrence©. Zimpleman, ST Ark. 643; 
 
 Sullivan ». I-innegan, 101 Mass. 447; Plants. Odel ». Odel, 73 Mo.289: Burton «. Gleason, 56 
 
 Barclay, 56 Ala. 561; Jones v. De GrafCenreid, xil. 25; Polk v. Pendleton, 31 Md. 118; Branch 
 
 60 Id. 145; De Witt v. Hays, 2 Cal. 463; Hager v. ^. jiuchell, 24 Ark. 431, 439; Moran v. Palmer, 
 
 Shindler, 29 Id. 47; Gage «. Rohrbach, 56 111. 13 Mich. 367, 370. 
 262, 266; Gage V. Billings, 56 Id. 268; Budd u. 
 
 636 
 
CH. XXXni.] BILLS QULA. TIMET. § 643 
 
 is in possession, and for that reason cannot obtain any remedy or pro- 
 tection by his action at law, then the bill to remove the cloud upon 
 the title wiU be entertained. So, also, where the plaintiff out of pos- 
 session has an equitable title, or he holds his equitable title under such 
 peculiar circumstances that the law cannot furnish him full and com- 
 plete relief; and if irreparable damage is to be feared from the delay 
 necessitated by a resort to the action of ejectment, before the bill to 
 remove the cloud from the title is entertained, then the courts have in 
 many cases dispensed with the action of ejectment, and permitted an 
 immediate resort to equity to have the cloud removed.^ The ordinary 
 cases, in which the resort to this equitable relief is necessary to pre- 
 vent the danger of vexation and loss to the owner of land, is where 
 extrinsic evidence is necessary to prove the invalidity of the instru- 
 ment of conveyance, or agreement which constitutes the cloud. ^ Still, 
 if the defect appears upon the face of the instrument, and a resort tO' 
 extraneous evidence is not necessary to prove its invalidity, then such a 
 deed or other legal instrument cannot be treated as really being a cloud 
 upon the title, certainly in the technical sense; because by no possible 
 means can such a deed be employed to annoy or interfere with the plaint- 
 iff' s enjoyment of his property. Hence, for that reason, it has been 
 held, that the equitable interference to remove the cloud from the title 
 would not be permitted in such a case.' The reason for the refusal of 
 the equitable aid to such cases is the technical one, that there is, in fact, no 
 cloud to be removed, where the deed or other instrument, which con- 
 stitutes the ground for asserting an adverse claim to the land is on its 
 face absolutely void, and therefore cannot be used successfully in 
 interference with the title of the true owner. Hence, the courts refuse 
 the equitable relief for the removal or cancellation of this deed or other 
 instrument, because the instrument has no legal effect and cannot have 
 any, because no extraneous evidence is needed for the purpose of 
 proving its invalidity. Where extraneous evidence is needed, the possi- 
 
 1 Low V. staples, 2 Nev. 209, 212; Piera. Fond Tephila v. Mayor, &c., 53 How. Pr. 213; Daniel 
 
 du Lac, 38 Wis. 470; Lawrence v. Zimpleman, , «. Stewart, 55 Ala. 278, 
 
 37Ark. 643, 645; Boothj;. Wiley, 102111.84, 114; 'Shepardson v. Supervisors, 28 Wis. 593; 
 
 Redmond v. Packenham, 66 111. 434; Plant v. '^^'SS^ '»■ Johnson, 71 Me. 235; Busbee v. Maoy, 
 
 Barclay, 56 Ala. 561; Thompson v. Lynch, 29 
 Cal. 189; Eager v. Shindler, 29 Id. 47; Kennedy 
 
 85 N. C. 329; Minturn v. Smith, 3 Sawy. 142; 
 
 Curtis V. City of East Saginaw, 35 Mich. 508; 
 
 Merchants' Bk. v. Evans, 51 Mo. 335, 345; Farn- 
 V. Northup, 15 111. 148, 152; Branch v. Mitchell, j^^^ ^ Campbell, 34 N. Y. 480; Dederer v. 
 24 Ark. 431, 439; King v. Carpenter, 37 Mich. Voorhies, 81 Id. 153; Stuart v. Palmer, 74 Id. 
 363; Ormsby v. Barr, 22 Id. 80, 84. 183; Townsendi). Mayor, .fee., 77 Id. 543; Wells 
 
 2 Smith ®. Fellows, 9 J, & S 36; Barton v. v. City of Buffalo, 80 iS. 253; Peirsoll i>. Elliott, 
 Drake, 21 Minn. 299; Lockett v. Hurt, 57 Ala. 6 Pet. 95; Posey!). Conaway, 10 Ala. 811; Cohen 
 198j Lick V. Bay, 43 Cal. 83; Alden v. TrubPe, 44 v. Sharp, 44 Cal. 29; Head V. James, 13 Wis. 641 ; 
 Conn. 455; Brooks v. Kearns, 86 111. 547; Clark Heywood v. City of Buffalo, 14 N. Y. 534; Over- 
 V. Covenant, &c. Ins. Co., 52 Mo. 278; Johnson i>. ing v. Foote, 431(2. 290; Marsh v. City of Brook- 
 Cooper, 2 Yer. 524; Almony v. Hicks, 3 Head, lyn, 59 Id. 280; Levy v. Hart, 54 Barb. 248; 
 39; Bunce v. Gallagher, 5 Blatch. 481 ; Crooke Tilden «. Mayor, &c., 56 Barb. 340; Mulligan «;. 
 ». Andrews, 40 N. Y,547; ■Ne./ellij. Wheeler, 48 Baring, 3 Daly, 75; Howell i). City of Buffalo, a 
 /d, 486; Ward t>. Dewey, 16 7d. 519; Eadcliffe ». Abb. App. Deo. 412; Simpson u. Lord Howden, 
 Rowley, 2 Barb. Ch. 23; Longley v. City of 3 My. & Cr. 97, 102, 103, 108; Cox v. CUft, 2 N. Y. 
 Hudson, 4 T. & C. 353; Congregation Shaarai 118; Van Doren v. Mayor, Ac, 9 Paige, 388, 
 
 637 
 
§ 543 
 
 EQUITY JUEISPEUDENCE. 
 
 [oh. xxxni. 
 
 Mlity of the loss of such evidence, or the inability at any subsequent time 
 to produce such evidence, through the death of the witness, or the loss 
 of papers and other sources of proof, that are constantly occurring, the 
 equitable relief will be granted. This principle, in determining the 
 limitation of the jurisdiction of the court of equity to remove clouds 
 from titles to those cases only, where extraneous evidence is needed to 
 prove its invalidity, has been applied to all classes of cases; not only 
 where the so-called cloud consists of a deed of conveyance,^ or mort- 
 gage;^ but also to executory contracts for the sale of lands,' notices 
 of Us pe-ndens,*' and to judgments and executions;' assessments for 
 taxes, and even in findings of commission of lunacy." 
 
 1 Plant V. Barclay, 56 Ala. 561; Jones v. De 
 Graffenreid, 60 Jd. 145; Amett v. Bailey, Id.'^; 
 Tyson v. Brown, &i Id.i4A; Baines v. Barnes, 
 Id. 375; Smith's Ex'r v. Cookrell, 66 Id. 64; 
 Grigg V. Swindal, 67 Id. 187; Lyon ii. Hunt, 
 11 Ala. 895 J Hunt v. Acre, 88 K 580; Barclay 
 V. Henderson, 44 Id. 869; Daniel v. Stewart, 
 65 Id. 278; Lookett v. Hurt, 57 Id. 198; Posey 
 V. Conway, 10 Id. 811; Florence v. Paschal, 
 SO Id. 28; Jones v. Neale, 2 P. &, H. 339; 
 Carroll v. Brown, 28 Gratt. 791 ;> Willis v. 
 Sweet, 49 Wis. 505; Bunce v. Gallagher, 5 
 Blatch. 481; Pelrsoll ». Elliott, 6 Pet, 95; But- 
 ler V. Eutledge, 3 Coldw. 4; Whillock v. Gris- 
 liam,3Sneed,237; Williams S.Williams, 7 Baxt. 
 116; Huffman v. Huffman, 1 Lea. 491; Levy 
 V. Hart, 54 Barb, 248; Busbee v. Macy, 85 N. C. 
 SS9; Busbee i;. Lewis, Si Id. 332; Jones' Heirs v. 
 Perry, 10 Yer. 59; Johnson v. Cooper, 3 Id. 524; 
 Almony ». Hicks, 3 Head, 39; Carter «. Taylor, 
 Jd. 30; Downing v. Wherrin, 19 N. H. 9, 91; 
 Hall V. Fisher, 9 Barb. 17; Buffalo, &c. K. E. 
 V, Lampson, 47 Id. 533; Remington Paper Co. 
 ■». O'Dougherty, 81 N. Y. 484; Cox v. Clift, 2 Id. 
 118; Bookes v. Lansing, 74 Id. 437; Hotchkiss v. 
 Elting, 36 Barb. 38; Sullivan V. Finnegan, 101 
 Mass. 447; Eussell ». Deshon, 124 /(f. 343; Davis 
 z>. City of Boston, 129 Id. 377; Merch. Bk. v. 
 Evans, 51 Mo. 335; Clark v. Covenant, &o. Ins. 
 Co., 53 Id. 872; Harringtons Utterback, 57 Id. 
 519; Keane ». Kyne, 66 Id. 216; Haythorn v. 
 Margerem, 3 Halst. Ch. 324; Brooks v. Kearns, . 
 86 Id. bit; Burton v. Gleason, 56 M. 25; Peck v. 
 Sexton, 41 Iowa, 566; Gerry v. Stlmson, 60 Me. 
 186; Polk V. Rose, 25 Md. 153; Polk v. Reynolds, 
 31 Id. 106; Polk v. Pendleton, 31 Id. 118; Briggs 
 V. Johnson, 71 Me. 235; Martins. Graves, 5 
 Allen, 601; Bumss.Lynde, 6I(i.305; Munsonc. 
 Munson, 28 Conn. 582; Stouts. Cook, 37 III. 283; 
 Reed v. Tyler, 56 Id. 888; Gage ». Billings, Id. 
 268; Reed v. Eeber, 62 Id. 840; Lee v. Euggles, 
 62 Id. 427; Kennedy v. Northup, 15 Id. 149; 
 Redmond v. Paekenham, 66 Id. 434; Shell v. 
 Martin, 19 Ark. 139; Walker v. Peay, 22 Id. 103; 
 Millers. Neiman, 277(il. 833; Crane v. Randolph, 
 •30 Id. 579; Riley s. PeU, 25 Cal. 70; Hager v. 
 Shindler, 29 Id. 47; Thompson v. Lynch, 29 Id. 
 189; Lick ®. Ray, 43 Id. 83; Cohen s. Sharp, 44 
 Id. 29; Alden s. Trubee, 44 Conn. 455. 
 2 Comm. V. Smith, 10 Allen, 448; Vogler v. 
 
 638 
 
 Montgomery, 54 Mo. 577; Ward v. Dewey, 16 N. 
 Y. 519; Smiths. FeUows, 9 J. & S. 36; Elderidge 
 s. Smith, 34 Vt. 484; Ramsdell s. Fuller, 28 Cal. 
 37; City of Hartford s. Chipman, 21 Conn. 488; 
 Sherman v. Fitch, 98 Mass. 59; Clouston v. 
 Shearer, 99 Id. 209; and leases. Mayor, &e. V. 
 North Shore, Sua. Co., 9 Hun, 680; Spofford ». 
 Bangor, &o. R. R., 66 Me. 51. 
 
 ' Larmon s. Jordan, 56 111. 804; Seas. More- 
 house, 79 Id. 216; Boyd s. Sohleslnger, 59 N. Y. 
 301; Washburn ». Bumham, 63 Id. 132. 
 
 * Nickerson s. Loud, 115 Mass. 94; Sansay s. 
 Hunger, 42 Ind. 44. 
 
 s Merriman s. Polk, 5 Heisk. 717; Eooney s. 
 Soule, 45Vt. 303; Goodell s. Blumer, 41 Wis. 
 436; Gamble s. Loop, Mid. 465; Moore s. Cord, 
 Id. 21S; Standish s. Dow, 81 Iowa, 363; Tucker 
 s. Kenniston, 47 N. H. 267; Radcliff s. Rowley, 
 2 Barb. Ch. 83; Lounsbury s. Purdy, 18 N. Y. 515; 
 Tisdale v. Jones, 38 Barb. 533; Brown ». Good- 
 win, 75 N. Y. 409; Fonda s. Sage, 48 Id. 173; 
 Parnham s. Campbell, 34 N. T. 480; Schroeder 
 V. Gurney, 73 N. Y. 430; Mulligan ». Baring, 3 
 Daly, 75; Tears. Mathews, Wright, (Ohio,) 371; 
 Bk. U. S. s. Schultz, 2 Ohio, 471; Norton v. 
 Deaver, 5 Id. 178; Groves s. Webber, 73 111. 606; 
 Key City, &o. Co. s. Munsell, 19 Iowa, 305; Hall 
 s. Whlston, 5 Allen, 126; Hlnchley s. Greany, 
 118 Mass. 595; O'Hare s. Downing, 130 Id. 16; 
 Barton s. Drake, 21 Minn. 899; Hanson s. John- 
 son, 80 Id. 194 ; Drake s. Jones, 27 Mo. 428; Uhl 
 s. May, 5 Neb. 157; Hall s. Theisen, 9 Pae. C. L. 
 J. 479; Budd s. Long, 13 Pla. 288; Davidson v. 
 Seegar, 15 Id. 671 ; Campbell s. McCahan, 41 111. 
 45; Tucker v. Conwell, 67 Id. 558; Henderaon v. 
 Palmer, 71 Id. 579; Burt v. Cassety, 12 Ala. 734; 
 Ala., &c. Co. V. Pettway, 84 Id. 544; Rea v. 
 Longstreet, 54 Id. 291; Pixley s. Huggins, 16 
 Cal. 127; England s. Lewis, 2bld. 3S7; Shattuck 
 ■o. Carson, 2 Id. 588. 
 
 « As to assessments of taxes, see Hebrew, 
 &c. Association s. Mayor, &o., 4 Hun, 446; 
 Dederer v. Voorhies, 81 N. Y. 153; Van Do- 
 ren s. Mayor, &c., 9 Paige, 388; Hey wood s. 
 City of Buffalo, 14 N. Y. 534; Howell s. City of 
 Buffalo, 2 Abb. App. Deo. 418; DeWltt v. Hays, 
 2 Cal. 463; Mlntum s Smith, 3 Sawy. 142j 
 Waterbury Sav. Bk. s Lawler, 46 Conn. 243; 
 Gage s. Rohrbaoh, 56 II 262; Gage s. Chapman, 
 Id. 311 ; Milwaukee Iron Co. v. Town of Hub- 
 
CH. XXXm.J BILLS QUIA TIMET. § 544 
 
 However sound, as a technical proposition of law, the rule may be, 
 which declares thaL there is no cloud upon the title of property where 
 the instrument, which furnishes the opportunity of asserting a defect 
 in the title of the owner, is invalid on its face, and does not, therefore, 
 require extraneous evidence to establish its invalidity; as a business 
 proposition, and viewed from the stand-point of the purchaser of real 
 estate, there can be no question that there is such a defect and a cloud 
 upon the title, whenever anything remains uncancelled in the shape of 
 a deed or other legal instrument, which gives the slightest pretext to 
 an adverse claim to such title. The refusal of the court, to apply to 
 such case its equitable relief for removal of the cloud from title, 
 certainly does operate to the infliction of a pecuniary damage upon 
 the owner of the land, either because the continued existence of this 
 cloud upon the title makes the property actually unsalable, or reduces 
 its market value. It is certainly a very peculiar attitude for a court 
 of equity to assume, in denying the relief, in the way of a cancellation of 
 a void deed, because it is void.' 
 
 § 544. Statutory snits to quiet title. — As has been already 
 ■explained in a preceding chapter, the equitable jurisdiction to quiet 
 title, independently of statute, could only be invoked by the plaintiff 
 in possession and holding the legal title, after he has been subjected 
 to successive actions of ejectment by some other person out of 
 possession, or when the cause of dispute was an equitable title which 
 •could not be tried by the common law action. But statutes have 
 been passed in many of the states, changing its jurisdiction in two 
 particulars. The statutes vary in the different states, and may be 
 •divided into two classes. The first class includes those states, which 
 Tequire the plaintiff to be in possession of the land when the suit to 
 quiet title is brought, viz. : in Arizona, Colorado, Kansas, Kentucky, 
 Illinois, Michigan, Minnesota, Montana, Nevada, New Jersey, New 
 York, Ohio, Oregon, Utah, "Wisconsin, Georgia, Lotiisiana, Massa- 
 
 bard, 29 Wis. 51; Hamilton v. City of Fond du Guest v. City of Brooklyn, 69 Id. 506; Stuart v. 
 
 Lac, 25 Jd. 490; Heads. James, 13/(2. 641; Bar- Palmer, 74 Id. 183. Commission of lunacy, 
 
 nett V. Cllne, 60 Conn. 205; Holland v. Mayor, Yaugeru. Skinner, 1 McCart. 389. 
 
 <fec., U Md. 186; Soofleld ». City of Lansing, 17 i " It leads to the strange scene, almost daily, 
 
 Mich. 437; Henry v. Gregory, 39 Jd. 68; Curtis ». in the courts, of defendants urging that the 
 
 City of East Saginaw, 35 Id. 508; Lockwood». instruments under which they claim are void. 
 
 City of St. Louis, 34 Mo. 20; Fowler ». City of and therefore that they ought to be permitted 
 
 St. Joseph, S7 Id. 338; Townsend v. Mayor, &c., to stand unmolested; and of judges declining 
 
 77 Irf. 543; Wells v. City of Buffalo, 80 Id. 253; to interfere because the deed or other instru- 
 
 Bumet V. Corp. of Cincinnati, 3 Ohio, 73; Cul- ment is void; while from a business point of.^ 
 
 bertson d. City of Cincinnati, 16 Id. 574; yiew, every intelligent person knows that the 
 
 Shepardson». Supervisors, 38 Wis. 593; McPike instrument is a serious injury to the plaintiff's 
 
 V. Pen, 51 Mo. 63; Johnsons. Hahn, 4 Neb. 139; title, greatly depreciating its market value; 
 
 Morris Canal, &,c. Co. v. Jersey City, 1 Beasl. and the judge himself, who repeats the rule, 
 
 527; Longley t). City of Hudson, 4 T. & C. 353; would neither buy the property while thus 
 
 Newell V. Wheeler, 48 N. Y. 486; Cong. Shaaral affected, nor loan a dollar upon its security. 
 
 Tephilat). Mayor, &c., 53 How. Pr. 213; Overing This doctrine is, in truth, based upon mere 
 
 '3!. Foote, 43 N. Y. 290; Tilden v. Mayor, &c., 56 verbal logic, rather than upon considerations 
 
 Barb. 340; Sanders v. Village of Toiikers, 63 N. of justice and expediency." 3 Pom. Eq. Jur., 
 
 T. 489; Marsh v. City of Brooklyn, 59 Jif. 280; § 1399, p. 438. 
 
 639 
 
§ 644: 
 
 EQUITT JUEISPKUDENCB. 
 
 [CH. xxxin. 
 
 chusetts, Missouri, Nebraska, Mississippi, Iowa, Indiana and California. 
 The second class includes all those states in which the statute allows 
 the action to be brought by the plaintiff, whether he is in posses- 
 sion or not, viz. : California, Dakota, Idaho, Indiana, Iowa, Mississippi 
 and Nebraska.^ In the majority of the states, the suit to quiet title can 
 
 iVou Phul V. Penn, 31 Mo. 333; Eutherford 
 V. TJllman, 42 Jd. 216; Deware v. Wyatt, 50 Id. 
 236; Jordan v. Stevens, 55 Id. 361 ; Webb v. Don- 
 aldson, 60 Id. 394 J Babe v. Phelps, 65 Id. ZT; 
 Grant v. King, 31 Id. 313; Campbell v. Allen, 61 
 Id. 581; Bredell v. Alexander, 8 Mo. App. 110; 
 Hill v. Andrews, 12 Gush. 185; Dewey «. Bulk- 
 ley, 1 Gray, 416; Maoomber ». Jaffray, 4 Id. 82; 
 Munroe v. Ward, 4 Allen, 150; Tomkins v. Wy- 
 man, 116 Mass. 558; India Wharf v. Central 
 Wharf, 117 Id. 504; Tisdale v. Brabrook, 102 Id. 
 374; Boston Mfg. Co. v. Burgin, 114 Id. 340; 
 Bowditch V. Gardner, 113 Id. 315; Dooley v. 
 Gibson, 32 La. Ann. 192; Lange v. Baranco, Id. 
 697; White v. SherifiE, Id. 130; Dahlgreen v. 
 Duncan, 26 Id. 363; Deuohatell ». Robinson, 24 
 Id. 176; Dickson v. Marks, 10 Id. 518; Searles v. 
 Costillo, 12 Id. 203; Millard v. Eichard, 13 Id. 
 572; South Car. K. E. v. Steiner, 44 Ga. 546; 
 Jones V. Geo. E. E., 62 Id. 718; Dart v. Orme, 41 
 Id. 376; Wynne v. Lumpkin, 35 Id. 208; Pier v. 
 Pond du Lao, 38 Wis. 470; Maxon v. Ayers, 28 
 Id. 612; Shaffer v. Wbelpley, 37 M. 334; Page v. 
 Kennau, 38 Id. 320; Wals v. Grosvenor, 31 Id. 
 681; Jones v. Collins, 18 Id. 694; Gamble v. 
 Loop, 14 Id. 465; Dean v. Madison, 9 Id. 403; 
 Goldberg v. Taylor, 2 Utah, 486; Tiehenor v. 
 Knapp, 6 Oreg. 205; Thompson v. Woolf, 8 Id. 
 454; King v. French, 2 Sawy. 441; Stark v. 
 Starrs, 6 Wall. 402; Harvey v. Jones, 1 Disney, 
 65; Douglass v. Scott, 5 Ohio, 194; Clark v. Hub- 
 bard, 8 Id. 382; Thomas v. White, 2 Ohio St. 
 540; EUithorpe v. Buck, 17 Id. 72; Collins ». 
 Collins, 19 Id. 468; Ehea v. Dick, 34 Id. 420 j 
 Bailey v. Hughes, 35 Id. 597; Onderdonk v. 
 Mott, 34 Barb. 106; Haynes v. Onderdonk, 5 T. 
 & C. 176; Bumharn v. Onderdonk, 41 N. Y. 425; 
 Fisher v. Hepburn, 48 Id. 41; Austin v. Good- 
 rich, 49 Id. 266; Barnard v. Simms, 42 Barb. 304; 
 Donahue v. O'Conor, 13 J. & S. 278; Schroeder 
 V. Gurney, ld"Hun, 413; Ford v. Belmont, 69 N. 
 Y. 567; Powell v. Mayo, 24 N. J. Eq. 178; Holmes 
 V. Chester, 26 Id. 79; Bogertji. City of Eliza- 
 beth, 27 Id. 568; Jersey City v. Lembeok, 31 Id 
 255; Ludington v. City of Elizabeth, 32 Id. 159; 
 31 Id. 357; Lembeck v. Jersey City, 30 Id. 554; 
 Raymond v. Post, 25 Id. 447; Low v. Staples, 2 
 Nev. 209; Scorpions. M. Co. ■». Marsano, 10 Id. 
 370; Lake BlglerEoad Co. v. Bedford, 3 Id. 399; 
 Central Pac. R. R. v. Dyer, 1 Sawy. 641 ; State 
 V. Sioux City, Ac. R. R., 7 ^'eb. 357; Harral v. 
 Gray, 10 Jd. 186;. Huntington v. Allen, 44 Miss. 
 654; Glazier v. Bailey, 47 Id. 395; Carlisle v. 
 Tindall, 49 Id. 229; Handy v. Noonan, 51 Id. 166; 
 Griffin u. Harrison, 52 Id. 824; Shivers v. Sim- 
 mons, 54 Id. 520; Wofford«. Bailey, 57 Id. 239; 
 Boyd V. Thornton, J3 S. &. M. 338; Toulmin v. 
 Heidelberg, 32 Miss. 268; Kerro. Freeman, 33 
 
 640 
 
 Id. 292; Ezelle v. Parker, 41 Id. 520; Steele ». 
 Fish, 2 Minn. 153; Meighen v. Strong, 6 Id. 177; 
 Bidwell V. Webb, 10 Id. 59; Wilder v. City of 
 St. Paul, 12 Id. 192; Murphy v. Hinds, 15 Id. 
 182; Byrne v. Hinds, 16 Jd. 521; Conklin 
 V. Hinds, Id. 457; Leggett v. Cole, 1 McCreary, 
 515; Haddon v. Hemingway, 39 Mich. 615; 
 Hammontree w. Lott, 40 Id. 190; Barron v. Bob- 
 bins, S3 Id. 35; King v. Carpenter, 37 Id. 363; 
 Moran v. Palmer, 13 Id. 367 ; Ormsby v. Barr, 32 
 Id. 80; Jenkins v. Bacon, 30 Id. 154; Meth. 
 Church of Newark?). Clark, 41 Id. 730; Stock- 
 ton 1!. Williams, 1 Dougl. 546; Hall v. Kellogg, 
 16 Mich. 135; Rowland v. Doty, Harr. Ch. 3; 
 Blanchard v. Tyler, 13 Mich. 339; Stetson ». 
 Cook, 39 Id. 750; Dudley v. Trustees of Frank- 
 fort, 13 B. Mon. 610; Armitage ». Wickliffe, Id. 
 488, 494; Taylor u. Embry, 16 Id. 340; Cates v. 
 Lof tus' Heirs, 4 Mon. 439; Beard v. Smith, 6 Id. 
 430, 505; Underwood v. Crutcher, 7 J. J. Marsh. 
 529; Hiatt's Heirs v. Calloway's Heirs, 7 B. 
 Mon. 178; Harris v. Smith, 2 Dana, 10; Landrum 
 V. Farmer, 7 Bush, 46; Frayley v. Peters, 18 Id. 
 469; Eaton v. Giles, 5 Kans. 24; Brenner v. 
 Bigelow, 8 Id. 496; O'Brien v. Creitz, 10 Id. 203; 
 Wood u. Missouri, <fcc. Ey., 11 Id. 383; Giles «. 
 Ortman, Id. 59; Douglass v. Nuzum, 16 Id. 515; 
 Entreken v. Howard, Id. 551; Cartwright v. 
 McFadden, 24 Id. 663; Douglass v. Bishop, Id. 
 749; Gilteuan v. Lemert, 13 Id. 476; Pierce ti. 
 Thompson, 36 Id. 714; Fejervaryc. Langer,9 
 Iowa, 159; Laverty v. Sexton, 41 Id. 435; Miller 
 V. Davison, 31 Id. 435; Lewis v. Soule, 63 Id. 11 ; 
 Patou V. Lancaster, 38 Id. 494; Balmear v. Otis, 
 4 Dill. 658; Cooper v. Jackson, 71 Ind. 844; 
 Green „. Glynn, Id. 336; Roseo. Nees, 61 Id. 
 484; Emery v. Cochran, 88 111. 65; Hardin ». 
 Jones, 86 Id. 313; Gage v. Abbott, 99 Id. 366; 
 Whitney v. Stevens, 97 Id. 488; Oakley v. Hurl- 
 but, 100 Id. 804; Barnard ». Hoy t, 63 Id. 341; 
 Wing V. Sherrer, 77 Id. 300; Reed v. Calder- 
 wood, 32 Cal. 109; Pralus v. Pacific, &o. Min. 
 Co., 35 Id. 30; Pralus v. Jefferson, &c. M. Co., 
 34 Id. 558; Brooks t>. Calderwood, 34 Id. 563; 45 
 Id. 519; Ross ». Heintzen, 36 Id. 313; Nevada 
 Co., &o. Canal Co. v. Kidd, 37 Id. 282; Sepulveda 
 V. Sepulveda, 39 Id. 13; Coleman v. San Rafael, 
 &c. Co., 49 Id. 517; Practice Act, Merced Min. 
 Co. V. Fremont, 7 Cal. 317; Smiths. Brannan, 
 13 Id. 107; Curtis v. Sutter, 15 Id. 259; Van- 
 Winkle v. Hinokle, 21 Id. 348; Eico v. Spence, 
 Id. 504; Head v. Fordyce, 17 Id. 149; Lyle v. 
 Rollins, 35 Id. 437; Horn v. Jones, 88 Id. 194; 
 Ferris v. Irving, 28 Id. 645; Leet v. Rider, 48- 
 Cal. 683; Pierce v. Felter, 53 Id. 18; Stoddart V. 
 Burge, Id. 394; Brandts. Wheaton, 58 Id. 430; 
 San Francisco v. Ellis, 154 Id. 78; Brewer w. 
 Houston, 58 Id. 345; Burton v. Le Roy, 5 Sawy. 
 610. 
 
CH. XXXm.] BILLS QUIA TIMET. § 545 
 
 be brought by the plaintiff, whether he has a legal or equitable title;* 
 but in a few of the states it is still necessary for the plaintiff to have 
 a legal title.'' But in all the states where these statutory suits to quiet 
 title has been instituted — whether the plaintiff is required to be in 
 possession, or his possession is declared to be unnecessary— the essential 
 distinction made by the statutes, between these statutory suits and the 
 former equitable suit, is that under the statute, the plaintiff need not 
 wait for the attempted interference with his possession, but anticipat- 
 ing the danger of vexatious litigation, he may, under the principle 
 quia timet, hrmg his action for trying the title to the property, and 
 definitely settling the question of title between himself and the party 
 threatening the litigation.* 
 
 The statutory suits to quiet title may be instituted by the pos- 
 sessor of title to a mining claim;* but a mere trespasser upon gov- 
 ernment land cannot maintain an action.' In those states in which 
 the statutory suit to quiet title can only be instituted by a plaintiff in 
 possession, where he is out of possession, he is required to resort to 
 his action of ejectment. ° Yet it must not be understood that this 
 statutory regulation of the equitable suit to quiet title was intended to 
 interfere with the right of such a party to file a bill qida timet to 
 remove the cloud from the title, in those cases in which a court of 
 equity would entertain such a bUl.' In several of the states the 
 statutes in express terms apply the statutory suit to all cases, in which 
 equitable bills to remove clouds from titles would have been enter- 
 tained.' And a similiar conclusion has been reached by the courts in 
 construction of the statutes of other states.' 
 
 § 545. Suits to interpret and construe wills. — Another phase of 
 the equitable jurisdiction on the principle quia timet, is to be found in 
 suits to construe and interpret the provisions of a will. The authori- 
 ties are not vmiform or in harmony in determining the limitations of 
 
 iLeetv. Eider, 48 Cal. 623; Pierce s. Felter, Strong, 6 Minn. 177, 179; Pierce ». Felter, 53 
 
 53 Cal. 18; Brandt v. Wheaton, 53 Gal. 430; Oal. 18; Stoddartu. Burge, 53 M. 394; Curtis u 
 
 Brewer r. Houston, 58 Cal. 345; Stoddart ». Sutter, 15 Cal. 259, 263; Head ». Fordyce, 17 M. 
 
 Burge,53Cal. 394; San Francisco*. Ellis, 54 149; Central Pac. E. E. «. Dyer, 1 Sawy. 641, 
 
 Cal. 72; Burton v. Le Eoy, 6 Sawy. 510; Cooper 648; Stark v. Starrs, 6 Wall. 402, 410; Smith v. 
 
 V. Jackson, 71 Ind. 24i; Green v. Glynn, 71 Ind. Brannan, 13 Cal. 107, 114. 
 
 336; Eose v. Nees, 61 Ind. 484; Fejervary v. * Pralus v. Pacific, &o. Min. Co., 35 Cal. 30; 
 
 Langer, 9 Iowa, 159; Miller v. Davison, 31 Iowa, Merced Min. Co. v. Fremont, 7 Id. 317. 
 
 435; Paton v. Lancaster, 38 Iowa, 494; Balmear * Wood v. Missouri, &c. Ey., 11 Kans. 333. 
 
 r. Otis, 4 Dill. 558; Lewis ». Soule, .52 Iowa, 11; « Curtis ». Sutter, 15 Cal. 259, 364; Van Win- 
 
 Laverty v. Sexton, 41 Iowa, 435; Boyd v. Thorn- kle v. Hinckle, 21 Id. 342; King v. Carpenter, 
 
 ton, 13 Sm. & M. 338; Kerr t,. Freeman, 33 37 Mich. 363; Morani). Palmer, 13 Id.; Meth. 
 
 Miss. 292; Huntington v. Allen, 44 Miss. 654; Ch. of Newark «. Clark, 41 Id. 730. 
 
 Glazier v. Bailey, 47 Miss. 395; Handy V. Noo- ' King v. Carpenter, 37 Mich. 363; Ormsby v. 
 
 nan, 51 Miss. 166; Shivers V. Simmons, 54 Miss. Barr, 22 Id. 80; Low v. Staples, 2 Nev. 209; Pier 
 
 520; ' Wofford v. Bailey, 57 Miss. 239; Griffin v. v. Fond du Lac, 38 Wis. 470; Jones v. Smith, 22 
 
 Hairison, 52 Miss. 824; Carlisle v. Tindall, 49 Mich. 360; Harral v. Gray, 10 Neb. 186, 188. 
 
 Miss. 229; State ». Sioux City, &c. E. E. Co.,7 « Mississippi, Illinois, New Jersey and Geor- 
 
 Neb. 357; Harrall v. Gray, 10 Neb. 186. gia. 
 
 2 See Chase's Ohio Stat., pp. 687, 1278, 1697. » Head ti. Fordyoe, 17 Cal. 149; Maxon v. Ay- 
 
 « Merced Min. Co. ■». Fremont, 7 Jd. 317, 319 ; ers, 28 Wl.s. 612; Dean v. Madison, 9 /rf. 402; 
 
 Giltenanc. Lemert, 13 Kans. 476; Meighenj). Lewis ». Soule, 52 Iowa, U, 13. 
 
 41 
 
 641 
 
§ 545 EQUITY JURISPRUDENCE. [CH. XXXTU. 
 
 these suits. Some of the cases hold to the broad proposition that the 
 suit will be entertained by a court of equity, whenever the will con- 
 tains complicated provisions of doubtful and double meaning, and 
 there is a ionafide contest over them between parties who are inter- 
 ested in them as beneficiaries imder the will; it matters not whether 
 the interests created by these provisions be legal or equitable, or 
 whether it is possible or not to recognize a trust or fiduciary relation as 
 having been created by the disputed provision.^ On the other hand, 
 the majority of the courts hold that the court of equity can entertain a 
 suit, for the interpretation and construction of the provisions of a will, 
 only as a part of its general jurisdiction over trusts; and, therefore, 
 only when the provisions under inquiry create some fiduciary relation, 
 and that the mere difficulty in interpretation and construction of the 
 provisions would not justify a court of equity to entertain a suit for that 
 purpose, where the provisions did not create a trust of some sort, but 
 a strictly legal right or estate, as in the case of devises of lands. 
 " The jurisdiction is incidental to that of trusts." ^ But inasmuch as 
 aU the personal property of the testator is taken into possession by the 
 executor or administrator in trust, for the creditors first, and finally 
 for the legatees and distributees under the will, the court of equity 
 will always entertain a suit for the construction and interpretation of 
 bequests of personal property, whether a formal trust is created by 
 the provisions of the will or not." But in every such case, the suit 
 must be instituted by an executor, legatee, trustee, or cestui que trust, 
 and cannot be begun by one who is not interested in the result in any 
 one of these characters. * Finally, there must be an actual controversy 
 over the meaning of the provisions of the will, and the necessity for a 
 settlement of the dispute must be urgent. The court of equity will not 
 entertain a suit to construe the provision, whose effect and operation 
 
 1 Eosenberg v. Frank, 58 Cal. 387; Trotter v. 53; Magers v. Edward's Adm'r, 13 W. Va. 822- 
 
 Blocker, 6 Port. (Ala.) 269; First Bap. Church Eexroad ». Wells, 13 W Va. 812 ■ Gibbes » El- 
 
 V. Eobberson. 71 Mo. 326; Purvis »;. Sherrod, nott, sRlcb. Eq. 327; Goddard' v Brown 12 
 
 12 Tex. 140; Howze v. Howze, 14 Tex. 232; t, t <!i . ii„,.=^ 4 • o,„ „ 
 
 Little«. Birfwell,31Tex.597; Glbbes^. Elliott f ' '' ''' ^°T°H ^owie, 84N. C. 349; Tay- 
 
 5 Rich. Eq. 327; Benham v. Hendrlckson, 32 °^ "^f °"'^' ^"^^^ ==1- ^\ Marrow v. Marrow, B. 
 
 N. J. Eq. 441; Baldwin v. Bean. 59 Me. 481; ^^' ^e"a^1«. Howard, 3 Ired. Eq. 381; Powell 
 
 Sellers v. Sellers, 35Ala. 235. "■ Demmmg, 82 How. 835; Marlett«. Marlett, 14 
 
 2Chipmanu. Montgomery, 63 N. Y. 221,230, Hun, 313; Stinde i>. Eidgeway, 55 How. Pr. 
 
 yier Allen, J. ; Bailey ». Briggs, 56 N. T. 407; ^1: Post ». Hoyer, 33 N. Y. 593, 602; o. u., 30 
 
 Clark D. Clark, 17 Ga. 485; Strubher ». Belsey, Barb. 312, 324; Bailey u. Southwlck, 6 Lans. 356' 
 
 •79 111. 307; Whitman v. Fisher, 74 VA. 147; Emmons ». Cairns, 2 Sandf. Ch. 369; compare' 
 
 Bowers «. Smith, 10 Paige, 193; Onderdonk u. Mallory's Adm'r ji. Craige, 2 McCart' 73- You- 
 
 Mott, 34 Barb. 106; Woodruff v. Cook, 47 Barb. mans v. Youmans, 26 N J Eq 149' Benham » 
 
 304; Dill V. Wissner, 88 N. Y. 153, 160; Delaney Hendrickson, 38 N. J. Eq.441 ; Sellers^ Sellers" 
 
 V. McCormaok, 88 N. Y. 174; Walrath v. Handy, 35 Ala. 235; Cowles v. Pollard, 51 Ala 445 Cla4 
 
 24How.Pr. 353; Duncan «. Duncan, 4 Abb. N. ». Gurley, 62 Ala. 14. " ' 
 
 C. 275; Wager ». Wager, 21 Hun, 93; Bullock v. a Bowers v. Smith. 10 Paige, 193- Onderdonk 
 
 Bullock,2Dev.Eq.307; Simmons ji. Hendricks, «. Mott, 34Barb. 106; Bllven». Seymour 88 N 
 
 ;8 Ired. Eq. 84, 86; Deveraux v. Deveraux, 81 N. Y. 469; Dill v. Wisner, 88 N. Y. 153, 160; but see 
 
 C. 12; Eothgeb ». Mauck, 35 Ohio St. 503; Bus- contra, Walrath v. Handy, 24* How. Pr 353- 
 
 •seyi!. M'Kie, 2McCord, Ch. 23; Schaeffner's Wager ». Wager, 21 Hun 93. ' ' 
 
 Appeal, 41 Wis. 260 ; Wolf v. Schaeffner, 51 Wis. * See oases cited in the preceding notes. 
 
 642 
 
CH. XXXIII. J 
 
 BILLS QUIA TIMET. 
 
 § 646 
 
 is not immediate, but future, contingent and uncertain,' or which 
 relates to some past transaction, which has been already fully exe- 
 cuted.^ And it seems that the suit cannot be resorted to by an admin- 
 istrator for the purpose of obtaining judicial instruction as to the 
 proper performance of his duties.' 
 
 § 5i6. Relief granted in bills quia timet. — The character of the 
 relief which will be granted by the court of equity on application by 
 bill quia timet must, of course, vary according to the circumstances of 
 the case and the needs of the parties. But the more common forms 
 of relief are, first, the appointment of receiver,* payment of money 
 into court, "^ the giving of security,* injunction,' and by cancellation of 
 the instruments, which are the source of the threatened injuries.* 
 
 iMinotw. Taylor, 139 Mass, 160; Goddardc. 
 Brown, 12 E. I. 31 ; Tayloe v. Bond, Busb. Eq. 
 5; Marrow v. Marrow, 16. 148. 
 
 2 Sohier v. Burr, 127 Mass. 221 ; Powell v. 
 Demming, 22 Hun, 235 ; Tayloe v. Bond, Busb. 
 Hq. 5; Marrow v. Marrow, lb. 148. 
 
 * Clay V. Gurley, 62 Ala. 14; Ferrand v. How- 
 ard, 3 Ired. Eq. 381 j but see Stevens v. Warren, 
 101 Mass. 564. 
 
 *Blondlieim v. Moore, 11 Md. 364; Verplank 
 •0. Gaines, 1 Johns. Ch. 57; SWp v. Harwood, 3 
 Atkinson, 564; Voshell v. Hyson, 26 Md. 83; 
 Tomlinsou ». Ward, 3 Conn. 391; Orphan 
 Asylum v. McCarter, Hopkins, 429; Maynard 
 ■V. Bailey, 2 Nev. 313; Crawford v. Eoss, 39 Ga. 
 44; Chappell v. Akin, 39 Ga. 177. 
 
 'KothweU 0. RothweU, 2 Sim. & Stu. 217; 
 
 Clarkson v. De Peyster, Hopk. Ch., (N. T.) 274; 
 Mandeville v. Mandeville, 8 Paige, (N. Y.) 475. 
 « Covenhoven v. Shuler, 2 Paige, (N. Y.) 122: 
 Henderson v. Vaulx, 10 Yerg. (Tenn.), Klnnard 
 «. Kinnard, 5 Watts, (Pa.) 109; Lippincott «. 
 WaWer, 14 Serg. & E. (Pa.) 118; Smith v. 
 Ostrand, 5 N. Y. S. 664. 
 
 7 See chapter on Injunction. 
 
 8 Sanders v. Village of Yonkers, 63 N. T. 489} 
 Meri'iman v. Polk, 5 Heisk. 717; Pettlt i>. Shep- 
 herd, 5 Paige, 493; Oakley v. Trustees, &o., 6 
 M. 362; Shattuck v. Carson, 3 Gal. 688; Norton 
 V. Beaver, 5 Ohio, 178; Bk. U. S. v. Schultz, 3 
 Id. 471; Groves v. Webber, 72 III. 606; O'Hare 
 ». Downing, 130 Mass. 16; Manu».Gity of Utica, 
 44 How. Pr. 334. 
 
 643 
 
CHAPTER XXXIV. 
 
 BIIJ.8 OP DISCOVERY AND EQUITABLE SUITS FOE TAKING TESTXMONY. 
 
 Manner of making discovery 
 Production and Inspection of documents 
 To wliat extent the answer in tlie suit for 
 
 discovery may be used as evidence 
 Equitable provisions for examination of 
 
 witnesses 
 
 Suits to take testimony of witnesses de 
 
 bene esse 561 
 
 Suits to examine witnesses In foreign 
 
 countries 56S 
 
 55S 
 
 55» 
 
 seo 
 
 Section Sbctioic 
 
 General explanation of jurisdiction . . 549 Manner of making discovery . . .557 
 
 Bills of discovery ... . . 550 
 
 The effect of modern statutes in suits for 
 
 discovery 551 
 
 What judicial proceedings will be aided 
 
 by discovery 552 
 
 Who can file the bill for discovery? . . 553 
 
 From whom can discovery be required? , 554 
 What matters the bill of discovery may 
 
 include 555 
 
 Privileged communications . . ' 556 
 
 § 649. General explanation of jurisdiction. — As has been 
 explained in a preceding chapter, on the subject of equitable juris- 
 diction in general, one phase of that jurisdiction consists of remedies 
 which are intended to be OMxiliary to other remedies both legal and 
 equitable, in that the auxiliary remedy procures the means of proving 
 and establishing the ultimate cause of action. These auxiliary 
 remedies are designed to furnish to the plaintiff in the ultimate cause 
 of action the evidence wherewith to prove his claim, and in the 
 present chapter these remedies will be explained. They are four in 
 character at law, viz.: bills of discovery; suits to a perpetuate 
 testimony; suits to take testimony of witnesses de iene esse; and suits 
 to take testimony of witnesses in foreign countries. Suits to per- 
 petuate testimony have been already explained in the preceding 
 chapter; ^ the others will now be explained. 
 
 § 550. Bills of discovery. — This equitable remedy is not to be 
 confounded with the ordinary process of an equitable court, to compel 
 pai'ties to a suit to disclose facts and evidence which are material to 
 the establishment of the claim of the other parties. Courts of equity 
 have had that power in any ordinary equitable action. The bill of dis- 
 covery, as presently discussed, constitutes an independent and auxiliary 
 action, whereby the evidence is procured by compulsory disclosure of 
 the other party, prior to the trial of the main cause of action; and 
 this suit for discovery comes to an end, as soon as the defendant files 
 his sworn answer to the bill, satisfactorily complying with the order of 
 the court to make such answer.* The suit for discovery may be 
 
 1 See % 643. 
 
 s Jeremy's Eq. Jurisd. 257, 258; 1 Spence Eq. 
 Jurisd. 677, ©78; Adams Eq. 20, (marg. pag.) 89 
 (6th Am. ed.); Shotwell v. Smith, 20 N. J. Eq. 
 
 644 
 
 (5 0. E. Green,) 79; Heath v. Erie R. K.,' 9 
 Blatch. 316; Kearney v. Jeffries, 48 Hiss. 343; 
 Lady Shaf tsbury v. Arrowsmith, 4 Ves, 71. 
 
CH. XXXIV. J BILLS OF DISCOVERY. § 561 
 
 instituted, not only in aid of equitable actions, but likewise in aid of 
 actions at law, for the purpose of obtaining evidence which is material 
 to such cause of action.' And so, likewise, may the suit for dis- 
 covery be instituted by the defendant in the suit in equity by filing a 
 cross-bill against the plaintiff, calling for a disclosure of facts which 
 would be necessary to enable him properly to form his answer to the 
 orignal bill, or to divulge facts material as evidence in support of his 
 defense.^ The bill of discovery maybe filed, whenever such discovery 
 of material evidence is in any way essential to the successful prosecution 
 of the suit by the plaintiff, or defense of the cause of action by the 
 defendant. It is not necessary that the evidence, thus expected to be 
 obtained by discovery, should be the only means by which the com- 
 plainant therein may be able to substantiate or protect his rights. 
 Even where he has other evidence which tended to support his claim, 
 he may nevertheless employ this auxiliary remedy for procuring addi- 
 tional evidence, whenever such additional evidence would be material 
 to the cause of action of the plaintiff or the defense of the defendant, 
 as the case may be.' The suit for discovery was instituted by a court 
 of equity at a very early day for the purpose of providing in equity 
 a means of doing justice between the parties, and truly protecting 
 the rights of each other in a way, which the limited powers of the 
 common law courts could not insure. It is very likely that the fun- 
 damental conception of this auxiliary jurisdiction was derived from the 
 Roman law, which had provided actioiies interrogatoricB, by which 
 defendants were obliged to make answer under oath to questions 
 propounded in aMiones ad exhibendum, in which the decree ordered 
 " the defendant to produce some specific thing.* 
 
 § 551. The effect j' of modern statutes in suits for discovery. — 
 As was explained in the preceding paragraph, the suit for discovery 
 was instituted by equity and made applicable by it, to actions at law 
 as well as in equity, for the purpose of disclosing facts material to the 
 support of the claims of the opposite party, on account of the inefficacy 
 of the existing rules of law in respect to the compulsory examination 
 of parties to the suit in aid of the cause of the other party. Since the 
 general adoption of this auxiliary remedy, the systems of procedure 
 have been materially modified everywhere in the English-speaking 
 world; and in England, and in some of the American states, the entire 
 systems of procedure, legal and equitable, which previously existed, 
 
 1 Lady Shaftsbnry v. Arrowsmlth, 4 Ves. 71; 688; MerohantB' Nat. Bk. v. State Nat. Bk., 3 
 
 Kearney «. Jeffries, 48 Miss. 343; Heath v. Erie Cliff. 201; Happock v. United, &c. R. R., 27N. 
 
 R. R., 9 Blatch. 316; Sliotwell». Smith, 20 N. J. J. Eq. 286; French v. Ralney, 2 Tenn. Ch. 640; 
 
 Eq. (5 C. E. Green,) 79. Peek v. Ashley, 12'Met. 478; Thomas V. Tyler, 3 
 
 a'united States v. Wagner. L. E. 2 Ch. 582; Y. & 0. Exch. 255; French v. First Nat. Bk., 7 
 
 L.R. 3 Eq. 724; Colombian Gov't «. Rothschild, Ben. 488; Kearney v. Jeffries, 48 Miss. 343; 
 
 1 Sim. 94 ; Millsaps v. Pf eiffer, 44 Miss. 805 ; see Heath v. Erie R. E. , 9 Blatch, 316 ; Buckner v. 
 
 King of Spain «. Hallett, 1 Cl. & Fin. 333: Ferguson, 44 Miss. 677 ; Shotwell ». Smith, 20 N. 
 
 Prloleau v. United States, L. E. 2 Eq. 659. J. Eq. (5 C. E. Green,) 79. 
 
 8 Continental Life Ins. Co. n. Webb, 54 Ala. * Pomeroy Eq. Jur., Vol. I, § 493. 
 
 645 
 
§ 562 EQUITY JUBISPRUDENCE. [CH. XXXTV. 
 
 have been completely abrogated and the modern procedure adopted in 
 its place, which is shorn of all of the crudities which marked the 
 old common law system, and which constituted the chief distinction 
 between legal and equity procedure. This modern procedure has 
 adopted the essence of the equitable remedies, and has applied 
 them to all causes of action, whether legal or equitable, under the 
 modified form, so that at the present time there are no separate 
 legal and equitable actions; but all actions are of the one character, 
 and the same remedy can be employed for the purpose of discovering 
 evidence in the suit itself, in which the evidence is to be employed. 
 Such is especially the case under the English Supreme Court of Judi- 
 cature Act, and the Codes of Civil Procedure of New York and other 
 American states. In consequence of this great reform in procedure 
 in these states, as well as in others where similar reforms have been 
 partially adopted, the value of the old equitable suit for discovery has 
 been greatly diminished, and, according to the opinion of some of the 
 courts, completely abrogated, since it abolished all of the grounds upon 
 which the suit for discovery was based.' On the other hand, notwith- 
 standing these great changes in procedure, which have been created by 
 these statutes, and which seem to make this auxiliary remedy for disclos- 
 ure of material evidence unnecessary, it has been held that this auxihary 
 equitable jurisdiction still exists, and may be resorted to whenever the 
 parties seem to find it necessary, as long as it has not been expressly 
 abolished by the statute, although its practical value has been greatly 
 diminished, if not entirely taken away.^ It vsill be seen, from this 
 general statement, of the effect of the modern codes of procedure of the 
 different states, that the suit for discovery as an auxiliary remedy is 
 confined at present to only a portion of the American states and terri- 
 tories; and even in these states and territories, the remedy has lost its 
 •practical value through the statutory provisions for obtaining the same 
 end in the same suit. For this reason, it will not be necessary to give 
 any minute or comprehensive discussion of the equitable suit for dis- 
 covery, and the present chapter will be confined to a presentation of > 
 those principles relating to the suit for discovery, which are common 
 to the original equitable remedy, and the modern statutory proceed- 
 ings, which are the substitute for the equitable suit for discovery. 
 
 § 552. What judicial proceedings will be aided by discovery. — 
 A suit for discovery could be maintained in aid of another cause of 
 action, which is pending in a court of equity, upon filing a cross-bill 
 by the defendant of the main cause of action,^ as well as in aid of pro- 
 
 iRiopelleu. Doellner, 26Mleli. 102jHeath». 805; Shotwell ». Smith, 20 N. J. Eq. (5 C. E. 
 
 Erie E. R., 9 Blatch. 316. Green,) 79. 
 
 2 Hoppock V. United, &c. E. R., 27 N. J. Eq. ' Montague v. Dudman, 2 Ves. Sen. 393, per 
 
 (12 C. E. Green,) 886 ; French v. First Nat. Bk., ^°.^ ^''J'^'^'i"'^' Colombian Goy't v. Roths- 
 
 7Ben. 488; Bnckner «. Ferguson. 4 Miss. 677; f ^^ Vn " ' ^^^ ""J m^ ^- J^' 'J^-'"""'; 
 
 Keamev« Jeffries 48 Miss 343- Continental ^^^' ^'^^^'^P^ "■ Pfeiffer, 44 Miss. 805; King of 
 
 Kearney » Jeffries, 48 Miss 343 Continental g ;„ ^ HuUett, 1 CI. & Fin. 333; Prioleau v. 
 
 Life Ins. Co. -v. Webb. 54 Ala. 688; Cannon v. y. S., L. E. 2 Eq. 659; U. S. v. Wagner. L. R. 2 
 
 MoNab,48Ala. 99;Millsaps».Pfeiffer, 44Miss. Ch 582- L R 3 Eq 724 i • ". * 
 
 646 
 
CH. XXXrV.] BILLS OF DISCOVERT. § 552 
 
 ceedings in any common law court, where no provision was made by 
 the common law rules' of procedure for compelling the disclosure of 
 evidence by parties to the suit.* It is claimed that this jurisdiction in 
 aid of courts of law is confined to the superior courts, or courts of gen- 
 eral jurisdiction, and does not extend to the inferior courts and courts 
 of limited jurisdiction.* So, also, it has been held that a discovery will 
 not be granted in aid of parties to a controversy submitted to arbitra- 
 tion, where such submission was a voluntaxy act of the parties. ' But 
 where the arbitration or the reference of the case to the masters in 
 equitj'', or to referees, has been ordered by the court in the pending 
 action, the suit for discovery wUl lie in aid of such compulsory refer- 
 ence.* The suit for discovery will also lie in aid of a controversy 
 which is pending in the court of some foreign country.'^ But in order 
 that the suit for discovery might lie, the regular cause of action in 
 which the discovery is asked must be altogether a civil action; the suit 
 for discovery will not be entertained in aid of a criminal prosecution 
 or of cases which are penal in their nature, or of controversies which 
 involve the charge of conduct of an immoral character, even though 
 the action is brought for recovery of a penalty or of pecuniary com- 
 pensation, and is not strictly a criminal prosecution.^ It is also a rule 
 in equity, that it would not entertain a suit for discovery in aid of an 
 action, pending or to be brought in a court, which by its established 
 rules of procedure was able to give to its suitors the same relief which 
 was asked for in the suit for discovery.' And it was on account of 
 this indisposition of a court of equity to grant this extraordinary 
 relief in aid of parties, where the ordinary cause of action was pend- 
 ing in a court having the power to give the same relief, that in some 
 of the modern cases the courts have been induced to hold that the 
 statutory enlargement of the powers of the common law courts, in 
 respect to disclosure of evidence by parties to a suit, operates as an 
 implied abrogation of this equitable jurisdiction for discovery.' But 
 
 1 Kearney v. Jeffries, 48 Mies. 343; Buckner v. Dean, 5 Barb. 297; Thorpe v. Macauley, 5 
 
 V. Ferguson, 44 Id. 677; Shotwell o. Smith, 80 Madd. 239, 830; Shaokell v. Macauley, 2 S. & S. 
 
 N. J. Eq. (5 C. E. Green,) 79; Jeremy Eq. Jurisd. 79; 2 Euss. 550 (n) ; 1 Bligh, n. s. , 96, 133, 134; 
 
 268; March v. Davison, 9 Paige, 580; Lane v. Wilmot v. Maccabe, 4 Sim. 263; Southall v. 
 
 Stebbins, Id. 622; Atlantic Ins. Co. v. Lunar, 1 , 1 Younge, 308; Hare on Discovery, 116, 
 
 Sandf. Ch. 91. 117; Union Bk. v. Baker, 3 Barb. Ch. 358; Skin- 
 
 spomeroy Eq. Jut., Vol. I, § 196; Jeremy Eq. neru. Judson, 8 Conn. 528; Northrup«. Hatch, 
 
 Jnrisd. 268. 6 Id. 361; Poindexter v. Davis, 6 Gratt. 481. 
 
 3 Jeremy Eq. Jurisd. 268; Street v. Eigby, 6 ' Earl of Glyngall «. Prazer, 3 Hare, 99, 105, 
 
 Ves. 821. V. C.Wigram; Seymour©. Seymour 4 Johns. 
 
 < British Empire Ship Co. c. Somes, 3 K. & J. Ch. 411; Leggett «. Postley, 2 Paige, 599, 601; 
 
 433. Jeremy Eq. Jurisd. 269; Dunn «. Ooates, 1 Atk. 
 
 6 Mitchell «. Smith, 1 Paige, 287; Daubignys. 288; Anon., 2 Ves. 451; Gelston v. Hoyt, 1 
 
 Davallon, 2 Anst. 467. Johns. Ch. 547; Peck v. Ashley, 12 Met. 481; 
 
 « Short V. Meroier, 3 Maon. A G. 205; U. S. v. Stacy v. Pearson, 3 Eich. Eq. 152; Chambers!). 
 
 McEae, L. R. 3Ch. 79; L. E. 4Eq. 327; U.S. D. Warren, 13 111. 521; Williams v. Wann, 8 
 
 Saline Bk., 1 Peters, 100, 104; Ocean Ins. Co. v. Blaokf. 478; March v. Division, 9 Paige, 580; 
 
 Fields, 3 Story, 59; Stewarts. Drasha, 4Mc- French i). First Nat. Bk., 7 Ben. 488; Shotwell 
 
 Lean, 563; Black v. Black, 26 N. J. Eq. (11 C. E. v. Smith, 20 N. J. Eq. (5 C. E. Green,) 79. 
 
 Green,) 431 ; Currier v. Concord E. R. , 48 N. H. « Eiopelle v. D'-ellner, 26 Mich. 102; Heath v. 
 
 381 • Glynn J). Houston, 1 Keen, 389; Bailey Erie R. H., 9 Blatch. 316. 
 
 647 
 
§ 653 EQUITY JURISPRUDENCE. [CH. XXXIV. 
 
 the other cases have maintained, that this old equitable rule is to be 
 construed in the light of what were the limitations upon the common 
 law courts, at the time when the suit for discovery was devised; and 
 hence modern accessions to the powers of the law courts do not operate 
 as an implied repeal of the original equitable jurisdiction.' It has also 
 been held that the statutes, which allow the defendant in a suit in equity 
 to examine the plaintiff upon interrogatories, do not affect the right 
 of such defendant to obtain the same end by filing a cross-bill for dis- 
 covery.^ Ordinarily, the suit for discovery is instituted in aid of an 
 action already brought and pending; but this is not necessary, and the 
 court will order a discovery, if the bill for discovery shows on its face 
 that the plaintiff has a right to maintain or defend an action in some 
 other court, and that he is about to sue or is liable to be sued, and 
 that a discovery is needed to determine the rights of the party com- 
 plainant, or to properly frame the allegations of the pleading.^ But 
 inasmuch as the suit for discovery is only entertained in aid of a 
 pending or a future action, it will never be granted after a verdict has 
 been rendered in the action at law; the suit must be filed before the 
 cause of action, in aid of which the suit for discovery is instituted, has 
 been brought to a close.* 
 
 § 653. Who can file the bill for discovery ? — Either the plaintiff or 
 defendant, in a pending or anticipated cause of action at law, may file 
 a bill for a discovery. The party asking for discovery must institute 
 the action and appear as plaintiff therein, so that if a defendant in an 
 equity suit desires to discover evidence from the plaintiff in the suit, he 
 must file a cross-bill and thus become a plaintiff for the purpose of 
 discovery. ° The cross-bill must show that the party bringing it has 
 an interest in the subject-matter to which the discovery relates; such 
 an interest as that he can maintain or defend in an action in another 
 court, and for that reason he is entitled to the discovery. A stranger 
 to the subject-matter, to which the discovery relates, cannot entertain 
 the bill for discovery.' The plaintiff in the suit for discovery must 
 
 > Lovell V. Galloway, 17 Beav. Ij British Em- Bogert, S Edw. Oh. 399) Princess of Wales v 
 
 plre Ship Co. V. Somes, 3 K. <& J. 433; Cannon Lord Liverpool, 1 Sw. 114; United States v. 
 
 e. MoNab, 48 Ala, 99; Shotwell ». Smith, S6 N. Wagner, L. E. 8 Ch. 582; Talmage v. Pell, 9 
 
 J. Bq. (5 C. E. Green,) 79. Paige, 410j White v. Buloid, 2 Id. 164. 
 
 "Millsaps V. Pfelffer, 44 Miss. 805; but see 'Budeni;. Dore, 2 Ves. 445; Shaftsburye. Ar- 
 
 contra. Heath v. Erie R. E., 9 Blatoh. 316. rowsmith, 4 Ves. 71; Cooper Eq. PI., Ch. i, § 4, 
 
 a Turner v. Dlckerson, 1 Stockt. Ch. 140; pp. 58,59; Ch. 3, § 3, pp. 197, 198; Jeremy Eq. 
 
 Moodalay v. Morton, 1 Bro. Ch. 469; 2 Dick. Jurisd. 258; Baxter ». Parmer, 7 Ired. Eq. 239; 
 
 652; Angell v. Angell, 1 S. & S. 83; City of Lon- Turner v. Dlckerson, 1 Stockt. Ch. 140; Carter 
 
 don «. Levy, 8 Ves. 404; Kearney ». Jeffries, 48 ». Jordan, 15 Ga. 76; Jones v. Bradshaw, 16 
 
 Miss. 343; Buokner V. Ferguson, 44 Id. 677; Gratt. 355; Continental Life Ins. Co. v. Webb, 
 
 Hoppock V. United, Ac. E.E., 27 N.J. Eq. (12 54 Ala. 688; Brown v. Dudbridge, 2 Bro. Ch. 
 
 C. E. ■Green,)286; Baxter v. Parmer, 7 Ired. Eq. 321, 322; Brownsword v. Edwards, 2 Ves. Sen. 
 
 239. 243, 247; Sackvill v. Ayleworth, 1 Vern. 105; 
 
 ♦Cowman v. Klngsland, 4 Edw. Ch. 627; Dursley t;. Pitzhardinge, 6 Ves. 260; Allan ». 
 
 Poltz V. Pourle, 2 Desau. 40; Faulkner's Allan, 15 Id. 131; Attorney-General v. Duples- 
 
 Adm'r«. Harwood, 6 Eand. 125; Green v. Mas- sis, Parker, 144, 155-164; 5 Bro. P. C. 91; Glegg 
 
 sle, 21 Gratt. 356; McCollum ®. Prewitt, 37 Ala. i). Legh, 4 Madd. 193, 208; Wigram on Disc. 21, 
 
 573; Duncan®. Lyon, 3 Johns. Ch. 355, 402. 22; Jeremy Eq. Jurisd. 262, 263; Brown*. 
 
 SMillsapst). Pfelffer, 44 Miss. 805; Bogert v. Wales, L. R. 15 Eq. 142; Girdlestone' ». North 
 
 648 
 
CH. XXXIV.] BILLS OF DISCOVERY. § 654 
 
 not only show that he has a title to or interest in the subject-matter, 
 but he must likewise make it appear that the discovery would not be 
 useless; he must show that he has a.^itnafacie good cause of action. 
 It is, however, not necessary that he should establish his right beyond 
 dispute; it is sufficient if the bill for discovery establishes a prima 
 Jucie cause of action. * But in order that this discovery may be refused, 
 there must be no reasonable doubt as to the want of action or right on 
 the part of the plaintiff; if there is any reasonable doubt as to the 
 result of the controversy between the parties, the court of equity wiU 
 grant a discovery and leave the matter to be finally settled by the court 
 in which the main action is pending. ^ And a suit for discovery may 
 be entertained, even where the same court refused to grant relief on 
 the facts of the case.' 
 
 § 554. From whom can discovery be required ? — In order that 
 a discovery may be required of one, the defendant must be 
 a person who is not laboring under legal disabilities; such as an 
 infant or a lunatic without a committee or guardian. So, on the 
 other hand, it is impossible for one to be made a defendant in a suit 
 for discovery who is not interested in the subject-matter of the con- 
 troversy, in aid of which the bill of discovery has been filed.* Thus, 
 for example, in a suit by creditors against a bankrupt and his 
 assignees, the bankrupt cannot be compelled to make discovery. ° 
 And arbitrators cannot, in general, be joined in a bill for discovery, 
 and be compelled to disclose the grounds of their award.' But if the 
 arbitrators are charged with actual misconduct or fraud, they are 
 obKged to answer in respect to such charges.' The bill for discovery 
 will not be entertained against mere witnesses; they cannot be joined 
 with the party to the action as defendants and obliged to answer. So, 
 likewise, the agent of any party to the action is not a proper party 
 defendant.' But where the agent is a, jpcvrticeps crvminis with his 
 principal in the practice of some fraud, then he may be made a 
 co-defendant and compelled to disclose facts, because he is liable with 
 Ms principal for the fraud.' Another exception to the rule, that 
 
 British, &a. Co., L. E. 11 Eq. 197; Comm'rs, Ac. *Pluinmer v. May, 1 Ves. Sen. 426; Dineleyw. 
 
 r. Glasse, L. R. 15 Eq. 302; Kettlewell v. Bar- Dlneley, 8 Atk. 394; Finch v. Finch, 2 Ves. Sen. 
 
 «tow, L. R. 7 Ch. 686; Slack v. Black, 109 Mass. 491 ; Fenton v. Hughes, 7 Ves. 287; Jeremy Eq. 
 
 496; Haskell t?. Haskell, 3 Cush. 640. Jurisd. 259; Brownswoid v. Edwards, 2 Ves. 
 
 1 Thomas V. Tyler, 3 Y. & C. 255; Metier v. gen. 243. Newman v. Edwards, 3 Ves. Sen. 343; 
 
 Metier, 4 Green Ch. 457; Slack v. Black, 109 jjeuman v. Godfrey, 2 Bro. Ch. 332. 
 
 Mass. 496; Angell v. Draper, 1 Vern. 399; Mac- , j,^ g^n^ ^ ^.„3 3 p ^^, 3^1 („,. f^^^ 
 
 auley v. Shackell, 1 Bligh, K s., 120 ^ ^^^j^^ 2 ^^^j 4^8 2 ^^^_ ^ Whitworth v. 
 
 « Baileys. Dean, 5 Barb. 297; Peck ». Ashley, nnv's 1 v * R iM'i 
 
 Z T-T:''''°^T. :iZ'ul l^- lvi„™' « Tittenson .." Peat, 3 Atk. 529; Steward v. 
 
 361, 262; Hare on Disc. 43-46; March 1;. Davison, ^ ^ ■, ,, „ „„ „on . o»*v 
 
 9 Paige, 580; Lane v. Stebbins, 9 Id. 622; Deas ^^^ 1°"^'* Company, 2 Vern. 380; Anon., 3 Atk. 
 
 ■». HarvIe,2Barb.Ch. 448. 6^ „ „^^ ^,„ 
 
 » Chichester «. Marquis of Donegal, L. E. 4 ' O^ic' "■ Lequesne, 2 Ves. Sen. 315, 418; 
 
 Ch. 416 ; Kettlewell v. Barstow, L. B. 7 Ch. 686; Lindsley v. James, 3 Coldw. 477. 
 Thompson v. Dunn, L. R. 5 Ch. 573; Smith V. ' Ballm v. Ferst, 55 Ga. 546. 
 
 Duke of Beaufort, 1 Phil. 209; MoCoUum v. » Gartland «. Nunn, 6 Eng. (Ark.) 721; Ballin 
 
 Prewitt, 37 Ala. 573; Treadwell v. Brown, 44N. v. Ferst, 55 Ga. 646; Bowles v. Stewart, 1 Sch. 
 
 H 551 ; Primmer v. Patten, 32 111. 528. & Lef . 227 , Bennet v. Vade, 2 Atk. 324. 
 
 649 
 
§ 655 EQUITY JUKISPKUDENCE. [CH. XXXTV. 
 
 agents cannot be made parties to a suit for discovery brought against 
 the principal, is in cases of suits against corporations. The agents of 
 corporations may be made parties and compelled to make discovery 
 of the facts affecting the rights and liabilities of the corporation, aris- 
 ing from the fact that the corporation itself cannot make answer on 
 oath.^ And so, likewise, will a bill of discovery be entertained by or 
 against nations and states which are not monarchical, viz. : republics like 
 the United States of America.^ It is also a rule of the court of 
 equity, that a bill for discovery will not be entertained against a 
 defendant who sets forth the fact that he is a l)ona fide purchaser of a 
 subject-matter of the controversy; the ground being that such l)ona, 
 fide purchaser, in his character as such, can claim a paramount title 
 to the property which the plaintiff is attempting to recover. But, of 
 course, in order that the defendant might escape the necessity of 
 answering the bill for discovery, he must establish his character as a 
 purchaser for value and without notice of the claim of the plaintiff.' 
 The same protection against the liabiKty to a bill of discovery is 
 afforded to the purchaser from a hona fide purchaser; although the 
 former cannot, in his own person, claim the character of a l>ona fide 
 purchaser, he is permitted to stand upon the superior equity of his 
 grantor.* 
 
 § 565. What matters the bill of discoTery may inclnde. — The 
 fundamental rule, in regard to the questions which the plaintiff can 
 require to be answered, and which the defendant in the suit for dis- 
 covery may be required to answer, is, that the plaintiff in the suit for 
 discovery is entitled to a disclosure of all the facts relating to the 
 subject-matter of the controversy, which may be material to the issue 
 in establishment of his own title or cause of action; but it does not 
 extend to a discovery of the facts which constitute the defendant's own 
 defense to the cause of action. The plaintiff is entitled to know what 
 is the defense of the defendant, or in the case of a question of title he 
 has a right to know the defendant's title; but he cannot require such 
 defendant to disclose the evidence upon which he intended to rely in 
 support of that title.' But this statement, that the plaintiff is not 
 
 > French u. First Nat. Bk., 1 Ben. 488; Fenton 7 Pet. 252, 271; McNeil ». Magee, 5 Mason, 269, 
 
 V. Hughes, 7 Ves. 288-291; Jeremy Eq. Jurisd. 270; Wood v. Mann, 1 Sumner, 506; Flagg v. 
 
 260 ; Wych v. Meal, 3 P. Wms. 311, 312, per Lord Mann, 2 Id. 487 ; Willoughby ». Willoughby, 1 
 
 Chan. Talbot; Ayres v. Wright, 8 Ired. Eq. 229; T. H. 763, 767, per Lord Hardwicke ; Jeremy Eq. 
 
 Yates V. Monroe, 13 111. 212; Many v. Beekman Jurisd. 263, 264; Stanhope v. Earl Verney, 2 
 
 Iron Co., 9 Paige, 188. Eden, 81 ; Maundrell v. Maundrell, 10 Ves. 246, 
 
 2 King of Sicilies II. Willoox, lSim.,N. s.,301; 259,260,270. 
 
 Columbian Govt. ». Rothschild, 1 Sim. 94; ^Hart v. Farmers and Mech. Bank, 33 Vt. 
 
 Republic of Costa Rioa v. Brlanger, L. R. 1 Ch. 252; Abell v. Howe, 43 Vt. 403; but see Danbury 
 
 DiT. 171; L. R. 19 Eq. 33 j Republic of Peru v. v. Robinson, 1 McCarter, 213; Whitworth v. 
 
 Weguelin, L. R. 20 Eq. 140; King of Spain v. Gaugain, 3 Hare, 416; Basset v. Nosworthy, and 
 
 HuUett, 1 Cl. & Fin. 333; U. S. v. Wagner, L. R. Le Neve v. Le Neve, 2 Lead. Gas. in Bq. 1, 109; 
 
 2Ch. 582; L. R. 3 Eq. 724; Prioleau v. United Varick v. Briggs, 6 Paige, 323, 329; Ja<disou v. 
 
 States and Andrew Johnson, L. R. 2 Eq. 659. McChesney, 7 Cow. 260. 
 
 3 Payne ». Compton, 2 Y. & C. 457; Fitzsim- ' King t). Ray, 11 Paige, 235; Brooks ». Byam, 
 mons V. Ogden, 7 Cranch, 2; Vattier v. Hinde, 1 Story, 296-301; Langdon v. Goddard, 3 Story, 
 
 650 
 
CH. XXXIV.] BILLS OF DISCOVERT. § 555 
 
 entitled to a disclosure of the evidence of the defendant, is intended 
 to refer to cases where such evidence would not in any way aid 
 the plaintiff in support of his own cause of action or defense. If the 
 disclosure of the evidence, upon which the defendant in the suit for dis- 
 covery relies, is essential to the establishment of the plaintiff's cause of 
 action or defense, then such evidence must be disclosed, although it 
 may be material to the defendant. ' It is, of course, a positive require- 
 ment of all cases of suits for discovery, that the matters required to 
 be disclosed should be material to the plaintiff's cause of action or 
 defense; he is not permitted to ask for a disclosure of matters 
 not material to his claim or rights, merely for the purpose of 
 gratifying malice or an idle curiosity.^ So, also, must the purpose 
 for which the discovery is asked be one which a court of equity could 
 effectuate ; the object of the discovery must, also, not be opposed to good 
 morals or to principles of public policy.' Under this general doctrine, 
 it has been held that the defendant, in a suit for discovery, cannot be 
 required to disclose facts which would tend to criminate himself, or 
 to expose him to criminal prosecution or punishment, or to the inflic- 
 tion of penalties or forfeitures. Not only may he rjcf use to answer in 
 respect to the directly criminating facts, but also refuse such answer 
 to any facts which would constitute a link in the chain of evidence, 
 tending to fasten upon him criminal or moral responsibility.* But 
 whenever such evidence is material to the plaintiff's cause of action, 
 he could not refuse to make a disclosure in such. suit of his own fraud, 
 because the fraud was so gross as to expose him to a criminal prosecu- 
 tion.^ So, also, is it impossible for a defendant to refuse to make a 
 discovery of facts which would tend to expose him to a liability to 
 some pecuniary penalty, where the facts thus required tend to support 
 or establish the rights of the plaintiff under the contract made by the 
 defendant." So, also, is it no ground for exemption from the liability 
 
 13; Haskell «. Haskell, 3 Gush. 542; Heath v. 283; Jeremy Eq. Jurisd. 268; King «. Burr, 3 
 
 Erie R. E., 9 Blatch. 316; SackvlU v. Ayleworth, Meriv. 693; Cousins v. Smith, 13 Ves. 542. 
 
 1 Vem 105; Dursleyi). Fitzhardinge, 6 Ves. 260; ■* Black v. Black, 26 N. J. Eq. (11 C. E. Green,) 
 
 Allan r Allan, 15 Ves. 131 ; Janson v. Solarte, 2 431 ; East India Co. v . Campbell, X Ves. Sen . 
 
 T AC 127; Bellwood V. Wetherell, 1 T. & 0. ^i Curriers. Concord, &c. R. E.,48N. H.321; 
 
 211-218; CulUson v. Bossom, 1 Md, Ch. 95; Phil- J. S. «. Saline Bk 1 Peters 100; Horsburg v. 
 
 , V .. i T 1, ^v one /~.,„,i„.. Baker, JA 232-236 ;Greenleafi;. Queen, 1 Peters, 
 
 lips V. Prevost, 4 Johns. Ch. 205; Cuyler v. ' ' r^ ' • 
 
 „ T, • ,oo T, 1 v: TT.'„„ »»„. 138; Oeean Ins. Co. u. Fields, 2 Story, 59; Stew- 
 
 Bogert, 3 Pa>ge, 186; Bank of W.ca .. Mer- ' ^ • ^.. ' 
 
 sereau, TPaige, 517; Hoppock v United, &c E. ^ ^^^^ ^^ Northrup v. Hatch, 6 
 
 E., 27 N. J. Eq. (12 C. E. Green,) 286; French v. ^^^^ ^^ . g^j^^^^ „^ j^^^^^^ g /^^ j.^^. p^/^ 
 
 Eainey, 2 Tenn. Ch. 641 ; Eichardson v. Matti- ^^_^^^^ ^ ^^^.^^ g ^^^^^ ^g, . gigdon v. Heard, 
 
 son, 5 Biss. 31 ; Kearneys. Jeffries, 48 Miss. 343. j^ ^^ ggg. Marshall v. Eiley, 7 Id. 367. 
 
 1 In Atty.-Gen. v. Corp'n of London, 2 Macn. s skinner v. Judson, 8 Conn. 528; Howell v. 
 & G. 247, 256, 2.57, s. c, 13 Beav. 313; Stainton v. Ashmore, 1 Stockt. Ch. 82; O'Connor v. Tack, 2 
 Chadwiek, 3 Macn. & G. 575; Young v. Colt, 2 Brews. (Pa.) 407; Green o. Weaver, 1 Sim. 404, 
 Blatch. 373. 427, 433; Jlitehell v. Koeoker, 11 Beav. 380; 
 
 2 Gelston«. Hoyt, 1 Johns. Ch. 548, 549; Linds- Eobinson V. Kitchin, 35 Eng. L. & Eq. 558; Cur- 
 ley •!>. James, SColdw. 477; Wier u. Tucker, L. rier». Concord, &c. R. E., 48 N. H.321; A ttwood 
 E. 14 Eq. 25; Minet v. Morgan, L. E. 8 Ch. 361 ; v. Coe, 4 Sandf. Ch. 412. 
 
 Finch V. Finch, 2 Ves. Sen. 492; Eichards v. ' Green v. Weaver, 1 Sim. 404; Lee v. Eead, 5 
 
 Jackson, 18 Ves. 473. Beav. 381; Hurst i;. Hurst, L. R. 9 Ch. 762; 
 
 3 Eaiah o East India Co., 35 Eng. Law & Eq. Chauncey v. Tahourden, 2 Atk. 392. 
 
 651 
 
§ 556 EQUITY JTJEISPEUDENCE. [CH. XXXIV. 
 
 to make discovery, where the liability to a penalty is barred by the 
 lapse of time, or where the right to such penalty held by the plaintiff 
 has been waived by him.' 
 
 § 556. Privileged commanications. — The defendant in a suit for 
 discovery can never be required to make a disclosure of facts, which 
 have come to his knowledge by means of, what is pronounced by law 
 to be, privileged communications. He cannot be required to disclose 
 such privileged communications; but he is also prevented by the court 
 from making even a voluntary communication of that sort. For this 
 reason, a married woman cannot be compelled to disclose facts which 
 tend to establish any liability whatever upon her husband; and the 
 same doctrine would now apply to the disclosure by the husband of 
 any facts within his knowledge which would tend to fasten a liability 
 upon his wife. On the same principle, is it held by the law generally, 
 that an attorney at law, to whom communications have been made in 
 the repose of professional confidence, cannot be the defendant to a bill 
 of discovery.^ But there are some exceptions to this rule, in the case 
 of client and attorney, in which the protection of a privileged com- 
 munication would not be established; thus, for example, where a 
 client and attorney jointly commit a fraud, the attorney can be com- 
 pelled to disclose facts relating to such fraud.* It is also a doubtful 
 question as to the time when the communication must be made to the 
 attorney, in order that it may come within the exception to the liabil- 
 ity for discovery. According to the earlier cases in England, and in 
 some of the American states, in order that the communication to the 
 attorney may constitute a privileged communication which need not 
 be disclosed in a bill of discovery, the statement must have been 
 made during the actual pendency of a litigation, or in contemplation 
 of an anticipated litigation. * But, according to the later English cases, 
 and the American cases in general, the communication to an attorney 
 is privileged, whether made in anticipation of litigation or before any 
 dispute has arisen, provided a communication is made to such attor- 
 ney in his professional capacity.^ The same principle of privileged 
 communication, in regard to the liability for discovery, has been 
 applied to all governmental officers; so that such officers are not com- 
 
 1 Northrup v. Hatch, 6 Conn. 361; Dwinal v. « Cossey ». London, Sea. Ky., L. E. 50. P. 146; 
 
 Smith, So Me. 379; Mltf. on Eq. PI. 19.'5-197; Anderson B. Bank of Br. Columbia, L. B. SCh. 
 
 Trinity House Corp'nu.Burge,S Sim. 411; Skin- Biv. 644. Eeynell «. Sprye, 10 Beav. 51; 11 Id. 
 
 ner v. Judson, 8 Conn. 528. 618; Gartside v. Outram, 26 L. J. (Ch.) 113. 
 
 ' Anderson v. Bank of Br. Columbia, L. E. 2 * Radcliffe v. Pursman, 2 Bro. C. P. 514j Bol- 
 
 Ch. Diy. 644; Bulstrode v. Letohmore, 3 Preem. ton v. Corp'n of Liverpool, 3 Sim. 467; 1 My. <fc 
 
 5; 1 Chan. Cas. 277; Parkhurst v. Lowten, 2 Sw. K. 88; Whiting v. Barney, 30 N. Y. 330. 
 
 194, 216; Currier v. Concord, <fec. E. E., 48 N. H. » Minet v. Morgan, L. E. 8 Ch. 361; Pearse v. 
 
 321; EUBSell v. Jackson, 9 Hare, 387; Bank of Pearse, 1 De G. & Sm. 12; Lawrence V. Camp- 
 
 TJticaw. Mersereau, 3 Barb. Ch. 528; Crosbys. bell, 4 Drew. 485; Bolton v. Corp'n of Liyer- 
 
 Berger, 11 Paige, 377; March v. Ludlum, 3 pool, 3 Sim. 467; 1 My. & K. 88; McLellan v. 
 
 Sandf. Ch. 36; Stuyvesant v. Peckham, 3 Edw. Longfellow, 32 Me. 494; McMannus v. State, 2 
 
 Ch. 579; Parker v. Carter, 4 Munf. 273. Head, (Tenn.) 213. 
 
 652 
 
CH. XXXIV.] BILLS OF DISCOVEKY. § 658 
 
 pelled to disclose matters of state, where the public interests would be 
 harmed by such a disclosure.' 
 
 § 657. Manner of making discovery. — Where the bill of discovery 
 relates to a subject-matter which is properly brought within the oper- 
 ation of a bill, and is filed against a defendant who is not exempt by 
 any principle of law from the liability to make such discovery, he is 
 then called upon and is required to make a full and complete discovery 
 of all of the facts which are material to the cause of action or 
 defense of the plaintiff in the suit for discovery; that is, he cannot 
 make a partial answer to such inquiries, but he must answer them fully 
 and completely. Of course, the court will protect such defendant 
 against immaterial inquiries, and against any oppressive enforcement 
 of the rule." The information, therefore, that he gives, must be com- 
 plete, for, unless such information is complete, a discovery will not be 
 of any special value to the plaintiff.' And the defendant, in making 
 answer, is required to make it to the best of his knowledge, informa- 
 tion and belief.* The answers must also be distinct and positive in 
 their statement and must leave nothing to be inferred; he must give 
 specific answers to specific questions.^ But there is, of course, a 
 limit to the specification of his answer, so as to avoid unnecessary 
 minuteness or verbosity. ° 
 
 § 668. Production and inspection of . documents. — As a part of 
 the reply by the defendant to the bill for discovery, where such bill 
 calls for the production for inspection of documents in the possession 
 of the defendant, a complete answer to such a bill would require the 
 production of such documents; and it is no excuse for non-production 
 that they are in the possession of a third person, or even that a third 
 person has a lien upon and interest in such documents, as long as the 
 defendant has control of such documents.' But if the documents 
 which are called for in the bill for discovery belong wholly or in part 
 to third persons, who are not parties to the suit, the defendant cannot 
 be required to produce them.' If the defendant, in making answer to 
 
 1 Greenough v. Gaskell, 1 My. & K. 98, 115; Shotwell v. Struble, 31 N. J. Eq.(6 C. E. Green,) 
 
 Warjiie ti. Warde, 1 Sim., s. s., 18; 3 Macn. & G. 31; Walter®. McNabb, 1 Heisk. 703. 
 
 365; Bluck v. Galsworthy, 3 Griff. 453; Jenkyns * White v. Williams, 8 Ves. 195 ; Atty.-Gen. v. 
 
 ». Bushby, L. E. 2 Eq. 547; Bolton «. Corp'n of East Retford, 2 My. <& K. 35; Drake ». Symes, 
 
 Liverpool, 3 Sim. 467; 1 My. & K. 88; MoLel- Johns. 647. 
 
 Ian ». Longfellow, 33 Me. 494; MeMannus v. * Pry«. Shehee, 55Ga. 308. 
 
 State, 2 Head, (Tenn.) 313. ^ Tipping v. Clarke, 2 Hare, 383, 389; Anon., 2 
 
 2CuyIer». Bogert, 3Paige, 186; Bankof 0tl- Y. & C. 310; Duke of Brunswick ». Duke of 
 
 ca «. Mersereau, 7M. 517; King ». Kay, 11 Jd Cambridge, 13 Beav. 281 ; Faulder «. Stuart, 11 
 
 235; Chaplin v. Chaplin, 2 Bdw. Oh. 363; War- Ves. 296- Wharton®. Wharton, 1 S. <fc S. 335, 
 
 Ing V. Suydam, ild. 426; Brooks v. Byam, 1 " See Parker d. Fairlie, 1 S. & S. 295; Lowei?. 
 
 Story,S96; Langdouu. Goddard, 3 7d. 13; Kitt- Williams, 3 Id. 574; Norway ®. Rowe, 1 Meriv. 
 
 redge v. Claremont Bank, 3 Id. 590; Wootten v. 346 ; Byde V. Masterman, Or. & Ph. 265 
 
 Burch, 3 Md. Ch. 190; Saunders v. Jones, L. E. ' Taylor v. Eundell, Cr. & Ph. 104; 1 Phil. 322; 
 
 7 Ch. Div. 435, 443; Wier ». Tucker, L. E. 14 Eq. Clinch u. Financial Corp'n, L. E. 3 Eq. 271; 
 
 25; Meth. Epls. Ch. v. Jaques, 1 Johns. Ch. 65; Glengall v. Frazer, 3 Hare, 99; Stuart v. Bute, 
 
 Phillips®. Prevost, 4 Johns. Ch. 205; Hagthorp 11 Sim. 442; Lady Beresford ®. Driver, 14 Beav. 
 
 V. Hook, 1 Gill & J. 272; Salmon v. Clagett, 3 387; Bobbins v. Davis, 1 Blatch. C. C. 238. 
 
 Bland Ch. 143; Robertson v. Bingley, 1 McCord 8 Hadley®. MoDougall, L. R. 7 Ch. 313; War- 
 
 Ch. 333; French v. Ealney, 8 Tenn. Ch. 641; rick v. Queen's College, L. R. 4 Eq. 354. 
 
 653 
 
§ 560 EQUITY JUEISPEUDENCB. [CH. XXXIV. 
 
 the bill of discovery, states unequivocally that the documents required 
 are not in his possession and not under his control, he cannot be 
 required to produce them; and his statements are not ordinarily subject 
 to any contest, either by cross-examination by such defendant or by 
 contradictory evidence offered on the part of the plaintiff, where the 
 answer is sworn to.^ But where the defendant's own sworn answer or 
 evidence, filed by him in the suit, gives rise to reasonable and well- 
 founded suspicions that the statement in respect to the absence of the 
 document is false, then he may compel the defendant to make a more 
 specific statement under oath as to the possession of the documents 
 called for.'' 
 
 It is also required that the documents, which are required to be pro- 
 duced, should be material to or should relate to the plaintiff's case; and 
 "where the defendant in the suit for discovery positively denies that 
 they are material, he is relieved from the duty of producing them.' 
 A defendant is not generally required to produce his own title deeds, 
 where such title deeds are only evidence of his own title.* But if such 
 title deeds contain statements or clauses, which tend to support the 
 claims of the plaintiff in the suit for discovery, then he must produce 
 them in aid of plaintiff's cause. ^ 
 
 § 559. To what extent the answer in the suit for discovery may 
 be used as evidence. — Where evidence is discovered -by means of a 
 suit for discovery, the answer thus procured has the effect of a judg- 
 ment, and it must be produced in court without any limitation or cur- 
 tailment, if the party obtaining the discovery makes use of any part 
 of the answer in support of his claim or cause of action. ° The answer 
 in an ordinary equitable suit may and sometimes does contain admis- 
 sions or answers to interrogatories contained in the plaintiff's bill; 
 these answers have the same force and effect as a similar answer when 
 made to a bill for discovery.' 
 
 § 560. Equitable provisions for examination of witnesses. — As 
 has been explained in the preceding paragraphs, which relate to the 
 
 1 Eeynell v. Spiye, 1 De G. M. & G. 656 j and 45, per Mallns, V. C. ; Beckford v. Wildman, 16 
 see Eobbins v. Davis, 1 Blatch. C. C. 238; Ves. 438. 
 
 Wright V. Pitt, L. R. 3 Cli. 809, 810, per Page « Shotwell v. Smith, 20 N. J. Eq. (5 C. E. 
 
 Wood, L. J. Green,) 79; Holmes v. Holmes, 36 Vt. 525; Lyons 
 
 2 Wright V. Pitt, L. E. 3 Oh. 809, 810, per Page v. Miller, 6 Gratt. 439; Pant v. Miller, 17 Gratt, 
 Wood, L. J. ; Saull v. Browne, L. E. 17 Eq. 403j 187; Hart v. Freeman, 42 Ala. 56T. 
 
 Noel V. Noel, 1 De G. J. & S. 468. 'Sweet v. Parker, 3 0. E. Green, (22 N. J. Eq.) 
 
 > Minet v. Morgan, L. E. 8 Ch. 361, per Lord 453; Tomllnson v. Lindley, 2 Carter, (Ind.) 569; 
 
 Selbome; Kettlewell j). Barstow, L. E. 7 Ch. , Hughes v. Blake, 6 Wheat. 453; Union Bk. ». 
 
 686; Patch v. Ward, L. E. 1 Eq. 436, 439; Atty.- Geary, 5 Peters, 99; Chance v. Teeple, 3 Green's 
 
 Gen. i>. Corp'n of London, 2 Maon. & G. 247. Ch. 173; Myers v. Klnzie, 26 111. 36; White V. 
 
 * Patch V. Ward, L. E. 1 Eq. 436; Thompson ». Hampton, 10 Iowa, 238; Hart v. Freeman, 42 
 
 Engle, 3 Green's Ch. 371; CuUison v. Bossom, 1 Ala. 667; Eaton's Appeal, 16 P. F. Smith, (Pa. 
 
 Md. Ch. 95; Chichesterii. Marquis of Donegal, St.) 483; Swift v. Deau, 6 Johns. 523; Clason v. 
 
 L. E. 5Ch. 497; Minet D.Morgan, L.E llEq. 284. Morris, 10 Id. 584; Stafford v. Bryan, 1 Paige 
 
 SFoUettB. Jefferyes,l Sim., N.s.,1; Freeman Ch. 239; Page v. Page, 8 N. H. 187; Daniel ». 
 
 s;. Butler, 33 Beav. 289; Crisp u. Platel, 8 Beav. Mitchell, 1 Story, 173; McMahon ». Burohell, 2 
 
 62; Cullisonj). Bossom, 1 Md. Ch. 196; Eepublio Phil. 127; Glenn v. Eandall, 2 Md. Ch. 280; 
 
 of Costa Eioa v. Erlanger, L. E. 19 Eq. 33, 44, Fant V. Miller, 17 Gratt. 187. 
 
 654 
 
CH. XXXIV.] BILLS OF DISCOVEEY. § 561 
 
 matter of bills of discovery, that remedy applies only where the 
 party to a suit desires that the opposing party shall make discovery of 
 facts or information, or of documents under his control, where such dis- 
 covery is needed in the prosecution of one's suit. It is not possible 
 for a bill of discovery to be employed in procurement of the exami- 
 nation of witnesses, who are not parties to the suit. At common law, 
 the only provision for the examination of witnesses was in the suit in 
 which the evidence was needed; and if, before the suit could be brought 
 to trial, the witness dies or absconds, or for some other reason cannot 
 be placed upon the witness-stand, the evidence could not be obtained 
 in any other way, and if the suit depended upon such evidence, it 
 would, in that case, fail completely. In order that such failures of 
 justice may be avoided, equity interposed its extraordinary power 
 and jurisdiction for the purpose of providing a remedy for such dan- 
 gers by furnishing the means of obtaining testimony of parties who, 
 for some reason or other, either could not be brought before the 
 court, or who are likely to go beyond the jurisdiction of the court 
 before the suit comes to trial. In all such cases, the suit for the 
 examination of the witnesses is an independent action, and auxiliary to 
 the many causes of action in aid of which the suit for the examination 
 of witnesses is brought. These auxihary remedies are three in 
 number: First, the suit to perpetuate testimony; second, suits to take 
 testimony of witnesses de iene esse; third, suits to take the testimony 
 of witnesses in a foreign country. The suit to perpetuate testimony 
 has been already explained in the preceding chapter.* The remaining 
 classes of suits for the procurement of needed testimony will be 
 explained in the succeeding paragraph. 
 
 § 561. Suits to take testimony of witnesses de Ibene esse. — 
 The suit to perpetuate testimony, it will be remembered, was instituted 
 whenever the plaintiff had an interest in the property, which could not 
 be enforced or established ordinarily at the present time, and in 
 order to preserve the testimony for use in the future cause of action 
 in respect to such interest. In the case of a suit to take testimony de 
 iene esse, the party plaintiff is not required to show that he cannot 
 now bring the main action in the enforcement of his right; on the 
 contrary, the suit to take testimony de iene esse is an equitable remedy 
 for procuring testimony to be used in some pending cause of action, 
 whenever there is any danger of losing such evidence through the 
 death, insanity, illness, or departure of such witness from the country.^ 
 These depositions when taken are admissible as evidence in the pend- 
 ing cause of action at the trial, whenever it is shown that the witness 
 
 1 See § 543. 83, 92, 93; Fitzhugh v. Lee, Amb. 65 ; Phillips v. 
 
 iSEowe V. , 13 Ves. 261; Cholmonde- Carew, 1 P. Wms. 117; Frere v. Green, 19 Ves. 
 
 lay V. Ortord, 4 Bro. Ch. 157; Shirley v. Earl 330; Cann v. Cann, 1 P. Wma. 567; Hope v. Hope, 
 
 Ferrers, 3 P. Wms. 77; Pearson v. Ward, 1 Cox, 3 Beav. 317; Mcintosh v. Great West. Ry., 1 
 
 177; Priohard«. Gee, 5 Madd. 364; Jeremy Eq. Hare, 328. 
 Jurlsd., pp. 271-273; Angell v. Angell, 1 S. & S. 
 
 655 
 
§ 662 EQUITY JURISPRUDENCE. [CH. XXXIV. 
 
 is dead or beyond the jurisdiction of the court, or for some other cause 
 physically or mentally incapable of testifying in person. If it is possi- 
 ble to produce the witness on the witness stand, the deposition is not 
 permitted to be used.* 
 
 § 562. Suits to examine witnesses in foreign countries. — This 
 is an equitable suit, whereby persons living beyond the jurisdiction 
 of a court can be provided vnth. the means of giving their evidence 
 before a committee, appointed by the court of equity for the purpose 
 of taking such deposition. It really~constitutes but one kind of suit 
 to take testimony de bene esse/ the only peculiarity or point of differ- 
 ence being, that in the present case the evidence is taken beyond the 
 ordinary jurisdiction of the court, and by commissioners appointed by 
 such court to act as its agents in taking the testimony. And the 
 ground for exercising this jurisdiction is the inability of a court to 
 compel an attendance of such person upon the trial.'' Statutory 
 modes of taking and procuring such testimony have now superseded 
 the more cumbersome equitable suit in the discovery or perpetuation 
 of evidence, so that the equitable remedies here described have become 
 practically obsolete. 
 
 1 Harris v. Cotterell, 3 Meriv. 680 j GasonD. ». Macauley, 5 Madd. 218,i331; Devls ». Tum- 
 
 WordBworth, 2 Ves. Sen. 336: Dew v. Clark, 1 S. dully 6 ia. 832j Grlnnell v. Cobbold, 4 Sim. 646; 
 
 &S. 108; Websteri). Pawson, Dick. 540. Moodalayo. Morton, 1 Bro. Ch. 469; Angello. 
 
 'Uendizabel v. Maohado, 2 Id. 483; Thorpe Angell, 1 S. & 8.83,93. 
 
 656 
 
CHAPTER XXXV. 
 
 rNTEEPLEADEE. 
 
 General principles 
 
 Essential requisites to an action for inter- 
 pleader 
 
 The same thing, debt, or duty 
 
 The adverse claims must be derived from 
 the same source 
 
 Plaintiff must be a disinterested party 
 
 Section 
 . 566 
 
 567 
 568 
 
 569 
 570 
 
 Sbotion 
 Independent liability to one claimant . 571 
 Interpleader by bailees, agents, tenants, 
 
 and parties to contracts .... 573 
 What the bill of interpleader should con- 
 tain 573 
 
 Interpleader in legal actions under modern 
 statutes 574 
 
 § 566. General principles. — This is, ia some cases, a purely 
 equitable remedy; for, while at common law the remedy was em- 
 ployed in two special cases, viz. : when two persons claimed the 
 title to the same article which had been lost and found, and when 
 two or more persons had made a joint bailment, and subsequently 
 dispute between themselves over their respective rights to the subject 
 of the bailment; yet the general employment of the remedy was con- 
 fined to equitable actions. The purpose of the remedy is to enable the 
 one who has possession of some property, to which two persons are 
 making antagonistic claims, and who is in danger of being subjected 
 to two or more law suits, to avoid this danger and annoyance by filing 
 a bill in equity, calling upon the adverse claimants to interplead in 
 respect to the subject-matter of their contention, and to settle the same 
 between themselves; while the court takes charge of the subject-mat- 
 ter, and relieves the interpleader from all further obligations in respect 
 to the contention. ' It is sometimes stated that the remedy of interpleader 
 is provided for the purpose of enabling one to avoid the risk of two 
 recoveries of judgment against himself. This is, however, not the 
 case; all that is required as a foundation to the action is, that the 
 interpleader is subject to the risk of being annoyed by two or more 
 suits in respect to the matter; it is not necessary for him to be subject 
 to the possibility of a double liability. In fact, in most cases, if not 
 in all, the liability is single; but the double element in the case is the 
 
 1 Hays«. Johnson, 4 Ala. 267; Mich., Ac. Co. 
 V. White, 44 Mich. 85; Cogswell v. Armstrong, 
 77 111. 139; Hathavfay v. Foy, 40 Mo. 540; Orr 
 Water Ditch Co. v. liarcombe, 14 Nev. 53; 
 Pfisterti. Wade, 58 Cal. 43; Bell ». Hunt, 3 Barb. 
 Oh. 391 ; Eichards v . Slater, 6 Johns. Ch. 445; 
 Atkinsons. Manks, 1 Cow. 691; Cady u. Potter, 
 55 Barb. 463: Mount Holly, &0. Tp. Co.®. Fer- 
 ree, 17N. J. Eq. 117; Strange v. Bell, 11 Ga. 103; 
 Burton v. Black, 32 Id. 53: Lincoln v. Rutland, 
 
 42 
 
 &C. K. B., 34 Vt. 639; Dorn v. Pox, 61 N. T. 264; 
 Shaw V. Coster, 8 Paige, 339; Mohawk, &c. E. 
 E. V. Clute, 4 Id. 384; Redell v. Hoffman, 8 Id. 
 199; Badeauu. Rogers, 2 Id. 209; Mitford's Eq. 
 PI.,, pp. 58, 59; Crawshay D. Thornton, 8 My. & 
 Cr. 1; Sieveking'©. Behrens, 8 Id. 581 ; Glyu v. 
 Duesbury, 11 Sim. 139, 147 ; Langston v. Boyl- 
 ston, 2 Ves. 101, 103, 109; Jones v. Thomas, 3: 
 Sm. AGif. 186; Prudential Ass. Co. u. Thomas,, 
 li. E. 3 Ch. 74; Parley ». Blood, 30 N. H.354. 
 
 657 
 
§ 568 EQUITY JTJRISPEUDENCE. [CH. XXXV. 
 
 doubt as to the person to whom he is liable.' But in order that a bill 
 of interpleader may be filed, the risk of being subjected to two or more 
 law suite must be real, and the fear well founded; and this fear must 
 continue to be well founded until the decree is made.^ It is not, how- 
 ever, necessary that a suit should be actually brought against the 
 interpleader at the time when he files his bill; but it is simply required 
 that the danger of being subjected to a multiplicity of suits should be 
 real.' The equitable jurisdiction in all such cases does not in any- 
 wise depend upon the legal or equitable character of the conflicting 
 claims, i. e., the court of equity will have jurisdiction for the settle- 
 ment of such a dispute, whether the conflicting claims are both legal 
 or both equitable,* or where one is legal and the other is equitable. ° 
 But whatever may be the character of these claims, they must cer- 
 tainly be adverse to each other. If there is no conflict between the 
 claims of the parties, but one may be reconciled with the other, there 
 is no reason for an interference by a court of equity. ° 
 
 § 567. Essential requisites to an action for interpleader. — 
 Independently of statutory modification, in order that a bill of inter- 
 pleader may be filed and the party to it be called upon to interplead 
 in respect to their conflicting claims, four essential requisites must 
 co-exist: First, their contention must be about the same thing, debt, 
 or duty; Secondly, their adverse claims must have a common origin; 
 thirdly, the party filing the bill must be disinterested; fov/rthly, he 
 must not be under any independent liability to either of the claimante, 
 in respect to the subject-matter of their contention. 
 
 § 568. The same thing, debt or duty.— The fii-st requirement to 
 an action for interpleader, is that the same thing, debt, or duty, must 
 be claimed by both parties against the person who calls" for relief by 
 way of interpleader.' It has been held that "where the claims made 
 
 1 Trigg V. mtz, 17 Abb. Pr. 436; Farley v. « Duke of Bolton ». Williams, 4 Bro. Ch. 297, 
 Blood, 30 N. H. 354 j Mich., &0. Co. v. White, 309; Parley v. Blood, 36 N. H. 354; Richards v. 
 44 Mich. 25; Newhall v. Kastens, 70 111. 156; Salter, 6 Johns. Ch. 445; Yates v. Tisdale, 3 
 Nelson u. Barter, 2 Hem. & M. 334; 33 L. J. Ch. Edw. Ch. 71; Schuyler ». Pelissier, 3 Id. 191; 
 705; lOJur., s. s., 832; Crawford v. Fisher, 1 Lozier's Ex'rs ». Van Saun's Adm'rs, 2 Green 
 Hare, 436, 441; East and West India Dock Co. Ch. 325; Oil Run Petro. Co. v. Gale, 6 W. Va. 
 V. Littledale, 7 Id. 57, 60; Langston v. Boylston, 625; Stranger, pell, 11 Ga. 103; Burton*. Black, 
 2Ves. 101 ;Sablicichu. Russell, L. R. 2 Eq. 441; Said. 53; Lowndes v. Cornford, 18 Ves. 299; 
 Greene ». Mumford, 4 R. I. 313; School District Morgan v. Marsack, 3 Meriv. 107; Wright v. 
 «;.Weston,31Mich.85;Pflster«.Wade,56Cal. 43. Ward, 4 Russ. 215; Paris «. Gllham, Coop. 56; 
 
 2 Blair v. Porter, S Beasl. 267; Kerr v. Union Martinius v. Helmuth, 2 V. & B. 412; Smith v. 
 Bk., 18 Md. 296. Hammond, 6 Sim. 10; Crawford v. Fisher, 10 
 
 s Langston v. Boylston, 5 Ves. 101, 103, 109; Id. 479; Hamilton v. Marks, 5 De G. <fc Sm. 638; 
 
 Providence Bk. v. Wilkinson, 4 R. I. 507; Bri- Prudential Ass. Co. v. Thomas, L. R. 3 Ch. 74; 
 
 ant V. Reed, 1 McCart. 271; Yarborough v. Gibson ii.Goldthwaite, 7 Ala. 281; Whitney i». 
 
 Thompson, 3Sm. & Mar. 291; Angell v. Had- Cowan, 55 Miss. 626, 647; Newhall v. Kastens, 
 
 den, 15 Ves. 244; Morgan ». Marsack, 2 Meriv. 70111. 156; Common Law Procedure Act 23 and 
 
 107; Farley «). Blood, 30 N. H. 354; Richards v. 24 Vict., Ch. 126, § 18; Rusden v. Pope, L. R. 3 
 
 Slater, OJohns.Ch. 445; Yates ». Tisdale, 3 Edw. Exch. 269;Engelback «. Nixon, L. R. IOC. P. 
 
 Ch. 71 ; Schuyler v. Pelissier, 3 Id. 191 ; Strange 645; Attenborough v. London & St. Katherine's 
 
 V. Bell, 11 Ga. 103; Gibson v. Goldthwaite, 7 Dock Co., L. R. 3 C. P. Dlv. 450; see Langton v. 
 
 Ala. 281; Newhall v. Kasten, 70 III. 156; Rich- Horton, 3 Beav. 464. 
 
 ards V. Salter, 6 Johns. Ch. (N. Y.) 447. » Wrights. Freeman, 48 L. J. C. P. 276. 
 
 4 Lowndes v. Cornford, 18 Ves. 899. ' Desborough v. Harris, 5 De G. M. Si G. 439, 
 
 658 
 
CH. XXXV. J INTEKPLEADEB. § 568 
 
 by the defendants are for different amounts, they can never be identi- 
 cal," and hence a dispute between two parties over a subject-matter, 
 out of which they claim a recovery for different amounts, there can be 
 no interference of a court of equity by way of interpleader. * But this 
 is not a reliable statement of the law in explanation of the require- 
 ment, that the contentions of the parties must be about the same thing, 
 debt, or duty. Parties may set a different value upon the same thing, 
 or make a different estimate of the damages which they have suffered in 
 consequence of an interference with one's property, as where one 
 brings an action of trover for the conversion of one's property, he 
 may claim a different amount of damages than what would be asked 
 for by a contestant of the title to the same t"hing, if he were to bring a 
 parallel action of trover. That fact or circumstance would not inter- 
 fere with the claim that the contention of the two parties was about 
 the same thing, debt or duty; and that has been the adjudication of 
 the later English and American cases.'' This rule is not only main- 
 tained, where the cause for variance was the difference in the estimation 
 of damages for conversion, but the same difficulty might be experienced 
 in contentions about the right of a chose in action.^ So, also, has it 
 been held to be a case for an interpleader, where two counties claim 
 the right to tax the same property for different amounts.* The same 
 conclusion is reached in every case, where the contention is over a 
 specific thing, whose identity is clear, whatever difference there may 
 be in the estimation made by the parties of the value of the same. * On 
 the other hand, where one defendant claims rent as the owner of cer- 
 tain property, and the other claims damages for their use and occupa- 
 tion, it has been held that the dispute was not over the same thing, 
 debt, or duty, and hence the bill of interpleader would not lie. So, 
 also, has it been held that where, in the case of an auction sale of a 
 
 455; Saratoga Co. Sup. i). Seabury, 11 Abb. N. C. s Yates v. Tisdale, 3 Edw. Ch. 71; Fargo v. 
 
 (N. T.) 461 ; see, also, Mitchell «. Hayne, 1 Sim. Arthur, 43 How. Pr. 193; Newhall v. Kastens, 70 
 
 & St 63; Hastings v. Cooper, 3 Del. Ch. 165; 111. 156; Bd. of Education v. SoovlUe, 13 Kans. 
 
 Perkins v. Trippe, 40 Ga. 225; Bd. of Educ. v. 17; School District v. Weston, 31 Mich. 85; 
 
 SeoTllle, 13 Kans. 17; School Dist. -v. Weston, 31 Heading v. School Board, L. R. 18 Q. B. D. 686; 
 
 Mich. 86; Bohrem. Turrill,4 Minn. 407; Hyman but see Mitchell v. Hayne, 2 Sim. & St. 63; 
 
 V. Cameron, 46 Miss. 725; O. W. Ditch Co. v. Patornia v. Campbell, 12 M. & W. 877; Slaney 
 
 Larcombe, 14 Nev. 53; Leddel ». Starr, 20 N. J. v. Sidney, 14 M. & W. 800; Nelson v. Goree, 34 
 
 Bq. 2r4 ; Atkinson v. Manks, 1 Cow. (N. Y.) 691 ; Ala. 565 ; Chamberlain v. O'Connor, 8 How. (N. 
 
 Bedell ». Hoffman, 2 Pai. (X Y.) 199; Cady ». Y.)45; Birdti.Neff, (Pa.) 1 Tr. &Ha. Prac, §497. 
 
 Porter, 55 Barb. (N. Y.) 463; B. & O. Co. V. s gee City Bank t). Bangs, 2 Paige, 570; Briant 
 
 Arthur, 10 Abb. N. C. (N. Y.) 147; Turners. «. Reed, 1 MoCarter, 271; Dodd». Bellows, 29 N. 
 
 Kendall, 3 M. & W. 171; s. c, 2 D. & L. 197; J. Eq. 127; Leddel's Ex'r v. Starr, 20 Id. 274; 
 
 Hayes v. Johnson, 4 Ala. 267; Adams v. Dixon, Salisbury Mills v. Townsend, 109 Mass. 115; Oil 
 
 19 Ga. 513; Burton v. Black, 32 Ga. 52; Rohrer v. Run Petro. Co. v. Gale, 6 W. Va. 525; Pfister v. 
 
 Turrill, 4 Minn. 407; Yarborough v. Thompson, Wade, 56 Cal. 43. 
 
 11 Miss. 291; Cannon v. Kinney, 1 Sm. & M. Ch. * See Thomson v. Ebbets, Hopk. Ch. 272; Mo- 
 
 (Miss.) 525; Mount Holly, &c. Tp. Co. v. Ferree, hawk, &c. R. "R.v. Clute, 4 Paige, 384, 391; Red- 
 
 17N. J. Eq. 117; Bedeaus. Rogers, 2Pai. (N. Y.) field v. Supervisors, Clarke Ch. (N. Y.) 42; 
 
 209; Aymer». Gault, 2Pa!. (N. Y.)284;Yates». Dorn i). Pox, 61 N. Y.264; but see -per contra, 
 
 Tisdale, 3 Edw. (N. Y.) 71 ; Prov. Bk. v. Wilkin- Greene v, Mumf ord, 4 R. I. 313. 
 
 son, 4 R. I. 507. ' Cady v. Potter, 55 Barb. 468; Lozier's Ex'rS 
 
 1 Glyn V. Uuesburj', 11 Sim. 139, 148; Pfister v. v. Van Saun's Adm'rs, 2 Green Ch. 325. 
 Wade, 56 Cal. 43. 
 
 659 
 
§ 670 EQUITY JUBISPBUDENCB. [CH. XXXV. 
 
 horse, the auctiofieer was subjected to conflicting claims of two parties 
 growing out of the transaction, one for a breach of warranty, and the 
 other for the purchase-money, the dispute was not about the same 
 thing, debt, or duty.* 
 
 § 569. The adverse claims mnst be derived from the same source. 
 — The meaning of this requirement is, that the conflicting claims 
 must have some privity of dependence one with or from the other, 
 *. e. , either the claims of the one party must be derived from the other, 
 or both claims must be derived from a common source. If there is no 
 privity between the claimants, and the one claim is held to be para- 
 mount to, but independent of, the title of the other, there is no ground 
 for filing a bill of interpleader.^ 
 
 § 570. Plaintiff must be a disinterested party. — ^In order that one 
 may, by filing a bill of interpleader, obtain reUef from the annoyance 
 and costs of two or more suits by parties having adverse claims to 
 property in his possession, he must occupy the disinterested position 
 of a stakeholder, and he must have no interest in the issue of the suit, 
 except to be indemnified against any loss in the way of costs; so that 
 when he files his bill of interpleader, and the court orders the defend- 
 ants to interplead, he must be able then to withdraw altogetjjer from 
 the controversy.' And while the plaintiff cannot set up any claim, or 
 charge, or lien upon the subject-matter of the suit, where such issue 
 constituted a part of the litigation, and to be settled for or against the 
 claim of the plaintiff in the judgment of the action,* yet where the 
 claim is admitted by both defendants, and the charges of the party 
 interpleading must be made good and be performed, no matter which of 
 the defendants succeeds in the suit, his assertion of the claim would 
 not interfere with his right to file the bill of interpleader. A common, 
 case of this kind would be the claim of a bailee for his services, in the 
 performance of a bailment, where the title to the property is con- 
 tended for by two or more persons, both of whom, however, are under 
 an obligation to discharge the claim. ^ So, also, may a bill of inter- 
 pleader be filed, notwithstanding that the plaintiff has a disputed claim 
 
 1 Wright ». Freeman, 48 L. J. C. P. 276. Coster, 8 Paige, 339; Killian v. EbWnghans, lift 
 
 2 Attenborough v. London, Ac. Dock Co., L. U. S. 668; Long ». Barker, 85 111. 431; Snodgrass 
 E. 3 0. P. Div. 450; Pearson v. Cardon, 2 Russ. v. Butler, 54 Miss. 45; Anderson ». Wilkinson, 
 <fe My. 606, 609-612; Crawshayu. Thomton,2My. 10 Sm. & M. (Miss.)601; Dohnest's App.,64Pa. 
 & Cr. 1, 19-24; Nickolson v. Knowles, 5 Madd. 311. 
 
 47; Cooper «. De Tastet, Taml. 177; Pfister o. * Wakemanc.Dlokey, 19 Abb. Pr. 24; Mitchell 
 
 Wade, 56 Gal. 43. v. Hayne, 2 S. & S. 63; Moore v. Usher, 7 Sim. 
 
 8 Lozier's Ex'rs v. Van Sann's Adm'r, 2 Green 384; Bignold v. Audland, 11 Sim. 23; Jaeobson 
 
 Ch. 325; Kerr v. Union Bk., 18 Md. 396; Burton v. BlackhUrst, 2 J. & H. 486; Best v. Hayes, 32 
 
 V. Black, 32 Ga. 63; Adams ». Dixon, 19 Id. 513; L. J. Ex. 129; s. c, 3 F. & F. 113. 
 
 Anderson ti. Wilkinson, 10 Sm. & Mar. 601; ' Cotter ». Bank of England, 2 Dow. Pr. 0. 
 
 CuUen V. Dawson, 24 Mmn. 66; Mitchell v. 728; and see Attenborough ». London, &e. Co., 
 
 Hayne, 2 S. & S. 63; Langston v. Boylston, 2 L. R. 3 C. P. Div. 450; Gibson v. Goldthwalte, 7 
 
 Ves. 101; Moore v. Usher, 7 Sim. 383; Bignold Ala. 281; Webster v. McDaniel, 2 Del. Ch. 297; 
 
 V. Audland, 11 Id. 23; Hoggart V. Cutts, Cr. & Cotter v. Bk. of Eng., 3 Moore & S. 180; Atten- 
 
 Ph. 197; Lincoln V. Rutland, Ac. R- R.,24 Vt. borough v. St. Kath. Docks, L. K. 3 C. P. D. 
 
 639; Atkinson v. Manks, 1 Cow. 691; Shaw ». 460. 
 
 660 
 
<3H. XXXV.] INTEKPLEADEE. § 670 
 
 or charge on the fund, providing he waives the claim.' It is also a 
 part of the general proposition just set forth, that the plaintiff must be 
 a disinterested party, that the plaintiff should make no express denial 
 of his liability in whole or in part to one of the defendants; his denial 
 of his liability to either of them would destroy that element of neu- 
 trality, which is essential to the claim that he is a disinterested party 
 as to the subject-matter of the suit.^ So, also, would the right to file 
 a biU of interpleader be denied, where the amount of the fund or 
 debt, which is due by the plaintiff" to one of the parties, is uncer- 
 tain, and could only be made certain by the settlement of their 
 conflicting claims, the amount varying with the decision of the court 
 in favor of one or the other of the parties defendant. In such a case 
 the plaintiff, who files the bill of interpleader, has an interest in the 
 results of the Utigation, which precludes him from obtaining the relief 
 of interpleading.' But the plaintiff must have an interest in the very 
 thing or fund itself, in order to be precluded from filing a bill of inter- 
 pleader; an interest in the legal question, which is at issue in the con- 
 tention of the parties, will not prevent the plaintiff's claim to relief, 
 where his interest is involved in the application of the same legal ques- 
 tion to a different statement of facts. So, also, would he not be 
 claimed to be an interested party, where he had a claim or debt against 
 one of the defendants, the satisfaction of which he could secure, if the 
 decree of the court should be in favor of that one of the contestants.* 
 It is, also, a rule of the court of equity that a person in possession of 
 s, thing or fund, in respect to which two other parties contend, is the 
 only person who can file a bill of interpleader; one of the contestants 
 cannot institute the action by making the other contestant and the 
 -stakeholder defendants.^ But this position is not sustained by all of 
 the courts; in some of them the action of interpleader is permitted in 
 «very case, where there are triangular claims, and the suit is permitted 
 to be instituted by one of the contestants, as well as by the stakeholder.* 
 The last requirement in this connection is, that the plaintiff in the 
 action of interpleader must be in possession of the fund, or have it 
 under his control, so that he may deliver or pay it in obedience to the 
 decree of the court. If he has already delivered the thing or paid the 
 debt to one of the contestants, he cannot file a suit for interpleader.' 
 
 1 Jacobson v. Blaokliurst, 2 J. A H. 486. ^ See Sprague v. West, 127 Mass. 471 ; Hyman 
 
 2Moore®. Usher, 7Siin. 383; Greene*. Mum- v. Cameron, 46 Miss. 725; Hathaway®. Foy, 
 
 ford, 4 E. I. 313; Patterson®. Peny, 14 How. Pr. 40 Mo. 540; M. & O. Plaster Co. ». White, 44 
 
 505; Cogswell v. Armstrong, 77 111. 139. Mich. 25. 
 
 3 City Bank v. Bangs, 3 Paige, 570; Consooi- ° ^unds v. Cassldy, 98 N. Car. 558; Webster 
 
 atedPres.Soo.®. Staples, 23 Conn. 544; Cham- ». Hall, 60 N H. 7. ,„„tx. 
 
 berlain v. O'Connor, 1 E. D. Smith, 665; Bender ' Mount Holly, &o. Co. «. Ferree, 17 N. J. Eq. 
 
 V Sherwood, 15 How. Pr. 258; Patterson v. U^i Tieman ®. Eescaniere's AdmTs, 10 G. & J. 
 
 Perry, 14 Id. 505: B. & O. E. Co. v. Arthur, 90 N. 217; Vosburg v. Huntington, 15 Abb. Pr. 254; 
 
 "234] Martin v. Maberry, 1 Dev. Eq. 169; Crosby v. 
 
 ■4 Gibson V Goldthwaite, 7 Ala. 281 ; Oppen- Mason, 32 Conn 482; see, also, Osborne^. Tay- 
 
 helmr. wolf, 3 Sand, Ch. (N. Y.) 371, 571; Mc- 1<". ^^ Gratt. (Va.) 17; Morse v. Stearns, 131 
 
 Jlenry «. Hazard, 45 Barb. (N. Y.) 667. Mass. 389. 
 
 661 
 
§ 672 EQUITT JTJEISPEUDENOE. [CH. XXXV. 
 
 §571. Independent liability to one claimant. — The last require- 
 ment of the bill of interpleader is that the stakeholder must be under 
 no independent liability to either of the claimants, in respect to the 
 subject-matter of their contention. This liability may arise in one of 
 two ways; in the first place where [the agent obligee, or other party 
 asking for interpleader has, in respect to the subject-matter of the dis- 
 pute, knowledge of the title of one of the claimants, or where he binds 
 himself to one of the claimants by contract to deliver the fund or prop- 
 erty in his charge to him in an unconditional manner; he is, in either 
 case, liable for the due performance of his contract, whatever may be 
 the issue of the contention between the two parties. In such a case, he 
 is not permitted to relieve himself from the annoyance of the contend- 
 ing suits, in respect to the subject-matter of his baUment, by filing a 
 bill of interpleader; he is not a disinterested party in respect to the 
 pending dispute.' 
 
 It is also held that the right of filing a bill of interpleader is lost, 
 whenever one of the contending parties has obtained a judgment against 
 the stakeholder in the recognition of his right to the fund or property.^ 
 But if the judgment is not definitely settled, or where the case is 
 appealed or the judgment is otherwise resisted by the stakeholder, so 
 tha!t the rights of the parties to the fund in question are not definitely 
 settled, such a party may still relieve himself from further litigation, 
 in respect to the matter, by compelling the defendant to interplead.* 
 It is also impossible for a stakeholder to file a bill of interpleader 
 where, in stating the cause of the contention, he is obliged to admit 
 himself to being a wrong-doer to either one of the defendants. Such 
 an admission would be proof of an independent liability to that one of 
 the defendants, and would destroy his claim of being a disinterested 
 party.* 
 
 § 572. Interpleader by bailees, agents, tenants, and parties to 
 contracts. — In the second class of cases, the independent liability of the 
 plaintiff or stakeholder, to one of the contending parties, consists of a 
 legal obligation, arising out of the very nature of the relation existing 
 between them, in respect to the subject-matter of the dispute, and 
 which precludes the plaintiff or stakeholder from recognizing in any 
 way the claims of the other defendant. Where the stakeholder or 
 plaintiff in an action of interpleader is necessarily associated with the 
 
 iCrawBliay». Thornton, 2 My. &Cr. 1, 10-34j 'Hamilton V. Marks, 5 De G. & Sm. 638; 
 
 Stuart V. Welch, 4 Id. 305 j Jew v. Wood, Cr. Griggs v. Thompson, 1 Geo. Deo. 146. 
 
 & Ph. 185; Pfister v. Wade, 56 Cal. 43; Tyus v. < See Desborough v. Harris, 5 De G. M. & G. 
 
 Bust, 87 Ga. 574; Hatfield v. McWhorter, 40 la. 439, 455; Cochrane v. O'Brien, 2 Jo. & Let. 380; 
 
 269; CuUen v. Dawson, 24 Minn. 66. Slingsby v. Boulton, 1 V. & B. 334; Morgan v. 
 
 " Tiernan v. Rescanlere, 10 G. & J. (Md.) 217; Filmore, 18 Abb. Pr. 217; U. S. ii. Victor, 16 Id- 
 
 Am. Tel. Co. v. Day, 52 N. Y. Super. Ct. 128; 1B3; Mount Holly, &c. Co. ». Ferree, 17 N. J. 
 
 Phila. S. F. Soo. v. Clarke, 15 Phila. (Pa.) 289; Eq. 117; Dewey v. White, 65 N. C. 225; Hatfield 
 
 Cornish v. Tanner, 1 G. & J. 333; TJn. Bk. v. v. McWhorter, 40 Ga. 269; Tyus v. Eust, 37 
 
 Kerr, 2 Md. Ch. 460; McKinney v. Kuhn, 59 Id. 574; Quinn «. Green, 1 Ired. Bq. (N. Car.) 
 
 Miss. 186; Cheever v. Hodgson, 9 Mo. App. 565; 229. 
 French v. Eobschard, 50 Vt. 43. 
 
 662 
 
CH. XXXV. J INTEEPLEADEE. § 572 
 
 claims of one of the defendants, and he is under a legal obligation to 
 support and protect the claim; in all such cases, he is not permitted, 
 as a general rule, to file a bill of interpleader, because in doing so he 
 would be denying the title of one, which he is obliged by his legal 
 obligation to support and protect. Thus, for example, bailees and 
 agents are not permitted to recognize the claims which other parties 
 might make to property placed in their charge adverse to the interest 
 of the bailor or principal; and hence, in a contention between these 
 two parties over the subject-matter of the bailment or agency, the 
 bailee or agent cannot obtain relief by a bill of interpleader.^ For 
 the same reason, an attorney cannot file a bill of interpleader against 
 his client and a third person, who makes adverse claims to money 
 which the attorney has collected.^ The same principle denies to an 
 administrator the right to interplead a legatee under the will and some 
 third party, claiming a paramount title to the property.* It is also 
 held, as a general proposition, that a tenant cannot deny the title of 
 his landlord or recognize the paramount title of a third party, unless 
 he has been evicted. As a consequence of this obligation of the tenant 
 to protect the title of his landlord against the adverse claims of others, 
 the tenant in case of such a conflict of title will not be permitted to 
 interplead between his landlord and the stranger claimant to the land.* 
 On the same general principle, parties to a contract cannot escape the 
 liability on that contract, by interpleading the other party with some 
 third person, making adverse claims to the subject-matter of the con- 
 tract.^ For a similar reason, it has been held, independently of 
 statute, that a sheriff who levies by execution against one person, on 
 goods which are claimed to be the property of another, cannot 
 compel the execution creditor and the adverse claimant to the property 
 to interplead.^ So, also, is it impossible for a sheriff to compel the 
 opposing claimants of a surplus in his hands after the satisfaction of 
 the execution to interplead; but in this case, for the reason that the 
 
 1 First Nat. Bk. v. Binninger, 26 N. J. Eq. ^ Seaman v. Wright, 12 Abb. Pr. 304; Crane »., 
 345; Vosburgh v. Huntington, 15 Abb. Pr. 254; Burntrager, 1 Ind. 165; Snodgrass v. Butler, 54 
 Tyus V. Rust, 37 Ga. 574; Hatfield v. McWbor- Miss. 45; Dungey v. Angrove, 2 Ves. 304, 310; 
 ter, 40 Id. 269; Crane v. Burntrager, 1 Ind. 165; Woolaston v. Wright, 3 Anstr. 801; Smith ». 
 White Water, &c. Co. v, Comegys, 2 Id. 469; Target, 2 Id. 529; Johnson v. Atkinson, 3 Id. 
 Nickolson v. Koowles, 5 Madd. 47; Dixon v, 798; Cook v. Earl of Eosslyn, 1 Giff. 137; Nick- 
 Hamond, 2 B. & Aid. 310, 313; Cooper v. De Olson v. Knowles, 5 Mad. 47; Cook ti. Rosslyn, 
 Tastet, Taml. 177, 181, 182; Smith v. Hammond, 1 Giff. 167; Crane v. Burntrager, 1 Cart. (Ind.) 
 6 Sim. 10; Pearson v. Cardon, 2 Buss. &, My. 469; Snodgrass v. Butler, 54 Miss. 45; Dodd v. 
 606, 609, 610, 612; Crawshay v. Thornton, 2 My. Bellows, 29 N. J. Eq. 127; Marvin v. Elwood, 11 
 & Or. 1, 19-24; Cook v. Earl of Eosslyn, 1 Giff. Pai. (N. Y.) 365; Delaney v. Murphy, 31 Supr. 
 167; Atkinson v. Mamks, 1 Cow. 691, 703-706; V. Ct. (N. Y.) 503. 
 
 S. Trust Co. V. Wiley, 41 Barb. 477; Lund v. 6 James v. Pritchard, 7 M. & W. 216; Trigg v. 
 Seamen'sBank, 37 Jd. 129; United States ^). Vic- Hitz, 17 Abb. Pr. 436; Shehan's Heirs ». Bar- 
 tor, 16 Abb. Pr. 153. nett's Heirs, 6 Mon. 592; BoBt. Bk. v. S. W. & 
 
 2 Marvin v. EUwood, 11 Paige, 365; but see B. Lum, Co., 132 Mass. 410. 
 
 per contra, Goddard v. Leech, Wright, (Ohio,) « Slingsby v. Boulton, 1 V. <fc B. 334; Shaw v. 
 
 476. Caster, 8 Paige, 339; Quinn v. Green, 1 Ired. Eq. 
 
 3 Adams S.Dixon, 19 Ga. 513; Blue®. Watson, 229; Quinn ». Patton. 2 /(f. 48; Dewey w. White, 
 59 Miss. 619. '65 N. C. 225. 
 
 663 
 
§ 572 EQUITT JURISPRUDENCE. [CH. XXXV. 
 
 fund is in possession of the court, and the court can adjust such claims 
 directly and without a resort to an interpleader.' 
 
 Such is the general law, in respect to the inability of the parties 
 mentioned to file a bill of interpleader, and to escape from litigation in 
 such a manner; but this doctrine is not without its limitations, and the 
 limitation is to be found in the principle that, where the obUgor, pria- 
 cipal, landlord or party to the contract, has respectively transferred his 
 interest in the subject-matter of the contract or conveyance, or has 
 entered into obligations of a doubtful nature with third persons in 
 respect to such subject-matter, and the contention of these two parties 
 is over the effect of this collateral and subsequent agreement concern- 
 ing the subject-matter, the obligee, agent, tenant, or party to the con- 
 tract, as the case may be, will not be denied the right to compel these 
 parties to litigate their claims and relieve him from the danger or risk 
 of the excessive litigation; because in all of these cases the attitude of 
 the interpleader is not at all antagonistic to the full recognition of his 
 original obligation to the obligor, principal, landlord, or obligee, as 
 the case may be; but the contest, which he calls upon the other parties 
 to settle, is in respect to their rights to the same under a supposed 
 assignment or transfer of the subject-matter, which is subsequent to 
 the creation of the obligation of the interpleader. Thus, for example, 
 where an obligee, or principal, has assigned his interest in the fund to 
 another by an instrument, the provisions of which are doubtful, and the 
 rights of the parties under the same are consequently uncertain, it is 
 possible for the obligor or tenant to resort to an interpleader, for the 
 purpose of compelling the parties to settle their claims among them- 
 selves, and without further cost to himself.^ It will also be remem- 
 bered that, even at common law, an interpleader was allowed to the 
 obligor, when two or more persons made a joint bailment and a sub- 
 sequent dispute arose under the bailment.* On the same grounds, a 
 court of equity will grant the relief of interpleader to an attorney, as 
 between his claimant and a person who sets up an antagonistic claim, 
 under an assignment from the client.* So, also, may an executor call 
 upon legatees to settle their conflicting claims under the law of inter- 
 pleader.^ The same principle is applied in the case of landlord and 
 tenant, so that the tenant will be permitted to interplead his landlord 
 
 1 Parker v. Barker, 42 N. H. 78; McDonald v. Ezch. 861; Gibson v. Gioldthwalte, 7 Ala. 281; 
 Allen, 37 Wis. 108; but see King v. Green's Pearson v. Garden, 2 Euss. & My. 606; 4 Sun. 
 Ex'rs, 10 Mo. 195; "Lawson v. Jordan, 19 Art. 218; Atkinson v. Manks, 1 Cow. 691; Schuyler 
 297. But see Winfleld v. Bacon, 24 Barb. 154, in v. Pellssier, 3 Edw. Ch. 191. 
 
 whicli it is held that a receiver was entitled to ' Stuart v. Welch, 4 My. & Cr. 305; City Bank 
 interplead opposing claimants to the fund in v. Skelton, SBlatch. 14; First Nat. Bk. ii. West 
 his possession, although it would not have Elver E. E., 46 Vt. 633; Perkins o. Trippe, 40 
 been possible for the court, whose officer the Ga. 225; see Mason v. Hamilton, B Sim. 19; Orel- 
 receiver was, to determine directly the proper lin v. Leyland, 6 Jur. 733. 
 distribution of the fund. * Gibson v. Qoldthwalte, 7 Ala. 281. 
 
 2 Smith V. Hammond, 6 Sim. 10; Wright v. » Crosby v. Mason, 32 Conn. 482; see, also. 
 Ward, 4 Euss. 215-220; Crawford v. Fisher,! Osbornei). Taylor, 12 Gratt. (Va.) 17; Morses. 
 Bare, 436, 440; Tanner v. European Bk., L. R. 1 Steams, 131 Mass. 389. 
 
 664 
 
CH. XXXV.] rNTERPLEADEE. § 673 
 
 and opposing claimants to the land, whenever the dispute is over 
 the effect of the transfer or assignment by the landlord of his 
 interest in the property. In aU cases of assignment of title to prop- 
 erty by the reversioner or landlord, the tenant has a right to call upon 
 them to interplead and save him the risk of two or more suits over the 
 same subject-matter. This is not only the case, where the dispute arises 
 between landlord and tenant; but so, also, in respect to the double 
 assignment in the case of mortgagor and mortgagee, trustee and cestui 
 que trust, and the like.^ It is also permitted to a sub-tenant to inter- 
 plead the landlord and the original tenant, where it is doubtful, under 
 the facts of the case, to whom the rent is due.^ So, also, may the 
 tenant interplead parties, claiming the rights of the lessor, in case of 
 his death, under different title, viz. : as heir and devisee.' It is also the 
 privilege of the primary obligor, and of all sureties of executory con- 
 tracts, to interplead the original obligee and one who claims the right to 
 enforce the contract by an assignment, wherever there is doubt or \m- 
 certainty in respect to the rights of parties under such an alleged assign- 
 ment. Thus a maker of a note may compel claimants under the payee 
 to interplead.* So, also, may the vendee interplead the vendor and 
 one claiming rights under the vendor, by contract or by legal process, 
 such as an attaching creditor.^ So may the vendor interplead parties 
 claiming antagonistic interests by transfer or descent from the vendee.* 
 Insurance companies may compel adverse claimants to the insurance 
 money to interplead, where their claims are derived from the insured 
 by transfer, assignment or inheritance.' So, likewise, may corpo- 
 rations call upon adverse claimants to their stock to interplead, where 
 their titles are derivative from the stockholder.* The obligor of a 
 note or other contract may file a bill of interpleader, where antagonis- 
 tic claims to the enforcement of the same, and to the reception of the 
 payment, are asserted by the administrator of the deceased guardian of 
 the payee, and the new administi-ator appointed by the court." 
 
 § 573. What the bill of interpleader should contain.— The biU 
 of interpleader must contain all allegations necessary to set forth the 
 existence of all the requisites to the right of the plaintiff to the rem- 
 
 1 Dungey v. Angrove, 2 Ves. Jr. 303, 304, s Eichards v. Salter, 6 Johns. Ch, 445; John- 
 310, 312; Cowtan v. Williams, 9 Ves. 107; Shul- gjon „ Lewis, 4 Abb. Pr., s. 8., 150. 
 
 ter V. Harvey, 65 Cal. 158j Metcalf v. Hervey, e Parley V. Blood, 30 N. H. 364. 
 
 1 Ves. Sen. 248; Clarke v. Byne, 13 Id. 383; 7 Nelsons. Barter, 2 H. & M. 334; Hamilton 
 
 Johnson v. Atkinson, 3 Anstr. 798; Seaman v. ^_ Marks, 5 De G. & Sm. 638; Spring u. S. C. Ins. 
 
 Wright, 12 Abb. Pr. 304; Snodgrass v. Butler, Qq^ g wheat. 268; Desborough .-. Harris, 3 De 
 
 64 Miss. 45; Oil Eun Petro. Co. v. Gale, 6 W.Va. q._ jj. & G. 439, overruling Fenn V. Edmonds, 5 
 
 525. Hare, 314. 
 
 2 Ketcham v. Brazil Block Coal Co., 88 Ind. s Salisbury Mills «. Townsend, 109 Mass. 115; 
 515; see, also, Adams v. Beach, 1 (Phila.) Pa. Providence Bk. v. Wilkinson, 4 E. 1. 507; Cady 
 S9. j;. Potter, 55 Barb. 463; see Cheever o. Hodgson, 
 
 ' Jew V. Wood, 3 Beav. 579; Badeau v. Tylee, g jjo xw- 565- 
 1 Sandf. Ch. 270. o Van Buskirk v. Eoy, 8 How. Pr. 425; Crosby 
 
 *Briant i^. Eeed, 1 McCart. 271; Bryant v. u. Mason, 32 Conn. 482; see, also, Osborne v. 
 
 Saltenstall, 3 J. J. Marsh, «72j Fahle v. Llnd- Taylor, 12 Gratt. (Va.) 17; Morse v. Stearns, 131 
 
 say, 8 Oreg. 474. Mass. 389. 
 
 665 
 
§ 573 EQUITY JURISPRUDENCE. [CH. XXXV. 
 
 edy in question; it must, in other words, affirmatively state that there 
 are conflicting claims to the same thing, fund, or debt, asserted by the 
 defendants, that the opposing claimants are in privity with each other, 
 that the plaintijBf is not interested in the issue of the suit, and that he 
 is not under any independent liability to either of the claimants, in 
 respect to the subject-matter of the contention; that he is in danger 
 of being subjected to costly and annoying litigations, that he does not 
 know to which of the parties the superior title or right belongs, that 
 he is ready and willing to deliver the thing or fund, or pay the debt, to 
 the person who is declared lawfully entitled thereto.' It is not neces- 
 sary for the bill to show or set forth the title of either of the defend- 
 ants to the subject-matter of the dispute.^ On the contrary, if in the 
 attempt of the plaintiff to set f oi-th the title of either of the defendants, 
 or both their conflicting titles, the plaintiff showed an intimate 
 acquaintance with the facts and the law of the case; and as set forth 
 by him there is no ground for claiming ignorance or doubt as to the 
 rights of the parties, the bill of interpleader may be demurred to and 
 dkmissed; because there is no ground for an interpleader, where the 
 plaintiff makes a clear and satisfactory statement as to which of the par- 
 ties has the better title. ^ So, also, wiU a bill be subject to demurrer, 
 if the plaintiff denies his liability to either one of the defendants.* It 
 is, also, a settled practice of the court of equity, elsewhere than in 
 Connecticut, ° that the bill of complaint in an action for interpleader 
 must be accompanied by an affidavit of the plaintiff, that the suit is 
 not brought in collusion with either of the defendants; and the bill 
 may be demurred to, if this affidavit is omitted.* Where the affidavit 
 is attached to the bill, it is conclusive as to the good faith of the plaint- 
 iff and cannot be contradicted by the defendants,' unless, of course, 
 collusion is shown on the face of the bill, when necessarily the relief 
 win be denied.' It is a requisite for the action for interpleader that 
 the plaintiff should bring or pay, or offer to bring or pay into court, 
 whatever is the subject-matter of the dispute between the defendants, 
 
 1 Snodgrass o. Butler, 54 Miss. 45; Starlingv. T. Super. Ct 269; McDonald o. Allen, 37 Wis.108 
 
 Brown, 7 Bush, 164; State Ins. Co. v. (Jennett, * McHenry r. Hazard, 45 Barb. 657; 45 N. Y. 
 
 2 Tenn. Cli. 82; Pflster v. Wade, 56 Cal. 43; Far- 580; Hellman v. Schneider, 75 111. 428. 
 
 ley ». Blood, 30 N. H. 354; Parker ». Barker, 42 ' Consooiated Pres. Soc. v. Staples, 33 Conn. 
 
 Id. 78 ; Atkinson v. Manks, 1 Cow. 691 ; Wilson v. 544, 555 ; Nash v. Smith, 6 Id. 42 1. 
 
 Duncan, 11 Abb. Pr. 3; Lozier's Ex'rs v. Van « Mount Holly, &e. Co. r. Ferree, 17 X. J. Eq. 
 
 Saun's Adm'rs, 2 Green Ch. 325; Briant v. 117; Tyus ». Rust, 37 Ga. 574; Suodgrass t). But- 
 
 Reed, 1 McCart, 271; La. St. Lot. Co. v. Clark, ler, 54 Miss. 45; Starling v. Brown, 7 Bush, 164; 
 
 16 Fed. E. 20j Strange V. Bell, 11 6a. 103; Biggs f. Kouns, 7 Dana, 4(B, 411; Hamilton ». 
 
 Dreyer v. Ranch, 42 How. Pr. (N. Y.) 22; s.c, Marks, 5 De G. A Sm. 638; Farley v. Blood, 30 
 
 10 Abb., N. s., (N. Y.) 243 ; Bell v. Hunt, 3 Barb. N. H. 354 ; Atkinson v. Manks, 1 Cow. 691 ; Beck 
 
 CN. Y.) 391. "■ Stehpani, 9 How. Pr. 193. 
 
 » East & W. India Dock Co. v. Llttledale, 7 ' Mauby v. Robinson, L. R. 4 Ch. 347; Lang- 
 Hare, 57; Pflster o. Wade, 56 Cal. 43. s'°° »"• Boylston, 2 Ves. 101; Stevenson v. 
 
 3 Parker v. Barker, 42 N. H. 78 ; Mohawk, &C. Anderson, 2 V. & B. 407 ; and see Fahie V. Lind- 
 
 R. R. V. Clute, 4 Paige, 384; Morgan ti. Fillmore, ^7' 8 Oreg. 474. 
 
 18 Abb. Pr. 217; Wilson v. Duncan, 11 Id. 3; ' Marvin v. EUwood, 11 Paige, 365; Kerr t>. 
 
 Briant v. Reed, 1 McCart. 271; Baker i>. Swain, Union Bk. 18 Md. 396; WiUiams v. Halhert, 7 
 
 4 JoneBEq.220;Sulzbacker».S.iL.Bk.,o2X. B. Mon. 184. 
 
 666 
 
CH. XXXV.] INTEEPLEADEK. § 514: 
 
 in respect to which the plaintiff is under obligation to one of them. 
 The entire thing, fund, or debt must be brought into court.' Finally, 
 if the bill of interpleader is properly filed, and the action properly 
 begun, the plaintiff is entitled to a decree for the interpleader of the 
 defendants, and his own discharge from every obligation in the trans- 
 action, together with provision for his costs, which will be taxed upon 
 the fund in question, and be ultimately paid by the unsuccessful 
 party. ^ 
 
 § 57i. Interpleader in legal actions under modern statutes. — r 
 Modern statutes have in many particulars modified the requirements 
 of the equitable action of interpleader, not only in regard to the rela- 
 tion of the parties to the subject-matter, but also in respect to the 
 nature of the subject-matter itself. In most cases, however, these 
 statutes only extend the equitable remedy of interpleader to legal 
 actions in general. Wherever two parties make conflicting claims 
 to a fund or debt, which is possessed by a third party, the relief 
 is granted to this third party in all such cases of iona fide dispute; 
 but as a general rule, the same rules prevail in the determination of 
 the rights of the parties to the action, as obtained in equity.' In every 
 case, however, the statute has changed the requisites of the claim to 
 an interpleader in some particulars;* but inasmuch as the legal action 
 of interpleader is beyond the jurisdiction of equity, it is not necessary 
 in this connection to enter upon any explanation of these statutory 
 modifications. 
 
 1 McGarah v. Farther, 1 Blackf. 299; Starling Goree's Adm'r, 34 Id. 565; Starling v. Brown, 
 ». Brown, 7 Bush, 164; Farley «. Blood, 30 N. 7 Bush. 164; Board of Education i>. Sooville, 13 
 H. 354; Mohawk, &c. R. E. v. Clute, 4 Paige, Kans. 17; Pfisterti. Wade, 56 Cal. 43; Oriental 
 3S4 ; Atkinson ». Manks, 1 Cow. 691 ; Williams Bank r. Nicholson, 3 Jur., n. o., 857; Slaney «. 
 V. Walker, 2 Elch. Eq. 291 ; Snodgrass «. Butler, Sidney, 14 M. & W. 800; Tauton v. Groh, 4 Abb. 
 54 Miss. 45. App. Dec. 358; Voaburgh W.Huntington, 15 Abb. 
 
 2 Canfleld ». Morgan, Hopk. Ch. 224; Aymer Pr. 254. 
 
 V. Gault, 2 Paige, 284 ; Badeau v. Eogers, 2 Id. * Board of Education v. Scoville, 13 Kane. 17; 
 
 209; Spring x. S. C. Ins. Co., 8 Wheat. 268; see Pflster v. Wade, 56 Cal. 43; see ante, note un- 
 
 Laing ». Zeden, L. E. 9 Ch. 736; Aldridgeo. der § 1324j Tanner v. European Bk., L E. 1 
 
 Thompson, 2 Bro. Ch. 149; Farley v. Blood, 30 Exch. 261; Cady v. Potter, 55 Barb. 463; Wash- 
 
 N. H. a54; Manchester Print Works ». Stimson, ington, <&0. Ins. Co. v. Lawrence, 28 How. Pr. 
 
 2B. I. 415; Atkinsons. Manks, 1 Cow. 691. 435; St. Louis Life Ins. Co. v. Alliance Mut. 
 
 3 Jolinsou v. Maxey, 43 Ala. 521 ; Nelson v. L. Ins. Co., 23 Minn. 7. 
 
 667 
 
CHAPTER XXXVI. 
 
 EEOEIVEES. 
 
 Section 
 General statement as to jurisdiction of 
 
 equity ... ... 
 
 Exercise of power discretionary 
 
 Cases in -which a receiver may be ap 
 
 pointed . . . ' . " . 
 Continued — Cases in which a receiver 
 
 may be appointed 580 
 
 Effect of appointment of receivers . 581 
 
 Duties of receivers . .... 582 
 
 577 
 578 
 
 579 
 
 Sectioh 
 Powers and authority of receivers . . 583 
 
 Suits against receivers 584 
 
 Liability of the corporation for the acts 
 of the receiver . . • . , . .585 
 
 Removal of receiver 686 
 
 Compensation of receiver . . . 587 
 The receiver's certificate.— How far nego- 
 tiable 588 
 
 § 677. General statement as to jurisdiction of equity.— The 
 
 court of equity will, in conformity with the general principles of 
 equity, undertake to afford whatever protection may be necessary for 
 the conservation of the interests of parties litigant in the subject-mat- 
 ter of the suit; and if provision is needed for the custody and care of 
 such subject-matter during the pendency of the suit, and until the 
 decree of the court has been carried out or performed, it will take 
 whatever steps may be necessary to that end. The common method 
 of procedure, under these circumstances, is the appointment of an officer 
 of the court, who is given the name of receiver, to receive and take 
 possession of the property over which the litigation is had, and under 
 the directions of the court to do whatever is necessary with such 
 property for its preservation, and the development of the interest of , 
 the parties in the same.^ 
 
 § 578. Exercise of power discretionary. — ^The parties to a suit 
 cannot claim, as a matter of course, a right to the appointment of a 
 receiver; the exercise of this power of appointment by a court of 
 equity is discretionary with the court, and not a matter of course, to be 
 granted upon the demand or request of one of the parties.^ But this 
 
 1 Booth V. Clark, 17 How. (U. S.) 322, 331; 
 Crane v. McCoy, 1 Bond, 422; Whelpley v. Erie 
 Ey., 6 Blatch. 271; Wilmer v. Atlanta, Ac. Ey., 2 
 Woods, 409; French v. Gifford, 30 Iowa, 148; 
 Brown v. Home Sav. Bk., 5 Mo. App. 1; La 
 Societe Francaise v. District Court, 53 Gal. 496; 
 Libby v. Eosekrans, 55 Barb. 202; Dougherty®. 
 McDougald, 10 Ga. 121; Mapes©. Scott, 4 111. 
 App. 268; Eichards v. Barrett, 5 Id. 510; Baker 
 V. Backus' Adm'r, 32 111. 79; Mays v. Wherry, 3 
 Tenn. Ch. 34; CasSetty v. Capps, 3 Id. 524; 
 Delaware, &C. E. E. v. Erie E. E., 21 N. J. Eq. 
 298; Blondheim v. Moore, 11 Md. 365; Halght 
 V. Burr, 19 Id. 130; Voshell v. Hynson, 26 /if. 83; 
 Beverley ». Brooke, 4 Gratt. 187, 208; Hand ». 
 
 668 
 
 Dexter, 41 Ga. 454; Reid v. Eeid, 38/if. 24; Bank 
 of Miss. t>. Duncan, 52 Miss. 740; Battle v. 
 Davis, 66 N. C. 252; Twitty v. Logan, 80 Id. 69; 
 Crowder v. Moone, 52 Ala. 220; Cheever v. Eut- 
 land, &c. E. E., 39 Vt. 653. 
 
 2 La Soclete Francaise o. Dist. Court, 53 Cal. 
 495; Milwaukee, <fec. E. E. v. Stoutter, 2 Wall. 
 521; Pacific E. E. v. Mo. Pacific Ey. Co., 15 Am. 
 Ey. Rep. 80 (U. S. Supr. Ct., Oct. Term, 1877); 
 Mil. & Minn. E. E. Co. v. Stoutter, 2 Wall. 440; 
 Cincinnati, Sandusky & Cleveland E. E. Co. v. 
 Sloan, 31 Ohio St. Ij 15 Am. By. Rep. 376; 
 Meyer v. Johnson, 53 Ala. 837; 15 Am. Ey. Eep. 
 467; Kelly J). Trustees of Ala. & Cin. E. E. Co., 
 58 W. 489; 21 Am. Ey. Eep. 138. 
 
CH. XXXVI.] KKCEIVEES. § 579 
 
 discretion is not an absolute or arbitrary one; it is to be exercised 
 by the court under the reasonable consideration of the highest inter- 
 ests of all of the parties; and the appointment must be made, wheneyer 
 it is essential to the protection of the interests of the parties in the sub- 
 ject-matter of the suit. But in order that the appointment may be 
 made or claimed, there must be a concurrence of two circumstances: 
 First, that the appointment is necessary for the protection of the prop- 
 ierty against loss or injury; and secondly, that the party asking for the 
 appointment of the receiver will probably succeed ultimately in 
 obtaining the relief, for which the suit was instituted.^ 
 
 § 579. Cases in which a receiver may be appointed. — The cases 
 in which a receiver may be appointed may be divided into four classes, 
 varying according to the causes of the danger of loss or injury to the 
 subject-matter of the suit, which in all the cases is the justification for 
 the interference of the court by the appointment of a receiver. The 
 first class of cases contains all those in which there is no person, 
 although entitled, who is capable of taking charge of the property 
 pending the litigation. The incompetency of the party, who would be 
 entitled to take charge of such property, is the reason for the appoint- 
 ment of a receiver. This, of course, includes the cases of infants and 
 lunatics, where an emergency arises and a prompt action is needed to 
 take possession and charge of the property, until the gurdian or com- 
 mittee has been appointed.^ In this class are also included cases of 
 app ointment of receivers to take charge of the estates of decedents, 
 when there is any danger of~the loss or misapplication of the property, 
 or income of such estate, while proceedings are being had for the 
 appointment of an administrator, or the determination of the qualifica- 
 tion of an executor." 
 
 The second class of cases includes all those, in which all the parties 
 concerned in the subject-matter of the litigation are equally entitled 
 to the possession of the same; but in consequence of the nature of 
 the dispute between them, and the unfriendly relations existing, 
 itisnotjast or proper that either one of them should be given the 
 control of the property; and they cannot agree among themselves 
 as to its safe custody pending the suit. In such cases a court of equity 
 will have charge of the property, and hold it during the pendency of 
 the suit, for the benefit of both parties. While the danger of loss or 
 
 'Blondheim v. Moore, 11 Md. 365; Owen ». ''Infants Estates: Gardner v. Blane, 1 Hare, 
 
 Homaii, 3 Maon. & G. 378, 412; affirmed 4 H. L. 381 ; Butler v. Freeman, Ambl. 301, 303; Duke 
 
 Cas. 997; Cincinnati, Sandusky & Cleveland R. of Beaufort v. Berty, 1 P. Wma. 703. Estates of 
 
 E. Co. V. Sloan, 31 Ohio St. 1 ; 15 Am. Ry. Hep. Lunatics: Mitchell v. Barnes, 22 Hun, 194; In, 
 
 376; City of Rochester v. Bronson, 41 How. Pr. re Ferrior, L. R. 3 Ch. 175, 719. 
 
 78; Meyers. Johnston, 53 Ala. 237; RankineB. 'Tewartti. Lawson, L. E. 18 Eq. 490; Flagler 
 
 Elliott, 16 N. Y. 377; Robinson v. Atlantic & v. Blunt, 32 N. J. Eq. 518; Osborn v. U. S. Bank, 
 
 Great West. Ey. Co., 66 Penn. St. 160; Fisher v. 9 Wheat. 738; Schlecht's Appeal, 60 Pa. St. 172; 
 
 The Concord E. E. Co., 50 N. H. 200; Matter of Rachel Colvin's Case, 3 Md. Ch. 278; Wood v. 
 
 Long Branch & Sea Shore E. E. Co., 9 C. E. Hitchings, 2 Beav. 289; Veret «. Duprez, L. E. 
 
 Green, N. J. Ch. Reps. 398; State v. Northern 6 Eq. 329; Kitchen v. Birks, L. E. 10 Eq. 471; 
 
 Cent. Ey. Co., 18 Md. 193. Parkin v. Seddons, L. R. 16 Eq. 34. 
 
 669 
 
§ 580 EQUITY JURISPKUDENCE. [OH. XXXV 1. 
 
 misappropriation of the property is the ox'dinary justification for the 
 appointment of a receiver, yet it ig not necessaxy to the exercise of 
 such a power, that there should be any charge or danger of fraud or 
 breach'of trust. This class includes suits between partners,' between 
 joint owners of property," and, in England particularly, disputes 
 between co-owners of mines and collieries.^ Where parties are not 
 co-owners of the property, but they are conflicting claimants of the 
 land — especially where they are parties claiming conflicting legal 
 titles — the court will ordinarily refuse to interfere by the appoint- 
 ment of a receiver. But where a special case is mg,de out of danger 
 of loss or of fraud, or where possession by one has been acquired and 
 is maintained against the claims of others, in all such extraordinary 
 cases, in the exercise of a wise discretion, and particularly where the 
 plaintiff's right to the property is comparatively clear and certain, a 
 court of equity will interfere and place the property in the charge of 
 a receiver. 
 
 § 680. Continued— Cases in which a receiver may be appointed. 
 — ^The third class of cases in which a receiver may be appointed 
 includes a variety of cases, in which the party holding the title to the 
 property is in possession, as a trustee or quad trustee of property, in 
 which several persons have conflicting rights or interests, and for 
 various reasons it is necessary, for the protection of the interests of 
 such persons, that the possession should be taken away from the party 
 holding the legal title, either because there is danger of misuse or 
 neglect of the property, or of a breach of trust. The cases are of a 
 great variety, including suits brought against trustees who have 
 been guilty of a breach of trust, ^ and under like circumstances, any 
 suit brought against executors and administrators." So, likewise, 
 
 1 Hall V. Hall, 3 Maon. & Q. 79j Whitman o. Ferehay v. Wlghtwlok, 1 Kuss. &, M. 45j Bent- 
 Eobinson, 21 Md. 30; Walker?;. House, 4 Md. ley v. Bates, 4 Y. & C. Exoh. 182. 
 
 Ch.39; Druryt). Roberts, 2 Id. 157; William- < Rollins v. Henry, 77 N. C. 467; Battle v. 
 son u. Wilson, 1 Bland Ch. 418; Speights v. Davis, 66 J(?. 353; Twitty v. Logan, 80 Id. 69; 
 Peters, 9 Gill, 472; Roys v. Vilas, 18 Wis. 169; Chappell v. Boyd, 56 Ga. 678; Williams v. Jen- 
 Allen v. Hill, 16 Cal. 113; Todd v. Rich, 3 kins, 11 i8. 595; Jones «. Dougherty, 10 W. 273; 
 Tenn. Ch. 107; Sieghortneri). Wlssenborn, 20 Guernsey ©.Powers, 9 Hun, 78; Johnson v. 
 N.J. Eq. 172; Randall j). Morrell, 17 /d. 343, Tucker, 2 Tenn. Ch. 398; Mays «. Wherry, 3 Jd. 
 346; Renton «. Chaplain, 1 Stookt. Ch. 63; 34; Mapes «. Soott, 4 111. App. 268; Toldervy*. 
 Birdsall i^. CoUe, 2 Id. 63; Cox v. Peters, 2 Colt, 1 Y. & C. Exch. 621; Earl Talbot v. Hope 
 Beasl. 39; Wolbert u. Harris, 3 Halst. Ch. 605; Scott, 4K. & J. 96; Hlawaoek v. Bofman, Bl 
 Sloan J). Moore, 37 Pa. St. 217; Holden's Adm'rs Wis. 92; Davis v. Reaves, 2 Lea, 649; Huguenln 
 u McMakin, 1 Pars. Bq. Cas. 270; Bards. Bing- v. Beasley, 13 Ves. 105; Stilwell v. Wllklns, 
 ley 54 Ala.463;Andersou«. Powell,44Iowa,20; Jacob, 280; Clark v. Dew, 1 Russ. <St M. 103; 
 Law V. Ford, 2 Paige, 310; Martin v. Van Jones «. Goodrich, 10 Sim. 327. 
 Sehalck, 4 Id. 479; Garretson i>. Weaver, 3 " Middleton v. Dodswell, 13 Ves. 266, 268; 
 Edw. Ch. 385; Smiths. Lowe, 1 ja. 33; Gregory BrowoU t). Reed, 1 Hare, 434; Bainbrigge «. 
 «. Gregory, 1 Sweeny, 613. Blair, 3 Beav. 421; Skinners' Co. V. Irish Soc, 
 
 2 Cassetty v. Capps, 3 Tenn. Ch. 524; Will- 1 My. & Cr. 162; Richards v. Barrett, 5 111. App. 
 lamso. Jenkins, 11 Qa. 595; Brenan v. Preston, 510; Bowling u. Scales, 2 Tenn, Ch. 63; Vose v. 
 SDe G. M, &. Q. 813; Porter v. Lopes, L. R. 7 Reed, 1 Woods, 647; Evans v. Coventry, 5 De 
 Ch. D. 358; Daroin V. Wells, 61 How. Pr. 259. Q. M. & G. 912, 916. 
 
 8 Adams on Eq., pp. 247, 354; Roberts v. Ebor- « Briarfleld Iron Works Co. », Foster, 54 Ala. 
 
 hardt, Kay, 148; Crawshay v. Maule, 1 Swanst. 633; Du Yal v. Marshall, 80 Ark. 230; Powell v. 
 405, 518, 533; Jefferys s. Smith, IJ. &W. 298; Quinu, 49 Ga. 533; Hoge v. Holllster, 8 Baxt. 
 
 670 
 
CI-I. XXXVI. J RECEIVERS. § 580 
 
 a receiver may be appointed in suits brought to enforce specific 
 performance of a contract for the sale of land, against a vendee who is 
 in possession;^ and suits for the rescission of a contract of sale, 
 where possession has been obtained by such vendee;" suits for the 
 payment of annuities; ^ suits for the protection of remainder-men 
 against tenants in possession.* The third class includes other suits, in 
 which the creditors make claim to the property of the debtor; and also 
 suits by creditors, whether such suit be brought to enforce or to 
 obtain a judgment, whenever there is great danger of loss through the 
 insolvency and non-residence of the debtor; ^ so, also, all suits for 
 the enforcement of liens against property, including judgment liens;" 
 so, also, suits in proceedings in bankruptcy.' The most common class 
 of cases, in which receivers are appointed, are suits to enforce a 
 mortgage when the security is inadequate, and the mortgagor is 
 insolvent, or he is committing acts of destructive waste. In England, 
 it is held that a receiver will be appointed only at the instance of an 
 equitable mortgagee, on the ground that a legal mortgagee has the 
 power of taking possession of the property, whenever it is to his inter- 
 est to do so.* But in this country, no distinction in respect to the 
 appointment of receivers is drawn between legal and equitable mort- 
 gagees; and in every case a receiver will be appointed in this country, 
 where the security is insuflBicient originally, or it is in danger of depre- 
 ciation, because of the wrongful conduct of the mortgagor.' The 
 receiver will be appointed, not only in the case of ordinary mortgages, 
 but also in suits for the enforcement of a deed of trust, in the nature 
 of a mortgage." The other class of cases, in which the appointment of 
 a receiver is very often asked for and made, include suits of all sorts 
 
 B33; Hatnes v. Carpenter, 1 Woods, 262; Bev- Worcester, &o. Canal Prop'rs, L. E. 6 Eq. 437. 
 
 erly v. Brooke. 4 Gratt. 187; Leddel's Ex'r v. ' Salt ». Cooper, L. E. 16 Oh. D. 544j JSxparte 
 
 Starr, 19 N. J. Eq. 163; Anon., 12 Ves. i; Browne, L. E. 16 Ch. D. 497; /»?•« Manchester, 
 
 In re Hopkins, L. K. 19 Ch. D. 61 ; Nothard v. &c. Ey., L. K. 14 Ch. D. 645. 
 
 Proctor, L. E. 1 Ch. D. 4; Eandle v. Carter, 62 « Truman v. Eedgrave, L. E. T. <Sc E. 18 Ch 
 
 ^la_ 95_ D. 547; Peek v. Trinsmaran Iron Co., L. E. 2 
 
 1 Latimer J). Aylesbury, &c. Ey., L. E. 9 Ch. D. Ch. D. 116 ; Pease v. Fletcher, L. E. 1 Ch. P. 273 ; 
 385; Munnsi;. Isleof WightEy., L.E. 5Ch.414i Lord Crewe V. Edleston, 1 De G. & J. 93; Ber. 
 Pell V. Northampton, &c. Ey., L. E. 2 Ch. 100; ney ®. Sewell, 1 J. & W. 647; Brooks v. Great 
 
 .Hallu.Jenklnson,2V.&B. 125; Boehmu Wood, hed, lid. 176; Eeids. Middleton, T. & E. 455. 
 2 J. & W. 236 ; Shakel u. Duke of Marlborough, 4 « Allen v. Dallas, &c. E. E., 3 Woods, 318; 
 
 Madd. 463; Taylor v. Eokersley, L. E. 2 Ch. D. Warner v. Eising, &c. Iron Co., 3 Id. 514; Wll- 
 
 302- Phillips D. Eiland, 58 Miss. 721; Hughes r. mer d. Atlantic, <fec. Ey., 2 Id. 409; Brasted ». 
 
 Hatchett, 55AIa.631; Tufts r. Little, 66 Ga. 139; Sutton, 30 N. J. Eq. 462; Mahou u. Crothers, 28 
 
 Gunbyj).' Thompson, 56 H. 316. Id. 567; Johnson v. Tucker, 2 Tenn. Ch. 398; 
 
 2 Gibbs V. Dayls, L. E. 20 Eq. 373. Williams v. Noland, 2 Id. 151 ; Moran v. Johns- 
 8 Sollory V. Leaver, L. E. 9 Eq. 22; Buxton v. ton, 26 Gratt. 108; Phcenix Mut. L. Ins. Co. v. 
 
 Monkhouse, G. Coop. 41 ; Probasco II. Probasoo, Grant, 3 Mo Arthur, 220; Pullan v. Cincinnati, 
 
 30 N. J. Eq. 108, &". E. E. , 4 Blss. 35 ; Price v. Dowdy, 34 Ark. 285 ; 
 
 4I»r« Fowler, L. E. 16 Ch. D. 723. Haas V. Chicago Build. Soc, 89 111. 498; Des 
 
 6 Johnson v. Farnum, 56 Ga. 144; Ballln v. Moines Gas Co. v. West, 44 Iowa, 23; WorrlU »- 
 
 Ferst, 55 Id. 546; Gregory v. Gregory, 1 J. & S. 1. Coker, 56 Ga. 666; Phillips v. Eiland, 52 Mass. 
 
 6 Gage V. Smith, 79 III. 219; Kuhl v. Martin, 721. 
 
 26 N. J. Eq. 60; Osborn v. Heyer, 2 Paige, 'o Wilmer B.Atlantic, &c. Ey., 2 Woods, 409; 
 
 342- Anglo-Italian Bk. V. Davies, L. E. 9 Ch. Warner u. Eising, Ac. Iron Co., 3 Id. 514; Allen 
 
 275- see Adams on Eq., p. 125; Hopkins v. v. Dallas, &c. E. E., 3 Id. 316. 
 
 671 
 
581 EQUITT JUBISPKTJDENOE. [CH. XXXVI. 
 
 brought against corporations, either between the corporation and its 
 debtors, or between the corporation and the stockholders. The cases 
 are very numerous and constitute everywhere the chief field for the 
 appointment of receivers.* 
 
 The fourth class of cases contains all those, in which the receiver is 
 appointed after judgment, for the purpose of carrying the decree of the 
 court into effect. Where the decree is rendered in a suit, in which the 
 receiver had been appointed dui'ing the pendency of a litigation, he 
 would be continued in charge of the property after judgment for the 
 purpose of carrying such judgment or decree into effect; but if a 
 receiver had not been appointed prior to the judgment, then the 
 court may appoint one at that time, whenever such appointment 
 is necessary. The object of the appointment of a receiver, under such 
 circiunstances, is to carry into effect a decree, which could not be other- 
 wise executed by the original process of the court. The most impor- 
 tant cases, in which a receiver may be appointed after judgment, are, 
 creditors' suits, suits for the enforcement of all sorts of equitable 
 liens, particularly the liens of the creditors of married women on 
 separate estates of such married women; and, also, suits for winding up 
 the affairs of corporations.^ 
 
 § 581. Effect of appointment of receivers. — The appointment 
 of a receiver, during the pendency of a suit, does not in anywise con- 
 stitute a disposition of the rights of the parties litigant in and to the 
 subject-matter of the suit; it is only an interlocutory remedy, designed 
 for the protection of the interests of the parties to the property, and his 
 appointment does not determine any right or title of such parties. 
 His duties involve an impartial protection of the property, and the 
 proper conservation of the same, for the benefit of whomever may be 
 determined to be entitled to the same.' The appointment of the 
 receiver does not in anywise interfere with the litigant claims of the 
 parties to the suit; and where it is a suit against a corporation, the 
 appointment of a receiver does not in anywise dissolve the corporation.* 
 Nor are the general powers of the directors of the corporation inter- 
 
 » Vermont, &o. E. R. v. Vt., &c. E. K. , 50 Vt. 14 Wall. 383; National Tr. Co. ». Miller, 33 N. J. 
 500 J Port Huron, &c. By. o. Judge of St. Clair Eq. 155; Featherstone v. Cooke, L. E. 16 Eq 
 circuit, 31 Mich. 466 ; French v. Gifford, 30 Iowa, 298 ; Hopkins v. Worcester, &c. Canal Proprle- 
 148; Hand v. Dexter, 41 Ga. 454; People v. tors, L. R. 6Eq.437; Allen ». Dallas, Ac. K. E., 
 Securitylns. Co.,78IT. Y. U4!79/d. 267; LaSo. 3Woods,316; Warner i?. Eising, &c.' Iron Co.) 
 oiete Francaise v. District Court, 53 Cal. 495; 3 Id. 514; Wilmer «. Atlanta, &c. Ey., 2 Id. 409- 
 Kelley v. Alabama, Ac. E. E., 58 Ala. 489; Wil- Nortli Car., &,c. E. E. «. Drew, 3 Id. 691. 
 son 0. Barney, 5 Hun, 257; Redmond v. Enfield 2 Bryant v. Bull, L. E. 10 Ch. D. 153; Anglo- 
 Man. Co., 13 Abb. Pr., k. s., 332; Eoohester v. Italian Bk. v. Davies, L. E. 9 Ch. D. 275. 
 Bronson, 41 How. Pr. 78; Brown v. Home Sav. >M;parte Evans, L. E. 13 Ch. D. 252; BolleB 
 Bk., 5 Mo. App. 1; Freeholders of Middlesex o. «. Duff, 54 Barb. 215; Jeffreys v. Dickson, L. E. 
 State Bk., 28 W. 166; McCuUough ». Meroh. 1 Ch. 183; States. Gambs, 68 Mo. 289. 
 Loan, <tc. Co., 29 Id. 217; In re Long Branch, *Kinoaid !?. Dwlnelle, 59 N. Y. 548- Willink 
 &c. E. E., 24 Id. 298; Delaware, &c. E. E. «. v. Morris Canal & Bkg. Co., 3 Green Ch. 377- 
 Brie E. E., 21 Id. 298; Union Tr. Co. v. St. Louis, State v. E. E. Comrs., Vroom, 235; Ahrens v. 
 &a. E. E., 4 Dillon, 114; Kennedy v. St. Paul, State Bank, 3 S. Car. (M. S.) 401 ; Metz Adm'r 
 &c. E. E., 2 Id. 448; Whelpley v. Erie Ey., 6 v. The Buffalo, Corry &. Pittsburg E. E. Co. 58 
 Blatch., 271; Bk. of Bethel v. Pahquioque Bk., N. Y. 61. ' 
 
 672 
 
CH. XXXVl.] RECEIVEES. § 583 
 
 rupted or interfered with, in the appointment of a receiver.^ It is, of 
 course, the duty of a receiver to, and he does in fact, take possession of 
 all of the property covered by the litigation, and manages the same unde^ 
 the direction of the court. ^ The property, thus taken possession of, 
 becomes a trust fund in the hands of the receiver, especially charged 
 with a lien in favor of the parties whom the court will ultimately 
 decree to be entitled to such property; and the claims of individual 
 creditors against corporate property will be suspended by the appoint- 
 ment of a receiver, so far as to make it impossible for such claims to 
 be asserted against such property by the levy of execution.' 
 
 §582. Duties of receivers. — It is the duty of a receiver to 
 take into possession the property covered by the litigation and in the 
 care of such property to exercise reasonable prudence and diligence; 
 and where he is guilty of negligence, he becomes liable for the damage 
 that might result therefrom.* He is also obKged to recognize and obey 
 all of the directions of the court in respect to such property. Where 
 he has been guilty of any wrongful use of funds, or of the property 
 placed in his charge, he is, of course, liable for breach of trust. ^ 
 
 § 583. Powers and authority of receivers. — The receiver is an 
 officer of the court, and his powers and authority in respect to his office 
 are in general set forth and limited by the order of appointment.* 
 These powers are also subject to revision by the court.' Some powers 
 are limited by the necessities of the case;* as for example, the power 
 to bring and maintain or continue suits in behalf of the property under 
 his charge.' He also has, generally, the power of collecting debts^ 
 
 iStevensi;. DaTison, 18 Gratt. 819. 111. App. 367; Saffordw. People, 85111. 558; Tripp 
 
 "Mil. & St. Paul E. E. Co. v.TUe MIL & •». Boardman, 49Iowa, 410; Bank of Montreal 
 
 Minn. E. E. Co. and others, 30 Wis. 165; Ean- v. Chicago, &c. K. E., 48 Id. 518; Mollrath v. 
 
 kine v. Elliott, 16 N. Y. 377; Eobinson v. Snure, S2 Minn. 391; Barron v. Mullin, 21 1(i. 
 
 Atlantic & Great West. Ey. Co., 66 Pa. St. 160. 374; Meredith Sav. Bk. ti. Simpson, 22 Kans. 
 
 SEankine v. Elliott, 16 N. Y. 377, 381; Eobin- 414; Eobinson v. Atlantic, <Sco. By., 66 Pa. St. 
 
 sour. Atlantic & Great West. Ey. Co., 66 Penn. 160; Gibert v. Washington City, Ac. E. E., 33 
 
 St. 160. Gratt. 586; Spinning v. Ohio, <Stc. Tr. Co., 2 
 
 «Davenport». Eeceivers, 2 Woods, 519; Davis Disney, 336; Johnson v. Gunter, 6 Bush, 534; 
 
 n. Gray, 16 Wall, 203; Commonwealth ». Young, McCombs «. Merryhew, 40 Mich. 721; Porters. 
 
 11 Phila. 606; Stewart v. Lay, 45 Iowa, 604; Williams, 9 N. T. 142; People ». Security Ins. 
 
 Demain v. Cassidy, 55 Miss. 320; Stanton v. Co., 78 Id. 114; 79 Id. 267; Scott v. Elmore, 10 
 
 Ala., <fec. E. E., 2 Woods, 506; Kain v. Smith, 80 Hun, 68; Olcott v. Heermaus, 3 Id. 431 ; Sim- 
 
 N. Y. 458; Clark ». Binuinger, llj. & S. 126,344; mons». Wood, 45 How. Pr. 262; Blmira, &c. Co. 
 
 Corey ». Long, 12 Abb. Pr., u. s., 427; Coe v. N. e. Erie Ey., 26 N. J. Eq. 284; Eeceivers v. Pat- 
 
 J., Ac. E. E., 27 N. J. Eq. 37; Klein v. Jewett, erson Gas Light Co., 3 Zabr. 283; Kennedy v. 
 
 86 M. 474. St. Paul, &c. E. E., 5 Dillon, 519; Stanton ». 
 
 'Hinckley d. Eailroad Co., 10 Otto, 163: Ala., &c. E. E., 2 Woods, 506; Cowdery v. 
 
 Stretch o. Gowdey, 3 Tenn. Ch, 565; Cowdrey Eailroad Co., 1 Id. 331; Davis v. Gray, 16 Wall. 
 
 V. Galveston, &e. E. E., 3 Otto, 362; Cart- 203; Heermansu. Clarkson, 64N. Y, 171; In re 
 
 Wright's Case, 114 Mass. 230; Drake v. Good- Birmingham, &c. Ey., L. E. 18 Ch. D. 155; 
 
 ridge, 6 Blatch. 531 ; Wall v. Pulllam, 5 Heisk. Campbell v. Champagnie Generale, L. R. 2 
 
 395 . Ch. D. 181; Sx parte Warren, L. E. 10 Ch. 222; 
 
 OKennedy&Co. ■». StPaul&Pacif.E. R. Co. Sx parte Ja.y,h. E. 9 Ch. 133; Armstrongs;. 
 
 et al.. Dill. 0. C. R. 448; Gilberts. Washington Armstrong, L. E. 12 Eq. 614. 
 
 City,'va. Midland & Great Southern E. E. Co., ' Kennedy & Co. v. St. Paul & Paolf. E. R. 
 
 33 Gratt. 586; ». C, 1 Am. & Eng. R. E. Gas. 473; Co. et al., 2 Dill. C. C. E. 448. 
 
 Moseby v. Burrow, 52 Tex. 396 ;. Weems v. Lath- « Eankine v. Elliott, 16 N. Y. 377. 
 
 rop 42 Jd. 207; Newbold v. Peoria, &c. E. R., 5 » Eankine v. Elliott, 16 N. Y. 377; Mil & St. 
 
 43 
 
 673 
 
§ 684 EQUITY JUKI8PBUDEN0E, [CH. XXXVI, 
 
 making repairs, enforcing the claims against other parties in favor of 
 such property, and the like.* It is, however, the duty of the receiver 
 to secure the approval of the court in every case, where such approval 
 can be obtained in advance/ In appointment of receivers of railroads, 
 at the instance of the mortgagees or bondholders, the receiver is often 
 called on, for the preservation of property, to complete the construction 
 of the road and to make repairs on the same.^ But in doing so, the 
 order of the court to that end is required to be taken in advance, for the 
 receiver cannot expend money without an order of the court, except in 
 cases of absolute necessity.* So, also, is it impossible for him to bor- 
 row money and give a lien upon the subject-matter of his receivership, 
 without the consent of the court. ° Finally, the receiver is often author- 
 ized' by the court, particularly after the rendition of a decree, to sell 
 the property and to make title to the purchaser of such property. 
 But this, of course, can only be done under the decree of the court. " 
 
 § 584. Suits against receivers. — The receiver, being an officer of 
 the court, is therefore really not subject to any official liability, except 
 where the court which appoints him permits a suit to be brought against 
 him; for his acts as a receiver are largely, if not altogether, the perform- 
 ance of orders of the court; and, technically, a suit against the 
 receiver would be a suit brought against the court. Hence, in order 
 that any suit may be brought against the receiver, the consent of the 
 ■court which appoints him must be had, and such action must be main- 
 tained in the same court.' The proper form of the suit would be an 
 application by petition to the court for relief from the effects of the 
 acts of the receiver.' If the receiver has been appointed by the state 
 court, then the federal courts cannot recognize any action against such 
 
 Paul R. R. Co. V. Tho Mil. & Minn. B. E. Co. and ern R. B. Co., 33 Qratt. 624; s. o., 1 Am. <Se Eng. 
 
 others, 20 Wis. 165 J Manlove o. Burger, 38 Ind. E. R. Cas. 498; Gurney v. Atlantic & Great 
 
 ail; Alexanders. Eelfe, 9 Mo. App. 133; Lath- Western By. Co., B8N.Y. 358; 9 Am. Rep. B30; 
 
 rop V. Knapp, SI Wis. 307; Miller v. Macken- Cowdrey et al. v. Ballroad Co., 3 Otto, (93 U. S. 
 
 zle, 29 N. J. Eq. 291; Battle «. Davis, 66 N. C. Sup. Ct.) 352; but see DextervlUe Mfg. & 
 
 252; Gadsden v. Whaley, 14 S. C. 210; Searles Boom Co. v. Case, 4 Fed. Eepr. 873; s. o., 1 Am. 
 
 V. Jacksonville, <fco. E. R., 2 Woods, 621 ; Camp- & Eng. E. E. Cas. 680. 
 
 bell 1). Fish, 8 Daly, 1613; Donnelly v. West, 17 ' Meyer v. Johnson, 9 Am. Eep. 4S4 (Supr. Ct. 
 
 Bun, 564; Albany, &0. Ins. Co. v. Van Vran- Ala., June Term, 1876); s. o., B3 Ala. 2S7; 15Am. 
 
 ken, 42 How. Pr. 281; Calkins v. Atkinson, 2 Ey. Eep. 467; and see Hoover w. Montclalr <fc 
 
 Lans. 12; Roclfwelli). Merwln, 8 Abb.Pr.,N. s., Greenwood Lake By. Co., 29N. J. Eq. 4; 18 Am. 
 
 330; Graver v. Kent, 70 Ind. 428. Ey. Eep. 565. 
 
 1 Porter «. Kingman, 126 Mass. 141; Pond v. ° Metz Admr. v. The Buffalo, Corry &, Pitt* 
 
 Cooke, 45 Conn. 126; Hoover v. Montclalr, &o. burg E. B. Co., B8 N. Y. 61. 
 
 Ey., 29 N. J. Bq. 4; Mann v. Falrchlld, 3 Abb. ' Bandall v. Howard, 2 Black, 586; Eoblnson 
 
 App.Deo.152; Koontzti. Northern Bk., 16 Wall. ». Atlantic & aroat West. By. Co., 66 Penn. St. 
 
 196; Ex parte Harris, L. E. 2 Ch. D.4S3;-Bx 160; In re McElrath, 2 Dillon's C. C. E. 460; 
 
 parte Hare, L. E. 10 Ch. 218; Jolly v. Arbuth- Minnesota Co, v. St. Paul Co., 2 Wall. 609, 632, 
 
 not, 4DeG. & J. 224; Screven v. Clark, 48 Ga. 633; Freeman v. Howe, 24 How. 460; Palysv. 
 
 41; Seagram u. Tuck, L. E. 18 Ch. D. 296; Ex Jewett, 32N. J. Eq. 302; Ilackley*. Draper, 69 
 
 parte Browne, L. E. 16 Ch. D. 497. N. Y. 88; 4 T. * C. 614; De Graffenrled i>. 
 
 2Crowdrey«< al v. The Ballroad Co., 3 Otto, Brunswick, Ac. E. E., ,57 Ga. 22; KUImor v. Ho- 
 
 (93U. S. Sup. Ct.) 352. bart, 8 Abh. N. C. 426; 58 How. Pr. 452; Barton 
 
 8 Kennedy v. The St. Paul & PadOc B. E. Co., v. Barbour, 3 MacAr. 212; Express Co. v. Eall- 
 
 2 Dillon's C.C.E. 448. road Co., 9 Otto, 191: La Crosso Ballroad 
 
 < Meyer t). Johnston, supra; Williamson v. Bridge, 2 Dillon's C. C. E. 465. 
 
 Washington City, Va. Midland <fc Great South- « Ohio & Miss. B. E. Co. v. Davis 23 Ind 568. 
 
 674 
 
CH. XXXVI.] EECEIVEES. § 584 
 
 receiver, although it may be brought by a non-resident of the state, 
 •or where for some other reason the federal court could ordinarily 
 assume jurisdiction. So, on the other hand, if the receiver be 
 appointed by the federal court, any litigation arising out of the acts of 
 such receiver, must be instituted in such federal court, and the state 
 court cannot assume jurisdiction. ' On this same general principle, suits 
 brought against a receiver, for injuries suffered by persons through the 
 negligence of the employees of the receiver in the management of a 
 railroad, can only be brought against such receiver in the court 
 appointing him, and with the leave of such court." And in such an 
 action the liability for such injuries will not be a personal one of the 
 receiver;' but the court will, on a proper case being made out of neg- 
 ligence and injury, entertain a consideration of the claim as a claim 
 against the property of the railroad.* When the right of recovery for 
 such injury is recognized by a decree of a court, satisfaction of such 
 claim can only be made out of the funds which might be found in the 
 hands of the receiver. All suits for such injuries must be brought 
 against the receiver before his discharge as receiver; but it is custom- 
 ary, in the discharge of a receiver after a sale of the property under 
 foreclosure, or in the decree for foreclosure, to provide that the pur- 
 chaser shall take the property subject to all claims against the receiver, 
 which remain unsatisfied when the property is transferred and the 
 receiver discharged.^ But a receiver is free from liability only for 
 those acts, which he has lawfully done within his authority as a 
 receiver, and which he has done in relation to the management of the 
 property which has been placed in his charge by the decree of the 
 court. Where, however, such a receiver has mistakenly taken pos- 
 session of property not belonging to the parties litigant, or not con- 
 stituting a part of the subject-matter of the suit, he is guilty of a con- 
 version, and for such he may be held liable in an action of replevin, 
 in ordinary form brought by the owner of such property." But 
 wherever a receiver is deemed to be made liable in independent suits 
 brought in other courts for his official acts as receiver, the court 
 
 1 Minnesota Co. ^. St. Paul Co., 2 Wall. 609, Erwln v. Davenport, 9 Helsk. 44; 19 Am. Ry. 
 633 j Milw. & St. Paul R. R. Co. v. Milw. & Minn. Eep. 274j and see Hopkins v. Connel, 2 Tenn. 
 R. E. Co., 20 Wis. 165. Ch. 323; In re McElrath, 2 Dillon C. C. 460; In 
 
 2 Ohio & Miss. R. R. Co. v. Dayls, 23 Ind. 553, re Easton, 2 Dill. C. C. E. 460; Blumenthal v. 
 560,581. Bralnerd, 38 Vt. 402; Newell v. Smith, 49 Vt. 
 
 s Hopkins 1). Connel, 2 Tenn. Ch. 323; Cardot 255; 17 Am. Ry. Eep. 100; Aliens. Cent. E. E. 
 
 V. Barney, 63 N. T. 281; Ohio & Miss. R. R. Co. Co., 42 la. 683: Wabash Ey. Co. v. Brown, 5 
 
 ». Davis, 23 Ind. 553, 560, 561. Bradw. (III.) 590; Kain v. Smith, 80 N. T. 
 
 * Ohio & Miss. E. E. Co. iJ. Davis, 23 Ind. 553, 458. 
 
 560, 561; Newell v. Smith, 49 Vt. 255; Kain v. spanners' Loan and Trust Co. v. Cent. E. E. 
 
 Smith, 11 Hun, 552; Henderson v. Walker, 55 Co., 2 MoCrary, 181; s. c, 7 Fed. Eepr. 637; 1 
 
 Ga. 481 ; Meara's Adm'r v. Holbrook, 20 Ohio Am. &, Eng. E. E. Gas. 630; but see Brown v. 
 
 St. 137; Potter v. Bunnell, 20 Id. 150; Hills v. Wabash Ey. Co., 96 111. 297; 1 Am. & Eng. E. E. 
 
 Parker, 111 Mass. 508; Klein v. Jewett, 11 C. E. Cas. 626; s. v., 5 Bradw. (111.) 590. 
 
 Green, 474; Jordan v. Wells, 3 Woods, 527; Ken- « Leighton v. Harwood, 111 Mass. 67; Hills v. 
 
 nedy v. Indianapolis, C. &. L. E. R. Co., 2 Flip- Parker, 111 Mass. 508, 510, 511; Parker v. Brown- 
 
 nin 704; s. u., 10 Eepr. 359; 11 Cent. L. J. 89; Ing, 8 Paige, 388; Paige v. Smith, 99 Mass. 395. 
 
 675 
 
§ 588 eqxhtt jubispeudence. [ch. xxxvi. 
 
 appointing him will protect him from interference by enjoining the 
 prosecution of the other suits. ^ 
 § 685. Liability of the corporation for the acts of the receiver. 
 
 — Independently of any statutory provision, a corporation whose 
 property has been placed in the hands of a receiver is not liable for 
 any claims for injuries or damages, which have arisen from the man- 
 agement of the corporate property by such receiver. These acts of 
 the receiver are not acts of the corporation, and the corporation has 
 no control over them, so that no action will lie against the corpora- 
 tion for the acts of, or injuries inflicted by, the receiver, or by his 
 servants or employees.'' But there are some cases, in which the cor- 
 poration will be liable for the negligence of a receiver in the management 
 of the corporate property, viz. : where such negligence constitutes the 
 violation of an express trust or duty imposed upon the railroad cor- 
 poration. The corporation in such a case is liable, although the con- 
 trol and management of the railroad property have been completely 
 taken away from them; it is because the statutory liability is clear and 
 explicit.' In such a case, the judgment obtained against the corpora- 
 tion cannot support a levy upon the property in the hands of the 
 receiver; but the only remedy for the satisfaction of such judgment 
 is an application for its payment to the court, wherein the receiver 
 has been appointed.* 
 
 § 586. Removal of receiver. — Inasmuch as the receiver is an 
 officer of the court which appointed him, he can only be removed by 
 such court; no other court can interfere and secure his removal for 
 whatever cause might be suggested. ° 
 
 § 587. Compensation of receiver. — The compensation of a 
 receiver is governed exclusively by the discretion of the court which 
 appoints him, and a claim for compensation constitutes a lien upon 
 the property of the railroad in the hands of the receiver. ° 
 
 § 588. The receiver's certificate, how far negotiable. — When a 
 railroad or other property is placed by the court, on the application 
 of the creditors of the ovraer, in the hands of a receiver, to be 
 administered upon for the benefit of the creditors, subject to the 
 orders of the court, it is now very common for the court to authorize 
 the receiver to issue certificates, which, in effect, amount to promis- 
 
 iRankine v. Elliott, 16N.Y.377; Jordan v. * Ohio & Miss. R. R. Co. ». DaTiB,33Ina.553,560. 
 
 Wells, 3 Woods, 627; Vermont, &o. R. R. «. Vt. ^Coei). New Jersey Midland Ry. Co., 28 N.J. 
 
 Cent. R. E., 46 Vt. 792; JEc parte Coohrane, L. Ch. 31; 14 Am. Ry. Rep. 9 ; Cincinnati, Sandusky 
 
 R. 20 Bq. 282; Russell v. East Anglian Ry., 3 & Cleveland R. R. Co. t,. Sloan, 31 Ohio St, Ij 15 
 
 Macn. & G. 104. Am. Ry. Rep. 376. 
 
 2 Ohio & Miss. E. E. Co. v. Davis, 23 Ind. 553, » Special Bk. Comm'rs v. Franklin Sav. Inst., 
 
 560,561; see Hopkins v. Connel, 2 Tenn. Ch. 11 E.I. 557; Mabry v. Brown, 12 Heisk. 597; 
 
 323; Wabash Ry. Co. v. Brown, 5 Bradw. (III.) Brien v. Harriman, 1 Tenn. Ch. 467; Hutchin- 
 
 590; Wiswallo. Sampson, 14 How. 52; Angel v. sons. Hampton, 1 Mont. T. 39; McArthur v. 
 
 Smith, 9 Ves. 335. Montclalr E. E. , 27 N. J. Eq. 77 ; Jones v. Keen, 
 
 s McKinney v. Ohio & Miss. E. E. Co., 22 Ind. 115 Mass. 170; Special Bk. Comm'rs «i. Cranston 
 
 99; Louisville, New Albany & Chi. R. E. Co. Sav. Bk., 12 E. I. 497; Hopfensack v. Hopfen- 
 
 i>. Cauble, 46 Ind. 277; Ohio & Mississippi E. sack, 61 How. Pr. 498; Creole d. Findley, 60 Id. 
 
 K Co. V. Davis, 23 Ind. 553, 560, 561. 375; Gardiner v. Tyler, 2 Abb. App. Deo. 247. 
 
 676 
 
CH. XXXVI. J 
 
 RECEIVERS. 
 
 § 588 
 
 sory notes, obligating the receiver to pay the amount called for by the 
 certificate out of any moneys in his hands as receiver. It has been 
 very generally held that the receiver's certificates are not negotiable, 
 and that the transferee takes them subject to all existing defenses, 
 although they are made payable to order or to bearer; principally, 
 on the ground that the certificate is drawn on a particular and uncer- 
 tain fund, and does not create against anyone any absolute and 
 unconditional liability.^ It has been held that, since receivers cannot 
 issue certificates for any other purpose than to raise funds with which 
 to make necessary repairs, and cannot borrow money for the purpose 
 of building a road, the certificate issued for the prohibited purpose is 
 void in the hands of anyone, if the purpose of that issue is stated on 
 the face of the certificate.^ 
 
 1 " Nearly every quality essential to the ne- 
 gotiability of commercial paper is wanting in 
 such certificates. In the first place, they are 
 not payable anconditionally out of any fund; 
 ■whether, in any event, they are payable in 
 full, depends upon the question whether the 
 fund under the control of the court is suffi- 
 cient for that purpose. The fact cannot be 
 known exactly upon inquiry into the amount 
 of such certificates Issued by the officer au- 
 thorized to act, and as to the value of the fund 
 to be administered. A bill of exchange is not 
 good when drawn payable out of a particular 
 fund that is uncertain and contingent. The 
 
 fund out of which payment is to be made 
 must be certain, as well as the obligation of 
 the maker or drawer. Then, again, there Is 
 no personal liability upon anyone for the 
 payment of such certificates, and, as we have 
 seen, one essential quality of negotiable paper 
 Is the personal liability of the maker." Tur- 
 ner V. Peoria, &c. R. B. Co., 95 111. 145, 146j 
 see, also, Montreal ». Chicago, &c. R. B. Co., 
 48 Iowa, 518 ; Newbold v. Peoria <fc Springfield 
 R. R. Co., 5 Brad. 367; Union Trust Co. v. Chi- 
 cago A, Lake Huron R. H. Co., 7 Fed. Rep. 513. 
 2 Credit Co. o. Ark. Cent. R. R. Co., 15 Fed. 
 Rep. 4S. 
 
 677 
 
Table of Cases Cited. 
 
 RErERENCES ARE TO PAGES. 
 
 A. 
 
 Abbey v. Dewey, (1 Casey, 413) 260 
 Abbott V. Godfrey's Heirs, (1 Mich. 178) 
 
 465,488 
 Abbott V. Goodwin, (20 Me. 408) 450 
 Abbott V. Kasson, (72 Pa. St. 183) 148 
 Abbott V. L'Hommedieu, (10 W. Va. 677) 
 
 583 
 Abell V. Howe, (43 Vt. 403) 132, 650 
 Aberaman Iron Worlds v. Wickens, (L. 
 
 R,4Ch.l01) 254 
 Abramsw. Seale,(44Ala. 297) 137 
 Abrams v. Sheehan, (40 Md. 446) 107, 109 
 Acad, of Visitation v. Clements, (50 Mo. 
 
 167) 349 
 Acenburgc. McCool, (36 Ind. 473) 283 
 Acer V. Westcott, (1 Lans. 193) 114 
 Acker v. Phoenix, (4 Paige, 305) 339, 583 
 Ackermanr.Emott, (4Barb.626) 368, 370 
 Ackerman v. Finch, (7 Cow. 290) 539 
 Ackley v. Westervelt, (86N. Y. 448) 404 
 Ackroyd v. Smithson, (lBro.503) 209, 210 
 Adair v. Brimmer, (74 N. Y. 539) 364, 367 
 Adair v. Winchester, (7 Gill & J. 114) 444 
 Adams v. Adams, (5 Met. 277) 173 
 Adams v. Adams, (22 Vt. 50) 420 
 Adams v. Adams, (21 Wall. 185) 339, 360 
 Adams v. Barrett, (5 Ga. 404) 268 
 Adams v. Cowherd, (30 Mo. 458) 477 
 Adams v. Dixon, (19 Ga. 513) 659 
 Adams v. Green, (34 Barb. 176) 36 
 Adams v. Guerard, (29 Ga. 651) 353 
 Adams v. Hill, (9Fost. 203) 59 
 Adams v. Johnson, (41 Miss. 258) 464 
 Adams v. Jones, (9 Hare, 485) 232 
 Adams v. Leavens, (20 Conn. 72) 84 
 Adams v. Mackey, (6 Rich. Eq. 75) 398 
 Adams v. Perry, (4 Abb. App. Dec.) 349 
 Adams v. Perry, (43 N. Y. 487) 348 
 Adams v. Popham, (76 N. Y. 410) 563 
 Adams v. Robertson, (37 111. 45) 234 
 Adams v. Rodarmel, (19 Ind. 339) 87 
 Adams v. Sayre, (76 Ala. 509) 280 
 Adams v. Stevens, (49 Me. 362) 234 
 Adams v. Sworder, (3 De G. J. & S. 44) 
 279 
 
 Adams v. Willimatic, &o. Co. (46 Conn. 
 
 330) 453, 454 
 Adams' Appeal, (1 Pa. St. 447) 107 
 Adamson v. Ayres, (1 Halst. Ch. 349) 173 
 Addison v. Bowie, (2 Bland Ch. 606) 175 
 Addison v. Cox, (L. R. 8 Ch. 76) 84, 85 
 Adley v. Whitestable Co. (17 Ves. 315) 17 
 Adlum V. Yard, (1 Rawie, 163) 169 
 Adnam v. Cole, (6 Beav. 353) 193 
 Adsit V. Adsit, (2 Johns. Ch. 448) 159, 160, 
 
 167, 169, 170, 171, 178 
 .aitna L. Ins. Co. v. Corn, (89 111. 170) 151 
 .^tna Ins. Co. v. Tyler, (16 Wend. 385)478 
 ^tna Nat. Bk. v. Fourth Nat. Bk. (46 N. 
 
 Y. 82) 458 
 Agric, &c. Ass'n v. Brewster, (51 Tex. 
 
 857) 358 
 Ahearne v. Hogan, (Drury, 310) 287 
 Ahem v. White, (39 Md. 409) 58, 59 
 Ahrend v. Odiorne, (118 Mass. 261) 478 
 Aiken i;. Blaisdell, (41 Vt. 657) 270 
 Aiken v. Gale, (37 N. H. 501) 536 
 Aiken v. Milwaukee, &c. R. R. (37 Wis. 
 
 469) 150 
 Aiken v. Smith, (1 Sneed, 304) 336 
 Aiman v. Stout, (43 Pa. St. 114) 274 
 Ainslie v. Boynton, (2 Barb. 258) 79 
 Ainslie v. Medlycott, (9 Ves. 12) 243 
 Aird's Estate, In re, (L. R. 12 Ch. Dlv. 
 
 391) 187, 231 
 Akerly v. Vilas, (21 Wis. 88) 263, 633 
 Albany Fire Ins. Co. v. Bay, (4 N. Y. 9) 
 
 397 
 Albany Sav. Inst. v. Burdick, (87 N. Y. 
 
 40)334 
 Albin V. Lord, (39 N. H. 196) 407 
 Alcock V. Sloper, (3 My. & K. 699) 205 
 Alden v. Diossy, (16 Hun, 311) 269 
 Alden v. Garver, (32 111. 33)465 
 Alderson v. Ames, (6 Md. 56) 58 
 Alderson v. Ames, (6 Md. 52) 465 
 Aldrich v. Aldrich, (13 R. 1. 141) 117, 164 
 Aldrich v. Green, (1 N. Y. S. 541) 333 
 Aldridge v. Dunn, (7 Blackf. 349) 475 
 Alexander v. Alexander, (48 Ind. 559) 42Qi 
 Alexander v. Bouton, (55 Cal. 15) 404 
 Alexander v. Caldwell, (55 Ala. 517) 68 
 
 679 
 
680 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Alexander v. Lewis, (47 Tex. 481) 271 
 Alexander v. Newton, (3 Gratt. 266) 219 
 Alexander v. Northwestern, &c. Univ. 
 
 (57 Ind. 466) 284 
 Alexander v. Pendleton, (8 Cranch, 462) 
 
 77,602 
 Alexander v. Tarns, (13 111. 221) 354 
 Alexander v. Worthington, (5 Md. 471) 
 
 427 
 Alford V. Moore, (15 W. Va. 597) 216, 230 
 Alger V. Scott, (54 N. Y. 14) 453 
 Algona, Dist. of u District, &c. (54 
 
 Iowa, 286) 265 
 Allen, Ex parte, (15 Mass. 58) 274 
 Allen V. Addington, (7 Wend. 9) 352 
 Allen V. Anderson, (44 Ind. 395) 146, 159, 
 
 220 
 Allen V. Callow, (3 Ves. 289) 191 
 Allen V. Carr, (85 111. 388) 295 
 Allen V. Clark, (2 Blackf. 343) 420 
 Allen V. Dallas, &c. R. R. (3 Woods, 316) 
 
 671 
 Allen V. Gardner, (7 R. I. 32) 229 
 Allen V. Hart, (73 111. 104) 255, 256 
 Allen V. Hawley, (66 111. 164) 59 
 Allen V. Hanley, (3 Lea. 141) 621 
 Allen V. Holden, (32 Ga. 418) 110 
 Allen V. Imlet, (1 Holt, 641) 363 
 Allen V. Johnson, (4 J. J. Marsh. 235) 295 
 Allen V. Knight, (5 Hare, 372) 57, 76, 116 
 Allen V. Loring, (34 Iowa, 499) 473 
 Allen V. Martin, (L. R. 20 Eq. 462) 563 
 Allen V. Massey, (17 Wall. 3,51) 296 
 Allen V. Mayor, &c. (4 E. D. Smith, 404) 
 
 225, 336 
 Allen 1J. Merwin, (121 Mass. 378) 193 
 Allen V. Moss, (37 Mo. 354) 105 
 Allen V. Parish, (3 Ohio, 107) 107, 110 
 Allen V. Poole, (54 Miss. 323) 98, 114, 124, 
 
 125, 126, 130, 132 
 Allen V. Pray, (12 Me. 138) 173 
 Allen V. Richardson, (L. R. 13 Ch. D. 524) 
 
 227 
 Allen V. Smith, (39 Ark. 74) 214 
 Allen V. Tiffany, (53 Cal. 16) 419 
 Allen V. Watt, (79 111. 284) 79, 87 
 Allen V. Webb, (64 111. 343) 263 
 Allen's Estate, (1 Watts & S. 383) 236 
 AUerton v. Allerton, (50 N. Y. 670) 263 
 Alley V. Lawrence, (13 Gray, 375) 384 
 Allfrey v. Allfrey, (1 Macn. & G. 87) 282 
 Allhusen v. Whltwell, (L. R. 4 Eq. 395) 
 
 304 
 Allino. Milllson, (72 111. 201) 350 
 Ailing V. Chatfield, (42 Conn 876) 160, 170, 
 
 171 
 Allison V. Hagan, (12 Nev. 38) 77 
 
 Allison V. Louisville, &c. E. E. (9 Bush, 
 
 247)606 
 Allison V. Porter, (29 Ohio St. 136) 405 
 Allison V. Wilson, (13 Serg. & R. 330) 36, 
 
 380 
 AUore v. Jewell, (4 Otto, 506) 362 
 Almond v. Almond, (4 Rand. 662) 413 
 Almony v. Hicks, (3 Head, 39) 637 
 Alsop V. Bowers, (76 N. C. 168)427 
 Alsop's Appeal, (9 Barr. 374) 187, 423 
 Alston V. Rowles, (13 Fla. 117) 407 
 Alter's Appeal, (67 Pa. St. 341) 331 
 Alton o. Harrison, (L. R.4 Ch. 622) 289 
 Ambler v. Norton, (4Hen. & Mun. 33) 170 
 Ambler e. Whipple, (30 Wall., U. S., 
 
 546) 625 
 Amee v. Jackson, (35 Vt. 173) 331 
 Amer. Acad. ■». Harvard Coll. (13 Gray, 
 
 583) 348 
 America, Bank of v. Banks, (101 U. S. 
 
 240)407 
 Am. Bible Soc. v. Marshall, (15 Ohio St. 
 
 537) 349 
 Am. Bible Soc. v. Wetmore, (17 Conn. 
 
 181) 346 
 Ames V. Ames, (I Cinn. Sup. Ct. 559) 381 
 Ames V. Foster, (43 N. H. 381) 407 
 Ames V. N. Y. Union Ins. Co. (14 N. Y. 
 
 253) 129 
 Amis V. Port Huron, (11 Mich. 146) 279 
 Amory v. Lord, (9 N. Y. 403) 340 
 Amory v. Reilly, (9 Ind. 490) 471. 
 Amphlett v. Hibbard, (39 Mich. 298) 59 
 Amphlett v. Parke, (3 Russ. & My. 33) 310 
 Anderson v. Abbott, (33 Beav. 457) 158 
 Andersons Armstead, (69111.453)137,142 
 Anderson v. Baumgartner, (37 Mo. 80) 407 
 Anderson v. Burwell, (6 Gratt. 405) 263 
 Andersen v. Donnell, (66 Ind. 150) 473 
 Anderson v. Little, (11 C. E. Green, 144) 28 
 Anderson v. Nagle, (13 W. Va. 98) 70 
 Anderson v. Nicholas, (28 N. Y. 600) 81, 
 
 111 
 Anderson v. Piercy, (30 W. Va. 283) 367 
 Anderson v. Roberts, (18 Johns. 515) 65 
 Anderson v. Spencer, (51 Miss. 869) 478 
 Anderson's Appeal, (12 Casey, 476) 173 
 Andrew v. Neweomb, (32 N. Y. 417) 464 
 Andrew v. Spurr, (8 Allen, 412) 333 
 Andrews, In re, (1 Johns. Ch. 99) 300 
 Andrews v. Bank of Cape Ann, (3 Allen, 
 
 313) 330 
 Andrews v. Essex Ins. Co. (3 Mason, 6) 
 
 233 
 Andrews v. Gillespie, (47 N. Y. 487) 79 
 Andrews v. Hobson, (33 Ala. 319) 329 
 Andrews v. Jones, (10 Ala. 400) 309, 283 
 
TABLE OF CASES CITED. 
 
 681 
 
 REFERENCES ARE TO PAGES. 
 
 Andrews v. Lyons, {11 Allen, 349) 343 
 Andrews v. McCoy, (8 Ala. 920) 79 
 Andrews v. Mathews, (59 Ga. 466) 70 
 Andrews v. Eoye, (13 Mieh. 546) 384 
 Andrews •». Sparhawk, (13 Pick. 393) 375 
 Andrus v. Coleman, (82 111. 26) 473 
 Andrus v. Vreeland, (39 N. J. Eq. 394) 
 
 148 
 Anewalt's Appeal, (43 Pa. St. 414) 199 
 Angel V. Boner, (38 Barb. 435) 149 
 Angell V. McCullough, (12 R. 1. 47) 406 
 Anketel v. Converse, (17 Ohio St. 11) 130, 
 
 476 
 Annandale v. Harris, (2 P. Wms. 433) 37 
 Annis v. Wilson, (15 Col. 336) 339 
 Anonymous, (67 N. Y. 598) 253 
 Anstice v. Brown, (6 Paige, 448) 203 
 Anthony v. Anthony, (23 Ark. 479) 489 
 Anthony v. Lef twich, (3 Rand. 358) 263 
 Anthony v. Wheatons, (7 R. I. 490, 498) 
 
 295 
 Antones v. Eslava, (9 Port. 527) 348 
 Aplin, In re, (13 W. K. 1062) 162 
 Apperson v. Botton, (29 Ark. 418) 160, 170 
 Apperson v. Burgett, (33 Ark. 328) 69, 139 
 Apperson v. Cottrell, (3 Port. 51) 418 
 Apperson v. Moore, (30 Ark. 56) 449 
 Apple V. Allen, (3 Jones' Eq. 130) 400 
 Appleton V. Boyd, (7 Mass. 131) 39 
 Appleton's App. (136 Pa. St. 354) 389 
 Archer v. Hudson, (15 L. J. Ch. 211) 283 
 Archer v. O'Brien, (7 Hun, 591) 289 
 Archer v. Jones, (26 Miss. 583) 418 
 Arden v. Patterson, (5 Johns. Ch. 44) 446 
 Argues v. Wasson, (51 Cal. 620) 464 
 Arlin v. Brown, (44 N. H. 102) 474 
 Armitage v. Wicklifle, (12 B. Mon. 488) 
 
 640 
 Armor v. Spalding, (33 Pac. 789) 490 
 Armour v. Alexander, (10 Paige, 571) 359 
 Armour v. Mich. Cent. R. E. (65 N. Y. 
 
 Ill) 361 
 Armstrong v. Byrne, (1 Edw. Ch. 79) 393 
 Armstrong v. Cooper, (11 111. 560) 418 
 Armstrong v. Elliott, (39 Mich. 485) 279 
 Armstrong v. Gilchrist, (3 Johns. Cas. 
 
 424)17 
 Armstrong v. Moodie, (6 Up. Can. Q. B., 
 
 O. S., 538) 289 
 Armstrong v. Ross, (20 N. J. Eq. 109) 
 
 406,473 
 Armstrong v. Stovall, (26 Miss. 375) 398 
 Armstrong's Appeal, (63 Pa. St. 313) 436 
 Arnold v. Arnold, (2 Dev. Eq. 467) 335 
 Arnold o. Cord, (16 Ind. 177) 347, 359 
 Arnold v. Gilbert, (3 Sandf. Ch. 531) 309 
 Arnold v. Gilbert, (5 Barb. 190) 199, 363 
 
 Arnold v. Kempstead, (Ambl. 466) 171 
 Arnold v. Mattison, (3 Rich. Eq. 153) 490 
 Arnold v. Morris, (7 Daly, 498) 450 
 Arnold v. Patrick, (6 Paige, 310) 69, 70, 
 
 129 
 Arnot V. Pittston, (68 N. Y. 558) 270 
 Arques v. Wasson, (51 Cal. 620) 448 
 Arrington v. Roper, (3 Tenn. Ch. 572) 
 
 406 
 Arrison v. Harmstead, (3 Barr. 191) 56 
 Arthur Ave. Ass'n, In re, (L. R. 10 Ch. 
 
 542) 27 
 Arthur v. Homestead P. Ins. Co. (78 N. 
 
 Y. 462) 227 
 Artz V. Grove, (31 Md. 456) 490 
 Arundell v. PhlUpot, (3 Vern. 69) 315 
 Arundell v. Phipps, (10 Ves. 140) 394 
 Ash V. Bowen, (10 Phila. 96) 400 
 Ashbrook v. Ryon's Adm'r (3 Bush, 328) 
 
 433, 434 
 Ashby V. Palmer, (1 Meriv. 396) 36, 307 
 Asher v. State, (88 Ind. 315) 379 
 Ashton's Appeal, (73 Pa. St. 153) 68, 78 
 Ashurst's Appeal, (60 Pa. St. 390) 385 
 Ashurst's Appeal, (77 Pa. St. 464) 341 
 Astley V. Milles, (1 Sim. 398) 150 
 Aston V. Robinson, (49 Miss. 348) 37 
 Astor V. L'Amoreux, (4 Sandf. 524) 327 
 Atchison v. Smith, (35 Tex. 338) 430 
 Athenaeum Life Ass'n Co. v. Pooley, (3 
 
 De 6. & J. 394) 551 
 Atherton- v. Corliss, (101 Mass. 40) 173 
 Atkins V. Chilson, (11 Met. 113) 53 
 Atkins V. Rison, (25 Ark. 138) 316 
 Atkinson v. Beall, (33 Ga. 153) 409 
 Atkinson v. Brooks, (36 Vt. 569) 68 
 Atkinson v. Denby, (7 H. & N. 934) 270 
 Atkinson v. Jordan, (5 Ohio, 178) 292 
 Atkinson v. Manks, (1 Cow. 691) 657 
 Atkinson v. Morrisey, (3 Oreg. 332) 149 
 Atkinson v. Runnells, (60 Me. 440) 80 
 Atkinson v. Webb, (2 Vern. 478) 193 
 Atlanta, &c. R. R. v. Speer, (32 Ga. 550) 
 
 591 
 Atlantic, &c. Bk. v. Savery, (82 N. Y. 
 
 291) 131 
 Atlas Bk. V. Nahany Bk. (3 Mete. 581)54 
 Atterbury».Wallis, (3DeG.M. &G.454) 
 
 91 
 Atty.-Gen. v. Baker, (9 Rich. Eq. 521) 
 
 566 
 Atty.-Gen. v. Brunning, (8 H. L. Cas. 
 
 243) 203 
 Atty.-Gen. v. Cleaver, (18 Ves. 311) 559 
 Atty.-Gen. v. Clergy Soc. (3 Rich. Eq. 
 
 190)348 
 Atty.-Gen. v. Cohoes Co. (6 Paige, 133) 
 
 559 
 
682 
 
 TABLE OF OASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Atty.-Gen. v. Continental Life Ins. Co. 
 
 (71 N. Y. 325) 455 
 Atty.-Gen. v. Eastlake, (11 Hare,. 205) 
 
 25 
 Atty.-Gen. v. Eau Claire, (37 Wis. 400) 
 
 559 
 Atty.-Gen. v. Forbes, (3 My. & Or. 123) 
 
 559 
 Atty.-Gten. v. Garrison, (101 Mass. 223) 
 
 348 
 Atty.-Gen. v. George, (8 Sim. 138) 190 
 Atty.-Gen. v, Great East. Ry. (L. R. 6 
 
 Ch. 572) 559 
 Atty.-Gen. v. Great North. Ry. (1 Dr. 
 
 & Sm. 154) 555 
 Atty.-Gen. i>. Jolly, (1 Rich. Eq. 99) 347 
 Atty.-Gen. v. Lunatic Asylum, (L. E. 4 
 
 Ch. 146) 25 
 Atty.-Gen. v. Mayor, &c. of Dublin, (1 
 
 Bligh, N. S.,312)555 
 Atty.-Gen. v. Moore's Ex'rs, (19 N. J. 
 
 Bq. 503) 346 
 Atty.-Gen. v. Nichol, (16 Ves. 338) 559 
 Atty.-Gen. v. Old S'th Soc. (13 Allen, 474) 
 
 348 
 Atty.-Gen. v. Parker, (126 Mass. 216) 345 
 Atty.-Gen. v. Sheffield Gas Co. (3 De G. 
 
 M. & G. 304) 25, 572 
 Atty.-Gen. v. Sibthorpe, (2 Russ. &My. 
 
 107) 215 
 Atty.-Gen. v. Sitwell, (1 Y. & C. Ex. 559) 
 
 236 
 Atty.-Gen. v. Soule, (28 Mich. 153) 345 
 Atty.-Gen. v. State Bank, (1 Dev. & B. 
 
 Eq., N. Car., 145) 625 
 Atty.-Gen. ■». Trinity Ch. (9 Allen, 422) 
 
 347 
 Atty.-Gen.. ». Uticalns. Co. (2 Johns. Ch., 
 
 N. Y., 379) 572 
 Atty.-Gen. v. Wallace, (7 B. Mon. 611) 
 
 348 
 Atty.-Gen. v, Whorwood, (1 Ves. Sen. 
 
 534) 196 
 Atty.-Gen. v. Williams, (140 Mass. 329) 
 
 438 
 Attwood V. Coe, (4 Sandf. Ch. 412) 651 
 Attwood V. Small, (6 CI. & Fin. 232) 249, 
 
 250, 354 
 Atwood V. Fisk, (101 Mass. 363) 26, 27 
 Atwood V. Vincent, (17 Conn. 575) 474 
 Aubin V. Holt, (2 K. & J. 66) 27 
 Aubuchon v. Bender, (44 Mo. 560) 66 
 Audenreid v. Betterley, (5 Allen, 384) 24e 
 Aufflnordt v. Raisin, (102 U. S. 630) 293 
 Auguisola V. Arnaz, (51 Cal. 435) 419 
 Augur V. N. Y. Belting, &c. Co. (39 Conn. 
 
 536) 445 
 
 Aultman v. Obermeyer, (6 Neb. 360) 407 
 Aurora, The (1 Wheat. 96) 484 
 Austin V. Goodrich, (49 N. Y. 266) 640 
 Austin ». Johnson, (7 Humph. 191) 293 
 Austin V. Underwood, (37 III. 438) 59 
 Auter V. Miller, (18 Iowa, 405) 26 
 Aveling v. Knipe, (19 Ves. 441) 39 
 Avent V. McCorkle, (45 Miss. 221) 115 
 Averlll V. Taylor, (8 N. Y. 44) 148, 152 
 Avery v. N. Y. Cent., &c. R. R. Co. (24 
 
 N. E. 20, 24) 438 
 Avery v. Street, (6 Watts, 348) 388 
 Avery v. Vansickle, (35 Ohio St. 270) 405 
 Ayers v. Mitchell, (3 Sm. & Mar. 683) 
 
 285 . 
 Aylesford, Earl of v. Morris, (L. R. 8 Ch. 
 
 484) 276, 569 
 AylifEe v. Murray, (2 Atk. 58) 281 
 Aymar v. Roff, (3 Johns. Ch. 49) 300 
 Aymer v. Gault, (2 Paige, 284) 659 
 Ayrault v. Murphy, (54 N. Y. 203) 125, 
 
 128 
 Ayre's Case, (35 Beav. 513) 357 
 Ayres v. Duprey, (27 Tex. 593) 70, 71 
 Ayres v. French, (41 Conn. 142) 348 
 Ayres v. Lawrence, (63 Barb. 458) 606. 
 Ayres v. Wright, ( 8 Ired. Eq. 339) 650 
 
 B. 
 
 Babb V. Clemson, (10 S. & R. 428) 296 
 Babcock v. Case, (61 Pa. St. 437) 241, 25"- 
 Babcock v. Eckler, (24 N. Y. 623) 291 
 Babcock v. Jordan, (24 Ind. 14) 68 
 Babcock v. Lish, (67 III. 327) 114 
 Babcock v. McCamant, (53 111. 214) 265 
 Babcock v. Wyman, (19 How., U. S., 289> 
 
 489 
 Babe v. Phelps, (65 Mo. 27) 640 
 Babington v. Greenwood, (IP. Wms. 532) 
 
 36 
 Bachelder v. Sargent, (47 N. H. 363) 407 
 Backler v. Farrow, (2 Hill Ch. Ill) 613 
 Bacon v. Bowdoin, (22 Pick. 401) 148 
 Bacon v. Cosby, (4 De G. & Sm. 261) 158 
 Badeau v. Rogers, (9Paige, 309) 657 
 Badeau v. Tylee, (1 Sandf. Ch. 370) 665 
 Badger v. Badger, (3 Wall. 87) 363 
 Badgett v. Keating, (31 Ark. 400) 327 
 Bagg V. Jerome, (7 Mich. 145) 394 
 Baggerly v. Gaither, (3 Jones' Eq. 80> 
 
 58, 67, 74, 75 
 Baggett >. Meux, (1 Coll. 138) 318 
 Bagshaw v. Eastern Union Ry. (7 Hare^ 
 
 114) 555 
 Bailey v. Bailey, (8 Humph., Tenn., 230) 
 234, 236, 237 
 
TABLE OF CASES CITED. 
 
 683 
 
 REFERENCES ARE TO PAGES. 
 
 Bailey v. Bailey, (115111.551)489 
 Bailey v. Bailey, (5 Gray, 505) 53 
 Bailey v. Bailey, (3 Del. Ch. 95) 363 
 ■ Bailey v. Briggs, (56 N. Y. 407) 415 
 Bailey v. Dean, (5 Barb. 397) 649 
 Bailey v. Duncan, (4 Mon. 356) 170 
 Bailey v. Hughes, (35 Ohio St. 597) 640 
 Bailey v. Myrick, (50 Me. 171) 105, 536 
 Bailey v. Pearson, (39 N. H. 77) 407 
 Bailey v. Eichardson, (9 Hare, 734) 130, 
 
 146, 149, 150 
 Bailey v. Southwick, (6 Lans. 356) 415 
 Bailey v. Stiles, (1 Green Ch. 320) 357 
 Bailey v. Strong, (8 Conn. 378) 430 
 Bailey v. Winn, (13 S. W. 1045) 356 
 Bailey v. Woodbury, (50 Vt. 166) 386 
 Baillie v. Butterfield, (1 Cox, 393) 190 
 Baillie v. McKewan, (35 Beav. 177) 76 
 Baily v. Smith, (14 Ohio St. 396) 79 
 Bain v. Brown, (56 N. Y. 385) 279 
 Bainham v. Manning, (3 Vern. 343) 37 
 Bainter v. Fults, (15 Kans. 333) 374 
 Baker t). Baker, (33 Minn. 263) 355 
 Baker v. Bliss, (39 N. Y. 70) 98, 99, 111 
 Baker v. Bradley, (7 De G. M. & G. 597) 
 
 385 
 Baker v. Disbrow, (18 Hun, 29) 369 
 Baker v. Griffin, (50 Miss. 158) 103 
 Baker v. Humphrey, (11 Otto, 494) 380 
 Baker v. Monk, (33 Beav. 419) 375 
 Baker v. Morton, (12 Wall. 150) 139 
 Baker v. Red, (4 Dana, 158) 350 
 Baker v. Springfield & W. E. R. Co. (86 
 
 Mo. 75) 359 
 Baker v. Terrill, (8 Minn. 195) 153 
 Baker v. Vansommer, (1 Bro. Ch. 149) 
 
 269 
 Baker v. Vining, (30 Me. 121) 353 
 Baker v. Whiting, (1 Story, 218) 279 
 Baker v. Whiting, (3 Sumn. 475) 279 
 Bakewell v. Ogden, (2 Bush, 265) 330 
 Baldock v. Johnson, (14 Oreg. 546) 386 
 Baldwin v. Allison, (4 Minn. 35) 356 
 Baldwin v. Bean, (59 Me. 481) 415 
 Baldwin v. Humphrey, (44 N. Y. 609) 339, 
 
 336 
 Baldwin v. Johnson, (Saxton, 441) 123 
 Baldwin v. Rochford, (1 Wils. 239) 377 
 Baldwin v. Sager, (70 111. 503) 71, 72, 73, 
 
 148, 149 
 Baldwin v. Tuttle, (23 Iowa, 74) 390 
 Baldwin v. Van Vorst, (3 Stockt. Ch. 
 
 577) 45 
 Bales V. Perry, (51 Mo. 449) 141 
 Ball V Gaff, (1 S. W. 734) 353 
 Ball V. Hill, (48 Tex. 634) 473 
 Ball V. Montgomery, (4 Bro. Ch. 338) 30 
 
 Ball V. Vason, (56 Ga. 364) 484 
 Ballard v. Burgett, (40 N. Y. 314) 81 
 Ballard u. Taylor, (4Desau. 550) 394 
 Ballin v. Ferst, (55 6a. 546) 649, 671 
 Ballinger B. Edwards, (4 Ired. Eq.449) 
 
 31, 369 
 Balmear v. Otis, (4 Dill. 558) 640 
 Bait., &c. R. R. Co. v. Glenn, (38 Md. 387) 
 
 395 
 Bamford v. Cressy, (3Gifl. 675) 51 
 Banchor v. Mansell, (47 Me. 58) 270 
 Banco de Limai). Anglo-Peruvian Bank, 
 
 (Ii. R. 8 Ch. D. 160) 130 
 Bancroft v. Bancroft, (104 Mass. 236) 428 
 Bancroft v. Cousen, (13 Allen, 50) 34, 104 
 Banister, In re, (L. R. 12 Ch. D. 131) 257 
 Bank v. Campbell, (2 Rich. Eq. 179) 69, 
 
 71, 139 
 Bank v. Farmers' L. & T. Co. (16 Wis. 
 
 609) 279 
 Bank v. Flagg, (3 Barb. Ch. 316) 130 
 Bank v Fordyce, (9 Barr. 275) 79 
 Bank v. Godfrey, (33 111. 579) 120 
 Bank v. Gorman, (8 W. & S. 304) 393 
 Bank v. Lanier, (11 Wall. 369) 83, 85 
 Bank of Bellows Falls v. Rutland, &c. 
 
 R. R. (38 Vt. 470) 265 
 Bank of Commerce v. Bogy, (44 Mo. 17) 
 
 457 
 Bank of Commerce Appeal, (73 Pa. St. 
 
 59) 85 
 Bank of New Milford v. N. Milf d, (36 
 
 Conn. 94) 134 
 Bank of Orleans v. Torrey, (7 Hill, 260> 
 
 279 
 Bank of Republic v. Baxter, (31 Vt. 101) 
 
 252, 253 
 Bank of Republic v. Willard, (10 Wall. 
 
 153) 458 
 Bank of U. S. v. Daniels, (13 Pet. 33) 219, 
 
 220, 225 
 Bank of U. S v. Davis, (2 Hill, 451) 130, 
 
 131, 133 
 Bank of Washington v. Nock, (9 Wall. 
 
 373) 463 
 Bankart v. Houghton, (27 Beav. 435) 35 
 Bankhead v. Alloway, (6 Coldw. 56) 355, 
 
 256 
 Bankhead v. Owen, (60 Ala. 457) 474 
 Banks v. Judah, (8 Conn. 145) 379 
 Banks v. Wilkes, (3 Sandf. 99) 371 
 Banning v. Edes, (6 Minn. 403) 59 
 Banta v. Palmer, (47 111. 99) 258, 259 
 Baptist Church v. Presb.Ch. (18 B. Mon. 
 
 635) 348 
 Baptist Church, Petition of, (51 N. H. 
 
 424) 420 
 
684 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Barber v. Barber, (31 How. 582) 21 
 Barber v. Eukeyser, (39 Wis. 590) 316 
 Barber v. Taylor, (9 Dana, 84) 187 
 Barber v. Wood, (L. R. 4 Ch. D. 885) 231 
 Barbour v. Nichols, (3 R. 1. 187) 105 
 Barclay, Estate of (11 Phila. 133) 433 
 Barclay v. Goodloe's Ex'rs (83 Ky. 493), 
 
 360 
 Barclay v. Walnwright, (3. Ves. 466) 191 
 Barfield v. Price, (40 Gal. 535) 596 
 Bargent v. Thomson, (4 Giff. 473) 43 
 Barker, In re, (L. R. 17 Ch. D.241) 207 
 Barker v. Barker, (14 Wis. 131) 34 
 Barker v. Bell, (37 Ala. 354) 70 
 Barker ». Flood, (103 Mass. 474) 146, 151, 
 
 153 
 Barkley v. Barkley, (14 Rich. Eq. 12) 579 
 Barkley v. Lane's Ex'rs,(6 Bush, 578) 336 
 Barlow v. Myers, (64 N. Y. 41) 87 
 Barlow v. Scott, (24 N. Y. 40) 17 
 Barlow v. Scott's Adm'rs, (12 Iowa, 63) 
 
 38,441 
 Barnard v. Oampau, (29 Mich. 163) 99, 
 
 100 
 Barnard v. Campbell, (65 N. Y. 286) 65, 
 
 137, 142 
 Barnard v. Eaton, (3 Cush. 294) 448 
 Barnard v. Hoyt, (63 111. 341) 640 
 Barnard v. Lee, (97 Mass. 92) 583 
 Barnard v. Norwich, &e. R. R. Co. (4 
 
 Cliff. 351) 449 
 Barnard v. Simms, (43 Barb. 304) 640 
 Barnes v. Bartlett, (47 Ind. 98) 319 
 Barnes v. Beloit, (19 Wis. 93) 606 
 Barnes v. Brown, (80 N. Y. 537) 369 
 Barnes v. Compton's Adm'rs, (8 Gill, 
 
 391) 418 
 Barnes v. Dow, (59 Vt. 530) 337 
 Barnes v. McClinton, (3 Penn. 67) 93, 94, 
 
 111 
 Barnes v. Taylor, (30 N. J. Eq. 569) 35 
 Barnes v. Taylor, (27 N. J. Eq. 359) 335 
 Barnes v. Trenton Gas Co. (37 N. J. Eq. 
 
 33) 134 
 Barneti). Dougherty, (33 Pa. St. 371) 
 
 354, 358 
 Barneti). Turnpike Co. (15 Vt.757) 313 
 Barnett v. Barnett, (1 Met. 257) 176 
 Barnett v. Barnett, (6 J. J. Marsh. 499) 
 
 331 
 Barnett v. Riser's Ex'rs, (63 Ala. 347) 473 
 Barnett v. Spratt, (4 Ired. Eq. 171) 373 
 Barnett v. Spratt's Adm'r, (4 Ired. Eq. 
 
 171) 583, 584 
 Barnett's Appeal, (46 Pa. St. 398) 317,334 
 Barney v. Douglass, (19 Vt. 98) 84 
 Barney v. Griffin, (8 N. Y. 365) 292 
 
 Barney v. Grover, (38 Vt. 391) 79 
 Barney v. Myers, (38 Iowa, 473) 526 
 Barney v. Saunders, (16 How. 535) 368 
 Barnhart v. Greenshields, (9 Moo. P. C. 
 
 18) 120, 131 
 Barnum v. Young, (10 Neb. 309) 407 
 Barr v. Boyle, (96 Pa. St. 31) 396 
 Barr v. Hatch, (3 Ohio, 527) 215, 230 
 Barrc. Well, (24 Pa. St. 84) 349 
 Barrett v. Bamber, (81 Pa. St. 347) 380 
 Barribeau v. Brant, (17 How. 43) 372 
 Barroilhet v. Battelle, (7 Cal. 450) 465 
 Barron v. Barron, (24 Vt. 375) 31, 328 
 Barron v. Mullin, (21 Minn. 374) 673 
 Barron v. Porter, (44 Vt. 587) 84 
 Barron v. Bobbins, (33 Mich. 35) 640 
 Barrow v. Barrow, (18 Beav. 539) 31 
 Barrows i;. Baughman, (9 Mich. 313) 109 
 Barrs v. Fewkers, (2 Hem. & M. 60) 210 
 Barry v. Equit. Life Ins. Co. (59 N. Y. 
 
 587, 591) 81, 82 
 Barry v. Wisdom, (5 Ohio St. 341) 47 
 Barthell v. Roderick, (34 Iowa, 517) 330 
 Bartholomew v. Leach, (7 Watts, 472) 
 
 380 
 Bartlett v. Bartlett, (14 Gray, 377) 308 
 Bartlett v. Drew, (57 N. Y. 587) 350 
 Bartlett v. Gillard, (3 Russ. 149) 190 
 Bartlett v. Glascock, (4 Mo. 63) 93, 94, 111 
 Bartlett v. King, (13 Mass. 537) 347 
 Bartlett v. Nye, (4 Mete. 378) 348 
 Bartlett v. Van Zandt, (4 Sandf. 396) 409 
 Bartlett v. Williams, (1 Pick. 288) 294 
 Bartling v. Brashun, (102 111. 441) 117 
 Barton v. Barton, (32 Ind. 214) 406 
 Barton v. Brown, (68 Cal. 11) 296 
 Barton v. Drake, (31 Minn. 399) 637 
 Barziza v. Story, (39 Tex. 354) 279 
 Bascom v. Albertson, (34 N. Y. 584) 346 
 Bascom v. Smith, (34 N. Y. 320) 149 
 Basey v. Gallagher, (30 Wall. 670) 31 
 Basse v. Galligger, (7 Wis. 443) 45 
 Basse v. Thomas, (3 Mo. App. 473) 296 
 Bassett v. Brown, (100 Mass. 355) 363 
 Bassett v. Mason, (18 Conn. 131) 148, 149 
 Bassetto). Nosworthy, (Rep. temp. Pinch) 
 
 41,56 
 Bassett v. Salisbury Man. Co. (47 N. H. 
 
 426) 35 
 Bassett v. Shoemaker, (N. J. '90, 30 Atl . 
 
 53) 556. 
 Bassinger v. Spangler, (9 Col . 175) 295 
 Batchelder v. Batchelder, (20 Wis. 453) 
 
 420 
 Batdorf v. Albert, (59 Pa. St. 59) 258, 359 
 Bate V. Hooper, (5 De G. M. & G. 338) 
 
 335 
 
TABLE OF CASES CITED. 
 
 685 
 
 RBFERENOES ARE TO PAGES. 
 
 Bateman v, Willoe, (1 Sch. & Lef. 305) 
 
 566 
 Bates V. Ball, (73 111. 108) 275 
 Bates V. Coe, (10 Conn. 280) 293 
 Bates V. Hurd, (65 Me. 180) 355 
 Bates V. Johnson, (Johns. 304) 76 
 Bates V. Kempton, (7 Gray, 383) 433 
 Bates V. Norcross, (14 Pick. 334) 103 
 Bates V. Ruddick, (3 Iowa, 423) 536 
 Bates V. Underbill, (3 Eedf. 365) 371 
 Bates V. U. S. (4 Ct. of CI. 569) 446 
 Bathu Sherwin, (Free. Ch. 361) ,312 
 Battle V. Davis, (66 N. C. 252) 668 
 Batts V. Scott, (37 Tex. 59) 73 
 Batty V. Chester, (5 Beav. 103) 27, 268 
 Batty V. I/loyd, (1 Yern. 141) 273 
 Batty 'U. Snook, (5 Mich. 331) 276 
 Baugher v. Merryman, (33 Ind. 185) 376 
 Baum V. Grisby, (21 Cal. 173) 473 
 Bauman v. Street, (76 III. 526) 407 
 Baxter v. Arnold, (114 Mass. 577) 438 
 Baxter v. Boyer, (19 Ohio St. 24) 173 
 Baxter v. Bush, (29 Vt. 465) 450 
 Baxter v. Child, (39 Me. 110) 53 
 Baxter v. Lansing, (7 Paige, 350) 51, 54 
 Bay V. Coddington, (20 Johns. 637) 68 
 Bayan v. Duncan, (11 Ga. 67) 356 
 Bayer v. Cockerill, (3 Kans. 382) 318 
 Baylee v. Quinn, (2 Dr. & War. 116) 192 
 Bayler v. Commonwealth, (40 Pa. St. 37) 
 
 447 
 Bayliss v. Williams, (6 Coldw. 440) 596 
 Bayliss v. Young, (51 111. 127) 104 
 Baynard v. Norris, (5 Gill, 483) 112, 117, 
 
 231, 233 
 Bayne v. Ferguson, (5 Dow, 151) 287 
 Beach v. Beach, (14 Vt. 28) 363 
 Beach v. Dyer, (93 III. 295) 587 
 Beach v. Elmira, (22 Lans. 158) 563 
 Beach v. Norton, (9 Conn. 182) 420 
 Beadles v. Miller, (9 Bush, 405) 95, 112 
 Beal V. Butler, (54 Ga. 43) 57 
 Beal V. Fox's Ex'rs, (4 Ga. 404) 346 
 Beal V. Gordon, (55 Me. 483) 117 
 Beal V. McKiernan, (6 La. 407) 379 
 Beal V. Warren, (3 Gray, 447) 391 
 Beal's Ex'rs v. Storm, (36 N. J. Bq. 373) 
 
 396,408 
 Beale v. Knowles, (45 Me. 479), 407 
 Beall V. Fox, (4 Ga. 404) 349 
 Beals V. Cobb, (51 Me. 348)407 
 Bean v. Boothby, (57 Me. 295) 146, 149, 
 
 150,407 
 Bean v. Smith, (3 Mason, 252) 65 
 Bear v. Whisler, (7 Watts, 144) 474 
 Bear's Adm'r v. Bear, (33 Pa. St. 525) 407 
 Beard 1J. Dedolph, (29 Wis. 136) 407 
 
 Beard v. Fitzgerald, (105 Mass. 134) 536 
 Beard v. Knox, (5 Cal. 353) 160, 167, 174 
 Beard v. Linthicum, (1 Md. Ch. 345) 337, 
 
 583 
 Beard v. Nutthall, (1 Vern. 437) 33 
 Beard v. Smith, (6 Mon. 430) 640 
 Beardsley v. Demtley, (69 N. Y. 577) 838, 
 
 341, 358, 259 
 Beardsley v. Knight, (10 Vt. 185) 333, 336 
 Beasley v. Magrath, (3 Sch. & Lef. 35> 
 
 383 
 Beattie v. Butler, (21 Mo. 313) 120, 121 
 Beatty v. Byers, (6 Harris, 105) 307 
 Beatty v. Clark, (30 Cal. 11) 315, 230, 373 
 Beaubien v. Hindman, (38 Kans. 471) 121 
 Beauclerk v. Mead, (2 Atk. 167) 301 
 Beaufort v. Collier, (6 Humph. 487) 394 
 Beaufort, Duke of v. Neeld, (12 CI. & Fia. 
 
 248) 51, 315 
 Beaufoy, In re, (1 Sm. & Giff. 20) 305 
 Beauland v. Bradley, (3 Sm. & G. 339) 
 
 386 
 Beaupland v. McKeen, (4 Casey, 124) 66, 
 
 136 
 Beaver v. Beaver, (33 Pa. St. 167) 336 
 Beck V. Allison, (56 N. Y. 356) 591 
 Beck V. Kontarowicz, (3 K. & J. 330) 
 Beck V. McGillis, (9 Barb. 35) 433 
 Beck V. Uhrich, (1 Harris, 636) 73, 73, 74 
 Beck's Ex'rs v. Graybill, (38 Pa. St. 66> 
 
 355 
 Beckett v. Cardley, (1 Bro. Ch. 353) 40 
 Beckham v. Drake, (8 M. & W. 846) 445 
 Beckton v. Beckton, (27 Beav. 99) 186 
 Beckwith v. Union Bank, (9 N. Y. 211> 
 
 84,87 
 Bective v. Hodgson, (10 H. L. Cas. 656). 
 
 210 
 Bedel v. Loomis, (11 N. H. 74) 272 
 Bedell v. Carll, (33 N. Y. 581) 433 
 Bedell v. Hoffman, (3 Paige, 199) 659 
 Beebe v. Austin, (15 Johns. 477) 59 
 Beebe v. Knapp, (38 Mich. 53) 256 
 Beebe v. Young, (14 Mich. 136) 333, 336 
 Beecher v. Beecher, (43 Conn. 556) 54 
 Beecker v. Beecker, (7 Johns. 99) 33 
 Beekman v. Bonsor, (33 N. Y. 298) 348 
 Beekman?;. Frost, (18 Johns. 544) 105 
 Beers v. Hawley, (2 Conn. 467) 108 
 Beeson v. Beeson, (9 Pa. St. 279) 383 
 Belaney v. Belaney, (L. E. 3 Ch. 138> 
 
 147 
 Belden v. Meeker, (47 N. Y. 307) 103 
 Belding v. Frankland, (8 Lea. 67) 349 
 Belknap v. Sealey, (14 N. Y. 143)235, 239. 
 
 596 
 Bell V. Brien, (1 How., U. S., 169) 583 
 
686 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO RAGES. 
 
 Bell Coleman, (5 Madd. 23) 182 
 
 Bell V. Ellis, (33 Cal. 620) 248 
 
 Bell V. Evans, (10 Iowa, 353) 69, 129 
 
 Bell V. Fleming's Ex'rs, (1 Beasl. 13) 
 
 103 
 Bell V. Bell, (3 W. Va. 183) 280 
 Bell V. Hunt, (3 Barb. Ch. 391) 657 
 Bell V. Kellar, (13 B. Mon. 381) 397 
 Bell V. Lawrence, (51 Ala. 160) 224, 227 
 Bell V. Mayor, (10 Paige, 49) 148, 153 
 Bell V. Twilight, (32 N. H. 500) 101, 116, 
 
 121, 123 
 Bell V. Woodward, (34 N. H. 90) 149 
 Bell Co. V. Alexander, (33 Tex. 350) 346 
 Bellamy v. Bellamy, (6 Fla. 62) 27, 269 
 Bellamy v. Sabine, (3 Phil. 435) 137 
 Bellas V. McCarty, (10 Watts, 13) 56, 60, 
 
 62, 71, 76, 99, 107, 109 
 Bellasis v. Uthwatt, (1 Atk. 436) 190 
 Bellomy's Adm'r v. Bellomy, (3 Bush, 
 
 109) 418 
 Bellows V. Rosenthal, (31 Ind. 116) 406 
 Bellows V. Stone, (14 N. H. 175) 226, 233, 
 
 236 
 Belohradsky v. Kuhn, (69 111. 547) 551 
 Belt V. Ferguson, (3 Grant's Cas. 289)403 
 Bemis v. Call, (10 Allen, 513) 143, 149 
 Benbury v. Benbury, (2 Dev. & Bat. Eq. 
 
 235) 373 
 Bench r. Sheldon, (14 Barb. 66) 253 
 Bender v. Sherwood, (15 How. Pr. 258) 
 
 661 
 Bending v. Bending, (3 K. & J. 357) 170 
 Benedict v. Lynch, (1 Johns. Ch. 370) 54 . 
 
 583 
 Benham v. Hendrickson, (33 N. J. Eq. 
 
 441) 415 
 Bennett, Ex parte, (10 Ves. 381, 393) 279 
 Bennett v. Abrams, (41 Barb. 619) 579 
 Bennett v. Austin, (81 N. Y. 308) 365 
 Bennett v. Buchan, (61 N. Y. 333) 98 
 Bennetts. Butterworth, (11 How. 669), 
 
 21 
 Bennett i). Dillingham, (3 Dana, 436) 409 
 Bennett v. Dollar Sav. Bk. (87 N. Y. 383) 
 
 358 
 Bennett v. Fooks, (1 Neb. 465) 110 
 Bennett v. Judson, (31 N. Y. 338) 356, 360, 
 
 361, 263 
 Bennett; v. Stevenson, (53 N. Y. 508) 45 
 Bennett v. Titherington, (6 Bush, 193) 
 
 74,75 
 Bennett v. Van Syckel, (4 Duer, 162) 359 
 Bennett v. Williams, (5 Ohio, 461) 363 
 Benson v. Benson, (1 P. Wms. 130) 307 
 Benson v. Cowell, (53 Iowa, 137) 596 
 Bentley v. O'Bryne, (111 111. 53) 490 
 
 Bentley i). Whittemore, (18 N. J. Eq. 366) 
 
 219, 233 
 Benton v. Shreve, (4 Ind. 66) 273 
 Bentz V. Thurber, (1 T. & C. 645) 38, 441 
 Benyon v. Nettlefold, (3 Macn. & G. 94) 
 
 27 
 Bercaw v. Cockerill, (30 Ohio St. 163) 107, 
 
 110 
 Berdoe u. Dawson, (34 Beav. 603) 286 
 Bergen v. Udall, (31 Barb. 9) 386 
 Berger v. Clark, (79 Pa. St. 340) 407 
 Berger v. Duff, (4 Johns. Ch. 368) 370 
 Berkleys. Lamb, (8 Neb. 399) 110 
 Bernheimer v. Calhoun, (44 Miss. 436) 418 
 Bernstein, In re, (3 Redf. 30) 361 
 Berrien v. Barrien, (3 Green Ch. 37) 335 
 Berrien v. McLane, (1 Hofl. Ch. 431) 363 
 Berrikottu. Traphagen,(39 Wis. 220) 45,48 
 Berry v. Mutual Ins. Co. (2 Johns. Ch. 
 
 603) 40, 56, 58, 467 
 Berry v. Robinson, (9 Mo. 273) 419 
 Berry v. Teel, (12 R. I. 267) 406 
 Berry v. Williamson, (11 B. Mon. 245) 334 
 Berry v. Wisdom, (3 Ohio St. 344) 49 
 Bertram v. Cook, (32 Mich. 518) 73 
 Besser v. Hawthorn, (3 Oreg. 129) 149 
 Best V. Stow, (3 Sandf. Ch. 398) ?33, 335, 
 
 239 
 Bethlehem v. Annis, (40 N. H. 34) 445 
 Bethlehem v. Perseverance Fire Co. (81 
 
 Pa. St. 441) 313 
 Betts V. Gunn, (31 Ala. 319) 333, 336 
 Beurman v. Van Buren, (44 Mich. 496) 
 
 293 
 Bevan v. Cooper, (7 Hun, 117) 428 
 Bevan v. Cooper, (72 N. Y. 317) 483 
 Beverly v. Ellis, (1 Rand. 102) 107, 110 
 Beverly v. Walden, (20 Gratt. 147) 374 
 Bicknell v. Bicknell, (31 Vt. 498) 467 
 Bicknelly v. Sheets, (24 Ind. 1) 27P' 
 Biddle's Appeal, (80 Pa. St. 258) 330 
 Biddulph V. Biddulph, (12 Ves. 161) 303, 
 
 307 
 Bidwell ». Astor Ins. Co. (16 N. Y. 363) 
 
 337 
 Bidwell V. Pittsburgh, (85 Pa. St. 413) 
 
 137 
 Bidwell V. Webb, (10 Minn. 59) 640 
 Blerce v. Red Bluff Hotel Co. (31 Cal. 
 
 160) 129, 131, 132 
 Bigelow V. Foss, (59 Me. 163) 136, 143 
 Bigelow v. Heaton, (6 Hill, 43) 248 
 Bigelow?!. Topliff, (25 Vt. 373) 140 
 Bigelow V. Willson, (1 Pick. 485) 491 
 Biggars v. Bird, (55 Ga. 650) 490 
 Bigland v. Huddleston, (3Bro. Ch.385 n) 
 
 158, 175 
 
TABLE OF CASES CITED. 
 
 687 
 
 REFERENCES ARE TO PAGES. 
 
 BiglowD. Leabo, (8 Or. 147) 596 
 Billage v. Southee, (9 Hare, 534) 287 
 Billings u Clinton, (6 S. & C. 90) 353 
 Billings V. O'Brien, (45 How. Pr. 392) 446 
 Billings V. Eussell, (101 N. Y. 226) 289 
 Binfords. Bawden, (1 Ves. 512) 207 
 Bingham v. Bingham, (1 Ves. Sen. 126) 
 
 224, 225 
 Binney v. Annan, (107 Mass. 94) 437 
 Binney's Case, (2 Bland Ch. 99) 25 
 Binsse v. Paige, (1 Abb. App. Dec. 138) 
 
 148 
 Blrchard v. Scott, (39 Conn. 63) 345 
 Birchett v. Boiling, (5 Munf. 442) 579 
 Birdu Dennlson, (7Cal. 297) 109 
 Bird V. Fox, (11 Hare, 40) 116 
 Bird V. Wilkinson, (4 Leigh, 266) 110, 489 
 Birmingham v. Kirwln, (2 Sch. & Lef. 
 
 444) 156, 171, 172 
 Birnie v. Main, (29 Ark. 591) 59, 103 
 Bischoflshiem v. Baltzer, (20 Fed. Rep. 
 
 890) 279 
 Bishop V. Aldrich, (48 Wis. 619) 596 
 Bishop V.Garcia, (14 Abb. Pr. 69) 80 
 Bishop V. Holcomb, (10 Conn. 444) 84 
 Bishop V. Honey, (34 Tex. 245) 271 
 Bishop V. Schneider, (46 Mo. 472) 102, 104, 
 
 105 
 Bismarck Bridge Ass'n v. Bolster, (93 
 
 Pa. St. 133) 396 
 Blssell V. Kellogg, (60 Barb. 617) 269 
 Biting's Appeal, (5 Harris, 211) 142 
 Bizzell V. Nix, (60 Ala. 281) 471, 472 
 Black V. Black, (36 N. J. Eq. 431) 651 
 Black V. Cord, (2 Harr. & G. 100) 272 
 Black i;. Delaware, &c. Co. (33 N. J. Eq. 
 
 130) 376 
 Black V. Gregg, (58 Mo. 565) 488 
 Black u Shreeve, (3 Halst. Ch. 509) 602 
 Blackburn u Randolph, (33 Ark. 119) 229 
 Blackburn v. Tweedie, (60 Mo. 505) 465 
 Blackenship v. Douglas, (26 Tex. 325) 121 
 Blackerby v. Holton, (5 Dana, 530) 418 
 Blackler v. Boot, (114 Mass. 24) 191, 194 
 Blackman v. Wheaton, (13 Minn. 326) 294 
 Blackmore v. Shelby. (8 Humph. 439) 279 
 Blackstone v. Blackstone, (3 Watts, 335) 
 
 422 
 Blackwell ». Oldham, (4 Dana, 195) 265 
 Blackwell v. Shelby, (8 Humph. 439) 281 
 Blackwilder v. Loveless, (21 Ala. 371) 26 
 Blackwood i;. Jones, (4 Jones' Eq. 54) 145 
 Blague V. Gold, (Cro. Car. 447) 233 
 Blaiklock v. Qrlndle, (L. E. 7 Eq. 215) 
 
 163 
 Blair v. McDonnell, (1 Halst. Ch. 327) 333 
 Blair v. Owles, (1 Munf. 38) 73, 74, 75 
 
 Blair v. Wait, (69 N. Y. 113) 137 . 
 Blair v. Ward, (3 Stockt. 119) 103 
 Blaisdell v. Smi.th, (3 111. App. 150) 478 
 Blaisdell v. Stevens, (16 Vt. 179) 94 
 Blake v. Bigelow, (5 Ga. 437) 126 
 Blake v. Bryant, (55 N. Y. 649) 406 
 Blake v. Bunbury, (1 Ves. 523) 160, 168 
 Blake v. Butler, (10 R. L 133) 419 
 Blake v. Graham, (6 Ohio St. 580) 103 
 Blake v. Hall, (57 N. H. 373) 407 
 Blake v. Heyward, (Bailey Eq. 308) 63 
 Blakeslee v. Mobile Life Ins. Co. (57 
 
 Ala. 205) 393 
 Blakey v. Blakey's Heirs, (9 Ala. 391) 16, 
 
 17, 418 
 Blanchard v. Blood, (3 Barb. 352) 398 
 Blanchard v. Dudham Gas Co. (12 Gray, 
 
 213) 86 
 Blanchard v. Detroit, &c. R. R. (31 Mich. 
 
 43) 575, 583 
 Blanchard v. Doering, (33 Wis. 200) 563 
 Blanchard v. Moore, (J. J. Marsh. 471) 
 
 333 
 Blanchard v. Sheldon, (43 Vt. 513) 329, 
 
 433 
 Blanchard «. Tyler, (13 Mich. 339)108, 
 
 640 
 Blanchard v. Ware, 43 Iowa, 530) 98, 134, 
 
 126 
 Blanchard v. Williamson, (70 111. 647) 35, 
 
 418, 434 
 Bland v. Lloyd, (34 La. An. 603) 279 
 Blandin v. Silsby, (19 Atl. 639) 357 
 Blandy v. Widmore, (1 P. Wms. 324) 195, 
 
 196,197 
 Blaney v. Bearce, (2 Me. 132) 491 
 Blanke v. Bryant, (55 N. Y. 649) 404 
 Blann v. Bell, (2 De G. M. & G. 775) 204 
 Blant V. Gabler, (77 N. Y. 461) 295 
 Blanton V. King, (2 How., Miss., 856) 
 
 417 
 Blatchley v. Osborn, (33 Conn. 226) 78, 
 
 90, 91, 94, 95, 96 
 Blauvelt v. Ackerman, (30 N. J. Eq. 141) 
 
 356 
 Bleakley's Appeal, (66 Pa. St. 187) 35, 
 
 621 
 Bledsoe v. Games, (30 Mo. 448) 473 
 Bledsoe v. Nixon, (68 N. C. 521) 219 
 Bleight V. Man. & Mech. Bk. (10 Barr. 
 
 131) 199 
 Blenilerhassett v. Sherman, (105 U. S. 
 
 100) 293 
 Blevins v. Rogers, (32 Ark. 258) 473 
 Bligh V. Schenck, (10 Barr. 285) 371 
 Blight's Heirs v. Banks, (6 Mon. 198) 73, 
 
 77 
 
688 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO RAGES. 
 
 Blin». Pierce, (20 Vt. 25) 453 
 Bliss V. Am. Bible Soc. (2 Allen, 334) 314 
 Blisset V. Daniel, (10 Hare, 493) 287 
 Bliven v. Seymour, (88N. Y. 469) 415, 425 
 Blodgett V. Blodgett, (48 Vt. 32) 539 
 Blodgett V. Hobart, (18 Vt.414) 229, 238 
 Blondheim v. Moore, (11 Md. 365) 643, 
 
 668 
 Blood V. Blood, (110 Mass. 545) 101, 105 
 Bloom V. Noggle, (4 Ohio St. 45) 107, 110, 
 
 467 
 Bloomer v. Henderson, (8 Mich. 395) 79, 
 
 87, 117, 119 
 Bloomer v. Waldin, (3 Hill, 365) 361 
 Bloomer's Appeal, (83 Pa. St. 45) 362 
 Bloomstein v. Glees, (3 Tenn. Ch. 433) 
 
 139 
 Blount T. Eobeson, (3 Jones' Eq. 73) 356 
 Blumenthal v. Brainerd, (38 Vt. 402) 132, 
 
 675 
 Blundell v. Stanley, (3 De G. & Sm. 433) 
 
 .I.IO 
 Blydenburgh v. Thayer, (3 Keyes, 293) 87 
 Boal V. Morgner, (46 Mo. 48) 395 
 Boardman v. Hayne, (29 Iowa, 339) 79 
 Boardman B.Jackson, (119 Mass. 161) 265 
 Boardman v. Keeler, (1 Aik. 158) 296 
 Boatmen's Savings Bk. v. Collins, (75 
 
 Mo. 280) 405 
 Bobb ». Woodward, (50 Mo. 95) 263 
 Bodine v. Gladding, (9 Harris, 50) 50 
 Bodine v. Killeen, (53 N. Y. 93) 144 
 Bodley v. Taylor, (5 Cranch, 191) 21 
 Bod well V. Nutter, (63 N. H. 446) 354 
 Boeckler v. McGowan, (9 Mo. App. 373) 
 
 405 
 Boerum v. Schenck, (41 N. Y. 182) 370 
 Bogert V. Elizabeth, City of, (37 N. J. 
 
 Eq. 568) 640 
 Bogert V. Hertell, (4 Hill, 493) 309 
 Bogert V. Van Velsor, (4 Edw. Ch. 718) 
 
 368 
 Boggs V. Merced. M. Co. (14 Cal. 279) 139 
 Boggs V. Varner, (6 Watts & S. 469) 71, 
 
 95, 107, 109, 113, 116, 120, 122 
 Bogie V. Bogie, (41 Wis. 209) 274 
 Bogle V. Hammons, (2 Heisk. 136) 596 
 Bogue V. Williams, (48 111. 91) 118, 121, 
 
 122 
 Bohanan«. Bohanan, (96111. 591) 229 
 Bohde V. Bruner, (3 Kedf. 333) 366 
 Bohlen v. Cleveland, (5 Mason, 174) 84 
 Boire v. McGinn, (8 Oreg. 466) 631 
 Boland v. Whitman, (33 Ind. 64) 261 
 Bold V. Hutchinson, (5 De G. M. & G. 
 
 558) 330 
 Bold «. Hutchinson, (20 Beav. 250) 243 
 
 Boldero v. London Loan & Discount Co. 
 
 (5 Ex. D. 47) 289 
 Bolles V. Carli, (13 Minn. 113) 59 
 Bolles V. Chauncey, (8 Conn. 389) 105, 113 
 Bolles V. State Trust Co. (37 N. J. Eq. 
 
 308) 327 
 Bolt V. Rogers, (3 Paige, 156) 26 
 Bonazina v. Leed, (3 Low. Can. 446) 291 
 Bond V. Bond, (7 Allen, 1) 374 
 Bond V. Bronson, (80 Pa. St. 360) 296 
 Bond V. Bunting, (78 Pa. St. 210) 329 
 Bond V. Hopkins, (1 Seh. & Lef. 413) 13 
 Bond V. Little, (106a. 395) 603 
 Bond V. Smith, (4 Hun, 48) 445 
 Boney v. Hollingsworth, (33 Ala. 690) 286 
 Bonham v. Bonham, (33 N. J. Eq. 476) 
 
 .427 
 Booker u. Allen, (3 Russ. & My. 370) 183, 
 
 185 
 Booker v. Booker's Adm'r, (33 Ala. 473) 
 
 405 
 Booker v. Carlile, (14 Bush, 154) 313 
 Boon V. Barnes, (33 Miss. 136) 68 
 Boone v. Bank, (84 N. Y. 83) 327 
 Boone i>. Chiles, (10 Pet. 177) 41, 60, 61, 
 
 62, 77, 104 
 Boone v. Hardie, (83 N. C. 470) 395 
 Boorman v. Wisconsin, &c. Co. (36 Wis. 
 
 307) 464, 465 
 Boos V. Ewing, (17 Ohio, 500) 476 
 Booten v. Scheffer, (31 Gratt. 474) 273 
 Booth V. Clark, (17 How., U. S., 323) 668 
 Booth I). Eighmie, (60 N. Y. 238) 542 
 Booth V. Robinson, (55 Md. 419) 376 
 Booth V. Wiley, (103 111. 84) 637 
 Booth V. Brown, (49 Iowa, 104) 395 
 Bor V. Bor, (3 Bro. P. C. 167) 159, 175 
 Borland d. Nicholls, (3 Jones, 38) 173 
 Borland v. Thornton, (12 Cal. 440) 35, 144 
 Borneman v. Sidling^r, (15 Me. 429) 4B1, 
 
 432 
 Borrell v. Dann, (2 Hare, 440) 372 
 Borrowscale w. Tuttle, (5 Allen, 377) 124 
 Bosanquet v. Dashwood, (Cas. temp. 
 
 Talb. 38) 368 
 Bosie, Estate of, (2 Ashm., Pa., 437) 365 
 Boskowitz V. Davis, (12 Nev. 446) 38, 353 
 Bossard v. White, (9 Rich. Eq. 483) 103 
 Bost. Bank v. S. W. & B. Lum. Co. (133 
 
 Mass. 410) 663 
 Boston, &c. Trust Co. v. Mixter, (146 
 
 Mass. 100) 337 
 Boston Mfg. Co. v. Burgln, (114 Mass. 
 
 69)640 
 Bostwick V. Atkins, {3 N. Y. 53) 279 
 Bostwick V. Stiles, (35 Conn. 195) 316 
 ) Boswell V. Goodwin, (31 Conn. 74) 112 
 
TABLE OF CASES CITED. 
 
 689 
 
 REFERENCES ARE TO PAGES. 
 
 Bothamley v. Sberson, (L. E. 20 Eq. 
 
 304) 433 
 Botsford V. Burr, (3 Johns. Ch. 405) 
 
 354 
 Bouck V. Wilber, (4 Johns. Ch. 405) 330 
 Boughton V: Boughton, (8 Ves. Sen. 12) 
 
 163, 166, 175 
 Boulden v. Lanahan, (29 Md. 300) 134 
 Bouligny v. Portier, (17 La. Ann. 131) 80 
 Bourne v. Bourne, (3 Hare, 35) 200, 301, 
 
 491 
 Bourne v. Maybin, (3 Woods, 734) 279 
 Boursot V. Savage, (L. R. 2 Eq. 134) 133 
 Bouton V. Brooklyn, (15 Barb. 375) 
 Bowditch V. Andrew, (8 Allen, 339) 334 
 BowditchB. Bannelos, (1 Gray, 220) 360 
 Bowen, Matters of the Will of, (34 Cal. 
 
 682) 419 
 Bowen v. Chase, (4 Otto, 812) 334 
 Bowen v. Evans, (3 H. L. Cas. 259) 76 
 Bowen v. Prout, (53 111. 354) 67 
 Bower v. Cooper, (3 Hare, 408) 372 
 Bower v. Hadden, &c. Co. (30 N. J. Eq. 
 
 171) 
 Bower V. Earle, (18 Mich. 367) 132 
 Bower's Appeal, (68 Pa. St. 126) 407 
 Bowers v. Johnson, (10 Sm. & Mar. 169) 
 
 261 
 Bowers v. Oyster, (3 P. & W. 239) 467 
 Bowers v. Smith, (10 Paige, 193) 415 
 Bowers v. Smith, (10 Paige, 194) 415 
 Bowers v. Virden, (56 Miss. 595) 280 
 Bowles V. Rogers, (6 Ves. 95) 475 
 Bowles V. Stewart, (1 Sch. & Lef. 227) 
 
 384 
 Bowman v. Bates, (1 Bibb, 47) 353, 353 
 Bowman v. Bittenbender, (4 Watts, 290) 
 
 336 
 Bowman v. Caruthers, (40 Ind. 90) 241, 
 
 354 
 Bowman v. Cunningham, (78 111. 48) 583 
 Bowman v. Long, (26 6a. 142) 313 
 Bowman v. OfBcer, (53 Iowa, 640) 283 
 Bowman v. Pinkham, (71 Me. 395) 364 
 Bowyer v. Woodman, (L. R. 3 Eq. 313) 
 
 207 
 Bowzer v. Colby, (1 Hare, 109) 43, 53 
 Box V. Barrett, (L. R. 3 Eq. 244)160 
 Boxford, &c. Soc.«. Harriman, (185 Mass. 
 
 381) 345 
 Boycer. Shiver, (3 S. C. 515) 107, 110 
 Boyd V. Beck, (39 Ala. 703) 63, 107, 110 
 Boyd V. Brinekin, (55 Cal. 437) 357 
 Boyd V. Dunlap, (1 Johns. Ch. 478) 377 
 Boydi;. England, (56 Ga. 598) 337 
 Boyd V. Hawkins, (2 Dev. Eq. 195) 284 
 Boyd V. McLean, (1 Johns. Ch. 582) 309 
 
 Boyd V. Thornton, (13 S. & M. 338) 640 
 Boykin v. Ciples, (3 Hill Ch. 200) 392 
 Boy kin v. Pace's Ex'rs, (64 Ala. 68) 329 
 Boyle V. Peerless Pet. Co. (44 Barb. 239) 
 
 103 
 Boylen v. Leonard, (3 Allen, 407) 445 
 BoyntonB. Boynton, (1 Bro. Ch.445) 169 
 Boynton v. Champlin, (43 111. 57) 473 
 Boynton v. Hazelboom, (14 Allen, 107) 
 
 258, 359 
 Boynton v. Hubbard, (7 Mass. 112) 276 
 Boynton v. Ingalls, (70 Me. 461) 420 
 Boynton v. Payrow, (67 Me. 587) 543 " 
 Boynton v. Bees, (8 Pick. 339) 77, 133 
 Boyse, In re, (L. R. 15 Ch. D. 591) 566 
 Boyse v. Rossborough, (Kay, 71) 275 
 Bozeman v. Ivey, (49 Ala. 75) 473 
 Brabrook v. Five-Cent. Sav. Bk. (104 
 
 Mass. 128) 339 
 Brace v. Duchess of Marlborough, (2 P. 
 
 Wms. 291) 40, 76 
 Bracebridge v. Buckley, (2 Price, 300) 43, 
 
 50 
 Bracken v. Miller, (4 W. & S. 103) 77, 109, 
 
 131 
 Brackenridge v. Holland, (2 Blackf.377) 
 
 420 
 Brackett v. Blake, (7 Mete. 335) 445 
 Brackett v. Wait, (6 Vt. 411) 358 
 Bradburn v. Amand, (2 Ch. Cas. 87) 38, 
 
 39 
 Bradbury ». Bardin, (35 Conn. 577) 358, 
 
 259 
 Bradbury v. Birchmore, (117 Mass. 569) 
 
 373 
 Bradbury v. White, (4 Greenl. 391) 233, 
 
 235 
 Bradford v. Greenway, (17 Ala. 797) 405 
 Bradford v. Harper, (25 Ala. 337) 473 
 Bradford v. Johnson, (44 Tex. 381) 407 
 Bradford «. Kent, (7 Wright, 474) 177 
 Bradford v. Marvin, (3Fla. 463) 473 
 Bradford v. Union Bank, (13 How., U. 
 
 S., 57) 228, 233, 335 
 Bradish v. Gee, (Ambl. 329) 306 
 Bradish v. Gibbs, (3 Johns. Ch. 533) 315, 
 
 378 
 Bradley v. Angell, (3 N. Y. 475) 88 
 Bradley v. Bosley, (1 Barb. Ch. 135) 480 
 Bradley v. Burwell, (3 Denio, 6t) 38, 441 
 Bradley v. Chase, (32 Me. 511) 384 
 Bradley v. George, (3 Allen, 393) 536 
 Bradley v. Hunt, (5 Gill & J. 54) 433, 435 
 Bradley v. Richardson, (23 Vt. 720) 572 
 Bradley v. Root, (5 Paige, 632) 81, 87 
 Bradley v. Snyder, (14 III. 263) 118, 122 
 Bradly v. Westcott, (13 Ves. 445) 381, 383 
 
690 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Brady v. Parker, (4 Ired. Eq. 430) 336, 237 
 Brady's Appeal, (66 Pa. St. 377) 374 
 Bragg V. Geddes, (93 111. 39) 308 
 Bragg V. Paulk, (43 Me. 503) 73, 335 
 Brainard v. Holsaple, (4 Greene, la., 
 
 485) 596 
 Brainerd v. Cowdrey, (16 Conn. 1) 483 
 Bralthwaite v. Britain, (1 Keen, 319) 38 
 Brame v. McGee, (46 Ala. 170) 405 
 Bramh,all v. Ferris, (14 N. Y. 41) 340, 402 
 Branch v. Mitchell, (34 Ark. 431) 637 
 Branch Bank v. Steele, (10 Ala. 915) 130 
 Brandon v. Cablness, (10 Ala. 155) 124 
 Brandon v. Forest Co. (59 Pa. St. 187) 
 
 258, 259 
 Brandon v. Green, (7 Humph. 130) 572 
 Brandon v. Medley, (1 Jones' Eq. 313) 
 
 324, 227 
 Brandon v. Rowe, (58 Ga. 536) 368 
 Brandt v. Mickle, (38 Md. 436) 395 
 Brandt v. Wheaton, (53 Cal. 430) 640 
 Branham v. Record, (43 Ind. 181) 360 
 Brant o. Brant, (40 Mo. 266) 172 
 Brant v. Va. Coal Co. (3 Otto, 336) 139, 
 
 141 
 Brantley o. West, (27 Ala. 542) 233 
 Brachear v. West, (7 Pet. 608) 80 
 Brassell V. McLemore, (50 Ala. 476) .587 
 Brasted v. Sutton, (30 N. J. Eq. 462) 671 
 Brattc. Bratt, (31 Md. 578) 473 
 Brattle Sq. Church v. Grant, (3 Gray, 
 
 161)446 
 Bratton's Appeal, (8 Pa. St. 164) 107, 109 
 Brawner v. Staup, (31 Md. 337) 354 
 Braxton v. State, (35 Ind. 83) 38, 441 
 Bray v. Lamb, (3 Dever. Eq. 373) 173 
 Breadalbane, Marquis of v. Marquis of 
 
 Chandos, (3 My. & Cr. 711) 230 
 Beckinrldge v. Taylor, (5 Dana, 110) 621 
 Bredell v. Alexander, (8 Mo. App. 110) 
 
 640 
 Breed v. Conley, (14 Iowa, 269) 110 
 Breeden v. Grigg, (8 Baxt. 163) 569 
 Breeding v. Stamper, (18 .B. Mon. 175) 
 
 139 
 Brenan v. Preston, (3 De G. M. & G. 813) 
 
 551 
 Brendle v. Grerman Ref. Cong. (33 Pa. St. 
 
 415) 349 
 Brennan v. Moran, (6 Ir. Ch. 136) 193 
 Brenner v. Bigelow, (8 Kans. 496) 640 
 Bressler v. Kent, (61 111. 426) 403 
 Brett V. Carter, (3 Low. C. C. 458) 396 
 Brewer v. Boston Theatre, (104 Mass. 
 
 378) 555 
 Brewer v. Herbert, (30 Md. 301) 35, 36, 
 
 303, 213 
 
 Brewer v. Houston, (58 Cal. 345) 640 
 Brewer v. Marshall, (19 N. J. Eq. 537) 438 
 Brewster v. Edgerly, (13 N. H. 275) 48 
 Brewster v. McCall, (15 Conn. 379) 348 
 Brewster v. Sime, (42 Cal. 139) 82, 83 
 Brewster v. Striker, (2 N. Y. 19) 333 
 Briant v. Reed, (1 McCart. 271) 658 
 Brice v. Brice, (2 Moll. 21) 123, 176 
 Bricei). Brice, (5 Barb. 533) 275 
 Bridenbacker v. Lowell, (32 Barb. 10) 34 
 Bridge o. Beadon, (L. R. 3 Eq. 664) 100 
 Bridge v. Eggleston, (14 Man. 245) 289 
 Bridges v. Hutchins, (11 Ired. 68) 187 
 Bridges v. Robinson, (2 Tenn. Ch. 720) 
 
 551 
 Bridges o. Wilkins, (3 Jones' Eq. 343) 400 
 Bridges v. Wood, (4 Dana, 610) 394 
 Bridgeford v. Riddel, (55 111. 361) 290 
 Briggs n. Chamberlain, (11 Hare, 69) 207 
 Briggs V. French, (3 Sumn. 251) 69, 129 
 Briggs V. Johnson, (71 Me. 335) 365, 637 
 Briggs V. Palmer, (30 Barb. 392) 114 
 Briggs V. Rice, (130 Mass. 50) 115, 362 
 Briggs V. Smith, (5 R. I. 213) 25, 144 
 Briggs V. Taylor, (28 Vt. 180) 98 
 Briggs V. Vanderbilt, (19 Barb. 222) 325 
 Brigham v. Winchester, (1 Mete. 390) 
 
 486, 530 
 Bright V. Boyd, (1 Story, 478) 469 
 Bright V. Boyd, (1 Story, 476) 470 
 Bright V. Rowland, (3 How. 398) 44, 50 
 Bright's Trusts, In re, (31 Beav. 430) 100 
 Brinckerhoff i>. Lawrence, (2 Sandf. Ch. 
 
 400)433 
 BrlnghofE v. Munzenmaler, (20 Iowa, 513) 
 
 110 
 Brinkerhoff v. Brlnkerhoff , (33 N. J. Eq. 
 
 477) 143 
 Brlnkerhoff o. Vansclven, (3 Green Ch. 
 
 251) 473 
 Brinkman v. Jones, (44 Wis. 498) 93, 94, 
 
 100, 111 
 Brinton v. Seevers, (12 Iowa, 389) 103, 
 
 105, 110 
 Brisbane ». Adams, (3 N. Y. 129) 247 
 Brlsben's Appeal, (70 Pa. St. 405) 482 
 Briscoe v. Ashby, (24 Gratt. 454) 66 
 Briscoe v. Bronaugh, (1 Tex. 326) 473 
 Briscoe v. Power, (47 111. 447) 536 
 Brlstow V. Whltmore, (9 H. L. Cas. 391, 
 
 418) 80 
 Brlstowe «. Warde, (3 Ves. 336) 161 
 Britten's Appeal, (9 Wright, 172) 70, 107, 
 
 109 
 Broad v. Murray, (44 Cal. 339) 174 
 Broadbent v. Barlow, (3 De G. F. & J. 
 
 570) 98 
 
TABLE OF CASES CITED. 
 
 691 
 
 REFERBNOES ARE TO PAGES. 
 
 Broadbent v. Imperial Gas Co. (7 De G. 
 
 M. &G.436)563 
 Broadrup v. Woodman, (37 Ohio St. 553) 
 
 336 
 Broadway Bk. v. McElrath, (2 Beas. 24) 
 
 86 
 Broadwell v. Howard, (77 111. 305) 295 
 Brock V. Barnes, (40 Barb. 521) 279 
 Brock V. Headen, (13 Ala. 370) 103 
 Brock V. Hldy, (13 Ohio St. 306) 587 
 Brockett v. Eichardson, (61 Miss. 766) 
 
 279 
 Broderick's Will, In re, (21 Wall. 503) 21 
 Broderick's Will, Case of, (21 Wall. 504) 
 
 419 
 Brodie v. Barry, (2 V. & B. 127) 163, 164, 
 
 166, 167 
 Brogden v. Walker, (2 Har. & J. 285) 374 
 Brokaw v. Hudson, (27 N. J. Eq. 135) 194 
 Brolaskyu. Gally's Ex'rs, (51 Pa. St. 
 
 509) 199, 202 
 Bromley v. Holland, (7 Ves. 3) 214 
 Bromley v. Smith, (2 Dougl. 696) 276 
 Bromley v. Smith, (26 Beav. 644) 377 
 Brook V. Berry, (2 Gill, 83) 273 
 Brook V. Bulkeley, (3 Ves. Sen. 498) 57 
 Brook V. Chappell, (34 Wis. 405) 420 
 Brooke's Appeal, (64 Pa. St. 127) 107, 109 
 Brookfleld v. Williams, (1 Green Ch. 341) 
 
 613 
 Brookings o. White, (49 Me. 479) 407 
 Brookman v. Metcalf, (4 Rob. 568) 243 
 Brooks V. Brooks, (12 S. C. 422) 431, 432 
 Brooks V. Byam, (1 Story, 296) 650 
 Brooks V. Calderwood, (34 Cal. 563) 640 
 Brooks V. Curtis, (4 Lans. 283) 145 
 Brooks V. Fowler, (14 N. H. 348) 354 
 Brooks V. Hatch, (6 Leigh, 534) 454 
 Brooks V. Kearns, (86 111. 547) 637 
 Brooks V. Marbury, (11 Wheat. 78) 326 
 Brooks V. Martin, (3 Wall. 70) 28, 268 
 Brooks V. Powers, (15 Mass. 244) 294 
 Brooks V. Record, (47 111. 50) 87 
 Brooks V. Shelton, (54 Miss. 353) 353 
 Brookville Nat. Bk. ». Kimble, (76 Ind. 
 
 195) 394 
 Broome v. Beers, (6 Conn. 198) 60 
 Brothers v. Brothers, (7 Ired. Eq. 150) 
 
 278 
 Brothers v. Cartwright, (2 Jones' Eq. 
 
 113)202 
 Brotten v. Bateman, (2 Dev. Eq. 115) 
 
 419 
 Broughton v. Bronghton, (5 De G. M. & 
 
 G. 160) 288 
 Broughton v. Coffer, (18 Gratt, 184) 236 
 Broughton v. Vasquez, (73 Cal. 325) 489 
 
 Broun v. Kennedy, (4 De Q. J. & S. 217) 
 
 279 
 Brower v. Peabody, (13 N. Y. 121) 65 
 Brown v. Bankers, &c. Tel. Co. (30 Md. 
 
 39) 130, 131 
 Brown v. Bowen, (30 N. Y. 519) 137, 142 
 Brown v. Brown, (13 Md. 87) 335 
 Brown v. Brown, (55 N. H. 106) 160, 168, 
 
 170 
 Brown v. Brown, (18 Conn. 410) 433 
 Brown v. Brown, (103 Ind. 23) 488 
 Brown v. Budd, (3 Carter, 442)476 
 Brown v. Buena Vista, (5 Otto, 157) 385 
 Brown ■». Bulkley, (1 McCarter, 451) 282 
 Brown v. Burkenmeyer, (9 Dana, Ky., 
 
 159) 438 
 Brown v. Caldw'ell, (1 Speer's Eq. 322) 
 
 170 
 Brown v. Campbell, (Hopk., N. Y., Ch. 
 
 233) 366 
 Brown v. Clark, (3 Ves. 166) 30 
 Brown v. Combs, (5 Dutch. 36) 335 
 Brown v. Concord, (33 N. H. 285) 348 
 Brown v. Cowell, (116 Mass. 461) 279 
 Brown v. Dean, (3 Wend. 208) 105 
 Brown v. Dewey, (3 Barb. 38) 53 
 Brown v. East, (5 Mon. 405) 478 
 Brown v. Foote, (2 Tenn. Ch. 355) 393 
 Brown v. Gaffney, (28 111. 149) 118 
 Brown v. Oilman, (4 Wheat. 355) 476 
 Brown v. Goodwin, (75 N. Y.409) 126,128 
 Brown v. Grimes, (60 Ala. 647) 43S 
 Brown v. Hafl, (5 Paige, 335) 575 
 Brown v. Higgs, (8 Ves. 561) 313 
 Brown v. Higgs, (8 Ves. 570) 215 
 Brown v. Home Sav. Bk. (5 Mo. App. 1) 
 
 668 
 Brown v. Johnson, (17 Ala. 232) 394 
 Brown v. Kelsey, (3 Cush. 243) 348 
 Brown v. Knox, (6 Mo. 302) 393 
 Brown v. Lamphear, (35 Vt. 352) 233 
 Brown v. Lapham, (3 Gush. 551) 149, 152 
 Brown v. Leach, (107 Mass. 364) 250, 353, 
 
 259 
 Brown v. Lee, (7 Ga. 267) 393 
 Brown v. Lunt, (37 Me. 423) 102, 105 
 Brown v. Lynch, (1 Paige, 147) 356 
 Brown v. Maulsby, (17 Ind. 10) 46 
 Brown v. Minturn, (2 Gal., U. S., 557) 
 Browne. Montgomery, (20 N. Y. 287) 
 
 251, 252, 353 
 Brown v. Moore, (3 Head, 671) 434 
 Brown v. Peck, (1 Eden, 140) 113 
 Brown v. Pierce, (7 Wall. 305) 69, 129 
 Brown v. Pitney, (39 111. 468) 173 
 Brown v. Porter, (3 Mich. N. P. 13) 473 
 Brown v. Post, (1 Hun, 303) 382 
 
692 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Brown v. Simons, (44 N. H. 475) 114, 526 
 Brown v. Simpson, (4 Kans. 76) 105, 110 
 Brown v. Stead, (5 Sim. 535) 148 
 Brown v. Valkening, (64 N. Y. 76) 93, 94, 
 
 98, 111, 118, 121, 132 
 Brown v. Vanlier, (7 Humph. 239) 475 
 Brown v. Weatherby, (12 Sim. 6) 38 
 Brown v. Welch, (18 111. 343) 66 
 Brown v. Wells, (44 Ga. 573) 90, 95 
 Brown v. Wilson, (56 Ga. 534) 566 
 Brown v. Wood, (6 Rich. Eq. 155) 63 
 Brown, Matter of, (2 Story, 502) 460 
 Brown v. Sterrett's App. (27 Pa. St. 62) 
 
 380 
 Browne v. Blake, (1 Molloy, 382) 147 
 Browne v. Montgomery, (48 Ala. 353) 367 
 Browning v. Morris, (Cowp. 790) 270 
 Broyles v. Arnold, (11 Heisk. 484) 202 
 Broyles v. Nowlin, (59 Tenn. 191) 145 
 Bruce v. Bruce, (L. R. 11 Eq. 371) 215 
 Bruce v. Bruce, (11 Heisk. 760) 419 
 Bruce v. Davenport, ( 3 Keyes, 473) 280 
 Bruce v. Kelly, (5 Hun, 229) 363 
 Bruce v. Smith, (3 H. & J. 499) 396 
 Bruek v. Tucker, (42 Cal. 346) 26 
 Bruft V Mali, (36 N. Y. 300) 354 
 Bruggeri;. State Invest. Ins. Co. (5Sawy. 
 
 304) 336 
 Bruker v. Kelsey, (72 Ind. 51) 265 
 Brummel v. Stockton, (3 Dana, 135) 395 
 Brummet v. Weaver, (2 Or. 168) 407 
 Brundage v. Biggs, (25 Ohio St. 652) 134, 
 
 137 
 Brunini v. Pera, (54 Miss. 649) 418 
 Brush V. Halloway, (2 J. J. Marsh. 180) 
 
 123 
 Brush V. Ware, (15 Pet. 93) 98, 114 
 Bryan v. Bradley, (16 Conn. 474) 313 
 Bryan v. Duncan, (11 Ga. 67) 281 
 Bryan v. Hickson, (40 Ga. 405) 419 
 Bryan v. Hitchcock, (43 Mo. 527) 358 
 Bryan v. Howland, (98 111. 635) 330 
 Bryan v. Masterson, (4 J. J. Marsh. 225) 
 
 230, 221 
 Bryant v. Carson's Elver L. Co. (3 Nev. 
 
 313) 539 
 Bryant v. Damon, (6 Gray, 564) 529 
 Bryant v. Hendricks, (5 Iowa, 256) 353 
 Bryant v. Hunter, (3 Wash. Ch. 48) 194 
 Bryant v. Kelton, (1 Tex. 415) 295 
 Bryant v. Mansfield, (22 Me. 360) 319 
 Bryant v. Russell, (33 Pick. 566) 367 
 Bryant v. Stephens, (58 Ala. 636) 472 
 Bryant v. Vix, (83 111. 11) 79 
 Brydges v. Brydges, (3 Ves. 120) 146, 147 
 Buchan v. Sumner, (3 Barb. Ch. 165) 69, 
 
 139 
 
 Buchanan v. Harrison, (1 J. & H. 662) 210 
 Buchanan v. International Bk. (78 111. 
 
 500) 104 
 Buchanan v. Moore, (13 Serg. & R. 304) 
 
 66 
 Buchanan v. Turner, (26 Md. 1) 406 
 Buchanan's Estate, In re, (8 Cal. 507) 
 
 160, 167, 174 
 Bucher v. Bucher, (43 Conn. 556) 283 
 Buck V. Paine, (50 Miss. 648) 91, 111, 113 
 Buck V. Payne, (52 Miss. 371) 93, 94 
 Buck V. Swazey, (35 Me. 41) 354 
 Buck V. Wroten, (34 Gratt. 350) 394 
 Buckeridge v. Ingram, (3 Ves. 652) 166 
 Buckingham v. Hanna, (2 Ohio St. 551) 
 
 105 
 Buckley v. Buckley, (11 Barb. 43) 482 
 Buckman v. Bryan, (3 Denio, 340) 270 
 Buckner c. Calcote, (28 Miss. 432) 263 
 Buckner v. Ferguson, (44 Miss. 677) 646 
 Buckner v. Sayre, (17 B. Mon. 754) 457 
 Buffington v. Gerrish, (15 Mass. 156) 68 
 Buford V. Caldwell, (3 Mo. 477) 256 
 Buie V. Pollock, (55 Miss. 309) 418 
 Building Ass'n v. Wilson, (41 Md. 514) 
 
 107, 109 
 Buist V. Dawes, (3 Rich. Eq. 381) 155 
 Bull V. Bull, (8 Conn. 47) 347 
 Bull V. Church, (5 Hill, 207) 160, 168, 170, 
 
 171, 176 
 Bull V. Sykes, (7 Wis. 449) 465 
 Bull V. Vardy, (1 Ves. 370) 215 
 Bullard v. Leach, (27 Vt. 491) 149 
 Bullard v. Randall, (1 Gray, 605) 453, 458 
 Buller V. Plunkett, (1 J. & H. 441) 85 
 Bullitt V. Taylor, (34 Miss. 708) 290 
 Bullock V. Bullock, (3 Dev. Eq. 307) 415 
 Bullock V. Whipp, (15 R. D. 195) 488 
 Bumpus V. Platner, (1 Johns. Ch. 213) 
 
 77, 78, 104 
 Bunce v. Gallagher, (5 Blatch. 481) 16, 
 
 637 
 Bunch V. Hurst, (3 Desau. 273) 373 
 Bunker v. Miles, (30 Me. 431) 380 
 Bunn V. Winthrop, (1 Johns. Ch. 329) 338 
 Buntin v. French, (16 N. H. 592) 474 
 Bunting v. Ricks, (2 Dev. & Bat. Eq. 
 
 130) 94, 101, 111 
 Burbank v. Whitney, (24 Pick. 146) 346 
 Burbridge «. Seeley, (Wright, 359) 295 
 Burch V. Breckenrldge, (16 B. Mon. 482) 
 
 406 
 Burch V. Burch, (52 Ind. 136) 480 
 Burch V. Carter, (44 Ala. 115) 114, 115, 116 
 Burd V. Smith, (4 Dall. 85) 292 
 Burden v. Stein, (37 Ala. 104) 25, 144 
 Burdeno v. Amperse, (14 Mich. 91) 407 
 
TABLE OF OASES CITED. 
 
 693 
 
 REFERENCES ARE TO PAGES. 
 
 Burdett v. May, (100 Mo. 13) 354 
 Burdick v. Jackson, (7 Hun, 4S8) 463 
 Burdick v. MeYanner, (3 Denio, 170) 539 
 Burdon v. Barkus, (3 GifE. 412) 359 
 Burden v. Dean, (3 Ves. 607) 30 
 Burford v. Cone, (6 Allen, 413) 394 
 Burford v. Rosenfield, (37 Tex. 42) 473 
 Burger v. Rice, (3 Ind. 135) 445 
 Burgest v. Burchart, (59 Mo. 80) 396 
 Surges V. Mawbey, (10 Ves. 319) 190 
 Burgess v. Greene, (64 Ala. 509) 473 
 Burgess v. Millican, (50 Tex. 397) 473 
 Burgess v. Wheat?, (1 Eden, 177) 35, 36 
 Burgess v. Wheate, (1 W. Bl. 133) 306 
 Burgin v. Glberson, (36 N. J. Eq. 73) 
 
 333 
 Burgoyne v. Ohio Life Ins. & Trust Co. 
 
 (5 Ohio St. 586) 441 
 Burhans v. Hutcheson, (35 Kans. 635) 
 
 146 
 Burke v. Bishop, (37 La. Ann. 465) 433 
 Burke v. Seely, (46 Mo. 334) 36, 591 
 Burke 1). U. S. (13 Ct. of CI. 231) 446 
 Burkhalter v. Ector, (35 Ga.55) 101, 110 
 Burks V. Burks, (7 Baxt. 353) 357 
 Burling v. King, (66 Barb. 633) 33, 437 
 Burman v. Herring, (4 Herring, 458) 395 
 Burnett v. Crandall, (63 Mo. 410) 453 
 Burnett v. Hawpe's Ex'r, (25 Gratt. 481) 
 
 405 
 Burnham v. Chandler, (15 Tex. 441) 103 
 Burnham v. Onderdonk, (41 N. Y. 425) 
 
 640 
 Burnley v. Thomas, (63 Mo. 390) 394 
 Burns v. Taylor, (33 Ala. 255) 473 
 Burnside v. Terry, (45 Ga. 621) 488 
 Burnside v. Wayman, (49 Mo. 356) 465 
 Burr V. Sherwood, (3 Brandf. 85) 409 
 Burr V. Sim, (1 Whart. 352) 209, 310 
 Burr V. Todd, (5 Wright, 306) 47, 48 
 Burr's Ex'rs v. Smith, (7 Vt. 341) 346 
 Burralli;. Bush wick R. E. (75 N. Y. 311) 
 
 82 
 Burrell v. Egremont, (7 Beav. 205) 148, 
 
 151, 153 
 Burroughs v. Tostevan, (75 N. Y. 567) 
 
 484 
 Burrowes v. Locke, (10 Ves. 470) 100 
 Burrows v. McWhann, (1 Desau. 409) 
 
 631 
 Burrusc. Boulbac's Adm'x, (2 Bush, 39) 
 
 473 
 Burt V. Cassety, (13 Ala. 734) 70, 117, 
 
 123 
 Burt V. Wilson, (28 Gal. 632) 219, 332, 
 
 473 
 Burton v. Adkins, (2 Del. Oh. 125) 587 
 
 Burton v. Black, (33 Ga. 53) 657 
 Burton v. LeRoy, (SSawy. 510) 640 
 Burton v. Lies, (21 Cal. 91) 167, 174 
 Burton v. Mount, (2 De G. & Sm. 583) 
 
 205 
 Burton v. Shotwell, (13 Bush, 271)591 
 Burwell's Adm'rs v. Fauber, (21 Gratt. 
 
 446) 114 
 Bury i;. Oppenheim, (36 Beav. 594) 386 
 Busbee v. Macy, (85 N. C. 339) 637 
 Busby V. Littlefield, (31 N. H. 193) 229, 
 
 234 
 Busey v. Reese, (38 Md. 264) 107, 109 
 Bush V. Golden, (17 Conn. 594) 104, 105, 
 
 121 
 Bush V. Lathrop, (33 N. Y. 535) 79, 81, 
 
 87 
 Bush V. Lindsey, (44 Cal. 121) 419 
 Bush V. Marshall, (6 How., U. S., 284) 
 
 474 
 Bushu. Sherman, (80111. 160) 279 
 Bush's Appeal, (33 Pa. St. 85) 318, 337 
 Bussy V. McKie (2 McCord Ch. 33) 415 
 Butcher v. Yocum, (61 Pa. St. 168) 90, 94, 
 
 96, 111 
 Butler, In re, (2 Hughes, 247) 35 
 Butler V. Butler, (4 Litt. 201) 413 
 Butler V. Haskell, (4 Desau. 651) 272 
 Butler V. Lawson, (72 Mo. 227) 419 
 Butler V. Maury, (10 Humph. 420) 70 
 Butler V. N. Y. & E. R. R. (23 Barb. 
 
 110) 445 
 Butler V. Seward, (10 Allen, 466) 148, 152 
 Butler V. Stevens, (26 Me. 484) 110, 113, 
 
 117, 121, 133 
 Butler V. Viele, (44 Barb. 166) 111 
 Builer V. White, (35 Min. 433) 393 
 Butler V. Williams, (5 Heisk. 241) 479 
 Butler's Appeal, (26 Pa. St. 63, 66) 251, 253 
 Butman v. Hussey, (30 Me. 263) 226 
 Butman v. Porter, (100 Mass. 337) 583 
 Butricke v. Broadhurst, (3 Bro. Ch. 90) 
 
 176 
 Button V. Schroyer, (5 Wis. 598) 465, 478 
 Buttrick v. Holden, (13 Mete. 355) 91, 93, 
 
 94, 100, 111, 113 
 Butts V. Woo'ds, (37 N. Y. 317) 370 
 Buxton i;. James, (5 De G. & Sm. 80) 25 
 Byam v. Sutton, (19 Beav. 556) 148 
 Byers v. Engles, (16 Ark. 543) 71, 110 
 Byers v. Surget, (19 How. 503) 272 
 Byers v. Wakeman, (16 Ohio St. 440) 353 
 Byles V. Tome, (39 Md. 461) 107, 109 
 Bynum v. Hill, (71 N. C. 319) 482 
 Byrdu Badger, (1 McAll. 443) 21' 
 Byrd v. Hughes, (84 III. 174) 380 
 Byrn v. Godfrey, (4 Ves. 6) 194 
 
694 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Byrne v. Byrne, (3 Serg. & E. 54) 192, 193 
 Byrne v. Edmonds, (23 Gratt. 200) 230 
 Byrne v. Hinds, (16 Minn. 521) 640 
 Byxbie v. Wood, (34 N. Y. 607) 445 
 
 c. 
 
 Cabeen v. Breckenrldge, (48 111. 91) 117, 
 
 118, 122, 123 
 Cabell V. Cox, (27 Gratt., Va., 182) 368 
 Cable's Appeal, (91 Pa. St. 327) 482 
 Cabot u Christie, (42 Vt. 68) 256 
 Cabot V. Hasklns, (3 Pick. 83) 224 
 Cadlgan v. Brown, (120 Mass. 493) 563 
 Cadman v. Peter, (118 U. S. 731) 489 
 Cadogan v. Kennett, (Cowp. 432) 288 
 Cadwallader D.West, (48 Mo. 483) 273 
 Cadwell v. Pray, (41 Mich. 307) 536 
 Cady V. Potter, (55 Barb. 463) 657 
 Cafe V. Bent, (5 Hare, 24)205 
 Cager's Will, In re, (111 N. Y. 343) 383 
 Cagney v. Cuson, (77 Ind. 497) 242, 269 
 Cagney v. O'Brien, (83 111. 72) 422 
 Cahoon v. Robinson, (6 Cal. 225) 473 
 Cain V. Dickinson, (60 N. H. 371) 245 
 Caines v. Grant, (5 Binney, 119) 39, 356 
 Cairns v. Colburn, (104 Mass. 274) 308 
 Cairns v. O'Bleness, (40 Wis. 469) 38, 441 
 Cairo, ifec. R. R. o. Titus, (27 N. J. Eq. 
 
 102) 216 
 Cake's Appeal, (23 Pa. St. 186) 59 
 Calder v. Chapman, (53 Pa. St. 359) 71, 
 
 103, 105, 106 
 Caldwell v. Bartlett, (3 Duer, 341) 65 
 Caldwell v. Carrington's Heirs, (9 Pet. 
 
 86) 545 
 Caldwell v. Depew, (40 Minn. 528) 235 
 Caldwell v. Fraim, (32 Tex. 310) 478 
 Caldwell v. Hartupee, (70 Pa. St. 74) 453 
 Caldwell v. Renfrew, (33 Vt. 213) 397 
 Caldwell v. Richard, (1 B. Mon. 288 
 Caldwell v. Sigonrney, (19 Conn. 37) 279 
 Caldwell v. Taggart, (4 Pet. 190) 379 
 Calhoun v. Richardson, (30 Conn. 210) 
 
 140 
 Calhoun's Estate, (6 Watts, Pa., 185) 365 
 California, Bk. of v. Collins, (5 Hun, 309) 
 
 445 
 Calisher v. Forbes, (L. R. 7 Ch. 109) 84 
 Calkins v. Lockwood, (16 Conn. 276) 297, 
 
 450 
 Call V. Hastings, (3 Cal. 179) 109 
 Callahan v. Robinson, (30 S. C. 249) 170 
 Callen v. Thompson, (3 Yerg. 475) 295 
 Calloway v. Wltherspoon, (5 Ired. Eq. 
 
 128) 275 
 Calvert v. Marlow, (6 Ala. 337) 370 
 
 Calvin v. Bowman, (10 Iowa, 539) 106, 110 
 Calvin v. Hartwell, (5 Ch. & Pin. 484) 29 
 Cambridge Bk. v. Delano, (48 N. Y. 336) 
 
 98, 104, 115, 116 
 Camden v. Vail, (23 Cal. 663) 476 
 Cameron v. Marvin, (26 Kans. 612, 629) 
 
 536 
 Cameron v. Mason, (7 Ired. Eq. 180) 474 
 Cameron v. Ward, (8 Ga. 245) 358 
 Carney v. Carney, (7 Baxt. 204) 295 
 Camp, In re, (10 N. Y. S. 141) 355 
 Camp's Appeal, (36 Conn. 88) 434 
 Campau v. Van Dyke, (15 Mich. 371) 262 
 Campbell v. Allen, (61 Mo. 581) 640 
 Campbell v. Baldwin, (2 Humph. 248) 
 
 473 
 Campbell v. Bouskell, (27 Beav. 324) 331 
 Campbell v. Bowles' Adm'r, (30 Gratt. 
 
 652) 394 
 Campbell v. Brackenridge, (8 Blackf. 
 
 471) 58, 133 
 Campbell v. Browning, (1 Phil. 301) 
 Campbell v. Campbell, (2 Jones' Eq. 364) 
 
 358 
 Campbell v. Campbell, (21 Mich. 438) 29 
 Campbell v. Campbell, (L. R. 1 Eq. 183) 
 
 185, 188, 189 
 Campbell v. Charleston, Bank of, (3S.C. 
 
 384) 420 
 Campbell v. Day, (16 Vt. 558) 80, 84 
 Campbell v. Dearborn, (109 Mass. 130) 489 
 Campbell v. Durham, (86 Ala. 299) 235 
 Campbell v. Fleming, (1 Ad. & B. 40) 264 
 Campbell v. Poster, (35 N. Y. 361) 340 
 Campbell v. Graham, (1 Russ. & M. 453) 
 
 426 
 Campbell v. Hamilton, (63 Iowa, 393) 398 
 Campbell v. Henry, (45 Miss, 336) 476 
 Campbell v. Ingilby, (21 Beav. 567) 177 
 Campbell v, Johnson, (1 Sandf. Ch. 148) 
 
 279 
 Campbell v. Knights, (24 Me. 332) iSO 
 Campbell v. McClenachan, (6 S. & R. 
 
 171) 336 
 Campbell v. Miller, (38 Ga. 304) 367 
 Campbell v. MuUett, (3 Sw. 551, 574) 38 
 Campbell v. Murray, (63 Ga. 86) 269 
 Campbell v. Nichols, (33 N. J. L. 81) 143 
 Campbell v. Penna. Life Ins. Co. (2 
 
 Whart. 53) 280 
 Campbell v. Radnor, (1 Bro. Ch. 271) 191 
 Campbell v. Rankin, (28 Ark. 401) 478 
 Campbell v. Roach, {45 Ala. 667) 114, 115, 
 
 480 
 Campbell v. Seaman, (63 N. Y. 568) 563 
 Campbell v. Vedder, (1 Abb. App. Dec. 
 
 295) 149, 150 
 
TABLE OF CASES CITED. 
 
 695 
 
 REFERENCES ARE TO PAGES. 
 
 Campbell v. Walker, (5 Ves. 678) 280 
 Campbell v. Woodworth, (34 N. Y. 304) 
 
 343 
 Campbell County Court v. Coons, (6 B. 
 
 Mon., Ky., 521) 230 
 Campbell's Appeal, (80 Pa. St. 298) 60, 
 
 420 
 Canal Co. v. Gordon, (6 Wall. 561) 31 
 Canby v. McLear, (13 Bank'r Reg. 22) 
 
 408,409 
 Canedy v. Marcy, (13 Gray, 373) 223, 333, 
 
 334 
 Canfield v. Bostwick, (21 Conn. 550) 483 
 Cannady v. Shepard, (3 Jones' Eq. 224) 
 
 583 
 Cannon v. Copeland, (43 Ala. 252) 470 
 Cannon v. McDanlel, (46 Tex. 303) 420 
 Cannon v. McNab, (48 Ala. 99) 646 
 Cannon v. Sanford, (20 Mo. App. 590) 318 
 Cannon v. Trask, (L. R. 30 Eq. 669) 555 
 Canterbery Aq. Co. v. Ensworth, (22 
 
 Conn. 60S) 333 
 Canty v. Sanderford, (37 Ala. 91) 405 
 Capehart v. Mhoon, (5 Jones' Eq. 178) 
 
 218, 336 
 Capelc. Glrdler, (a Ves. 509) 146 
 Capers ». McCaa, (41 Miss. 479) 418 
 Carbrey v. Willis, (7 Allen, 369) 153 
 Cardot v. Barney, (63 N. Y. 381) 675 
 Carey v. Askew, (1 Cox, 241) 164, 167 
 Carey v. Rawson, (8 Mass. 159) 53, 4fi6 
 Carey v. Smith, (11 Ga. 539) 37 
 Carhart's Appeal, (78 Pa. St. 100) 338 
 Carley v Lewis, (34 Ind. 33) 220, 333 
 Carlisle v. Cooper, (21 N. J. Eq. 576) 602 
 Carlisle v. Tindall, (49 Miss. 239) 640 
 Carlisle v. Wilson, (13 Ves. 276) 17 
 Carll?;. Butman, (7 Me. 103) 148, 153 
 Carlton v. Buekner, (28 Ark. 66) 477 
 Carmichael v. Browder, (3 How., Miss., 
 
 253) 417 
 Carnahan v. Bailey, (38 Fed. Rep. 519) 
 
 348 
 Carpenter v. Carpenter, (13 R. I. 544) 365, 
 
 366 
 Carpenter v. Carpenter, (35 N. J. Eq. 194) 
 
 143 
 Carpenter v. Carpenter, (70 111. 457) 276 
 Carpenter v. Clark, (2 Nev. 243) 296 
 Carpenter 1). Dexter, (8 Wall. 533) 101 
 Carpenter v. Leonard, (5 Minn. 155) 407 
 Carpenter v. Longan, (16 Wall. 371) 79 
 Carpenter v. McClure, (39 Vt. 9) 288 
 Carpenter v. Miller's Ex'r, (3 W. Va. 174) 
 
 348 
 Carpenter v. Mitchell, (54111. 136) 398 
 Carpenter v. Mitchell, (50 111. 470) 398 
 
 Carpenter v. Murin, (42 Barb. 300) 389 
 Carpenter v. Mutual Ins. Co. (4 Sandf. 
 
 Ch. 408) 579 
 Carpenter v. Providence, Ae. Ins. Co. 
 
 (66 Pet. 495) 500 
 Carpenter v. Spooner, (3 Sandf. 717) 303 
 Carpenter v. Westcott, (4 R. I. 325) 44, 50 
 Carpenter v. Wilverschied, (5 Minn. 170) 
 
 407 
 Carr, In re, (16 R. I. 645) 381 
 Carr c. Caldwell, (10 Cal. 380)59 
 Carr v. Carr, (53 N. Y. 251) 489 
 Carre. Ellison, (2 Bro. Ch. 56) 307 
 Carre. Hiltoil, (I Curt., U. S., 390) 113 
 Carr v. Hobbs, (11 Md. 385) 473 
 Carre. Hoi brook, (1 Mo. 340) 53,478 
 Carr v. Ireland, (4 Md. Ch. 251) 203 
 Carr v. Nat. Security Bk. (107 Mass. 45) 
 
 458 
 Carr v. Silloway, (111 Mass. 34) 43 
 Carr v. Thompson, (67 Mo. 472) 478 
 Carr v. Wallace, (7 Watts, 394) 66 
 Carrico v. Farmers', &c. Bk. (33 Md. 335) 
 
 473 
 Carrington v. Brents, (1 McLean, 1671 
 
 545 
 Carroll v. Carroll, (30 Tex. 731) 170 
 Carroll v. Hayward, (134 Mass. 121) 389" 
 Carroll e. Johnston, (2 Jones' Eq. 130) 58,. 
 
 74,75 
 Carroll v. Lee, (3 Gill & J. 504) 395 
 Carroll v. Manchester, &c. B. R. (Ill 
 
 Mass. 1) 142 
 Carroll v. Renich, (7 Sm. & Mar. 798> 
 
 334 
 Carroll v. Van Rensselaer, (Harring. 
 
 Ch. 235) 473 
 Carson v. Law, (3 Rich. Eq. 398) 347 
 Carson v. Phelps, (40 Md. 97) 107, 109 
 Carter v. Allan, (21 Gratt. 341) 63 
 Carter v. Carter, (5 Tex. 93) 489 
 Carter v. Carter, (3 K. & J. 617) 57, 60, 
 
 76 
 Carter v. Champion, (8 Conn. 549) 103, 
 
 105, 106, 108, 141 
 Carter e. City of Portland, (4 Oreg. 339) 
 
 91, 93, 94, 111 
 Carter v. Gibson, (45 N. W. 634) 338 
 Carter v. Graves, (6 How. 9) 395 
 Carter v. Grimshaw, (49 N. H. 100) 391 
 Carter v. Montgomery, (3 Tenn. Ch. 316) 
 
 353 
 Carter v. Sims, (2 Heisk. 166) 471 
 Carter v. Stanfield, (8 Ga. 49) 394 
 Carter i;. Taggart, (1 De G. M. & G. 
 
 386) 30 
 Carter v. Taylor, (3 Head, 30) 149 
 
696 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Carter v. United Ins. Co. (1 Johns. Ch. 
 
 463) 444 
 Carter v. Wake, (L. E. 4 Ch. D. 60.i) 
 
 543 
 Carter v. Walker, (3 Rich. 40) 363 
 Carter v. Wolfe, (13 Gratt. 301) 348 
 Carter's Ex'r v. Carter, (5 Munf. 108) 
 
 613 
 Cartmel v. Bench, (3 J. J. Marsh. 118) 
 
 418 
 Cartwright v. Cartwright, (4 Hayw. 134) 
 
 365 
 Cartwright v. HoUis, (5 Tex. 152) 407 
 Cartwright v. McFadden, (24 Kans. 662) 
 
 640 
 Cartwright's Case, (114 Mass. 230) 673 
 Carty v. Pruett, (4 Ind. 336) 473 
 Carver v. Bowles, (3 Russ. & My. 301) 
 
 162 
 Carver v. Carver, (97 Ind. 497) 239 
 Carver v. Eads, (65 Ala. 190) 474 
 €ary v. Hotailing, (1 Hill, 311) 345, 348 
 ■Cary v. Warner, (63 Me. 571) 146 
 ■Cary v. White, (53 N. Y. 138) 67, 68, 73 
 Oasad v. Hughes, (37 Ind. 141) 88 
 'Casard v. Hinman, (1 Bosw. 307) 448 
 •Casborne v. Barshaur, (2 Beav. 76) 386 
 -Casborne v. Scarfe, (1 Atk. 603) 531 
 ■Case V. Abul, (1 Paige, 393) 370 
 Case V. Carroll, (35. N. Y. 385) 280 
 Case V. Case, (26 Mich. 484) 272 
 Case V. Codding, (38 Cal. 191) 353 
 Case V. Dennison, (9 R. I. 88) 431, 432 
 Case V. Erwin, (18 Mich. 434) 113 
 Case V. Gerrish, (15 Pick. 49) 358 
 Case V. Henderson, (83 La. Ann. 49) 458 
 Case V. James, (3 De G. P. & J. 256) 40 
 Case V. Peters, (30 Mich. 298) 234 
 Case V. Phelps, (39 N. Y. 164) 291 
 Case Threshing Machine Co. v. Mitchell, 
 
 (42 N. W. 151) 536 
 Casey v. Casey, (14 111. 413) 379 
 Casey v. Steinmayer, (7 Mo. App. 556) 118 
 Cashman ». Henry, (75 N. Y. 103) 406 
 Cashman's Estate, (38 111. App. 346) 383 
 easier v. Shipman, (35 N. Y. 533) 39 
 Caslin v. The State, (44 Ind. 541) 480 
 Cassel, Ex ■pairte, (3 Watts, 408) 349 
 Cassell V. Heron, (5 Clarke, 350) 352 
 Cassetty v. Capps, (3 Tenn. 524) 668 
 Castle V. Castle, (1 De G. & J. 353) 103 
 Castleman v. Griffin, (IS Wis. 535) 360 
 Caston V. Caston, (3 Rich . Eq. 1) 171 
 Castro V. Richardson, (18 Cal. 478) 419 
 Caswell V. Caswell, (38 Me. 332) 430 
 Caswell V. Glbbs, (33 Mich. 331) 591 
 Caswell 11. West, (3 T. & C. 383) 337 
 
 Cater v. Eveleigh, (4 Desau. 19) 406 
 Cates v. Loftus' Heirs, (4 Mon. 439) 640 
 Cathcart v. Robinson, (5 Pet. 363) 220, 235 
 Catlin V. Warren, (16 III. App. 418) 348 
 Caton V. Caton, (L. R. 2 H. L. 137) 243 
 Catorf. Collins, (3 Mo. App. 225) 396 
 Cator V. Pembroke, Earl of, (1 Bro. Ch. 
 
 301) 474 
 CaufEman v. Caufifman, (17 S. & R. 16) 
 
 155, 158, 170, 173, 178 
 Caulfield v. Stevens, (28 Cal. 118) 417 
 Caulk V. Fox, (13 Fla. 148) 393 
 Cavalli ■». Allen, (57 N. Y. 508) 237 
 Cavanaugh v. Peterson, (47 Tex. 197) 70 
 Cave V. Cave, (L. R. 15 Ch. D. 639) 57, 134 
 Cavedo». Billings, (16 Fla. 261) 16 
 Cavnall v. Wilson, (14 Ark. 483) 339 
 Cecil V. Cecil, (30 Md. 153) 183, 183 
 Center v. Planters', &c. Bank, (33 Ala. 
 
 743) 94, 107, 110, 112, 134 
 Central Bridge Corp. v. Lowell, (4 Gray, 
 
 474) 559 
 Central Pac. R. R. v. Dyer, (1 Sawy. 641) 
 
 640 
 Central R. Co. v. Collins, (40 Ga. 582) 555 
 Central R. Co. v. Standard Oil Co. (33 N. 
 
 J. Eq. 127) 573 
 Central Trust Co. v. Wabash, <fec. R. Co. 
 
 (29 Fed. Rep. 546) 116 
 Chace v. Chapin, (130 Mass. 138) 336 
 Chadwell v. Jordan, (3 Tenn. Ch. 635) 
 
 566 
 Chadwell v. Winston, (3 Tenn. Ch. 110) 
 
 587 
 Chadwick v. Clapp, (69 111. 119) 465 
 Chaires v. Brady, (19 Fla. 133) 490 
 Chalker v. Chalker, (1 Conn. 79) 51 
 Chalmers v. Storil, (2 V. & B. 333) 173 
 Chamberlain v. Bagley, (11 N. H. 334) 48 
 Chamberlain v. Bell, (7 Cal. 292) 106, 109 
 Chamberlain u O'Connor, (1 E. D. Smith, 
 
 665) 661 
 Chamberlain v. O'Connor, (8 How. N. Y. 
 
 45) 659 
 Chamberlain v. Pac. Wool Co. (54 Cal. 
 
 103) 369 
 Chamberlain v. Peltz, (1 Mo. App. 183) 
 
 464 
 Chamberlain v. Rankin, (49 Vt. 133) 360 
 Chamberlain v. Thompson, (10 Conn. 
 
 243) 333, 236, 238, 491 
 Chamberlain v. Williamson, (2 M. & S. 
 
 408) 444 
 Chambers v. Cannon, (62 Tex. 693) 17 
 Chambers v. Crabbe, (34 Beav. 457) 286 
 Chambers v. Kingham, (L. R. 10 Ch. D. 
 
 743) 147 
 
TABLE OF CASES CITED. 
 
 697 
 
 REFERENCES ARE TO PAGES. 
 
 •Chambers v. Livermore, (15 Mich. 381) 
 
 233, 235 
 Chambers v. Penland, (78 N. C. 53) 566 
 Chambers v. St. Louis, (29 Mo. 543) 347 
 Chambers v. Watson, (56 Iowa, 676) 231 
 Chambliss v. Smith, (30 Ala. 366) 358 
 Chamness v. Crutchfield, (2 Ired. Eq. 
 
 148) 232 
 Champion v. Brown, (6 Johns. Ch. 398, 
 
 403) 36, 202, 473, 633 
 Champion v. Miller, (2 Jones' Eq. 194) 572 
 Champlin v. Laytin, (18 Wend. 407) 219, 
 
 220, 221, 222 
 Champney v. Blanchard, (39 N. Y. Ill) 
 
 433 
 Champney v. Coope, (34 Barb. 539) 146, 
 
 150 
 Champneys v. Wilson, (R. M. Charlt., 
 
 Ga., 206) 231 
 Chance v. Isaacs, (5 Paige, 592) 88 
 Chance v. McWhorter, (26 Ga. 375) 474 
 Chance v. Seeple, (3 Green's Ch. 173) 
 
 654 
 Chancellor v. Walworth, (2 Barb. Ch. 
 
 151, 157, 158) 103 
 Chandler v. Dodson, (52 Mo. 128) 419 
 Chandler v. Pocock, (L. E. 16 Ch. D. 133) 
 
 202 
 Chandler v. Woodward, (3 Harring. 428) 
 
 172 
 Chaney 1!. Chaney, (38 Ala. 35) 206 
 Chanslor v. Chanslor, Trustees ol, (11 
 
 Bush, 663) 375 
 ■Chapel V. Clapp, (29 Iowa, 194) 289 
 Chapinc. Cram, (40 Me. 561) 448, 450 
 •Chapin v. Dake, (57 111. 295) 268 
 Chapin 17. Hill, (1 R. I. 446) 160, 168, 170 
 Chapin «. Pease, (10 Conn. 69) 288 
 Chapin i;. School District, (35 N. H. 445) 
 
 314 
 Chapin v. Waters, (116 Mass. 140) 482 
 Chaplain i;. Laytin, (18 Wend. 407) 148 
 Chapman, In re, (L . R. 15 Eq. 75) 566 
 Chapman v. Beardsley, (31 Conn. 115) 474 
 Chapman v. Chapman, (13 Ind. 396) 413 
 •Chapman v. Chapman, (59 Pa. St. 214) 
 
 137 
 Chapman v. Coats, (26 Iowa, 288)71 
 Chapman v. Gilbert, (4 De G. M. & G. 366) 
 
 232 
 Chapman v. Hamilton, (19 Ala. 121) 60 
 Chapman v. Hurd, (67 III. 234) 230, 234 
 Chapman v. Lee, (64 Ala. 483) 472 
 Chapman v. Porter, (69 N. Y.276) 369 
 Chapman v. Sims, (53 Miss. 154) 73 
 Chapman v. Weimer, (4 Ohio St. 481) 448, 
 
 450 
 
 Chapman v. West, (17 N. Y. 125) 125 
 Chapman v. White, (6 N. Y. 412) 458 
 Chappell V. Aiken, (39 Ga. 177) 643 
 Chaquettei). Ortet, (9 Pac. C. L. J. 602) 
 
 418 
 Charitable Corp. v. Sutton, (3 Atk. 405) 
 Charles v. Coker, (2 S. C. 123) 394 
 Charles ». Dubose, (39 Ala. 367) 356 
 Charlton v. Low, (3 P. Wms. 328) 76 
 Charlton v. West. (30 Beav, 134) 193 
 Charter v. Stevens, (3 Denio, 33) 531 
 Chase u. Alexander, (6 Mo. App. 506) 455 
 Chase v. Allen, (13 Gray, 43) 49 
 Chase v. Allej, (83 Me. 234) 170 
 Chase 17. Barrett, (4 Paige, 148) 213 
 Chase v. Cartwright, (14 S. W.^ Rep. 90) 
 
 337 
 Chaser. Chase, (2 Allen, 101) 331 
 Chase?;. Denny, (130 Mass. 566) 448 
 Chase v. Palmer, (25 Me. 341) 31, 497 
 Chase v. Peck, (21 N. Y. 581) 463 
 Chase v. Petroleum Bank, (66 Pa. St. 
 
 169) 453 
 Chaser. Redding, (13 Gray, 418) 433 
 Chase?7. Vanderbilt, (63 N. Y. 307)376 
 Chase v. Woodbury, (6 Cush. 143) 536 
 Chase's Case, (1 Bland Ch. 306) 59, 609 
 Chatfield v. Simonson, (92 N. Y. 309) 138 
 Chatham I). Brainerd, (11 Con. 60) 348 
 Chatterton v. Young, (2 Tenn. Ch. 768) 
 
 406 
 Chautauqua Assembly i). Ailing, (46 Hun, 
 
 582) 438 
 Chave v. Farrant, (18 Ves. 8)194 
 Cheatham v. Huff, (2 Tenn. Ch. 616) 398 
 Cheddick v. Marsh, (1 Zabr. 363) 49 
 Chedworth, Lord v. Edwards, (8 Ves. 
 
 46) 551 
 Cheeney v. Arnold, (18 Barb. 434) 66 
 Cheesebrough v. Millard, (1 Johns. Ch. 
 
 414) 103 
 Cheesebrough v. Millard, (1 Johns. Ch. 
 
 409) 529 
 Cheever v. Hodgson, (9 Mo. App. 565) 
 
 665 
 Cheever v. Rutland, &c. E. R. (39 Vt. 
 
 653) 668 
 Cheever v. Wilson, (9 Wall. 108, 119) 407 
 Chen V. Barnet, (11 S. & R. 389) 107, 109 
 Cheney v. Duke, (10 Gill & J. 11) 271 
 Chengivo'B. Jones, (3 Wash. C. C. 359) 
 
 262 
 Cherokee Lodge v. White, (63 Ga. 742) 
 
 407 
 Cherry v. Bowen, (4 Sneed, 415) 52 
 Cherry v. Monro, (2 Barb. Ch. 618) 40, 56, 
 
 58, 152 
 
698 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Cheshire v. Payne, (16 B. Mon. 618) 408 
 Chesley v. Joselyn, (7 Gray, 489) 447 
 Chester v. Comstock, (40 N. Y. 575 n) 258 
 Chester v. Comstock, (6 Rob. 1) 249 
 Chester v. Greer, (5 Humph. 26) 60 
 Chesterfield v. Jansen, (3 Ves. Sen. 125) 
 
 267 
 Chesterman v. Gardner, (5 Johns. Ch., 
 
 N. y., 33) 117 
 Chestnut Hill, &c. Co. v. Chase, (14 
 
 Conn. 133) 320, 223 
 Chestnuttc. Gann, (76 Tex. 150) 360 
 Chetlain v. Republic Life Ins. Co. {86 
 
 111. 320) 376, 555 
 Chetwood v. Brittan, (1 Green. Ch. 438) 
 Chevallier v. Wilson, (1 Tex. 161) 432 
 Chew D. Gillespie, (56 Pa. St. 308) 228, 
 
 233 
 Chew V. Morton, (10 Watts, 321) 140 
 Chew V. Nieklin, (45 Pa. St. 81) 199 
 Chew's Appeal, (9 Wright, 228) 167 
 Chew's Ex'rs v. Chew, (28 Pa. St. 17) 390 
 Chicago, &c. Co. v. Foster, (48 111. 507) 
 
 65 
 Chicago, &c. Ins. Co. a. Stanford, (28 
 
 111. 168) 461 
 Chicago, &c. R. R. Co. v. Kennedy, (70 
 
 111. 350) 93, 94, 97, 98, 111, 114 
 Chicago, &c. Ry. v. Nichols, (57 111. 464) 
 
 444 
 Chicago, &c. Ry. v. Schoeneman, (40 111. 
 
 258) 583 
 Chicago V. Witt, (75 111. 211) 94, 95, 101, 
 
 103 
 Chichester v. BlckerstafE, (2 Vern. 295) 
 
 207 
 Chichester v. Coventry, (L. R. 2 H. L. 71) 
 
 180, 184, 188, 190, 193 
 Child V. Brace, (4 Paige, 309) 379 
 Childers v. Childers, (1 De G. & J. 482) 
 
 238 
 Childs V. Clark, (3 Barb. Ch., N. Y., 53) 
 
 116 
 Childs V. Hyde (10 Iowa, 394) 441 
 Chiles V. Gallagher, (Miss. '90, 7 So. 208) 
 
 355 
 Chillicothe, Bk. of v. Dodge, (8 Barb. 
 
 233) 218, 330 
 Chilton V. Bralden's Adm'x, (2 Black, 
 
 458) 474 
 Chilton V. Brooks, (71 Md. 445) 501 
 Chipman v. Montgomery, (63 N. Y. 331) 
 
 419 
 Chisholm v. Chittenden, (45 Ga. 313) 534 
 Chitty V. Parker, (2 Ves. 271) 209 
 Choate v. Tighe, (10 Helsk. 621) 473 
 Chrondron v. Magee, (8 Ala. 570) 134, 126 
 
 Choofstall V. Powell, (1 Grant's Cas. 19) 
 
 381 
 Chorpenuing's Appeal, (33 Pa. St. 315) 
 
 279 
 Chouteau v. Allen, (70 Mo. 290) 376 
 Chouteau v. Goddin, (39 Mo. 229) 243 
 Chowning v. Cox, (1 Rand. 306) 488 
 Christ V. Diffenbach, (1 Serg. & R. 464) 
 
 336 
 Christian v. Newberry, (61 Mo. 446) 149 
 Christie, In re, (59 Hun, 153) 389 
 Christie v. Bishop, (1 Barb. Ch. 105) 72 
 Chrlstler's Bx'r v. Meddis, (6 B. Mon. 35) 
 
 199 
 Christman v. Colbert, (33 Minn. 509) 229 
 Christmas v. Mitchell, (3 Ired. Eq. 535) 
 
 113 
 Christmas v. Russell, (14 Wall. 69) 455 
 Christy v. Libby, (35 How. Pr. 119) 419 
 Christy's Appeal, (92 Pa. St. 157) 635 
 Chrysler v. Canaday, (90 N. Y. 272) 350 
 Church B. Bull, (3 Denio, 430) 160, 167, 
 
 169, 176 
 Church V. Chapin, (35 Vt. 323) 359 
 Church V. Church, (3 Sandf. Ch. 434) 206 
 Church V. Church, (1 Casey, 378) 77, 78 
 Church V. Church, (33 How. Pr., N. Y., 
 
 73) 16 
 Church V. Kemble, (5 Sim. 535) 159, 162 
 Church II. Mar. Ins. Co. (1 Mason, 341) 
 
 279 
 Church V. Ruland, (64 Pa. St. 433) 78 
 Church V. Smith, (39 Wis. 492) 471 
 Church V. Sterling, (16 Conn. 388) 34 
 Church V. Warren, (28 Md. 338, 355) 349 
 Churchill v. Churchill, (L. R. 5 Eq. 44) 
 
 162 
 Churchill v. Morse, (33 Iowa, 329) 69, 71, 
 
 129 
 Churchman v. Ireland, (1 Russ. & My. 
 
 250) 165 
 Chynoweth v. Tenny, (10 Wis. 397) 448 
 Cincinnati, &c. R. R. v. Sloane, (31 Ohio 
 
 St. 1) 668 
 Cincinnati, &c. R. R. v. Washburn, (35 
 
 Ind. 259) 591 
 City Bank of Baltimore v. Smith, (3 Gill 
 
 & J. 265) 51 
 City Bank v. Bangs, (2 Paige, 570) 661 
 City Council v. Page, (1 Spears Eq. 159) 
 
 77 
 City Council v. Walton, (77 Ga. 517) 362 
 City Nat. Bk. v. Hamilton, (34 N. J. Eq. 
 
 158) 393, 396 
 Clabaugh v. Byerly, (7 Gill, 354) 58, 66, 
 
 105, 116 
 Clafin V. Kimball, (53 Vt. 6) 449 
 
TABLE OF OASES CITED. 
 
 69& 
 
 REFERENCES ARE TO PAGES. 
 
 Claflln V. Rosenberg, (43 Mo. 439) 296 
 Claggett V. Crall, (13 Kans. 393) 106, 110 
 Clague». Washburn, (42 Minn. 271) 102 
 Clan ton v. Burgess. (3Dev. Eq. 15) 633 
 Clapp V. Emery, (98 111. 523) 336 
 Clapp V. Tlnell, (30 Pick. 247) 288 
 Clarendon, Earl of v. Barham, (1 Y. &C. 
 
 Ch. 688) 150 
 Clark V. Anderson, (13 Bush, 111) 380 
 Clark V. Earner, (3 Lans. 67) 253 
 Clark V. Bell, (3 B. Mon. 1) 479 
 Clark V. Binninger, (11 J. & S. 136) 673 
 Clark V. Bogardus, (12 Wend. 67) 193, 
 
 194 
 Clark V. Brown, (3 Allen, 509) 58, 59 
 Clark V. Clark, (17 Ga. 485) 415, 643 
 Clark V. Clark, (30 Ohio St. 128) 405 
 Clark V. Clark, (56 N. H. 105) 149, 151, 
 
 153 
 Clark V. Clark, (43 Vt. 685) 353 
 Clark V. Clark, (8 Paige, 153) 371 
 Clark V. Clark, (63 N. H. 367) 497 
 Clark V. Clark, (34 Barb. 583) 4il 
 Clark 17. Condit, (18 N. J. Eq. 358) 53 
 Clark V. Coolidge, (8 Kans. 189) 137, 139, 
 
 141, 143 
 Clark V. Covenant Ins. Co. (53 Mo. 372) 
 
 637 
 Clark V. Devaux, (1 S. C. 173, 184) 380 
 Clark V. Douglass, (63 Pa. St. 408) 358 
 Clark V. Drake, (63 Me. 354) 316 
 Clark V. Drake, (3 Chand. 353) 33 
 Clark V. Edgar, (84 Mo. 106) 244 
 Clark V. Everhart, (63 Pa. St. 347) 259 
 Clark V. Flint, (33 Pick. 231) 68 
 Clark V. Fuller, (39 Conn. 238) 130, 131 
 Clark V. Girdley, (41 Cal. 119) 635 
 Clark V. Griffith, (4 Clarke, 405) 
 Clark V. Griffith, (Iowa, 405) 176, 170 
 Clark V. Guise, (3 Ves. Sen. 617) 168 
 Clark V. Henry, (9 Mo. 336; 3 Cow. 334) 53 
 Clark V. Henry, (3 Cow. 334) 376, 488 
 Clark V. Henry's Adm'r, (9 Mo. 336) 419 
 Clark V. Hogle, (52 111. 427) 418 
 Clark V. Hubbard, (8 Ohio, 383) 640 
 Clark V. Hunt, (3 J. J. Marsh. 5.58) 479 
 Clark V. Jacobs, (56 How. Pr. 519) 478 
 Clark V. Langlin, (63 111. 378) 149 
 Clark V. Lott, (11 111. 105) 338 
 Clark V. Lyons, (35 111. 105) 54 
 Clark V. Maguire, (16 Mo. 303) 395 
 Clark V. Malpas, (4 De G. F. & J. 401) 
 
 277 
 Clark V. Martin, (49 Pa. St. 389) 438 
 Clark V. Mauran, (3 Paige, 373) 453 
 Clark V. McNeal, (114 N. Y. 287) 103, 104 
 Clark V. Moody, (17 Mass. 145) 373 
 
 Clark V. Morrill, (21 Up. Can. Q. B. 600> 
 
 290 
 Clark V. Munroe, (14 Mass. 351) 59 
 Clark V. National Bank, (45 Mo. 17) 405 
 Clark t). N. Y. Life Ins. & T. Co. (64 N. 
 
 Y. 33) 
 Clark V. Partridge, (3 Barr. 13) 336 
 Clark V. Periam, (2 Atk. 333) 27 
 Clark V. Eeyburn, (1 Kans. 381) 491 
 Clark V. Rolls, (58 Iowa, 301) 356 
 Clark V. Sewell, (3 Atk. 96) 193 
 Clarke. Smith, (Saxt. 131; 13 Pet. 195) 
 Clark V. Smith, (13 Pet. 195, 203) 21 
 Clark©. Stilson, (36 Mich. 483) 473 
 Clark V. St. Louis, &c. R. R. (58 How. Pr. 
 
 31) 367 
 Clark V. Tainter, (7 Cush. 567)362 
 Clark V. Tennant, (5 Neb. 549) 361 
 Clark V. Valentino, (41 Ga. 143) 407 
 Clark V. Viles, (33 Me. 32) 407 
 Clark V. White, (12 Pet. 168) 17, 178, 187, 
 
 188 
 Clark V. Wilson, (103 Mass. 221) 500 
 Clarke v. Devaux, (1 S. C. 172) 280 
 Clarke v. Dickson, (6 C. B., N. s., 453) 
 Clarke v. Drake, (2 Chand., Wis., 253)51, 
 
 54 
 Clarke v. Dutcher, (9 Cow. 674) 225, 226 
 Clarke v. Franklin, (4 K. & J. 257) 201, 
 
 209, 311 
 Clarke v. Grant, (14 Ves. 519) 336 
 Clarkei;. Jetton, (5 Sneed, 339) 185 
 Clarke v. Johnston, (2 Stockt. 287) 418, 
 
 419 
 Clarke v. Morse, (10 N. H. 236) 294 
 Clarke ?7. Perry,. (5 Cal. 58) 417, 419 
 Clarke v. Supervisors, (37 111. 305) 606 
 Clarke i^.Swaile, (3 Eden, 134)285 
 Clarke v. Tainter, (7 Cush. 567) 384 
 Clarke B. White, (13 Pet. 178) 360, 261 
 Clarkson v. Hanway, (2 P. Wms. 203)37S 
 Clarkson v. Morgan, (6 B. Mon. 441) 125, 
 
 127 
 Clary v. Freyer, (8 Gill & J. 403) 382 
 Clason V. Morris, (10 Johns. 524) 654 
 Clausson v. Lafrenz, (1 Iowa, 237) 309 
 Clay V. East Tenn., &c. R. R. (6 Heisk. 
 
 421) 449, 450, 464 
 Clay 1). Gurley, (62 Ala. 14) 415,643 
 Claypool V. Miller, (4 Blackf., Ind., 163> 
 
 231 
 Clayton v. Aikin, (38 Ga. 320) 173 
 Clayton «. Bussey, (30 Ga. 946) 233 
 Clayton v. Freet, (10 Ohio St. 554) 219, 
 
 223, 329 
 Cleary «. Babcock, (41111.371) 233,234 
 Cleckley». Beall, (37 Ga. 383) 573 
 
700 
 
 TABLE OF CASES CITED. 
 
 RErERENCES ARE TO PAGES. 
 
 Clegg V. Edmondson, (8 De G. & M. G. 
 
 787) 287 
 Cleghorn v. Postlewaite, (43 III. 438) 606 
 Cleland v. Fish, 43 HI. 382) 353 
 Clem V. Newcastle, (9 Ind. 488) 343 
 Clement v. Burtls, (24 N. E. 1013) 438 
 Clement v. Cash, (21 N. Y. 253) 47, 48, 49, 
 
 50 
 Clement ti. Hyde, (50 Vt. 716) 345 
 Clements. Eeid, (9 Sm. & Mar. 535) 272 
 Clements v. Hall, (2 De G. & J. 173) 287 
 Clements v. Welles, (L. E. 1 Eq. 200) 113, 
 
 114, 131 
 Clendenning v. Clymer, (17 Ind. 155) 188, 
 
 183, 185, 186 
 Clepperu. Livergood, (5 Watts, 113) 410 
 Clerk V. Condit, (18 N. J. Eq. 358) 276 
 Cleveland v. Burrill, (25 Barb, 532) 545 
 Cleveland v. Hallett, (6 Gush. 403) 382 
 Cleveland v. Martin. (2 Head, 128) 472 
 Cleveland ■». Spilman, (25 Ind. 95) 333 
 Cleveland Ins. Co. v. Reed, (1 Biss. 180) 
 
 282 
 Clevenstlne's Appeal, (3 Harris, 495) 395 
 Clifford V. Burlington, (2 Vern. 379) 215 
 Clifford V. Turrell, (1 Y. & C. Ch. 138) 236, 
 
 437 
 Clift V. White, (12 N. Y. 519) 149 
 Clifton, In re, (47 How. Pr. 172) 300 
 Clifton V. Davis, (1 Pars. Eq. 31) 275 
 Climer v. Hovey, (15 Mich. 18) 239 
 Clinefelter v. Ayers, (16 111. 329) 383 
 Clinkscales v. Hall, (15 S. C. 603) 404 
 Clinton v. Haddam, (50 Conn. 84) 140 
 Clinton Nat. Bk. v. Manwaring, (39 
 
 Iowa, 281) 491 
 Cliterall v. Ogilvie, (1 Desau. 257) 293 
 Clodfelter v. Cox, (1 Sneed, 330) 84 
 Clodfelter v. Hulett, (72 Ind. 137) 242 
 Clopton V. Haughton, (57 Miss. 787) 418 
 Clopton V. Martin, (11 Ala. 187) 223, 336 
 Cloud V. Calhoun, (10 Eich. Eq. 358) 360 
 Cloud V. Martin, (3 Dev. & Bat. 274) 234 
 Clough V. Bond, (3 My. & Cr. 490) 217 
 Clough V. Clough, (117 Mass. 83) 431 
 Clow V. Woods, (5 S. & R. 275) 296 
 Clowes V. Higginson, (1 V. & B. 534) 235 
 Cloyd V. Cloyd, (15 Lea. 304) 174 
 Clure V. Thistle's Ex'rs, (3 Gratt. 183) 
 
 107 
 Clyde V. Simpson, (4 Ohio St. 445) 482 
 Coaghan v. Ockershausen, (5 N. Y. 
 
 Super. Ct. 386) 381 
 Coale V. Barney, (1 Gill & J. 324) 336, 436 
 Coari v. Olsen, (91 111. 373) 130 
 Coast Line R. R. v. Cohen, (50 Ga. 451) 
 
 559 
 
 Coates' Appeal, (2 Barr. 129) 331 
 Coates V. Bacon, (21 Grant., Ont., 21) 260 
 Coatney v. Hopkins, (14 W. Va. 338) 393 
 Coats V. Robinson, (10 Mo. 757) 397 
 Cobb V. Biddle, (14 Pa. St. 444) 382 
 Cobb V. Hatfield, (46 N. Y. 538) 285 
 Cobb V. Smith, (16 Wis. 61) 563 
 Coburn v. Pickering, (3 N. H. 415) 294 
 Cochran v. Collins, (29 Cal. 139) 445 
 Cochran v. O'Hern, (4 Watts & S. 95) 
 
 411 
 Cochran v. Paris, (11 Gratt. 348) 364 
 Cochran v. Stewart, (21 Minn. 435) 245 
 Cochran v. Wimberly, (44 Miss, 503) 472 
 Cochrane v. Willis, (L. R. 1 Ch. 58; 34 
 
 Beav. 359) 33 
 Cock V. Van Etten, (13 Minn. 522) 263 
 Cockey v. Milne, (16 Md. 200) 102, 105, 107, 
 
 109 
 Cocking V. Pratt, (1 Ves. Sen. 400) 203 
 Cockrell «. Armstrong, (31 Ark. 580) 331 
 Cocks V. Izard, (7 Wall. 559) 247 
 Cocks V. Manners, (L. E. 12 Eq. 574) 
 Coco's Succession, (32 La. Ann. 325) 367 
 Coddington v. Goddard, (16 Gray, 436) 363 
 Codman v. Freeman, (3 Cush. 306) 448 
 Codman v. Tinkham, (15 Pick. 364)613 
 Codrington v. Lindsay, (L. R. 8 Ch. 578) 
 
 159 
 Codwlse V. Taylor, (4 Sneed, 346) 479 
 Coe V. Lake Man. Co. (37 N. H. 354) 547 
 Coe V. N. J., &c. R. E. (37 N. J. Eq. 37) 
 
 673 
 Coe V. N. J. Midland Ey. (31 N. J. Eq. 
 
 105) 239, 583 
 Coffin V. Argo, (24 N. E. 1068) 350 
 Coffin V. Eay, (1 Mete. 212) 110 
 Coffing V. Taylor, (16 111. 457) 226 
 Coffman v. Keightley, (24 Ind. 509) 606 
 CofEman v. Bobbins, (8 Oreg. 278) 579 
 Cogan V. Duffield, (L. R. 30 Eq. 789) 230 
 Cogan V. Stephens, (1 Beav. 482 n) 210 
 Coger's Exr's v. Magee, (2 Bibb, 321) 226 
 Cogswell V. Armstrong, (77 111. 139) 657 
 Cohen v. Goldsboro, Commr's of, (77 N. 
 
 C. 2) 547 
 Cohen v. Sharp, (44 Cal. 29) 637 
 Cohen v. Wilkinson, (1 Macn. & G. 481) 
 
 555 
 Coltu. Patchen, (77 N. Y. 394) 287 
 Colbert v. Daniel, (32 Ala. 314) 141 
 Colchester v. Culver, (29 Vt. Ill) 229 
 Coldwell V. Woods, (3 Watts, 188) 52 
 Cole V. Bolard, (10 Harris, 431) 142 
 Cole V. Edgerly, (48 Me. 108) 150 
 Cole V. Hughes, (54 N. Y. 444) 438 
 Cole V. Malcolm, (66 N. Y. 363) 621 
 
TABLE OF CASES CITED 
 
 701 
 
 REFERENCES ARE TO PAGES. 
 
 Cole V. Scott, (3 Wash., Va., 141) 474 
 Cole V. Van Riper, (44 111. 58) 398 
 Cole?). Willard, (35 Beav. 568) 193, 194 
 Cole V. Young, (24 Kans. 435) 566 
 Cole's Com. v. Cole's Adm'r, (28 Gratt. 
 
 365) 304 
 Coleman v. Barklew, (3 Dutch. 357) 116, 
 
 121, 122 
 Coleman?). Cocke, (6 Rand. 618) 65 
 Coleman v. Columbia Oil Co. (51 Pa. St. 
 
 74) 363 
 Coleman v. Parker, (114 Mass. 30) 431 
 Coleman v. Reel, (75 Iowa, 304) 111 
 Coleman v. San Rafael, &c. Co. (49 Cal. 
 
 517) 640 
 Coleman v. Semmes, (56 Miss. 321) 396 
 Coleman v. Wooley's Ex'rs, (10 B. Mon. 
 
 320) 397 
 Coles V. Allen, (64 Ala. 98) 357 
 Coles V. Bowne, (10 Paige, 536) 235 
 Coles B. Brown, (10 Paige, N. Y., 525) 
 
 236, 238 
 Coles V. Sims, (5 De G. M. & G. 1) 25 
 Coles V. Trecothick, (9 Ves. 246) 285 
 Coles V. Withers, (33 Gratt. 186) 478 
 Coley V. Coley, (19 Conn. 114) 219 
 Colgate?). Colgate, (8 C. E. Green, 372) 
 
 160, 168, 170, 172, 173 
 Coll V. Amory, (9 Pick. 446) 368 
 CoUett V. Frazier, (3 Jones, N. C.,Eq. 80) 
 
 230 
 Collier v. Blake, (i4 Kans. 250) 363 
 Collier v. Collier's Ex'rs, (3 Ohio St. 369) 
 
 303 
 Collier v. Faulk, (69 Ala. 58) 448 
 Collingwood v. Row, (3 Jur., N. s., 785) 
 
 201 
 Collins?). Archer, (1 Russ. & My. 384) 
 
 64 
 Collins V. Carlisle, (7B. Mon. 13) 331 
 Collins V. Carman, (5 Md. 503) 160, 168, 
 
 170 
 Collins V. Case, (33 Wis. 330) 383 
 Collins V. Champ's Heirs, (15 B. Mon. 
 
 118) 198, 203 
 Collins V. Collins, (6 Lans. 368) 
 Collins?;. Collins, (19 Ohio St. 468) 640 
 Collins V. Heath, (34 Ga. 443) 65 
 Collins V. Meyers, (16 Ohio, 547, 553) 394 
 Collins V. Prentice, (15 Conn. 39) 438 
 Collins V. Richart, ( 14 Bush, 631) 478 
 Collins V. Smith, (1 Head, 351) 356 
 Collins?). Stocking, (98 Mo. 390) 146 
 Collins?). Taggart, (57 Ga. 355) 394 
 Collins V. Tillon, (36 Conn. 368) 490 
 Collins V. Townsend, (58 Cal. 608) 363 
 Collins V. Underwood, (33 Ark. 265) 407 
 
 Collins V. Wakeman, (2 Ves. 683) 210 
 Collins V. Wassell, (34 Ark. 17) 397, 407 
 Colman v. Eastern Cos. Ry. (10 Beav. 1) 
 
 555 
 Colmer v. Morgan, (13 La. An. 303) 106 
 Colstock V. Ray ford, (13 Smed. & M. 
 
 369) 295 
 Colt V. Du Bois, (7 Neb. 394) 106, 110 
 Colton V. Colton, (127 U. S. 300) 331 
 Coltrane v. Worrell, (30 Gratt. 434) 369 
 Columbia Water Co. v. Columbia, (5 S., 
 
 C. 235) 591 
 Columbus V. Jaques, (30 Ga. 506) 559 
 Columbus, &c. R. Co. v. Steinfield, (48 
 
 Ohio St. 449) 233 
 Columbus, &c. R. R. v. Watson, (36 Ind. 
 
 50) 591 
 Colwell ?!. Keystone Iron Co. (36Mich.51> 
 
 383 
 Colwell V. Lawrence, (38 N. Y. 71) 47 
 Colwell V. Miles, (2 Del. Ch. 110) 25 
 Colwell V. Warner, (36 Conn. 224) 330 
 Colyer v. Finch, (5 H. L. Cas. 905) 63, 76, 
 
 114 
 Coman v. Lakey, (80 N. Y. 345) 350 
 Combe v. Brazier, (SDesau. Eq. 431) 348 
 Combes?). Chandler, (33 Ohio St. 178) 81, 
 
 142 
 Combs V. Little, (3 Green Ch. 310) 358 
 Comer v. Hines, (49 Ind. 482) 228 
 Comer v. Perkins, (124 Mass. 431) 350 
 Commercial Bank v. Colt, (15 Barb. 506> 
 
 79 
 Commercial Bank?). Kortright,(23Wend. 
 
 348) 82, 85, 86 
 Commissioners v. Babcock, (5 Or. 478) 
 
 106 
 Commissioners ?). Chesapeake, &c. Co. (32: 
 
 Md. 501) 152 
 Commissioners v. Elston, (32 Ind. 37) 29, 
 
 31 
 Commissioners v. Harby, (33 Beav. 508) 
 
 84 
 Commissioners v. Jackson, (133 Mass. 16) 
 
 349 ^ 
 
 Commissioners v. Markle, (46 Ind. 378) 
 
 606 
 Commissioners v. McCarty, (37 Ind. 476> 
 
 606 
 Commissioners v. McClintock, (51 Ind. 
 
 325) 606 
 Commissioners' Bk. v. Kortrlght, (33 
 
 Wend. 348) 82 
 Commissioners, &c. v. Glasse, (41 L. J. 
 • Ch. 409; L. R. 15Eq. 302) 
 Commonwealth v. Addicks, (5 Binn. 520> 
 
 303 
 
t02 
 
 TABLE OF OASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 ■Commonwealth v. Jackson, (132 Mass. 
 
 16) 250 
 Commonwealth v. Martin's Exr's, (5 
 
 Munf. 177) 35, 203, 209 
 Commonwealth v. McAlister, (28 Pa. St. 
 
 480) 369 
 Commonwealth v. Watmaugh, (6Whart. 
 
 117) 86 
 Commonwealth v. Williams, (1 Harris, 
 
 29) 379 
 Commonwealth v. Young, (11 Phila. 606) 
 
 673 
 Compton V. Bunker Hill Bk. (96 111. 301) 
 
 265 
 Compton V. Pierson, (28 N. J. Bq. 239) 
 
 406 
 Compton, Lord v. Oxenden, (2 Ves. 261) 
 
 148 
 Comstock V. Ames, (3 Keyes, 357) 283 
 Comstock V. Comstock, (57 Barb. 453) 282 
 Comstock V. Henneberry, (66 111. 212) 566 
 Comstock ». Johnson, (46 N. Y. 615) 29, 
 
 30 
 Comstock V. Scales, (7 Wis. 159) 448, 534 
 Comstock V. Smith, (26 Mich. 306) 137 
 Conant v. Warren, (6 Gray, 562) 406 
 Concord Bk. v. Gregg, (14 N. H. 331) 261, 
 
 262 
 Concord, &e. Ins. Co. v. Woodbury, (45 
 
 Me. 447) 500 
 Conderman v. Smith, (41 Barb. 404) 448 
 Condlt V. Blackwell, (32 N. J. Eq. 481) 
 
 283 
 Condit V. Wilson, (36 N. Y. J. Eq. 370) 
 
 113 
 Cone V. Niagara Ins. Co. (60 N. Y. 619) 
 
 228, 237 
 Conger v. James, (3 Swan, Tenn., 213) 
 
 331 
 Cong. Shaaral Tephlla v. Mayor, &e.(53 
 
 How. Pr. 213) 637 
 Conkey v. Bond, (36N. Y. 427) 379 
 Conklin v. Conklin, (20 Hun, 378) 431, 435 
 ConkliniJ.Conklin, (3Sandf. Ch.64) 613 
 Conklin v. Hinds, (16 Minn. 457) 640 
 Conlee v. McDowell, (15 Nev. 184) 117, 
 
 120 
 Connecticut v. Bradish, (14 Mass. 296) 
 
 77, 105 
 Connelly v. Fisher, (3 Tenn. Ch. 382) 252, 
 
 596 
 Conner v. Henderson, (5 Mass. 314) 363 
 Connihan v. Thompson, (111 Mass. 370) 
 
 137 
 Connolly v. Hammond, (51 Tex. 635) 279 
 Connor v. Trawick's Adm'r, (37 Ala. 
 
 289) 435 
 
 Conover, In re, (38 N. J. Eq. 330) 303 
 Conoverv. Hoflman, (1 Bosw. 214) 381 
 Conover v. Van Mater, (18 N. J. Eq. 481) 
 
 73 
 Conover v. Walling, (15 N. J. Eq. 173) 
 
 245 
 Conover v. Wardell, (20 N. J. Eq. 366) 
 
 233 
 Conrad v. Atlantic Ins. Co. (1 Pet. 386) 
 
 67 
 Conrad v. Harrison, (3 Leigh, 533) 539 
 Conrad v. Lane, (36 Minn. 289) 246 
 Conrad v. Leiman, Inre, (33 Md. 225) 96 
 Conser v. Snowden, (54 Md. 175) 431 
 Consociated Pres. Soe. v. Staples, (23 
 
 Conn. 544) 661 
 Constant v. Matteson, (33111.546) 372, 
 
 539 
 Continental Bank v. Bk. of Common- 
 wealth, (50 N. Y. 575) 137, 143, 145 
 Continental Ins. Co. v. Webb, (54 Ala. 
 
 688)646 
 Converse «. Blumrich, (14 Mich. 109) 
 
 117, 256, 587 
 Conway v. Alexander, (7 Cranch, 218) 53 
 Conway v. Cutting, (51 N. H.407) 445 
 Conway's Ex'rs v. Alexander, (7 Cranch, 
 
 218) 
 Conwell V. Evill, (4 Ind. 67) 489 
 Conybeare v. New Brunswick, &c. Co. 
 
 (1 De G. P. & J. 578) 254 
 Conyers«. Ennis, (2 Mason, 236) 248 
 Conyers v. Mericles, (75 Ind. 443) 229 
 Conyorgham's Appeal, (57 Pa. St. 474) 
 Cooch V. Goodman, (2 Q. B. 580) 437 
 Cook V. Banker, (50 N. Y. 655) 475 
 Cook ». Berlin Woolen Mills, (43 Wis. 
 
 433) 279 
 Cook V. Black, (54 Iowa, 693) 464 
 Cook V. CoUingridge, (Jacobs, 607) 
 Cooke. Cook, (39 Md. 538) 367 
 Cook V. Couch, (100 Mo. 29) 172 
 Cook V. Ellington, (6 Jones' Eq. 371) 331 
 Cook V. Finch, (19 Minn. 407) 49 
 Cook V. Fountain, (3 Sw. 585) 13 
 Cook V. Kennerly, (12 Ala. 42) 394 
 Cooku Kraft, (3Lans. 512) 470 
 Cook V. Mann, (6 Col. 21) 298 
 Cook V. Moore, (39 Tex. 255) 596 
 Cooki). Mut. Ins. Co. (53 Ala. 37) 80 
 Cook V. Travis, (30 N. Y. 400) 103, 116, 
 
 117, 119 
 Cook V. Trimble, (9 Watts, 15) 474 
 Cook V. Vick, (3 How., Miss., 882) 
 Cook V. Waugh, (3 Giff. 201) 359 
 Cook's Ex'r v. Cook's Adm'r, (20 N. J. 
 
 Eq. 375) 199, 301 
 
TABLE OF CASES CITED. 
 
 703 
 
 REFERENCES ARE TO RAGES. 
 
 Cooke V. Clayworth, (18 Ves. 12) 275 
 Cooke V. Husbands, (11 Md. 493) 333, 318 
 Cooke i;. Lamotte, (15 Beav. 234) 277 
 Cooke V. Nathan, (16 Barb. 343) 230, 331 
 Cooke's Lessee?;. Knell, (13 Md. 469) 107, 
 
 109 
 Cookson V. Cookson, (12 CI. & Fin. 131) 
 
 200, 307, 208 
 Cookson V. Richardson, (69 111. 137) 356 
 Cookson V. Toole, (59 111. 515) 398 
 Cooley V. Betts, (24 Wend. 303) 372 
 Cooley V. Brayton, (16 111. 10) 125 
 Coolidge V. Brigham, (1 Met. 550) 262 
 Coolidge V. Melvin, (42 N. H. 510) 291 
 Coon V. Atwell, (46 N. H. 510) 244, 35g 
 Coon i;. Brocket, (2 N. H. 153) 51 
 Coon V. Brook, (31 Barb. 546) 397 
 Coon V. Smith, (39 N. Y. 392) 140 
 Cooney v. Woodburn, (33 Md. 330) 401 
 Coons V. North, (37 Mo. 73) 239 ■ 
 Cooper V. Alger, (51 N. H. 172) 407 
 Cooper V. Bigly, (13 Mieh. 463) 103 
 Cooper u. Blakey, (10 Ga. 263) 70 
 Cooper V. Burr, (45 Barb. 9) 433 
 Cooper V. Cooper, (77 Va. 198) 365 
 Cooper V. Cooper, (L. R. 8 Ch. 813) 155, 
 
 159, 160, 181, 184, 188 
 Cooper V. Cooper, (L. R. 7 H. L. 53, 67) 
 
 175 
 Cooper V. Hubbuck, (30 Beav. 160) 25 
 Cooper V. Jackson, (71 Ind. 244) 640 
 Cooper V. Lovering, (106 Mass. 77) 341, 
 
 242, 349, 2.50, 255, 259, 260 
 Cooper V. Merritt, (30 Ark. 686) 478 
 Cooper V. Pena, (31 Cal. 403) 27, 591 
 Cooper V. Tappan, (4 Wis. 376) 269 
 Coote V. Boyd, (3 Bro. Ch. 521) 191 
 Copeland v. Copeland, (38 Me. 535) 138 
 Copeland v. Mercantile Ins. Co. (6 Pick. 
 
 198) 379 
 Copley V. Copley, (1 P. Wms. 147) 188, 189 
 Copp V. Sawyer, (6 N. H. 386) 434 
 Coppedge v. Threadgill, (3 Sneed, 577) 
 
 409 
 Coquillard v. Bearse, (21 Ind. 479) 446 
 Coquillard v. Snydam, (8 Blackf. 34) 17 
 Corbett v. Carroll, (50 Ind. 315) 375 
 Corbett v. Eice, (2 Nev. 330) 420 
 Corbett v. Woodward, (5 Sawy. 403) 376 
 Corbln v. Mill's Ex'rs, (19 Gratt. 438) 
 
 435 
 Corbin v. Sullivan, (47 Ind. 356) 73, 116 
 Corbin v. Tracy, (34 Conn. 325) 437 
 Corbitt V. Clenny, (52 Ala. 480) 114, 115 
 Corby v. Bean, (44 Mo. 617) 31, 269 
 Corby v. Corby, (85 Mo. 371) 331 
 Cordova v. Hood, (17 Wall. 1) 98, 474 
 
 Corey v. Greene, (51 Me. 115) 618 
 
 Corey v. Long, (12 Abb. Pr., N. S., 437) 673 
 
 Corley v. Corley, (22 Ga. 178) 409 
 
 Corley v. L'd Stafeord, (1 De G. & J. 338) 
 
 287 
 Corlies v. Howland, (36 N. J. Eq.311) 473 
 Corliss 1). Corliss, (8 Vt. 373) 101 
 Cornelius v. Molloy, (1 Pa. St. 393) 352 
 Cornelius v. Morrow, (13 Heisk. 630) 17 
 Cornell v. Hall, (33 Mich. 377) 53 
 Cornell v. Hichens, (11 Wis. 353) 79 
 Cornell v. Radway, (33 Wis. 360) 618 
 Corn Exch. Ins. Co. v. Babcock, (42 N. 
 
 Y. 613) 404 
 Corning v. Lowerre, (6 Johns. Ch. 439) 
 
 559 
 Corning v. Murray, (3 Barb. 653) 58 
 Corning v. Troy Iron, &c. Factory, (40 
 
 N. Y. 141) 
 Corning v. Troy Iron, &c. Factory, (39 
 
 Barb. 311) 603 
 Corning v. Whyte, (3 Paige, 567) 136 
 Cornish v. Abington, (4 H. & W. 549) 143 
 Corpman v. Baccastow, (84 Pa. St. 363) 
 
 69, 131 
 Corriel v. Ham, (3 Iowa, 553) 176 
 Corser v. Craig, (1 Wash. C. C. 436) 456 
 Corwine ». Cor wine, (34 N. J. Eq. 579) 
 
 483 
 Cory V. Cory, (3 Stockt. Ch. 400) 413 
 Cory V. Cory, (1 Ves. Sen. 19) 375 
 Cory V. Eyre, (1 De G. J. & S. 149) 4<) 
 Cory V. Gertcken, (3 Madd. 40) 26 
 Cory Univ. Soc, Trs. of v. Beatty, (28 
 
 N. J. Eq. 570) 345 
 Coryton v. Helyar, (3 Cox, 340) 233 
 Cosby®. Bean, (44 Mo. 379) 28 
 Costa V. Bank of Ga. (24 Ala. 37) 109 
 Coster i;. Coster, (9 Sim. 597) 30 
 Cota V. Jones, (8 Pac. Law. J. 1044) 263 
 Cothay v. Sydenham, (3 Bro. Ch. 391) 116 
 Cotheal v. Talmadge, (9 N. Y. 551) 49 
 Cottam V. Eastern Cos. Ry. (1 J. & H. 
 
 343) 83 
 Gotten B. Blocker, (6 Fla.l) 491 
 Gotten B. McGehee, (54 Miss. 510) 471 
 Cotterell v. Long, (30 Ohio, 464) 464 
 Cotton V. Willoughby, (83 N. C. 75) 448 
 Couch V. Stratton, (4 Ves. 391) 196 
 Couch V. Sutton, (1 Grant's Cas. 114) 143 
 Coudert v. Sayre, (N. J. '90, 19 Atl. 190) 
 
 438 
 Coursen's Appeal, (79 Pa. St. 330) 280 
 Courtwright v. Courtwright, (63 Iowa, 
 
 356) 229 
 Courtwright v. Bear River, &c. Co. (30 
 
 Cal. 573) 417 
 
704 
 
 TABLE OF CASES CITED. 
 
 REFERENOES ARE TO PAGES. 
 
 Couse V. Boyles, (4 N. J. Eq. 312) 229 
 Cousins V. Wall, (3 Jones' Eq. 43) 358 
 Coutant V. Schuyler, (1 Paige, 316) 433 
 Coutcher v. Muir's Ex'r, (Ky. 1890, 13 S. 
 
 W. 435) 490 
 Coutt V. Craig, (2 Hen. &Mun. 618) 336 
 Coutts V. Acltworth, (L. R. 9 Eq. 519) 
 
 159, 161 
 Covw. Rogers, (77 Pa. St. 160) 160 
 CovenhoveuB. Shuler, (2 Paige, 123) 643 
 Coventry v. Barlay, (3 De G. J. & S. 320) 
 
 35 
 Cover V. Black, (1 Barr. 493) 69, 70, 107, 
 
 109, 129 
 Coville V. Gilman, (13 W. Va. 314) 635 
 Cowan V. Melbourne, (L. R. 3 Ex. 330) 270 
 Cowan's Appeal, (74 Pa. St. 329) 283 
 Cowart V. Cowart, (3 Lea. 57) 450 
 Cowden's Estate, (1 Barr. 267) 526 
 Cowden's Estate, (1 Pa. St. 374) 539 
 Cowdery v. Railroad Co. (1 Woods, 831) 
 
 673 
 Cowdrey v. Galveston, &c. R. R. (3 Otto, 
 
 352) 673 
 Cowee i;. Cornell, (75 N. Y. 91) 274 
 Co-well V. Sikes, (2 Russ. 191) 38 
 Cowen V. Alsop, (51 Miss. 158) 358 
 Cowin V. Toole, (31 Iowa, 513) 418 
 Cowles V. Pollard, (51 Ala. 445) 415 
 Cowles V. Raguet, (14 Ohio, 38) 268 
 Cowles V. Watson, (14 Hun, 41) 350 
 Cowles V. Watson, (14 Hun, 44) 241 
 Cowles V. Whitman, (10 Conn. 131) 430 
 Cowley V. Hartstonge, (1 Dow, 361) 300 
 Cowley V. Smith, (46 N. J. L. 380) 255 
 Cowls V. Cowls, (3 611m. 435) 301 
 Cowper V. Cowper, (2 P. Wms. 730) 33 
 Cowper V. Scott, (3 P. Wms. 124) 158 
 Cowperthwaite v. Sheffield, (3 N. Y. 243) 
 
 457 
 Cox V. Clift, (2 N. Y. 118) 637 
 Cox ». Hill, (6 Md. 274) 338 
 CoxD. Jones, (76 Ga. 296) 117 
 Cox V. Milner, (23 111. 476) 70, 90, 96, 111 
 Cox V. Rogers, (77 Pa. St. 160) 168, 170, 
 
 176, 177, 178 
 Cox V. Wayt, (26 W. Va. 807) 104 
 Cox V. Wheeler, (7 Paige, 248) 152 
 Cox V. Woods, (67 Cal. 317) 234 
 Cox's Adm'r v. Wood, (30 Ind. 54) 473 
 Coy V. Coy, (15 Minn, 119) 106, 109, 115 
 Coyle V. Davis, (30 Wis. 593) 358 
 Coyne v. Weaver, (84 N. Y. 387) 343 
 Coyote, &c. Co. v. Ruble, (8 Or. 384) 358 
 Cozineu Graham, (2 Paige, 177) 336 
 Crabtree v. Bramble, (3 Atk. 680) 35, 307 
 Craft V. Thompson, (51 N. H. 536) 216 
 
 Crafts V. Crafts, (13 Gray, 360) 153 
 Craig V. Craig, (3 Barb. Ch. 76) 433 
 Craig V. Kittredge, (3 Fost. 331) 336, 23S 
 Craig V. Leslie, (3 Wheat. 563) 35, 303, 
 
 209,310 
 Craig V. People, (47 111. 487) 559 
 Craig V. Secrist, (54 Ind. 419) 345 
 Craig V. Ward, (36 Barb. 377) 256 
 Craig V. Ward, (3 Keyes, 387) 361 
 Craig V. Watt, (8 Watts, 498) 395 
 Craig's Appeal, (77 Pa. St. 448) 396 
 Grain v. Caldwell, (14 111. 468) 476 
 Crain v. Crain, (17 Tex. 80) 430 
 Crain v. Green, (6 Ohio. 429) 419 
 Crain v. Kennedy, (85 111. 340) 418 
 Cram v. Mitchell, (1 Sandf. Ch. 351) 78 
 Crambaugh v. Kugler, (3 Ohio St. 544) 358 
 Cramer v. Hoose, (93 111. 503) 354 
 Cramer's Case, (3 Salk. 508) 193 
 Crane v. Bunnell, (10 Paige, 333) 265 
 Crane v. Burntrager, (1 Ind. 165) 663 
 Crane v. Conklin, (Saxton, 346) 275 
 Crane v. De Camp, (21 N. J. Eq. 414) 36 
 Crane v. Howell, (35 N. J. Eq. 374) 366 
 Crane v. Moses, (13 S. C. 561) 366 
 Crane v. Palmer, (8 Blackf. 130) 59, 306 
 Crane v. Turner, (7 Hun, 357) 81, 105 
 Crary v. Goodman, (13 N. Y. 266) 237 
 Crassen v. Swoveland, (23 Ind. 437) 93^ 
 
 119, 131 
 Craven v. Craven, (3 Dever. Eq. 338) 173 
 Crawford v. Bertholf, (Saxton, 460) 36, 
 
 303 
 Crawford v. Davis, (99 Pa. St. 579) 396 
 Crawford v. Forristall, (57 N. H. 103) 395 
 Crawford v. Kirksey, (55 Ala. 283) 394, 
 
 359 
 Crawford, Matter of, (113 N. Y. 560) 186 
 Crawford?). Munford, (29 Ill.App. 445); 
 
 497 
 Crawford v. Ross, (39 Ga. 44) 643 
 Crawford v. Winfield, (25 Tex. 414) 573 
 Crawford's Appeal, (61 Pa. St. 52) 338 
 Crawley v. Riggs, (24 Ark. 563) 477 
 Cray v. Rooke, (Cas. temp. Talb. 153) 2T 
 Craycroft v. Moorehead, (67 N. Car. 422) 
 
 551 
 Creath v. Sims, (5 How. 193) 36, 38 
 Credit Co. v. Ark. Cent. R. R. Co. (15 Fed. 
 
 Rep. 46) 677 
 Creed v. Scruggs, (1 Heisk. 590) 31 
 Cresap v. Cresap, (34 W. Va. 310) 383 
 Grossman's Appeal, (43 Pa. St. 147) 338 
 Cresson's Appeal, (30 Pa. St. 437) 348 
 Cressy v. Sabre, (17 Hun, 130) 447, 448 
 Creswell v. Kennedy, (3 MacArthur, 78> 
 
 419 
 
TABLE OF CASES CITED. 
 
 706 
 
 REFERENCES ARE TO PAGES. 
 
 Crews V. Burcham, (1 Blackf., Ind., 353) 
 
 118 
 Cribbins v. Markwood, (13 Gratt. 495) 
 
 373 
 Crissman v. Crissman, (5 Ired., N. Car., 
 
 L. 498) 331 
 Crocheron v. Jaques, (3 Edw. Ch. 307) 
 
 360 
 Crocker v. Crocker, 31 N. Y. 500) 59, 60 
 Crockett v. Crockett, (73 Hare, 647) 334 
 Crockett v. Magulre, (10 Mo. 34) 103, 116 
 Croft -u. Bunster, (9 Wis. 503) 79, 87 
 Croft B. Goldsmith, (34 Beav. 313) 33 
 Croft V. Graham, (3 De G. J. & S. 155) 
 
 277 
 Crofts V. Middleton, (8 De G. M. & 6. 
 
 192) 569 
 Crofton V. Ormsby, (2 Sch. & Lef. 583) 120 
 Cromies v. Louisville, <fcc. Soc. (3 Bush, 
 
 365) 348 
 Crompton v. Vesser, (19 Ala. 359) 338 
 Cromwell v. Brooklyn Ins. Co. (44 N. Y. 
 
 43) 500 
 Crooke v. Andrews, (40 N. Y. 547) 637 
 Crooke v. Dairs, (5 Grant, Ont., 317) 347 
 Crooks V. Crooks, (34 Ohio St. 610) 393 
 Crooks V. Davis, (6 Grant, Ont., 317) 260 
 Croom V. Herring, (4 Hawks, 393) 202 
 Crosby v. Baker, (6 Allen, 295) 536 
 Crosby v. Berger, (11 Paige, 377) 652 
 Crosby i;. Chase, (17 Me. 369) 150 
 Crosby v. Huston, (1 Tex. 303) 105 
 Crosby v. Taylor, (15 Gray, 64) 150 
 Crosier v. Acer, (7 Paige, 137) 319 
 Croskey v. Chapman, (26 Ind. 333) 114, 
 
 115 
 Crosland v. Eogers, (S. C. '90, 10 S. E. 874) 
 
 158 
 Cross V. Gault, Appeal of, (97 Pa. St. 
 
 471) 469 
 Cross V. Peters, (1 Greenl. 378) 248, 249, 
 
 253 
 Cross V. Sprigg, (6 Hare, 552) 33 
 Crossland v. Hall, (33 N. J. Eq. Ill) 250 
 Crossman v. Penrose Bldg. Co. (2 Casey, 
 
 69) 261 
 Crostwaight v. Hutchinson, (2 Bibb, 407) 
 
 437 
 Crouch c. Davis, (29 Gratt. 62) 192, 193 
 Crouch c. Wabash, &c. E. R. Co. (23 Mo. 
 
 App. 315) 51 
 Crow V. Tinsley, (16 Dana, 402) 491 
 Crow V. Vance, (4 Iowa, 434) 477, 501 
 Crowder v. Moore, (52 Ala. 320) 668 
 Crowe V. Clay, (9 Ex. Ch. 604) 314 
 Crowell V. Currier, (27 N. J. Eq. 152) 
 Croyle v. Moses, (90 Pa. St. 450) 252, 262 
 
 45 
 
 Croxall V. Shererd, (5 Wall. 268) 315 
 Crozier v. Bray, (120 N. Y. 366) 383 
 Cruess v. Fessler, (39 Cal.336) 250, 263 
 Cruger v. Halliday, (11 Paige, 314) 360 
 Cruikshanks v. Coggswell, (26 111. 366) 
 
 297 
 Crump V. Eedd's Adm'r, (6 Gratt. 372) 
 
 331 
 Crump V. U. S. Mining Co. (7 Gratt. 353) 
 
 355, 261 
 Cruse V. Axtell, (50 Ind. 49) 345 
 Cruse V. Barley, (3 P. Wms. 20) 310 
 Crutchfield v. Wason Car Works, (8 
 
 Baxt. 243) 555 
 Cudworth v. Scott, (-41 N. H. 476) 450 
 Culbertson's Appeal, (76 Pa. St. 148) 336 
 Culbreath v. Culbreath, (7 Ga. 64) 319 
 CuUey V. Edwards, (44 Ark. 423) 625 
 Cullingworth?;.Loyd, (2 Beav. 385)27 
 Cullison V. Bossom, (1 Md. Ch. 95) 651, 
 
 654 
 Culpepper v. Aston, (2 Ch. Cas. 115) 125 
 Cumberland Coal Co. v. Sherman, (20 
 
 Md. 117) 223 
 Cumberland V. E. E. u. McLanahan, (59 
 
 Pa. St. 23) 145 
 Gumming v. Cumming, (3 6a. 460) 526 
 Gumming B. Williamsori, (1 Sandf. Ch. 
 
 17) 397 
 Cumming's Appeal, (67 Pa. St. 404) 272 
 Cummings v. Griggs, (2 Duv. 87) 296 
 Cummings v. Halsted, (26 Minn. 151) 484 
 Cummings v. Thompson, (18 Minn. 246)) 
 
 261 
 Cummings v. Webster, (43 Me. 192) 142 
 Cummins li. Bulgin, (37 N. J. Eq. 476) 
 
 234 
 Guneo v. Bessoni, (63 Ind. 534) 303 
 Cunningham v. Bell, (83 N. C. 338) 353 
 Cunningham v. Buckingham, (1 Ohio, 
 
 364) 107, 110 
 Cunningham v. Pattee, (99 Mass. 248) 
 
 120 
 Cunningham v. Pell, (5 Paige, 607) 374 
 Cunningham v. Shannon, (4 Eich. Eq. 
 
 135) 171 
 Cunningham v. Smith, (11 B. Mon. 325) 
 
 631 
 Cunningham v. Splckler, (4 Gill, 280) 190 
 Curlin v. Hendricks, (35 Tex. 225) 373 
 Curnen v. Mayor, &c. (79 N. Y. 511) 143, 
 
 145 
 Curran v. Downs, (3 Mo. App. 468) 271 
 Curran v. Holyoke W. Co. (116 Mass. 190) 
 
 583 
 Curriev. Pye, (17 Ves. 462) 191 
 Currle v. Tibbs, (5 Monroe, 440) 39 
 
706 
 
 TABLE OF OASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Currier v. Concord R. R. (48 N. H. 321) 
 
 651, 653 
 Currier ». Sutherland, (54 N. H. 475) 39 
 Curry uLarer, (7 Barr. 470) 47, 49, 50 
 Curry v. Powers, (70 N. Y. 312) 339 
 Curson v. Belworthy, (3 H. L. Cas. 743) 
 
 377 
 Curteis v. Wormald, (L. R. 10 Oh. D. 173) 
 
 310 
 Curtis V. Asplnwall, (114 Mass. 187) 344 
 
 245 
 Curtis V. Blair, (26 Miss. 309, 4 Cush. 
 
 309) 94, 100, 101, 111 
 Curtis V. Brewer, (17 Rich. 513) 48 
 Curtis V. East Saginaw, City of, (35 
 
 Mich. 508) 637 
 Curtis V. Engel, (3 Sandf. Ch. 17) 397 
 Curtis V. Leavitt, (15 N. Y. 9) 37, 67, 370 
 Curtis V. Lunn, (6 Munf. 42) 77 
 Curtis V. Mundy, (3 Met. 405) 90, 96, 
 
 110 
 Curtis V. Root, (20 111. 53) 59, 491 
 Curtis V. Sutter, (15 Cal. 359) 640 
 Curts V. Cisma, (7 Miss., U. S., 260) 283 
 Cushing V. Ayer, (25 Me. 383) 526 
 'Gushing v. Blake, (30 N. J. Eq. 689) 334 
 •Gushing v. Drew, (97 Mass. 445) 46, 47 
 •Gushing v. Hurd, (4 Pick. 252) 106 
 'Gushman v. Forest, (4 Cranch, 37) 
 •Cushman v. Thayer Man. Co. (76 N. 
 
 Y. 365) 82, 85 
 Custar V. Titusvllle, &c. Go. (63 Pa. St. 
 
 381) 361 
 Cuthbert v. Cuthbert, (3 Yeates, 486) 
 
 423 
 Cuthbert v. Wolfe, (19 Ala.-373) 394 
 Cutler V. Butler, (25 N. H. 343) 398 
 Cutler V. James, (64 Wis. 173, 54 Am. 
 
 Rep. 603) 102 
 Cutler V. Tuttle, (19 N. J. Bq. 549) 268 
 Cutter V. Copeland, (18 Me. 127) 294 
 Cutter V. Hardy, (48 Cal. 568) 327 
 Cutting V. Dana, (25 N. J. Eq. 265) 437 
 Cutting V. Gilbert, (5 Blatch. 259) 606 
 Cutting V. Jackson, (56 N. H. 253) 390 
 Cutting V. Marlor, (78 N. Y. 454) 361 
 Cuttis V. Buckingham, (3 V. & B. 168) 
 
 551 
 Cutts V. Guild, (57 N. Y. 239) 81, 83 
 Gutts V. Perkins, (13 Mass. 306) 453 
 Guyler v. Bogert, (3 Paige, 186) 651 
 Cuyler v. Bradt, (2 Gaines' Cas. 336) 39 
 Cuyler v. McCartney, (40 N. Y. 321) 343 
 
 D. 
 
 Dabney v. Bailey, (42 Ga. 521) 176, 177, 
 178 
 
 Daeoway v. Gait, (20 Ark. 190) 106, 110 
 Dagenheim Dock Co., In re, (L. R. 8 Ch. 
 
 1032) 50 
 Dagger v. Taylor, (60 Ala. 504) 474 
 Daggett V. Emerson, (3 Story, 700) 363 
 Daggett V. Rankin, (31 Cal. 331) 35, 464 
 Dahlgreenw. Duncan, (26 La. Ann. 363) 
 
 640 
 Dailey v. Litchfield, (10 Mich. 39) 50 
 Dakin v. Williams, (17 Wend. 447) 46, 49, 
 
 50 
 Dale V. Robinson, (51 Vt. 30) 397 
 Dalgleish v. McCarthy, (19 Grant's Ch. 
 
 578) 389 
 Dallaghen v. Pitch, (42 Wis. 679) 49 
 Dallas V. Heard, (33 Ga. 604) 397 
 Dalton V. Dalton, (14 Nev. 419) 286 
 Dalton V. Thurston, (3 N. E. Rep. 383) 
 
 248 
 Daly V. Smith, (38 N. Y. Super. Ct. 158) 
 
 555. 
 Dambman v. Schulting, (75 N. Y. 55) 341, 
 
 253, 353 
 Dameron v. Jamison, (4 Mo. App. 399) 
 
 353 
 Dames v. Cope, (4 Binn. 258) 396 
 Dana v. Haskell, (41 Me. 35) 618 
 Dana v. Murray, (132 N. Y. 604) 389 
 Dana v. Newhall, (13 Mass. 498) 77 
 Dana v. Valentine, (5 Met., Mass., 8) 559, 
 
 573 
 Danbury v. Robinson, (1 McCarter, 313) 
 
 650 
 Dance v. Goldlngham, (L. R. 8 Ch. 903) 
 
 551 
 Dance v. Searman, (11 Gratt. 778) 395 
 Danforth v. Beattie, (43 Vt. 138) 391 
 Danforth v. Dart, (4 Duer, 101) 94 
 Danforth v. Philadelphia, &c. Ry. (30 N. 
 
 J. Eq. 13) 591 
 Daniel v. Mitchell, (1 Story, 173, 173) 
 
 326, 341, 356 
 Daniel v. Morrison, (6 Dana, 185) 396 
 Daniel v. Sarrelts, (9 Ala. 436) 107, 110 
 Daniel v. Stewart, (55 Ala. 378) 637 
 Daniels v. Davison, (16 Ves. 349) 120, 339 
 Daniels v. Ripley, (10 Mich. 337) 231 
 Danklessen v. Braynard, (3 Daly, 183) 
 
 453 
 Danley v. Hays, (17 Serg. & R. 400) 501 
 Dargin v. Beeker, (10 Iowa, 571) 106, 110, 
 
 114 
 Darlandv. Taylor, (53 Iowa, 503) ;431, 432 
 Darling v. Baltimore, (51 Md. 1) 316, 230 
 Darlington v. Pulteney, (Cowp. 260) 215 
 Darnell v. Rowland, (30Ind. 342) 274 
 D' Arras v. Keyser, (26 Pa. St. 249) 301 
 
TABLE OF CASES CITED. 
 
 707 
 
 REFERENCES ARE TO PAGES. 
 
 Darst V. Thomas, (87 III. 233) 245 
 Dart V. Orme, (41 Ga. 376) 640 
 Darwin II. Handley, (3 Yerg. 503) 295 
 Dashiell v. Attorney-General, (5 H. & J. 
 
 393, 346 
 Dashwood v. Peyton, (18 Ves. 41) 160 
 Dawbenspeck v. Piatt, (22 Cal. 330) 117, 
 
 120, 121 
 Daughaday v. Paine, (6 Minn. 443) 473 
 Daves. Johnson, (141 Mass. 287) 380 
 Davenport v. Farrar, (2 111. 314) 203 
 Davenport v. Gentry's Adm'r, (9 B.Mon. 
 
 427) 445 
 Davenport v. Mason, (15 Mass. 85) 233 
 Davenport ■». Murray, (68 Mo. 198) 473 
 Davenports. Receivers, (2 Woods, 519) 
 
 673 
 Davenport ■B.Tarpin, (43 Cal. 598) 140 
 Davenport v. Turpin, (53 Cal. 270; 41 Cal. 
 
 100) 141 
 Davenport Rd. v. Davenport Gas Co. (43 
 
 Iowa, 301) 138 
 Davey v. Kelly, (66 Wis. 457) 288 
 Davey V. Littlejohn, (2 Ired. Eq. 495) 70 
 David V. Park, (103 Mass. 501) 141, 258, 
 
 259 
 Davidson, In re, (L. R. 11 Ch. D. 341) 207 
 Davidson v. Allen, (36Miss.419) 473 
 Davidson v. Cowan, (1 Dev. Eq. 474) 70 
 Davidson v. Greer, (3 Sneed, Tenn., 384) 
 
 234 
 Davidson v. Little, (10 Harris, 245) 273 
 Davidson v. Thompson, (22 N. J. Eq.83) 
 
 613 
 Davies v. Ashford, (15 Sim. 43) 207 
 Davies v. Austen, (1 Ves. 247) 87 
 Davies v. Cox, (6 Ind. 481) 339 
 Davies v. Fitton, (2 Dar. & War. 335) 
 
 236 
 Davies v. Goodhew, (6 Sim. 585) 199 
 Davies v. London, &c. Co. (L. R. 8 Ch. 
 
 D. 469) 28 
 Davies v. Otty, (35 Beav. 308) 368 
 Davies v. Sear, (L. R. 7 Eq. 437) 95, 113 
 Davies v. Wattier, (1 S. & S. 463) 217 
 Davis' Appeal, (83 Pa. St. 848) 209, 483 
 Davis s. Am. Soc, &c. (6 Daly, 81) 547 
 Davis V. Bayley, (40 Ga. 181) 219) 
 Davis V. Bank of U. S. (3 Hill, 451) 134 
 Davis V. Barrett, (14 Beav. 543) 149, 150 
 Daviss.Baugh, (8 Pac. Coast Law J. 903) 
 Davis V. Bechstein, (69 N. Y. 440) 81 
 Davis V. Bemis, (40 N. Y. 453) 361, 363 
 Davis V. Betz, (66 Ala. 206) 363 
 Davis V. Brownson, (6 Iowa, 410) 271 
 Davis V. Cain's Ex'r, (1 Ired. Eq. 304) 
 435 
 
 Davis V. Calvert, (5 Gill & J. 369) 287 
 Davis V. Clabaugh, (30 Md. 508) 418 
 Davis V. Coburn, (128 Mass. 377) 370 
 Davis V. Davis, (26 Cal. 23) 136 
 Davis V. Davis, (11 Ohio St. 386) 173 
 Davis V. Demming, (12 W. Va. 246) 369 
 Davis V. Dunne, (46 Iowa, 684) 386 
 Davis, Estate of, (36 Iowa, 34) 176 
 Davis V. First Nat. Bk. (5 Neb. 343) 407 
 Davis V. Fox, (59 Mo. 135) 596 
 Davis V. Gray, (16 Wall. 303) 673 
 Davis V. Hamilton, (50 Miss. 313) 478 
 Davis V. Handy, (37 N. H. 65) 141 
 Davis V. Hendric, (1 Mont. T. 499) 50 
 Davis V. Hubbard, (38 Ala. 185, 189) 531 
 Davis V. Jackson, (22 Ind. 233) 250 
 Davis V. Jennings, (3 Tenn. Ch. 241) 406 
 Davis V. Krum, (12 Mo. App. 279) 228 
 Davis V. Lamberton, (56 Barb. 480) 563 
 Davis V. London, &c. Co. (8 Ch. D. 469) 37 
 Davis V. Luster, (64 Mo. 43) 596 
 Davis V. Marlborough, (2 Sw. 174) 
 Davis V. Marlborough, Earl of, (2 Swanst. 
 
 108) 276 
 Davis V. McWhirter, (40 Up. Can. Q. B. 
 
 598) 348, 249 
 Davis II. Morier, (2 Coll. 303) 235 
 Davis V. Nay, (135 Mass. 590) 339 
 Davis V. Newton, (6 Met. 544) 31 
 Davis V. Ownsby, (14 Mo. 170)71, 106, 107, 
 
 110 
 Davis II. Parker, (14 Allen, 9i) 545 
 Davis V. Petway, (3 Head, 667) 244 
 Davis V. Pierce, (10 Minn. 376) 149 
 Davis V. Ransom, (18 111. 396) 295 
 Davis V. Rock Creek, &c. Co. (55 Cal.359) 
 
 356 
 Davis V. Smith, (75 Mo. 219) 406 
 Davis V. Stonestreet, (4 Ind. 401) 52, 53, 
 
 488 
 Davis V. Symonds, (1 Cox, 402) 39 
 Davis V. Turner, (4 Gratt. 433) 395 
 Davis 11. Walker, (51 Miss. 659) 631 
 Davis V. West, (13 Ves. 475) 53 
 Davis V. Wetherell, (11 Allen, 30) 354 
 Davis V. Wetherell, (13 Allen, 60, 63) 148, 
 
 153 
 Davis V. Terby, (1 Sm. & M. Ch. 508) 366 
 Davis V. Young, (5 J. J. Marsh., Ky., 165) 
 
 330 
 Davison v. Jersey Co. Ass. (71 N. Y. 333) 
 
 587 
 Davison v. Perrine, (7 C. E. Green, 87) 29 
 Davone v. Fanning, (2 Johns. Ch. 353) 
 
 378 
 Dawson v. Dan bury Bank, (15 Mich. 489) 
 
 119,131 
 
708 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAQES. 
 
 Dawson v. Dawson, (L. R. 4 Eq. 504) 188, 
 
 190, 193 
 Dawson v. Dawson, (Eice's Eq. 243) 107, 
 
 110 \ 
 
 Dawson v. Girard L. Ins. Co. (37 Minn. 
 
 411) 473 
 Dawson v. Goodwin, (15 B. Mon., Ky., 
 
 439) 229 
 Dawson v. Hayes, (1 Mete. 461) 176 
 Dawson v. March., &c. Bk. (30 Ga. 664) 
 
 572 
 Dawson v. Prince, (2 De G. & J. 41) 76 
 Day V. Atlantic, &e. Co. (41 Ohio St. 392) 
 
 117 
 Day V. Cooley, (118 Mass. 524) 291 
 Day V. Day, (84 N. C. 408) 229 
 Day V. Hale, (22 Gratt. 146) 471 
 Day V. Newman, (2 Cox, 77) 272 
 Day V. Koth, (18 N. T. 448) 338 
 Dayton v. Citizen's Nat. Bk. (U 111. App. 
 
 501) 239 
 Deacon v. Smith, (3 Atk. 323) 34, 195, 196, 
 
 197 
 Deadrick v. Watklns, (8 Humph. 520) 272 
 Deaderick v. Cantiell, (10 Terg., Tenn., 
 
 254) 371 
 Deaderick v. Mitchell, (6 Baxt. 35) 551 
 Deaderick v. Wilson, (8 Baxt. 108) 376 
 Deadson v. Taylor, (53 Miss. 397, 701) 98 
 Dean, In re, (86 N. T. 398) 375 
 Dean v. Carruth, (108 Mass. 242) 434 
 Dean v. Charlton, (23 Wis. 590) 29, 31 
 Dean v. Deane, (6 Conn. 285) 353 
 Dean v. Dean's Estate, (43 Vt. 337) 431 
 Dean v. Equitable F. Ins. Co. (4 Cliff. 
 
 575) 233 
 Dean v. Fuller, (40 Pa. 474) 274 
 Dean v. Madison, (9 Wis. 402) 640 
 Dean v. O'Meara, (47 111. 130) 613 
 Dean v. Kathbone, (15 Ala. 326) 365 
 Dean v. Yates, (23 Ohio St. 388) 65 
 Dean v. Younnell's Adm'r, (8 Wall. 14) 
 
 596 
 Dean's Appeal, (90 Pa. St. 106) 303 
 Dearborn v. Taylor, (18 N. H. 153) 621 
 Dearing v. Watkins, (10 Ala. 30) 107, 110 
 Dearie v. Hall, (3 Russ. 1) 84 
 Dearman v. RadclifEe, (5 Ala. 193) 288 
 Deas V. Harvie, (2 Barb. Ch. 448) 649 
 Deas V. Spann, (1 Harp. Ch., S. C, 176) 
 
 365 
 Deason v. Taylor, (53 Miss. 697) 99, 114, 
 
 115 
 De Barante v. Gott, (6 Barb. 492) 203 
 De Baun v. Van Wagoner, (56 Mo. 347) 405 
 De Beauvolr v. De Beauvoir,(3 H. L. Cas. 
 524)200 
 
 Debell v. Foxworthy, (9 B. Mon. 328) 125 
 Debeze v. Mann, (2 Bro. Ch. 166) 188 
 De Bruhl v. Maas, (54 Tex. 464) 473 
 De Camp v. Dobbins, (39 N. J. Eq. 36) 345 
 De Camp v. Feay, (5 Serg. & R. 333) 54, 
 
 587 
 Decan v. Shipper, (11 Casey, 339)65 
 De Caters v. Le Bay de Chaumont, (a 
 
 Paige, 178) 379 
 Deck V. Gerke, (13 Cal. 433) 417 
 Decker v. Decker's Adm'x, (27 N. J. E^. 
 
 339) 419 
 Dederer v. Voorhies, (81 N. Y. 153) 265, 
 
 596, 637 
 Deadly v. Cadwell, (19 Conn. 318) 486 
 Deam v. Phillips, (5 W. Va. 188) 386 
 Dearing v. Boyle, (8 Kans. 525) 407 
 Deering v. Cobb, (74 Me. 334) 448 
 Deeth v. Hale, (2 Moll. 317) 208 
 Deforest v. Bates, (1 Edw. Ch. 394) 44 
 De Forest v. Bacon, (3 Conn. 683)) 393 
 De Forest v. Holum, (38 Wis. 516) 473 
 De France v. De France, (34 Pa. St. 385) 53 
 Deg V. Deg, (2 P. Wms. 413) 34, 169 
 Degive v. Healey, (60 Ga. 391) 219 
 De Godey v. Goday, (39 Cal. 157) 160, 167 
 Da Graaf v. Turpenning, (52 How. Pr. 
 
 313) 185 
 De Graffenried v. Brunswick, &c. R. R. 
 
 (57 Ga. 22) 
 De Herques v. Marti, (85 N. Y. 609) 138 
 Deibler v. Barwick, (4 Blackf. 339) 473 
 Deickerhoff v. Brown, (21 Md. Rep. 583) 
 
 346 
 Delafield v. Anderson, (7 Sm. & Mar. 
 
 630) 372 
 Delafield v. Illinois, (3 Hill, 159) 417 
 Delafield v. Illinois, (37 Wand. 192) 
 Delaireu Keenan, (3Desau. 74) 464 
 Dalancay B. Stearns, (66 N. Y. 157) 67, 73 . 
 Delaney, Estate of,(49 Cal. 76, 77) 158, 178, 
 
 337 
 Delaney v. McCormack, (88 N. Y. 174) 
 
 199, 415 
 Delaney v. Murphy, (31 Supr. Ct., N. Y., 
 
 503) 663 
 Delaplaine v. Hitchcock, (6 Hill, N. Y., 
 
 14)136 
 De laTouche's Settlement, In re, (L. E. 
 
 10 Eq. 599) 330 
 De Laurencel v. De Boom, (48 Cal. 581) 
 
 335 
 Delaussus D.Poston, (19 Mo. 425) 473 
 Delaware, &c. Co, v. Bonnell, (46 Conn. 
 
 9)149 
 Delaware, &c. R. R. o. Erie E. E. (4 N. J. 
 
 Eq. 298) 668 
 
TABLE OF CASES CITED. 
 
 709 
 
 REFERENOBS ARE TO PAGES. 
 
 Delaware, &c. R. R. v. Stump, (8 Gill & 
 
 J. 479) 559 
 Delay v. Vinal, (1 Met. 57) 173 
 De Leon v. Hlguera, (15 Cal. 483)465 
 Bellinger's Appeal, (71 Pa. St. 425) 329 
 Delmotte v. Taylor, (1 Redf. 417) 432 
 Demarest v. Wynkoop, (3 Johns. Ch. 
 
 139) 63, 77 
 Demoss v. Demoss, (7 Cold-*. 256) 173 
 De Mott V. Starkey, (3 Barb. Ch. 403) 72 
 Dempsey v. Gardner, (137 Mass. 381) 294 
 Den V. Manners, (1 Spence, 143) 446 
 Den V. Richman, (1 Green, 43) 70, 106, 
 
 107 
 Den V. Troutman, (7 Ired. 155) 363 
 Den V. Zellers, (2 Halst. 153) 245 
 Denechaud v. Berrey, (48 Ala. 591) 397 
 Denike v. Harris, (84 N. Y.) 366 
 Dennis v. Burritt, (6 Cal. 670) 104, 106, 109 
 Dennis v. Dennis, (4 Rich. Eq. 307) 335, 
 
 239 
 Dennison v. Groehring, (7 Barr. 175) 315 
 Denny v. Allen, (1 Pick. 147) 373 
 Denny v. Hancock, (L. R. 6 Ch. 1) 235 
 Denny v. Lyon, (38 Pa. St. 98) 83 
 Denny v. Steakley, (2 Heisk. 156) 476 
 Densmore v. Tomer, (11 Neb. 118) 295 
 Denster v. McCamus, (14 Wis. 307) 103 
 Dent V. Auction Mart Co. (L. R. 2 Eq. 
 
 338) 559 - 
 Dent V. Bennett, (4 My. & Cr. 269) 387 
 Dent V. Walt's Adm'r, (9 W. Va. 41) 631 
 Denton v. Donner, (23 Beav. 285) 281 
 Do Peyster v. Hasbrouck, (11 N. Y. 583) 
 
 236, 338 
 Do Pouilly's Succession, (32 La. Ann. 97) 
 
 434 
 Dcrbishire v. Home, (3 De G. M. & G.80) 
 
 25 
 Derby v. Derby, (4 R. I. 414) 349, 483 
 Dergen v. Duff, (4 Johns. Ch. 308) 361 
 De Rivafinoli v. Corsetti, (4 Paige, 264) 
 
 591 
 Derrick v. Lamar Ins. Co. (74 III. 404) 
 
 241, 250 
 Berry v. Derry, (74 Ind. 560) 355 
 De Ruyter v. Trustees, &c. (2 Barb. Ch. 
 
 556) 117 
 Descarlett v. Dennett, (9 Mod. 22) 54 
 Des Farges v. Pugh, (93 N. C. 31) 349 
 Douchatell v. Robinson, (34 La. Ann. 
 
 176) 640 
 Devalues v. Noble, (1 Meriv. 538) 38 
 De Vandal v. Malone's Ez'rs, (25 Ala. 
 
 272) 107 
 De Vaughan v. MeLeroy, (83 Ga. 687) 
 
 333 
 
 De Vendell v. Hamilton, (27 Ala. 156) 71 
 Devereux v. Devereux, (81 N. C. 12) 415 
 Devese v. Pontet, (1 Cox, 188) 197 
 De Visme, In re, (3 De 6. J. & S. 17) 855 
 Devlin v. Mayor, (63 N. Y. 8) 445 
 Devling v. Little, (2 Casey, 503) 336 
 Devoe v. Brandt, (53 N. Y. 463) 65, 345, 
 
 248, 251 
 Devonshire v. Gathreaux, (32 La. An. 
 
 1133) 394 
 Dewar v. Maitland, (L. R. 3 Eq. 834) 166, 
 
 ,176, 177 
 Deware v. Wyatt, (50 Mo. 236) 640 
 Dewey v. Bulkley, (1 Gray, 416) 640 
 Dewey v. Moyer, (73 N. Y. 70) 357 
 Dewey v. White, (65 N. C. 335) 663 
 De Witt V. Moulton, (17 Me. 418) 101, 105 
 De Witt V. Yates, (10 Johns. 156) 190, 192 
 De Wolf V. Pratt, (42 111. 198) 268 
 Dews V. Olwill, (3 Baxt. 432) 84 
 Dexheimer v. Gautier, (5 Robert. 216) 432 
 Dexter v. Arnold, (3 Sumn. 108) 563 
 Dexter v. Gardner, (7 Allen, 343) 346 
 Dexter v. Shepherd, (117 Mass. 480) 347 
 Dey V. Dey, (26 N. J. Eq. 182) 357 
 Dey V. Dey's Adm'r, (19 N. . J. Eq. 137) 
 
 483 
 Dey V. Dunham, ( 3 Johns. Ch. 183) 105, 
 
 113 
 Dey V. Williams, (2 Dev. & Bat. Eq. 66) 
 
 192, 193 
 Dezell V. Odell, (3 Hill, 215) 137 
 Dial's Ex'rs v. Rogers, (4 Desau. 175) 
 Diamond v. The Lawrence Co. Bk. (1 
 
 Wright, 353) 136 
 Dibble v. Rogers, (13 Wend. 536) 140 
 Dibrell v. Smith, (49 Tex. 474) 473 
 Dick V. Cooper, (34 Pa. St. 217) 246, 247 
 Dick V. Hamilton, (1 Deady, 322) 407 
 Dick V. Lindsay, (3 Grant Cas. 431) 247 
 Dick V. Mawry, (9 Sm. & Mar. 448) 501 
 Dickason v. Williams, (129 Mass. 183) 146 
 Dickenson v. Glenney, (37 Conn. 104) 106, 
 
 108 
 Dickenson v. Seaver, (44 Mich. 624) 265 
 Dickerman v. Abrahams, (21 Barb. 551) 
 
 397 
 Dickerson v. Campbell, (33 Mo. 544) 90 
 Dickerson v. Colgrove, (100 U. S. 578) 138 
 Dickerson v. Stott, (8 N. J. Eq. 394) 17 
 Dickerson v. Tillinghast, (4 Paige, 215) 
 
 63, 66, 68, 70, 73 
 Dickey v. Beattie, (14 Ohio St. 389) 331 
 Dickey v. Lyon, (19 Iowa, 544) 131, 133 
 Dickinson v. Coates, (79 Mo. 350) 458 
 Dickinson v. Codwise, (1 Sandf . Ch. 314) 
 
 359 
 
710 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Dickinson v. Hall, (14 Pick. 217) 263 
 Dickinson v. Hoome's Adm'r, (8 Gratt. 
 
 353) 545 
 Dickinson v. Lee, (106 Mass. 557) 260 
 Dickson v. Marks, (10 La. Ann. 518) 640 
 Dickson V. Montgomery, (1 Swan. 348) 
 
 348 
 Diefendorf v. Spraker, (10 N. Y. 246) 361 
 Diehl V. Page, (a Gr. Ch. 143) 123 
 DifEenbach v. Vogeler, (61 Md. 370) 137 
 DifEenderfer v. Winder, (3 Gill & J. 311) 
 
 369 
 Digge's Lessee v. Jarman, (4 Har. & 
 
 McH. 468) 382 
 Digman v. MeCoUum, (47 Mo. 372) 105 
 Dike V. Green, (4 E. I. 288) 50 
 Dill V. Shahan, (25 Ala. 694) 219, 220, 221 
 Dill V. Wisner, (88 N. Y. 153) 415 
 Diller o. Brubacker, (52 Pa. St. 498) 280, 
 
 542 
 Dillman v. NadlehofEer, (119 111. 567) 248 
 Dillon V. Jones, (5 Ves. 390) 27 
 Dillon V. Parker, (1 Sw. 359) 156, 160, 176, 
 
 177, 178, 179 
 Dilts V. Stevenson, (17 N. J. Eq. 407) 406 
 Dilworth V. Bradner, (85 Pa. St. 490) 255 
 Diman v. Providence, &c. K. E. (5 E. I. 
 
 130) 218, 226, 238 
 Dimes v. Scott, (4 Euss. 195) 204 
 Dimmick v. Lockwood, (10 Wend. 143) 
 
 264 
 Dimmock v. Hallett, (L. E. 2 Ch. 21) 
 
 244,245 
 Dingens v. Clancey, (67 Barb. 566) 144 
 Dingley v. Ventura, Bank of, (57 Cal. 
 
 467) 478 
 Dingman v. McCollum, (47 Mo. 372) 116 
 Distilled Spirits, (11 Wall. 356) 130, 131, 
 
 132, 133 
 Distilling Co. v. Nutt, (34 Kans. 724) 371 
 D'lvemois v. Leavitt, (23 Barb. 63) 292 
 Dix V. Cobb, (4 Mass. 508) 84, 86 
 Dixie V. Wright, (32 Beav. 663) 304, 306 
 Dixon V. Dixon, (1 Md. Ch. 230) 477 
 Dixon V. Dixon, (L. E. 9 Ch. D. 587) 
 Dixon V. Doe, (1 Sm. & Mar. 70) 70, 101, 
 
 103 
 Dixon V. Gayfere, (17 Beav. 433) 307 
 Dixon V. Lacoste, (1 Sm. & Mar. 107) 108 
 Dixon V. McCue, (14 Gratt. 540) 170 
 Dixon V. Muckleston, (L. E. 8 Ch. 155, 
 
 158, 161) 114 
 Doak V, Johnson, (2 Kerr, 319) 289 
 Doas V. Chicago, (11 Wall. 108, 110, 111) 606 
 Dobbins. Bryan, (5 Tex. 276) 420 
 Dobbs V. Cockerham, Distrib. of, (3 Port. 
 
 338) 418 
 
 Dobson, Estate of, (11 Phila. 81) 199, 202 
 Dobson V. Eacey, (8 N. Y. 216) 379 
 Dockey v. McDonald, (40 Ala. 476) 371 
 Dockery c. French, (73 N. C. 430) 366 
 Dockray v. Dockray, (3 E. I. 547) 392 
 Dockray v. Mason, (48 Me. 178) 618 
 Dod V. Paul, (43 N. J. Eq. 302) 229 
 Dodd V. Bellows, (29 N. J. Eq. 127) 659 
 Dodd V. Hartford, (25 Conn. 333) 606 
 Dodd». Wakeman, (36 N. J. Eq. 484) 380, 
 
 358 
 Dodd V. Wakeman, (11 C. E. Green, 484) 
 Dodge B. Card, (2 Fish. Pat. Cas., U. S., 
 
 166) 563 
 Dodge V. Cole, (97111. 338) 357 
 Dodge V. Essex Ins. Co. (12 Gray, 65) 26a 
 Dodge V. Evans, (43 Miss. 570) 473 
 Dodge t). Pond, (23 N. Y. 69) 200, 328 
 Dodge V. Silverthorne, (13 Wis. 644) 466 
 Dodge*. Williams, (46 Wis. 70) 198, 199,300 
 Dodge V. Woolsey, (18 How., U. S., 339) 
 
 555 
 Doe V. Bank of Cleveland, (3 McLean, 
 
 140) 107, 110 
 Doe V. Bauer, (3 B. & Ad. 453) 232 
 Doe V. Gland win, (6 Q. B., 51Eng. C. L^, 
 
 953) 51 
 Doe V. Hassell, (68 N. C. 313) 379 
 Doe V. Hurd, (1 Blackf. 510) 390 
 Doe V. Prettyman, (Houst 339) 102 
 Doe V. Eoe, (35 Ga. 55; 13 Flor. 602) 
 Doe V. Stenlake, (13 East, 515) 233 
 Doe V. Vincent, (1 Houst. 416, 427) 384 
 Doggettc. Emerson, (3 Story, 700) 227, 
 
 341, 356 
 Doggetti;. Hart, (5 Fla.215) 17 
 Dolan, Matter of, (4 Eedf. 511) 429 
 Dolarque v. Cress, (71 111. 380) 142, 144 
 Dole V. Lincoln, (31 Me. 422) 433 
 Dole V. Thurlow, (13 Mete. 157) 110 
 Dolin V. Gardner, (15 Ala. 758)103 
 Dominick v. Michael, (4 Sandf. 374) 199, 
 
 381 
 Donahue v. O'Conor, (13 J. & S. 378) 640 
 Donaldson v. Bank of Cape Pear, (1 Dev. 
 
 Eq. 103) 68 
 Donaldson v. Farwell, (93 U. S. 631) 248, 
 
 249 
 Donaldson v. Williams, (50 Mo. 407) 214 
 Donee v. Tarrington, (3 My. & K. 600) 
 
 190 
 Donelson v. Young, (1 Meigs, 155) 363 
 Donnell v. Bennett, (L. E. 22 Ch. D. 835) 
 
 555 
 Donnelley v. Edelen, (40 Md. 117) 480 
 Donnington v. Mitchell, (1 Green Ch. 
 
 343)401 
 
TABLE OF CASES CITED. 
 
 711 
 
 REFERENCES ARE TO PAGES. 
 
 Donohue v. Gamble, (38 Cal. 340) 543 
 Donovan v. Fireman's Ins. Co. (30 Md. 
 
 155) 145 
 Donovan's Appeal, (41 Conn. 551) 407 
 Dood V. Adams, (125 Mass. 398) 291 
 Dooley v. Gibson, (32 La. Ann. 193) 640 
 Dooley v. Watson, (1 Gray, 414) 50 
 Dooley v. Wolcott, (4 Mass. 406) 93, 118 
 Doolittle V. Broome Co. (18 N. Y.160) 559 
 Doolittle V. Cook, (75 111. 354) 103 
 Doolittle V. Lewis, (7 Johns. Ch. 45) 378 
 Doolittle iJ. Supervisors, (18 N. Y. 155) 
 
 606 
 Dorlarque v. Cress, (71 111. 380) 140 
 Dorley v. McKiernan, (62 Ala. 34) 291 
 Dorn V. Fox, (61 N. Y. 364) 657 
 Dorr V. Shaw, (4 Johns. Ch. 17) 33 
 Dorsey v. Hall, (7 Neb. 465) 106, 110 
 Dorwin v. Smith, (35 Vt. 69) 446 
 Doswell V. Buchanan's Ex'rs, (3 Leigh, 
 
 365) 71, 73, 74, 75, 105 
 Dotterer v. Pike, (60 Ga. 29) 357 
 Doty V. Mitchell, (9 Sm. & Mar. 435) 398 
 Dougherty v. Haggerty, (96 Pa. St. 515) 
 
 296 
 Dougherty v. McDougall, (10 Ga. 121) 668 
 Dougherty v. Van Nostrand, (1 Hoff. Ch. 
 
 68) 359 
 Doughty V. Doughty, (3 Halst. Ch. 327) 
 
 285 
 Doughty V. Doughty, (37 N. J. Eq. 315) 365 
 ■. Douglas V. Briee, (4 Rich. Eq. 323) 355 
 Douglas V. Feay, (1 W. Va. 26) 160,168, 170 
 Douglas V. Grant, (13 111. App. 273) 233 
 Douglas Co. V. Union P. R. R. (5 Kans. 
 
 615) 35 
 Douglass V. Bishop, (24 Kans. 740) 640 
 Douglass V. Branch Bank (19 Ala. 659) 
 
 229 
 Douglass V. Cruger, (80 N. Y. 15) 326 
 Douglass V. McCrackin, (53 Ga. 596) 124 
 Douglass V. Nuzum,(16 Kans. 515) 640 
 Douglass V. Scott, (5 Ohio, 194) 640 
 Douglass V. Stevenson, (75 Va. 747) 368 
 Dow V. Dow, (36 Me. 311) 173 
 Dow V. Gould, &c. Mining Co. (631 Cal. 
 
 629) 433 
 Dow V. Jewell, (21 N. H. 470) 354 
 Dow V. Ker, (1 Speer Eq. 414) 319 
 Dow V. Sayward, (14 N. H. 9) 111 
 Dowd V. Tucker, (41 Conn. 197) 358 
 Dowell V. Dew, a Y. & C. 345) 315 
 Dowel! V. Jacks, (5 Jones' Eq. 417) 303 
 Dowing V. Dearborn, (77 Me. 457) 253 
 Dowling V. Dunlop, (10 Ohio, 162) 288 
 Dowling V. Pontypool, &c. Ry. (L. R. 18 
 
 Eq. 714) 555, 556 
 
 Downer v. The Bank, (39 Vt. 25) 56 
 Downer v. Smith, (32 Vt. 1) 263 
 Downes v. Gisizebook, (3 Meriv. 200) 281 
 Downey v. Tharp, (63 Pa. St. 323) 79 
 Downin v. Sprecher, (35 Md. 474) 300 ' 
 Downing v. Marshall, (23 N. Y. 366) 319 
 Downing v. Risley, (3 McCarter, 94) 36, 
 
 203 
 Dows V. Chicago, (U Wall. 108) 
 Dows V. Griswold, (4 Hun, 550) 363 
 Dowson V. Bell, (1 Keen, 761) 170 
 Doyle V. Doyle, (36 Mo. 545) 413 
 Doyle V. Kelly, (75 111. 574) 407 
 Doyle V. Sleeper, (1 Dana, 533) 288 
 Doyle V. Stevens, (4 Mich. 87) 104, 106, 109, 
 
 118 
 Doyle V. Teas, (4 Scam. 202) 94, 111, 114 
 Drais v. Hogan, (.50 Cal. 121) 407 
 Drake v. Collins, (5 How. Miss. 253) 352, 
 
 253 
 Drake v. Crowell, (40 N. J. L. 58) 135, 
 
 138 
 Drake v. Drake, (56 Hun, 390) 384 
 Drake iJ. Glover, (30 Ala. 382) 143 
 Drake v. Goodridge, (6 Blatch. 531) 673, 
 Drake v. Latham, (50 III. 270) 258, 259 
 Drake v. Wise, (36 Iowa, 476) 144 
 Drake's Appeal, (45 Conn. 9) 287 
 Drane v. Gunter, (19 Ala. 731) 344 
 Draper v. Bryson, (26 Mo. 108) 70 
 Draper v. Saxton, (118 Mass. 437) 79 
 Draper v. Springport, (104 U. S. 501) 329 
 Draper v. Stone, (71 Me. 175) 366 
 Draper's Adm'r v. Draper, (64 Ala. 545) 
 
 418 
 Draughon v. Quillen, (33 La. An. 337) 283 
 Dravo v. Tabel, (25 Fed. Rep. 116) 108 
 Drenkler v. Adams, (20 Vt. 415) 51 
 Dresback v. Minnis, (45 Cal. 233) 137 
 Dresel v. Jordan, (104 Mass. 407) 587 
 Dresser v. Dresser, (46 Me. 48) 331 
 Dresser v. Wood, (15 Kans. 344) 135, 136, 
 
 128 
 Drew V. Clark, (Cooke's, Tenn., 373, 374) 
 
 221 
 Drew V. Rust, (36 N. H. 335) 149 
 Drinkwater v. Combe, (2 S. & S. 340) 148, 
 
 152 
 Driscoll V. W. Bradley, &c. CM. Co. (59 
 
 N. Y. 96) 86 
 Driven). Hudspeth, (16 Ala. 348) 471 
 Druid Park, &c. Co. v. Oettinger, (53 Md. 
 
 46) 360 
 Drury v. Natick, (10 Allen, 169) 348 
 Dryden v. Frost, (3 My. & Cr. 670) 113 
 Drysdale v. Mace, (5 De G. M . & G. 103) 
 
 257 
 
112 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Drysdale v. Mace, (2 Sm. & GifE. 225) 
 
 114 
 Dublin Case, (38 N. H. 459) 348 
 Dubois V. Barker, (4 Hun, 80) 95 
 Dubois V. Hull, (43 Barb. 26) 473 
 Dubose V. Young, (10 Ala. 365) 107 
 Dubs V. Dubs, (31 Pa. St. 149) 318 
 Du Bussierre v. Holladay, (55 How. Pr. 
 
 210) 419 
 Duccommun's Appeal, (17 Pa. St. 268) 
 
 371 
 Dudley v. Cadwell, (19 Conn. 218) 501 
 Dudley v. Danforth, (61 N. T. 626) 289 
 Dudley v. Dudley, (Prec. in Ch. 241) 13 
 Dudley v. Frankfort, Trustees of, (12 
 
 B. Mon. 610) 640 
 Dudley v. Little, (2 Ohio, 508) 247 
 Dudley v. Matlack, (1 McCart. 252) 473 
 Dudley v. Mayhew, (3 N. Y. 9) 563 
 Dudley v. Witter, (46 La. 664) 114, 115 
 Dueber Watch Case Mfg. Co. v. Dal- 
 
 zell, (38 Fed. Kep. 597) 112 
 Duff V. Williams, (85 Pa. St. 490) 255 
 Duffield V. Morris, (3 Harring. 375) 287 
 Duffy V. Calvert, (6 Gill, 487) 375 
 Dufiihey v. Frenaye, (5 Stew. & Port. 
 
 215) 71 
 Dugan V. Hollins, (4 Md. Ch. 439) 186 
 Dugger V. Tayloe, (60 Ala. 504) 472 
 Du Hourmelin v. Sheldon, (1 Beav. 79) 
 
 203 
 Duke V. Balme, (6 Minn. 306) 130 
 Duke V. Fuller, (9 N. H. 536) 348 
 Dukes V. Spangler, (35 Ohio St. 119) 393 
 Dulary v. Rogers, (50 Md. 524) 228 
 Dull's Estate, (137 Pa. St. 112) 383 
 Dullaghen v. Fitch, (42 Wis. 679) 49 
 Dummer v. Chippenham, (14 Ves. 252) 
 
 555 
 Dunaway v. Robertson, (95 111. 419) 265 
 Dunbar v. Newman, (46 Miss. 231) 229 
 Dunbar v. Woodcock, (10 Leigh, 628) 338. 
 Duncan v. Central Pass. R. R. Co. (4 S. 
 
 W. Rep. 238) 439 
 Duncan v. Drury, (9 Pa. St. 332) 149 
 Duncan v. Duncan, (4 Abb. N. C. 275)170 
 Duncan v. Farrer, (6Binney, 193) 39 
 Duncan v. Hayes, (22 N. J. Eq. 25) 563 
 Duncan v. Jaudon, (15 Wall. 165) 358 
 Duncan v. Johnson, (13 Ark. 190) 73, 74, 
 
 75 
 Duncan v. Smith, (2 Vroom, 325) 149, 151 
 Duncan's Appeal, (43 Pa. St. 67) 408 
 Duncomb v. N. Y., H. & N. R. R. (84 N. 
 
 Y. 190) 376 
 Duncombeo. N. Y., &c. R. K. (84N.Y. 
 
 190) 369 
 
 Dunda's Appeal, (73 Pa. St. 474) 420 
 Dundas v. Bowler, (3 McLean, 397) 501 
 Dungan v. Am., <fco. Ins. Co. (52 Pa. St. 
 
 253) 107, 109 
 Dunham v. Dey, (15 Johns. 555) 116 
 Dunham v. New Britain, (55 Conn. 378) 
 
 329 
 Dunham v. Waterman, (17 N. Y. 9) 343 
 Dunklee v. Adams, (20 Vt. 415) 50 
 Dunkley v. Dunkley, t3 De G. M. & G. 
 
 390) 30 
 Dunlap V. Burnett, (5 Sm. & Mar. 702) 
 
 69, 129, 473 
 Dunlap V. Eppeer, (88 111. 82) 298 
 Dunlap V. Gooding, (22 S. C. 548) 138 
 Dunlap V. Wilson, (32 111. 517) 122, 123, 
 
 507 
 Dunlop V. Richards, (2 B. D. Smith, 181) 
 
 359 
 Dunn V. Amos, (14 Wis. 106) 275 
 Dunn V. Chambers, (4 Barb. 376) 273 
 Dunn V. Chambers, (43 Barb. 385) 
 Dunn V. Commercial Bank, (11 Barb. 580) 
 
 85 
 Dunn V. Green, (3 P. Wms. 9) 147 
 Dunn». Keeling, (2 Dev. 283) 381 
 Dunn V. Ealey, (58 Mo. 134) 465 
 Dunn V. Record, (63 Me. 17) 282 
 Dunn V. Sargent, (101 Mass. 336) 396 
 Dunning v. Ocean Nat. Bank, (6 Lans. 
 
 296) 363 
 Dunphyi). Kleinsmith, (11 Wall. 610) 21 
 Dunphy v. Riddle, (86 111. 23) 149, 151 
 Dunscomb v. Dunscomb, (1 Johns. Ch. 
 
 508) 36, 410 
 Dupre V. Thompson, (4 Barb. 279) 219 
 Dupuy V. Gibson, (36 111. 197) 545 
 Dnrant v. Bacot, (2 Beasl. 201) 219, 233 
 Durant v. Bacot, (2 McCarter, 411) 236 
 Durant v. Davis, (10 Heisk. 523) 265 
 Durant v. Rogers, (87 111. 511) 261 
 Duren v. Getchell, (56 Me. 241) 407 
 Durette v. Briggs, (47 Mo. 356) 476 
 Durfee v. McClurg, (6 Mich. 223) 407 
 Durfree v. Grinnell, (69 111. 371) 539 
 Durham v. Daugherty, Heirs of, (30 
 
 La. Ann., pt. 2, 1355) 476 
 Durham v. Wadlington, (2 Strobh. Eq. 
 
 258) 327 
 Durham v. Wharton, (B CI. & Fin. 146) 
 
 185, 186 
 Durkeet). Stringham, (8 Wis. 1)465 
 Durkin v. Cranston, (7 Johns. 443) 225 
 Durr V. Bowyer, (2 McCord Eq. 368) 31 
 Durst V. Burton, (2 Lans. 137) 262 
 Durst V. Burton. (47 N. Y. 167) 361 
 Dusen bury ». H ulbert, l3 T. & C. 177) 58,59 
 
TABLE OF CASES CITED. 
 
 713 
 
 REFERENCES ARE TO PAGES. 
 
 Dussol V. BruRuiere, (50 Cal. 456) 443 
 Button V. "Willner, (53 N. Y. 313) 280 
 Dutton V. Warschauer, (21 Cal. 609) 98, 
 
 118,120,131 
 Duval V. Bibb, (4 Hen. & M. 113) 474 
 Duval V. Marshall, (30 Ark. 230) 353 
 Duvall V. Farmers Bank, (4 Gill & J. 
 
 283)30 
 Duvall V. Medtart, (4 H. & J.14) 252 
 Duvall V. Myers, (3 Md. Ch. 401) 583 
 Dwen V. Blake, (44 111. 135) 465 
 Dwight V. Pomeroy, (17 Mass. 302; 17 
 
 Mass. 303) 226 
 Dwighti). Tyler, (49 Mich. 614) 229 
 Dwinalc. Smith, (25 Me. 379) 653 
 Duinel v. Brown,' (54 Me. 468) 47, 49 
 Dwinel v. Perley, (33 Me. 197) 501 
 Dyer v. Arnold, (37 Ark. 17) 406 
 Dyer v. Hargrave, (10 Ves. 505) 257 
 Dyer v. Homer, (32 Pick. 353) 288 
 Dyer v. Martin, (4 Scam. 146) 473 
 Dyer?;. Shurtleff, (113 Mass. 165) 379 
 Dyett V. North Am. Coal Co. (30 Wend. 
 
 570) 397 
 Dygert v. Eemerschnlder, (33 N. Y. 648) 
 
 391 
 Dyke's Estate, In re, (L. E. 7 Eq. 337) 
 
 215 
 
 E. 
 
 Eakin v. Knox, (6 Eich., S. Car., 14) 628 
 Earle v. Fiske, (103 Mass. 492) 101, 104 
 Earle v. Wood, (8 Cush. 430) 346 
 Early v. Friend, (16 Gratt. 31) 613 
 Early v. Garrett, (9 B. & C. 938) 360 
 Early v. Middleton, (14 Beav. 453) 193 
 Early v. Owens, (68 Ala. 171) 290 
 East V. Dolihlte, (75 N. C. 563) 143 
 Eastabrook v. Earl, (97 Mass. 303) 406 
 Eastabrook v. Scott, (3 Ves. 456) 37 
 Easterbrooks v. Tilllnghast, (5 Gray, 
 
 171) 848 
 Easterly v. Keney, (36 Conn. 18) 341 
 East India Co. v. Donald, (9 Ves. 375) 231 
 East India Co. v. Neave, (5 Ves. 173) 231 
 Eastern Bank v. Taylor, (41 Ala. 93) 280 
 Easter v. Severin, (64 Ind. 375) 239 
 East Lewisburg, &c. Co. v. Marsh, (91 
 
 Pa. St. 96) 447, 449 
 Eastman v. Amoskeag M. Co. (47 N. H. 
 
 71) 602 
 Eastman v. Plumer, (46 N. H. 464) 26 
 Easton v. Strother, (57 Iowa, 506) 327 
 East Tenn. E. E. v. Gammon, (5 Sneed, 
 
 567) 261 
 Eastwood V. Vincke, (2 P. Wms. 613) 193 
 Eaton V. Benton, (2 Hill, 576) 193, 193 
 
 Eaton V. Burns, (31 Ind. 390) 38, 441 
 Eaton V. Cook, (25 N. J. Eq. 55) 336 
 Eaton V. Eaton, (15 Wis. 259) 239 
 Eaton V. Giles, (5 Kans. 24) 640 
 Eaton V. Green, (33 Mass. 536) 489 
 Eaton V. Lyon, (3 Ves. 690; 3 Ves. 693) 50, 
 
 216 
 Eaton V. Nason, (47 Me. 133) 407 
 Eaton V. N. E. Tel. Co. (68 Me. 63) 137, 
 
 143, 143 
 Eaton V. Simonds, (14 Pick. 98) 153, 491 
 Eaton V. Whiting, (3 Pick. 484) 53, 486, 
 
 531 
 Eaton C. & B. Co. v. Avery, (83 N. Y. 31) 
 
 254 
 Ebert v. Gerding, (116 III. 216) 148 
 Eberts v. Eberts, (55 Pa. St. 110) 283 
 Ebner v. Groundie, (5 W. & S. 49) 107, 
 
 109 
 Eby's Appeal, (84 Pa. St. 241) 199, 303 
 Eck V. Hatcher, (58 Mo. 235) 93, 95, 111 
 Eckertw. Flowry, (43 Pa. St. 46) 287 
 Eddy V. Baldwin, (23 Mo. 588) 355 
 Edelen v. Dent, (2 Gill & J. 185) 193 
 Edgell V. Hart, (9 N. Y. 2, 6) 296 
 Edgerton v. Peckham, (11 Paige, 353) 587 
 Edgerton v. Young, (43 111. 464) 146, 148, 
 
 149, 151, 501 
 Edison v. Bernstein, (60 How. Pr. 145) 
 
 248 
 Edminster v. Higgins, (6 Neb. 265; 6 Neb. 
 
 269) 106, 110 
 Edmond's Appeal, (59 Pa. St. 320) 233 
 Edmonds v. Crenshaw, (14 Pet. 116) 371 
 Edmonds v. Torrence, (48 Ala. 38) 73 
 Edmundson v. Eoberts, (3 How., Miss., 
 
 822) 418 
 Education, Board olv. Scoville, (13 Kans. 
 
 17) 659 
 Edward Lee, The (3 Ben. 114) 447 
 Edwards v. Banksmith, (35 Ga. 213) 134 
 Edwards v. Browne, (3 Coll, 100) 376 
 Edwards v. Burt, (2 De G. M. & G. 55) 
 
 276 
 Edwards v. Dickson, (66 Tex., 1886, 2613) 
 
 295 
 Edwards r. Edwards, (39 Pa. St. 378) 353 
 Edwards v. Freeman, (2 P. Wms. 435) 217 
 Edwards v. Harben, (3 T. E. 587) 394 
 Edwards v. Morgan, (1 Bligh, n. s., 401) 
 
 177 
 Edwards v. Parkhurst, (26 Vt. 472) 445 
 Edwards v. Eainiers, (17 Ohio St. 597) 
 
 190, 193 
 Edwards v. Eoberts, (7 Sm. & Mar. 544) 
 
 285 
 Edwards v. Stinson, (59 Ga. 443) 289 
 
714 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Edwards v. Thompson, (71 N. C. 177) 118, 
 
 120, 123 
 Edwards v. Trumbull, (14 Wright, 509) 
 
 105,466 
 Edwards v. Tuck, (23 Beav. 268) 209, 210 
 Edwards v. Varwick, (5 Denio, 664) 446 
 Edwards v. Warwick, (2 P. Wms. 176) 33 
 Edwards v. Warwick, Countess of, (2 P. 
 
 Wms. 171) 203 
 Edwards v. West, (L. E. 7 Ch. D. 858) 
 
 201 
 Edwards' Ex'rs v. Trumbull, (50 Pa. St. 
 
 509) 467 
 Eedes v. Eedes, (11 Sim. 569) 31 
 Ege V. Koontz, (3 Barr. 109) 225 
 Egerton i;. Brownlow, (4 H. L. Cas. 1) 
 
 309 
 Bggeman v. Eggeman, (37 Mich. 436) 60 
 Ehle V. Brown, (31 Wis. 405) 70, 117 
 Ehrichs v. De Mill, (75 N. Y. 370) 453 
 Eichelberger v. Hawthorne, (33 Md. 588) 
 
 418 
 Eidson v. Huff, (29 Gratt. 338) 70 
 Einstein v. Marshall, (58 Ala. 153) 256 
 Elam V. Keen, (4 Leigh, 333) 433 
 Elder v. Allison, (45 Ga. 13) 256 
 Elder v. Elder, (50 Me. 535) 420 
 Elder v. Elder, (10 Me. 80) 239 
 Elder v. First Nat. Bk. (12 Kans. 238) 551 
 Elder v. Jones, (85 111. 384) 407 
 Elder v. McLean, (3 Jur., N. s., 284) 85 
 Eldridge v. Hill, (2 Johns. Ch. 281) 569, 
 
 602 
 Eldridge ti.Phillipson, (58 Miss. 270) 293 
 Eldridge v. Preble, (34 Me. 148) 407 
 Eldridge v. Walker, (60 111. 230) 279 
 Eldridge v. Walker, (80 111. 270) 60 
 Elibank, Lady v. Montolieu, (5 Ves. 737) 
 
 28, 30, 31 
 Ellard v. Lord Landlaff, (1 Ball & B. 
 
 241) 257 
 Ellicott V. Welch, (2 Bland, 242) 59, 474 
 Ellig V. Naglee, (9 Gal. 683) 373 
 Ellinger v. Crowl, (17 Md. 361) 234 
 Elliott V. Cordell, (5 Madd. 149) 30 
 Elliott V. Fisher, (12 Sim. 505) 35, 202, 208 
 Elliott V. Gower, (12 R. I. 79) 406 
 Elliott V. Logan, (Phill., N. Car., Eq. 
 
 163) 230 
 Elliott V. Swartout, (10 Peters, 137) 225 
 Elliott V. Turner, (13 Sim. 477) 32, 33 
 Ellis V. Andrews, (56 N. Y. 83) 251 
 Ellis V. Ellis' Adm'rs, (15 Ga. 296) 331 
 Ellis V. Ellis, (1 Sch. & Lef. 1) 185 
 Ellis V. Horeman, (90 N. Y. 466) 111 
 Ellis V. Kelly, (8 Bush; 621) 265 
 Ellis V. Lewis, (3 Hare, 310) 170, 172 
 
 Ellis V. Messervie, (11 Paige, 467) 80 
 Ellis V. Secor, (31 Mich. 185) 431, 435 
 Ellis V. Temple, (4 Coldw. 315) 473 
 Ellis V. Tousley, (1 Paige, 280) 72 
 Ellis V. Woods, (9 Rich. Eq. 19) 392 
 Ellison V. Bernstein, (60 How. Pr. 145) 
 
 253 
 Ellison V. Daniels, (11 N. H. 274) 487 
 Ellison V. Moflatt, (1 Johns. Ch. 46) 25 
 Ellison. V. Wilson, (36 Vt. 67) 108 
 Ellithorpe v. Buck, (17 Ohio St. 72) 640 
 Ells V. Tousley, (1 Paige, 280) 69, 71, 
 
 129 
 Ellsworth V. Cordrey, (63 Iowa, 675) 283 
 Elmira, &c. Co. v. Erie Ry. (26 N. J. Eq. 
 
 284) 673 
 Elsass V. Moore's Hill Inst. (77 Ind. 72) 
 
 242 
 Elwell V. Chamberlain, (31 N. Y.619) 261, 
 
 262 
 Ely V. Hair, (16 B. Mon. 203) 292 
 Ely V. Hanford, (65 111. 267) 280 
 Ely «. McKay, (12 Allen, 323)437 
 Ely V. Perrine, (1 Green's Ch. 396) 235 
 Ely V. Scofield, (35 Barb. 330) 103 
 Ely V. Wilcox, (20 Wis. 523) 162, 105, 109, 
 
 121, 122 
 Emanuel v. Hunt, (2 Ala. 190) 501 
 Emanuel College v. Evans, (1 Rep. inCh. 
 
 18) 530, 531 
 Embree v. Franklin, (23 Hun, 203) 404, 
 
 406 
 Emerson v. Atwater, (7 Mich. 12) 489 
 Emerson v. European, &c. R. R. Co. {67 
 
 Me. 387) 447 
 Emerson, Heirs of v. Hall, (13 Pet. 409) 
 
 446 
 Emery v. Cochran, (82 111. 65) 640 
 Emery v. Lawrence, (8 Cush. 151) 445 
 Emery v. Mohler, (69 111. 221) 233 
 Emigrant Co. ■». County of Wright, (7 
 
 Otto, 339) 265 
 Emison v. Risque, (9 Bush, 24) 473 
 Emmert v. Hays, (89 111. 11) 407 
 Emmet v. Dewhurst, (3 Macn. & G. 587> 
 
 236 
 Emmons v. Cairns, (2 Sandf. Ch.369) 415 
 Emmons v. Moore, (85 111. 304) 252 
 Emmons v. Murray, (16 N. H. 385) 118 
 Emuss V. Smith, (2 De G. & Sm. 722) 201 
 Enders v. Enders, (2 Barb. 362) 425 , 
 
 Enders v. Tasco, (11 S. W. Rep. 818) 331 
 Enders v. Williams, (1 Mete, Ky., 346) 
 
 296 
 England v. Layers, (L. R. 3 Eq. 63) 161 
 England v. Prince George's Parish, 
 Vestry of, (53 Md. 466) 425 
 
TABLE OF CASES CITED. 
 
 715 
 
 REF^ERENCES ARE TO PAGES. 
 
 England D. Reynolds, (38 Ala. 370) 343 
 Englesfield v. Londonderry, (L. R. 4 Ch. 
 
 D. 693-703)323 
 English V. English, (3 Green. Ch. 504) 172 
 English V. Lane, (1 Port. 328) 488 
 English B. Russell, (1 Hempst. 35) 471 
 English V. Smook, (34 Ind. 115) 606 
 English V. Waples, (13 Iowa, 57) 106, 110 
 Engs V. Peckham, (11 R. I. 210) 559 
 Eno V. Calder, (14 Rich. Eq. 154) 420 
 Enos V. Southerland, (11 Mich. 538) 507 
 Entreken v. Howard, (16 Kans. 551) 640 
 Epley V. Witherow, (7 Watts, 163) 91, 93, 
 
 94, 107, 109, 111, 113 
 Epping V. Aiken, (71 Ga. 682) 625 
 Erb V. Cole, (31 Ark. 554) 290 
 Erickson v. Rafferty, (79 111. 209) 94, 111 
 Erickson v. Willard, (1 N. H. 317) 331 
 Erie Canal Co. v. Lowie, (5 Clark, Pa., 
 
 464) 566 
 Erie R. R. v. Vanderbilt, (5 Hun, 123) 
 
 270 
 Errington ». Aynesly, (2 Bro. Ch. 341) 43 
 Erskiue v. Decker, (39 Me. 467) 65 
 Erwin v. Davenport, (9 Heisk. 44) 675 
 Erwin v. Hamner, (27 Ala. 296) 231 
 Erwin v. Henry, (5 Mo. 469) 419 
 Erwin v. Parham, (13 How. 197) 272 
 Escher v. Simmons, (54 Iowa, 269) 473 
 Eskridge v. McChire, (2 Terg. 84) 473 
 Espey V. Lake, (10 Hare, 260) 282 
 Espin V. Pemberton, (4 Drew. 333; 3 De 
 
 G. & J. 547) 91, 97, 98, 99, 133 
 Essex Bk. v. Bk. of Montreal, (7 Biss. 
 
 193) 458 
 Estevez v. Purdy, (66 N. Y. 446) 263 
 Estill V. McClintie, {11 W. Va. 399) 368 
 Etheridge v. Vernoy, (74 N. C. 800) 454 
 European Bk., In re, (L. R. 5 Ch. 358) 130, 
 
 134 
 Evangelical Ass'n App. (35 Pa. St. 316) 
 
 349 
 Evans' Appeal, (81 Pa. St. 278; 63 Pa. St. 
 
 183) 209 
 Evans' Appeal, (81 Pa. St. 378) 285 
 Evans v. Bremridge, (8 De G. M. & G. 
 
 100) 569 
 Evans v. Chew, (71 Pa. St. 47) 363 
 Evans v. Evans, (2 Coldw. 143) 419 
 Evans v. Forstall, (58 Miss. 30) 141 
 Evans v. Goodlet, (1 Blackf. 246) 473 
 Evans v. Inglehart, (6 Gill & J. 171) 368 
 Evans v. Kimball, (1 Allen, 240) 149 
 Evans v. King, (3 Jones' Eq. 347) 334 
 Evans v. Knorr, (4 Rawle, 66) 395 
 Evans 1). Llewellyn, (3 Bro. Ch. 150) 1 
 
 Cox, 333 
 
 Evans v. Merriken, (8 Gill & J. 39) 531 
 Evans v. McGlason, (18 Iowa, 150) 139 
 Evans v. Miller, (58 Miss. 130) 140 
 Evans v. Robertson, (54 Miss. 683) 418 
 Evans v. Scott, (89 Pa. St. 136) 297 
 Evans v. Webb, (1 Yeates, 424) 170 
 Evansville v. Pflsterer, (34 Ind. 36) 145 
 Evants v. Strode, (11 Ohio, 480) 219, 223 
 Eveleth v. Little, (16 Me. 374) 33, 54, 216 
 Everett v. Stone, (3 Story, 346) 69, 129 
 Everhart v. Searle, (71 Pa. St. 256) 383 
 Everitt v. Everitt, (29 N. Y. 39) 340 
 Everson v. Booth, (19 Johns. 486) 501 
 Everts v. Agnes, (4 Wis. 343) 71 
 Evertson v. Booth, (19 Johns. 486) 32, 
 
 529 
 Evroy v. Nicholas, (2 Eq. Cas. Abr. 488) 
 
 26 
 Ewellc. Greenwood, (26 Iowa, 377)559 
 Ewing V. Gordon, (49 N. H. 444) 50 
 Ewlng V. Moses, (50 Ga. 264) 419 
 Ewing V. St. Louis, (5 Wall. 413) 606 
 Ewing II. Smith, (3 Desau. 417) 398 
 Ewins V. Gordon, (49 N. H. 444) 583 
 Exchange Bank v. Russell, (50 Mo. 531) 
 
 229 
 Exeter v. Ociorme, (1 N. H. 232) 382 
 Eylar v. Eylar, (60 Tex. 315) 119 
 Eyre v. Bnrmester, (10 H. L. Cas. 90) 284 
 Eyre v. Potter, (15 How. 42) 272 
 Eyrick ?;.Hetrick, (13 Pa. St. 488) 360 
 Eystra o. Capelle, (61 Mo. 578) 405 
 Ezelle V. Parker, (41 Miss. 520, 526, 527) 
 
 17,640 
 
 F. 
 
 Faddis v. Woollomes, (10 Kans. 56) 407 
 Fagg's Case, (2 Vern. 701) 78 
 Fahiei). Lindsay, (8 Or. 474) 665 
 Fair v. Stevenot, (29 Cal. 486) 109, 117, 121 
 Fairbanks v. Lamson, (99 Mass. 533) 345 
 Fairchild v. Hunt, (1 McCarter, 367) 343 
 Fairer v. Park, (L. R. 3 Ch. D. 309) 194 
 Fairfield v. Fairfield, (15 Gray, 596) 420 
 Fairfield Bridge Co. v. Nye, (50 Me. 372) 
 
 294 
 Fallass v. Pierce, (30- Wis. 443) 77, 105 
 Fallon ». R. R. Co. (1 Dillon, 121) 579 
 Fallowes v. Taylor, (7 T. R. 475) 437 
 Fall Ri V. Nat. Bk. v. BuflSngton, (97 Mass. 
 
 498) 243 
 Falls V. Conway Ins. Co. (7 Allen, 49) 376 
 Fanning v. Dunham, (5 Johns. Ch. 123) 
 
 28, 31, 269, 569 
 Fant V. Miller, (17 Gratt. 187) 654 
 Farebroiher v. Gibson, (1 De G. & J. 602) 
 
 258, 359 
 
716 
 
 TABLE OF OASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 I'arenholt v. Perry, (29 Tex. 316) 2^9 
 Fargo V. Arthur, (43 How. Pr. 193) 659 
 Faribault v. Sater, (13 Minn. 223) 250 
 Faris v. Ware, (60 Me. 483) 263 
 Farley v. Blood, (SON. H. 354) 657 
 Farley v. Bryant, (33 Me. 474) 219, 226, 
 
 334 
 Farly v. Vaughn, (11 Cal. 227) 54 
 Farmer v. Farmer, (1 H. L. Cas. 724) 276 
 Farmer v. Grose, (42 Cal. 169) 489 
 Farmer v. Kussell, (1 B. & P. 396) 37, 368 
 Farmers' Bank v. Groves, (13 How. 51) 
 
 262 
 Farmers' Bank v. Payne, (25 Conn. 444) 
 
 131 
 Farmers' Loan & Trust Co. v. Commer- 
 cial Bk. (11 Wis. 207) 536 
 Farmers' Loan, &c. Co. v. Hendrlckson, 
 
 (25 Barb. 484) 449 
 Farmers' Loan, &c. Co. v. Hughes, (18 
 
 N. Y. S. C. 130) 362 
 Farmers' Loan, &c. Co. v. Maltby, (8 
 
 Paige, 361) 71, 103, 105 
 Farmers' Loan & Trust Co. v. Long 
 
 Beach Imp. Co. (37 Hun, 89) 534 
 Farmers' Nat. Bk. u Sperling, (113 III. 
 
 373) 117 
 Farmers' &c. Bank«. Fletcher, (44 Iowa, 
 
 352) 65, 82, 125, 127, 128 
 Farmers' & M.'s Bank v. Butchers' & 
 
 D.'s Bank, (16 N. Y. 135) 261 
 Farnam v. Brooks, (9 Pick. 212) 283 
 Farnam v. Coe, (1 Caines, 96) 365 
 Farnell v. Lloyd, (69 Pa. St. 239) 355 
 Farnham v. Campbell, (34 N. Y. 480) 637 
 Farnham v. Campbell, (10 Paige, 598) 136 
 Farnham v. Clements, (51 Me. 426) 358 
 Farnsworth v. Dinsmore, (3 Swan. 38, 43) 
 
 333 
 Farnsworth v. Jackson, (32 Me. 419) 445 
 Farnum v. Bascom, (133 Mass. 283) 433 
 Farr v. Sherman, (11 Mich. 33) 407 
 Farraro). Fessenden, (39 N. H. 268) 102 
 Farrar v. Payne, (73 111. 82) 17 
 Farrar v. St. Catherine's Coll. (L. R. 16 
 
 Eq. 19) 231 
 Farrar v. Smith, (64 Me. 74) 394 
 Fairar v. Winterton, Earl of, (5 Beav. 
 
 1)202 
 Farrell v. Corbett, (4 Hun, 138) 363 
 Farrington v. Barr, (36 N. H. 86) 308 
 Farrington v. Duval, (10 S. C. 944) 353 
 Farrington v. Woodward, (83 Pa. St. 359) 
 
 130 
 Farve's Heirs v. Graves, (4 Sm. & Mar. 
 
 707) 417 
 Farwell v. Jones, (63 Iowa, 316) 293 
 
 Fash V. Ravesies, (33 Ala. 451) 58, 71, 73, 
 
 75 
 Fassetti). Smith, (33 N. T. 252) 65, 111, 
 
 120 
 Fassett v. Traber, (30 Ohio, 540) 292 
 Fast V. McPherson, (98 111. 496) 369 
 Faucett v. Currier, (115 Mass. 20; 109 
 
 Mass. 79) 244, 406 
 Faulds V. Yates, (57 111. 416) 555 
 Faulkner v. Campbell, (Morr., Iowa, 148) 
 
 573 
 Faulks V. Dimock, (27 N. J. Eq. 65) 149 
 Faunce v. Burk, (4 Harr. 469) 48 
 Favill V. Roberts, (3 Lans. 14) 136 
 Faxon v. Folvey, (110 Mass. 392) 335 
 Fay V. Cheney, (14 Pick. 399) 486, 530 
 Fay V. Fay, (1 Cush. 93) 382 
 Fay V. Taft, (13 Cush. 448) 317 
 Fay V. Tower, (58 Wis. 386) 140 
 Fears v. Brooks, (13 Ga. 195) 393 
 Febeigeri;. Craighead, (4Drall. 151) 491 
 Feineman v. Sachs, (33 Kans. 361) 270, 
 
 271 
 Felch V. Hooper, (119 Mass. 52) 350 
 Felch V. Taylor, (13 Pick. 133) 491 
 Fejervary v. Broesch, (52 Iowa, 88) 536 
 Fejervary v. Langer, (9 Iowa, 159) 640 
 Felding v. Du Bose, (63 Tex. 631) 138 
 Fell V. Young, (63 111. 106) 102 
 Fellows V. Heermans, (4 Lans. 230) 219 
 Fellows V. Miner, (119 Mass. 541) 345 
 Pel ton V. Pitman, (14 6a. 530) 103, 107 
 Fenne v. Sayre, (3 Ala. 478) 103 
 Fenno v. Sayre, (3 Ala. 458) 465 
 Fenwick v. East London Ry. (L. R. 30 
 
 Eq. 544) 563 
 Ferguson v. Carrlngton, (9 B. & C. 59) 
 
 248 
 Ferguson v. Fisk, (38 Conn. 501) 551 
 Ferguson v. Lowery, (54 Ala. 510) 370 
 Ferguson v. Reed, (45 Tex. 574) 407 
 Ferguson v. Spear, (65 Me. 277) 293 
 Ferguson v. Stuarts' Ex'rs, (14 Ohio, 140) 
 
 203 
 Ferguson v. Waters, (3 Bibb, 303) 17 
 Fernbacher v. Fernbacher, (4 Dem. 237) 
 
 383 
 Ferrand v. Howard, (3 Ired. Eq. 381) 415. 
 
 419, 643 
 Ferris v. Ferris, (38 Barb. 39) 45 
 Ferris v. Irving, (38 Cal. 645) 640 
 Ferris v. Van Vechten, (9 Hun, 13; 73 
 
 N.Y. 113)38, 34,480 
 Ferris v. Van Vechten, (73 N. Y. 113) 
 
 359 
 Ferry v. Lalble, (27 N. J. Eq. 146) 373 
 Ferry v. Liable, (31 N. J. Eq. 566) 333 
 
TABLE OF CASES CITED. 
 
 7ir 
 
 REFERENCES ARE TO PAGES. 
 
 Ferson v. Sanger, (1 Wood & M. 138) 226, 
 
 233 
 Ferson v. Sanger, (Davies, S53) 365 
 Fery ». PfelfEer, (13 Wis. 510) 109, 118, 120 
 Fessenden v. Ockington, (74 Me. 123) 334 
 Fessler's Appeal, (75 Pa. St. 483) 465 
 Fetrill v. Fetrill, (5 Jones' Eq. 61) 275 
 Field V. Herriek, (5 111. App. 54) 265 
 Field V. Maghee, (5 Paige, 539) 444 
 Field V. Mayor, (6 N. Y. 179) 88, 445 
 Field V. Mayor of N. Y. (3 Seld. 179) 456 
 Field V. Simco, (2 Eng. 369) 294 
 Field V. Stearns, (42 Vt. 106) 65 
 Field V. Wilson, (6 B. Mon. 479) 263 
 Fielder v. Darien, (50 N. Y. 437) 489 
 Fiero v. Fiero, (5 Thomp. & C. 151) 431 
 Filly V. Miller, (1 Casey, 264) 77 
 Filley v. Duncan, (1 Neb. 134) 66 
 FlUman v. Divers, (31 Pa. St. 42) 357 
 Fllmore^. Reithman, (6 Colo. 120) 112 
 Finch V. Finch, (10 Ohio St. 501) 29 
 Finch V. Finch, (15 Ves. 43; 1 Ves. 534) 
 
 189 
 Pinch V. Hull, (24 Hun, 226) 480, 482 
 Finch V. Shaw, (19 Beav. 500) 63, 131 
 Findley v. Cooper, (1 Blackf. 262) 288 
 Finger v. Finger, (64 N. C. 183) 419 
 Fink V. Cox, (18 Johns. 145) 434 
 Fink V. Fink's Ex'r, (13 La. Ann. 301) 
 
 347 
 Finnegan v. Carraher, (47 N. Y. 493) 136 
 Finnegan v. Fernandina, (15 Fla. 379) 
 
 23 
 Firebangh v. Ward, (51 Tex. 409) 70 
 Firemen's Ins. Co. v. Bay, (4 Barb. 407) 
 
 392 
 Firmstone v. De Camp, (17 N. J. Eq. 
 
 317) 233, 234 
 First Bank v. Bissell, (2 McCrary, U. S., 
 
 73) 283 
 First Bap. Ch. v. Robberson, (71 Mo. 336) 
 
 643 
 First Cong. Soc. v. Atwater, (23 Conn. 
 
 34) 313 
 First Nat. Bk. v. Balcom, (35 Conn. 351) 
 
 432 
 First Niit. Bk. v. Bininger, (26 N. J. Eq. 
 
 345) 663 
 First Nat. Bk. v. Caldwell, (4 Dillon, 314) 
 
 467 
 First Nat. Bk. v. Damm, (63 Wis. 349) 
 
 118 
 First Nat. Bk. v. Dubuque, &c. Ry. (53 
 
 Iowa, 378) 457 
 First Nat. Bk. v. Glsh, (73 Pa. St. 13) 459 
 First Nat. Bk. v. Hayzlett, (40 Iowa, 
 
 659) 129 
 
 First Nat. Bk. v. Haire, (36 Iowa, 443) 
 
 404 
 First Nat. Bk. ■». Yocum, (11 Neb. 338) 
 
 342, 259, 260, 261, 363 
 First Nat. Bk. of Milford v. Town of 
 
 Milford, (36 Conn. 93) 130, 134 
 First Orthodox Ch. v. Wolrath, (37 Mich. 
 
 232) 49 
 First Presbyterian Ch. of Logan v. 
 
 Logan, (77 Iowa, 326) 234 
 Fischli V. Fischli, (1 Blackf. 360) 413 
 Fish V. Cleland, (33 III. 238) 242, 358, 259 
 Fish V. Leser, (69 111. 394) 26 
 Pish V. Miller, (1 Hoff. Ch. 267) 383 
 Fish V. Howland, (1 Paige, 20) 473 
 Pish V. Payne, (7 Hun, 586) 353 
 Fisher v. Banta, (66 N. Y. 468) 199, 300, 
 
 201, 302 
 Fisher v. Boody, (1 Curtis C. C. 206) 261 
 Fisher i;. Budlong, (10 R. I. 525) 252, 253 
 Fisher v. Essex Bk. (5 Gray, 373) 86 
 Fisher v. Fisher, (41 N. J. Eq. 16) 309 
 Fisher v. Hepburn, (48 N. Y. 41) 640 
 Fisher v. Hersey, (78 N. Y. 387) 265 
 Fisher v. Johnson, (5 Tnd. 492) 477 
 Fisher v. Knox, (1 Har. 662) 60, 86 
 Fisher V. Krutz, (9 Kans. 501) 283 
 Fisher v. Lord, (63 N. H. 514) 270 
 Fishery. Mellen, (103 Mass. 503) 255, 356, 
 
 360 
 Fisher v. Mossman, (11 Ohio St. 42) 141 
 Fisher v. Otis, (3 Chand. 83) 79 
 Fisher v. Shaw, (42 Me. 32) 50 
 Fisher v. Tunard, (25 La. An. 179) 106 
 Fisher's Appeal, (34 Pa. St. 29) 282 
 Fisher's Appeal, (133 Pa. St. 488) 490 
 Pishkill Sav'g Inst. v. Nat. Bk. of Fish- 
 kill, (80 N. Y. 163) 363 
 Fishmonger's Co. v. East India Co. (1 
 
 Dick. 163) 559 
 Fisk V. Sarber, (6 Watts & S. 18) 378 
 Pisk V. Wilber, (7 Barb. 395) 547 
 Fiske V. McGregory, (34 N. H. 414) 150 
 Fitch V. Cotheal, (2 Sandf. Ch. 29) 152 
 Fitch V. Fitch, (8 Pick. 480) 276 
 Pitch V. Weber, (6 Hare, 145) 310 
 Flthini). Corwin, (17 OhioSt. 118) 151 
 Pitts XI. Davis, (43 111. 391) 59 
 Pitts V. Hall, (9 N. H. 441) 246 
 FitzD. Bynum, (55 Cal. 459) 263 
 Fitzgerald, In re, (2 Sch. & Lef. 432) 303 
 Fitzgerald v. Peck, (4 Littell, Ky., 127) 
 
 321 
 Fitzgerald v. Vestal, (4 Sneed, 358) 447 
 Fitzh,ugh v. Barnard, (13 Mich. 105) 101, 
 
 114 
 Pitzhugh V. Maxwell, (34 Mich. 138) 33, 54 
 
718 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Fitzhugh V. Smith, (68 111. 486) 465 
 Fitzpatrick v. Borland, (37 Hun, 291) 
 
 583 
 Fitzpatrick v. Fitzgerald, (13 Gray, 400) 
 
 363 
 Fitzsimmons v. Joslin, (21 Vt. 129) 246, 
 
 251, 253, 261, 262 
 Fitzsimmons v. Ogden, (7 Cranch, 2) 40, 
 
 41, 55, 57, 58 
 Fitzsimmons v. Southern Ex. Co. (40 Ga. 
 
 330) 284 
 Flasg V. Mann, (2 Sumn. 486) 53, 63, 71, 
 
 76, 77, 95, 97, 99, 121, 123, 130, 335 
 riagler v. Pleiss (3 Eawie, 345) 238 
 Flanders v. Barstow, (18 Me. 357) 539 
 Flanders v. Chamberlain, (24 Mich. 305) 
 
 531 
 Flanders v. Lamphear, (9 N. H. 201) 445 
 Flanders v. Thomas, (12 Wis. 410) 539 
 Flanders v. Thompson, (3 Woods C. C. 
 
 9)358 
 Flash V. Gresham, (36 Ark. 529) 419 
 Fleischeru. Dignon, (53 Iowa, 288) 293 
 Fleming v. Burgin, (3 Ired. Eq. 584) 106, 
 
 108 
 Fleming v. Grafton, (54 Miss. 79) 618 
 Fleming v. Hutchinson, (6 Ind. 448) 247 
 Fleschner v. Sumpter, (18 Oreg. 161) 107 
 Fletcher v. Ashburner, (1 Bro. Ch. 497) 
 
 35, 36, 202, 208 
 Fletcher v. Ashley, (6 Gratt. 338) 408 
 Fletcher i;. Chase, (16 N. H. 38) 153 
 Fletcher v. Holmes, (40 Me. 364) 420 
 Fletcher v. Peck, (6 Cranch, 87 ) 65, 77 
 Flights. Bolland, (4Euss. 298) 583 
 Flinn v. Barber, (61 Ala. 530) 476 
 Flint V. Clinton Co. (12 N. H. 430) 360 
 Flint V. Pattee, (33 N. H. 520) 434 
 Flint V. Woodin, (9 Hare, 618) 244 
 Fluke V. Fluke, (1 Greenl. 478) 382 
 Fly V. Brooks, (64 Ind. 50) 223 
 Flynt V. Arnold, (^ Mete. 619) 102, 104, 
 
 105, 110 
 Flynt V. Hubbard, (57 Miss. 471) 355 
 Foard v. McComb, (18 Bush, 723) 856 
 Fogarties v. State Bk. (12 Rich. 518) 461 
 Pogarty v. Sawyer, (17 Cal. 589; 23 Cal. 
 
 570) 106, 109 
 Fogarty v. Stack, (Tenn., 8 S. W. Rep. 
 
 846) 322 
 Fogg V. Griffin, (2 Allen, 1) 261 
 Fogg V. Rogers, (2 Coldw. 290) 479 
 Foley V. Crow, (37 Md. 51) 29 
 Foil's Appeal, (91 Pa. St. 434) 583 
 Folk V. Beidelman, (6 Watts, 339) 60 
 Fonda?). .Tnnns. (42 'Miss. 798) 476 
 Fonde v. Cross, (15 Wend. 628) 296 
 
 Fonville v. Casey, (1 Murphy, N. C, 389) 
 
 448 
 Foose V. Whitmore, (83 N. Y. 405) 331 
 Foote V. Beecher, (78 N. Y. 155) 596 
 Foote V. Colvin, (3 Johns. 216) 357 
 Forbes v. Adams, (9 Sim. 462) 207 
 Forbes v. Lawrence, (1 Coll. 495) 190 
 Forbes v. McDonald, (54 Cal. 98) 376 
 Forbes v. Memphis, &c. E. E. (2 Woods, 
 
 323) 376 
 Forbes v. Moffatt, (18 Ves. 384) 148, 149 
 Forbes v. Smith, (5 Ired. Eq. 369) 411 
 Forbes v. Steven, (L. E. 10 Eq. 178) 204 
 Force v. City of Elizabeth, (27 N. J. Eq. 
 
 408) 214 
 Ford, In re, (32 Beav. 621) 30 
 Ford V. Belmont, (69 N. Y. 567) 640 
 Ford V. Ford, (23 N. H. 212) 422 
 Ford V. Jermon, (6 Phila. 6) 591 
 Ford V. Johnston, (7 Hun, 563) 389 
 Ford V. Joyce, (78 N. Y. 618) 338 
 Ford V. Loomis, (33 Mich. 121) 145 
 Ford V. Marcall, (107 111. 136) 119 
 Ford V. Eussell, (1 Freem., Miss., Ch. 42) 
 
 230 
 Ford V. Smith, (1 MacArthur, 592) 473 
 Forelander v. Hinks, (6 Ind. 448) 347 
 Forepaugh v. Appold, (17 B. Mon. 631) 106, 
 
 110 
 Forkner v. Stewart, (6 Gratt. 197) 295 
 Forman v. Proctor, (9 B. Mon. 134) 464 
 Forrester v. Catton, (Ambl. 388) 160 
 Forrester v. Parker, (14 Daly, 808) 108 
 Forster v. Civill, (20 Hun, 283) 488 
 Forsyth v. Day, (46 Me. 176) 143 
 Forsythe v. Porsythe, (108 Pa. St. 139) 
 
 383 
 Fort V. Burch, (5 Denio, 187) 106, 109 
 Forth V. Norfolk, Duke of, (4 Madd. 503) 
 
 491 
 Foscue V. Lyon, (55 Ala. 440) 365, 367 
 Foster v. City of Buffalo, (64 How. Pr., 
 
 N. Y., 137) 438 
 Foster 'U. Harll, (12 Pick. 89) 389 
 Fosters. McGregor, (11 Vt. 595) 396 
 Foster v. Mix, (30 Conn. 394) 84 
 Foster v. Schneer, (15 Or. 653) 218 
 Foster's Appeal, (74 Pa. St. 391; 3 Md. 
 
 79; 3 Pa. St. 79) 59, 107, 109, 803, 804 
 Foster's Will, Inre, (15 Hun, 387) 383 
 Fouch V. Wilson, (60 Ind. 64) 473 
 Foulch V. Eckert, (61 111. 448) 262 
 Foundry v. Eyall, (62 Cal. 416) 17 
 Fountain Coal Co.?;. Phelps, (95 Ind. 271) 
 
 283 
 Fonst V. Moorman, (2 Ind. 17) 113 
 Fowle V. Leavitt, (33 N. H. 360) 844 
 
TABLE OF CASES CITED. 
 
 719 
 
 REFERENOES ARE TO PAGES. 
 
 Powler, In re, (27 Beav. 362) 161, 162 
 Fowler V. Batt, (6 Mass. 63) 213 
 Fowler v. Fay, (62 III. 375) 147 
 Fowler v. Fowler, (3 P. Wms. 353) 182, 
 
 192 
 Fowler v. Fowler, (33 Beav. 616) 
 Fowler v. Houston, (1 Nev. 469) 38, 441 
 Fowler v. Menill, (11 How. 375) 536 
 Fowler v. Eichardson, (3 Sneed, 508) 221 
 Fowler v. Rust, Heirs of, (2 A. K. 
 
 Marsh. 294) 473 
 Fowler v. Vreeland, (44 N. J. Eq. 268) 
 
 229 
 Fox V. Harding, (21 Me. 104) 491 
 Fox V. Maekreth, (2 Bro. Ch. 400) 255 
 Fox V. Maekreth, (2 Cox, 323) 264 
 Fox V. Palmer, (25 N. J. Eq. 416) 57 
 Fox V. Scard, (33 Beav. 327) 50 
 Fox V. Webster, (46 Mo. 181) 248 
 Foxworth V. Bullock, (44 Miss. 457) 250 
 Frair«. Ellis, (16 Beav. 350) 475 
 Fraim v. Frederick, (32 Tex. 294) 71 
 Framlingham v. Brand, (3 Atk. 193) 332 
 Frampton». Blume, (129 Mass. 152) 481 
 Francestown v. Deering, (41 N. H. 443) 
 
 354 
 Francis v. Rankin, (84 111. 169) 289 
 Francis v. Wells, (2 Col. 660) 473 
 Francis v. Wigzell, (1 Madd. 258) 
 Franco v. Bolton, (3 Ves. 368) 27 
 Frank v. Frank, (3 My. & Cr. 171) 307, 227 
 Frank v. Lilienfeld, (33 Gratt. 337) 405 
 Frank v. Miner, (50 111. 455) 397 
 Franklin v. Armfield, (2 Sneed, 305) 348 
 Franklin v. Ayers, (22 Fla. 654) 490 
 Franklin v. Cannon, (1 Root, 500) 108 
 Franklin v. Claflin (49 Md. 24) 289, 
 Franklin v. Gummersell, (11 Mo. App. 
 
 306, 311) 296 
 Franklin v. Jones, (32 Fla. 526) 234 
 Franklin v. McEntire, 133 111. 91) 354 
 Franks v. Bollans, (L. K. 3 Ch. 717) 207 
 Franks v. Morris, (9 W. Va. 664) 283 
 Frants v. Brown, (17 S. & R. 287) 79 
 Franz v. Orton, (75 111. 100) 120 
 Frary c. Booth, (37 Vt. 78) 397 
 Eraser v. Byng, (1 Buss. & My. 90) 191 
 Eraser v. Charleston, (11 S. C. 486) 82 
 Eraser v. Child, (4 E. D. Smith, 153) 358 
 Eraser v. Thatcher, (49 Tex. 26) 393 
 Frayne v. Taylor, (10 Jur., n. s., 119) 301 
 Erazer v. Western, (1 Barb. Ch. 230) 65 
 Erazier v. Barnum, (4 C. E. Green, 316) 
 
 341 
 Frazier v. Brownlow, (3 Ired. Eq. 237) 
 
 407 
 Erazier v. Fredericks, (24 N. J. L. 162) 293 
 
 Erazier v. Hilliard, (3 Strobh. 309) 448 
 Erecking v. Rolland, (53 N. T. 422) 404 
 Frederick D.Aynscombe, (1 Atk. 392) 203 
 Frederick v. Frederick, (1 P. Wms. 710) 
 
 35. 
 Frederick v. Missouri River Road, (82 
 
 Mo. 403) 140 
 Free v. Buckingham, (57 N. H. 95) 365 
 Ereeland v. Dazey, (25 111. 294) 418 
 Freeman v. Baker, (1 Ad. & E. 508) 353, 
 
 260 
 Freeman v. Burnham, (36 Conn. 469) 359 
 Freeman v. Cooke, (2 Exch. 654) 137 
 Freeman v. Curtis, (51 Me. 140) 220, 223 
 Freeman v. Deming, (3 Sandf. Ch. 327) 73 
 Freeman v. Dwiggins, (3 Jones' Eq. 163) 
 
 375 
 Freeman v. Freeman, (17 N. Y. Eq. 44) 
 
 543 
 Freeman v. Freeman, (3 C. E. Green, 44) 
 Freeman v. Freeman, (9 Mo. 772) 392 
 Froeman v. Hartman, (45 III. 57) 408 
 Freeman v. Harwood, (44 Me. 195) 279 
 Freeman v. Parsley, (3 Ves. 421) 30 
 Freeman v. Paul, (3 Me. 360) 151 
 Freeman v. Reagan, (26 Aik. 373) 419, 596 
 Freeman v. Sedwick, (6 Gill, 28) 26 
 Freeman v. Smith, (60 How. Pr. 311) 202 
 Freeman v. Stewart, (41 Miss 138) 38, 440 
 Freeman v. Wilson, (51 Miss. 329) 489 
 Ereemantle v. Banks, (5 Ves. 79) 182 
 Freiknicht v. Meyer, (8 N. J. L. J. 167) 
 
 331 
 French v. Burns, (35 Conn. 359) 490 
 French v. Dickey, (3 Tenn. Ch. 303) 478 
 French v. First Nat. Bk. (7 Ben. 488) 646 
 French v. Gifford, (30 Iowa, 148) 668 
 French v. Hall, (9 N. H. 145) 395 
 French v. Loyal Co. (5 Leigh, 637) 116, 
 
 126 
 Freeh v. Macale, (2 Dr. & War. 274) 47 
 French ». Rainey, (2 Tenn. Ch. 640) 651 
 French v. Reynolds, (39 Vt. 623) 433 
 French v. Shoemaker, (37 Ind. 1) 376 
 French v. Skead, (34 Grant's Ch., Ont., 
 
 179) 355 
 French v. Snell, (39 N. J. Eq. 95) 551 
 French v. Vining, (102 Mass. 135) 252, 255 
 Erenzell v. Miller, (37 Ind. 1) 242, 252, 255, 
 
 256 
 Ereshfield's Trusts, In re, (L. E. 11 Ch. 
 
 D. 198) 84 
 Erey v. Clifford, (44 Cal, 335)68, 109 
 Erey v. Demarest, (16 N. J. Eq. 236) 418 
 Erey, Estate of, (52 Cal. 658) 174 
 Erey v. Vanderhoof, (15 Wis. 397) 150,153 
 Freyvogle v. Hughes, (56 Pa. St. 828) 401 
 
Y20 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Frick V. White, (57 N. Y. 103) 87 
 Friedburg v. Parker, (50 Cal. 121) 407 
 Frledlander v. Johnson, (2 Woods C. C. 
 
 675)357 
 Friedley v. Hamilton, (17 Serg. & E. 70) 
 
 105 
 Frink v. Buss, (45 N. H. 325) 343 
 Frink v. Lawrence, (20 Conn. 117) 559 
 Frisbie v. Fitzsimmons, (3 Hun, 674) 255 
 Frith V. Roe, (23 Ga. 139) 569 
 Fritsch v. Klansing, ( Ky. '90, 13 S. W. 
 
 341) 381 
 Frltzler v. Robinson, (70 Iowa, 500) 234 
 Frost V. Beekman, (1 Johns. Ch. 288) 71, 
 ' 72, 73, 74, 105, 114 
 Frost v. Saratoga Ins. Co. (5 Denio, 154) 
 
 137 
 Frost V. Willard, (9 Barb. 440) 536 
 Frostburg Bldg. Ass'n v. Stark, (47 Md. 
 
 338) 555 
 Frothingham v. Stacker, (11 Mo. 77) 117 
 Frue V. Loring, (120 Mass. 507) 265 
 Fry V. Hammer, (50 Ala. 52) 405 
 Fry V. Porter, (1 Mod. 300) 131 
 Fry V. Prewett,(56 Miss. 783) 471 
 Fry V. Sheehee, (55 Ga. 208) 131, 133, 653 
 Fry V. Spec. Perf . (40 Minn. 528) 235 
 Frye v. Partridge, (82 111. 267) 114 
 Fryer v. Rishell, (84 Pa. St. 521) 144 
 Fudge V. Dam, (51 Mo. 264) 365 
 Fullage V. Reville, (3 Hun, 600) 262 
 Fullenwider v. Watson, (113 Ind. 18) 331 
 Fuller ». Abrahams, (3 Brod. & B. 116) 
 
 346 
 Fuller V. Acker, (1 Hill, 473) 539 
 Fuller V. Benett, (2 Hare, 394) 96 
 Fuller V. Fuller, (23 Fla. 236) 227 
 Fuller V. Melrose, (1 Allen, 166) 25, 145 
 Fuller V. Percival, (126 Mass. 381) 265 
 Fuller V. Scribner, (76 N. Y. 190) 127, 128 
 Fuller V. Yates, (8 Paige, 325) 160, 168, 170 
 Fulmore v. Burrows, (2 Rich. Eq. 96) 295 
 Fulton V. Moore, (25 Pa. St. 468) 155, 170 
 Fulton V. Whitney, (66 N. Y. 548) 279 
 Fulton V. Whitney, (5 Hun, 16) 357 
 Fulton V. Woodman, (54 Miss. 158) 65 
 Fulton's Estate, In re, (51 Pa. St. 204) 68 
 Fulton Bk. V. Canal Co. (4 Paige, 127) 130 
 Fulton Bk. V. N. Y. & Sharon C. Co. (4 
 
 Paige, 127) 131, 133 
 Funk ■«. Eggleston, (93 111. 515) 387 
 Funk^.McReynold's Admr's, (33111. 481) 
 
 152 
 Furham v. Brooks, (9 Pick., Mass., 213) 
 
 628 
 Fnrman v. Fisher, (4 Coldw. 626) 343, 
 
 360 
 
 G. 
 
 Gabie v. Daub, (1 Wright, 317) 160 
 Gadsden v. Whaley, (14 S. C. 210) 328 
 Gaerrers v. Bailleno, (48 Cal. 118) 356 
 Gafford v. Stearns, (51 Ala. 434) 68 
 Gage v. Abbott, (99 111. 366) 640 
 Gage V. Billings, (56 111. 268) 638 
 Gage V. Cheesebro, (49 Wis. 494) 293 
 Gage V. Gates, (62 Mo. 412) 405 
 Gage V. Smith, (79 111. 319) 671 
 Gaines v. Allen, (58 Mo. 537) 383 
 Gaines v. New Orleans, (6 Wall. 643) 56 
 Gaines v. Smiley, (7 Sm. & Mar. 53) 418 
 Galatian v. Erwin, (Hopk. Ch. 48) 77 
 Gale?). Lindo, (1 Vern.475) 343 
 Gale V. Morris, (39 N. J. Eq. 323) 229 
 Galec. Wells, (13 Barb. 84) 383 
 Galkill V. Sine, (13 N. J. Eq. 400) 536 
 Gallagher v. Fayette Co. E. R. (38 Pa. 
 
 St. 102) 555 
 Gallagher v. Gallagher, (6 Watts, 473) 
 
 426 
 Gallagher v. Mars, (50 Cal. 23) 473 
 Gallagher's Appeal, (48 Pa. St. 121) 482 
 Gallagher's Appeal, (7 Atl. Rep. 237) 293 
 Galland v. Galland, (38 Cal. 265) 413 
 Gallandc. Jackman, (26 Cal. 79) 107' 
 Gallatin i). Cumberland, (8 Cow. 361) 379 
 Gallego's Ex'rs v. Atty.-Gen. (3 Leigh, 
 
 450) 346 
 Galligan v. Faunan, (7 Allen, 255) 271 
 Galloway v. Finley, (13 Pet. 264) 474 
 Gait V. Dibrell, (10 Yerg. 146) 295 
 Gait V. Jackson, (9Ga. 151) 268 
 Galveston, <fcc. R. Co. v. Hume, (59 Tex. 
 
 47)16 
 Galway «. Malchow, (7 Neb. 289) 69, 106, 
 
 110 
 Gamble v. Linder, (76 111, 137) 47 
 Gamble v. Loop, (14 Wis. 485) 640 
 Gamble, Succession of, (23 La. Ann. 9) 
 
 198 
 Gammon v. Howe, (14 Me. 250) 46, 48 
 Gann v. Chester, (5 Yerg. 205) 475 
 • Gannett v. Albree, (103 Mass. 372) 26 
 Gantt V. Grindall, (49 M'd. 310) 269 
 Garbutt ». Bank, (22 Wis. 384) 253 
 Gardenhire I!. Hinds, (1 Head, 402) 301, 394 
 Gardenier v. Tubbs, (21 Wend. 169) 396 
 Gardenville, &c. Ass'n v. Walker, (58 
 
 Md. 453) 480 
 Gardiner v. Fell, (1 J. & W. 22) 163, 164 
 Gardiner v. Gerrish, (33 Me. 46) 35 
 Gardiner v. Morse, (35 Me. 140) 246, 247 
 Gardner v. Astor, (3 Johns. Ch. 53) 146, 
 
 148, 149, 150 
 
TABLE OF CASES CITED. 
 
 721 
 
 REFERENCES ARE TO PAGES. 
 
 Gardner v. Butler, (30 N. J. Eq. 702) 370 
 Gardner v. Cole, (21 Iowa, 305) 106, 110 
 Gardner v. Commercial Bk. (95 111. 298) 
 
 393 
 Gardner v. Gardner, (1 Desau., S. C, Eq. 
 
 437) 333, 330 
 Gardner v. Gardner, (7 Paige, 113) 397 
 Gardner v. Mayor, &c. (31 N. Y. 423) 335 
 Gardner v. McEwen, (19 N. Y. 123) 448 
 Gardner v. Newburgh, (3 Johns. Ch. 162) 
 
 547 
 Gardner v. Ogden, (22 N. Y. 337) 379, 359, 
 
 545 
 Gardner v. Printup, (2 Barb. 83) 422 
 Gardner v. Smith, (5 Heisk. 256) 454 
 Gardner v. Tucker, (6 R. I. 551) 346 
 Garesche v. Priest, (78 Mo. 136) 366 
 Garfield v. Hatmaker, (15 N. Y. 475) 319 
 Gari v. Hill, (1 Stock. Ch. 210) 393 
 Garland v. Beverly, (L. E. 9 Ch. D. 213) 
 
 231 
 Garland v. Garland, (50 Miss. 694) 413 
 Garland v. Garland, (32 Wend. 536) 433 
 Garland v. Harrington, (51 N. H. 409) 
 
 445, 449, 454 
 Garland v. Harrison, (17 Mo. 282) 60 
 Garland v. Pamplin, (32 Gratt. 305) 395 
 Garland v. SpeBcer, (46 Me. 528) 262 
 Garner v. Garner, (1 Desau. 437) 334 
 Garner v. Gnrdon, (41 Ind . 93) 300 
 Garner v. Graves, (54 Ind. 188) 287 
 Garnett v. Acton, (28 Beav. 333) 301 
 Garnsey v. Mundy, (34 N. J. Eq. 343) 334 
 Garrard, Ex parte, (L. B. 5 Ch. D. 61) 84, 
 
 85 
 Garrard v. Pittsburg, &c. R. R. (5 Casey, 
 
 154)68 
 Garrett v. Lyle, (27 Ala. 586) 117 
 Garrett v. Lynch, (45 Ala. 204) 213 
 Garrett v. Puckett, (15 Ind. 485) 116 
 Garrett's Appeal, (3 Harris, 313) 185 
 Garrison v. Monaghan, (33 Pa. St. 332) 
 
 291 
 Garson v. Green, (1 Johns. Ch. 308) 473 
 Garth ^). Myrick, (1 Bro. Ch. 30) 193 
 Garth v. Townsend, (L. E. 7 Eq. 330) 215 
 Garth v. Ward, (3 Atk. 174) 137 
 Gartland v. Nunn, (6 Eng. 731) 649 
 Gartside v. East St. Louis, (43 111. 47) 555 
 Garvey v. McDevitt, (72 N. Y. 556) 337, 
 
 333 
 Garvin P. Stewart's Heirs, (59 111. 329) 418 
 Garvin v. Williams, (44 Mo. 465) 283 
 Garwood v. Eldridge, (1 Green's Ch. 145) 
 
 219 
 Garwood v. Garwood, (4 Halst. 193) 70 
 Gary v. Jacobson, (55 Miss. 204) 388 
 
 46 
 
 Gaskill V. Davis, (63 Ga. 645) 484 
 Gasque v. Small, (3 Strobh. Eq. 72) 378 
 Gass V. Hampton, (16 Neb. 185) 143 
 Gass V. Ross, (3 Sneed, 311) 348 
 Gass V. Simpson, (4Coldw. 388) 432 
 Gasso. Wilhite, (2 Dana, 170) 345 
 Gassettc. Grout, (4 Met. 486) 31 
 Gates V. Adams, (34 Vt. 70) 526 
 Gates ». Bliss, (43Vt. 299) 262 
 Gates V. Green, (4 Paige, N. Y., 355) 233 
 Gates V. Treat, (17 Conn. 388) 420 
 Gates V. Whetstone, (8 S. C. 244) 367 
 Galling v. Newell, (9 Ind. 572) 262 
 Gauch V. St. Louis, &c. Ins. Co. (88 111. 
 
 255) 173 
 Gaus V. Renshaw, (2 Pa. St. 36) 393 
 Gausen v. Tomlinson, (23 N. J. Eq., 8 
 
 C. E. Green, 405) 58 
 Gavagan v. Bryant, (83 HI. 376) 65 
 Gay V. Ihm, (69 Mo. 584) 405 
 Gay V. Moss, (34 Cal. 125) 543 
 Gaylord v. Knapp, (15 Hun, 87) 473 
 Gaylord v. Soragen, (33 Vt. 110) 370 
 Gaylor v. Van Loan, (15 Wend. 308) 137 
 Gayoso Sav. Inst. v. Fellows, (6 Coldw. 
 
 467)84 
 Gebb V. Rose, (40 Md. 387) 319 
 Geber v. Grubell, (16 111. 317) 153 
 Gee V. Bolton, (15 Wis. 604) 109, 118 
 Gee V. Gee, (33 Miss. 190) 354 
 Gelpcke «. Blake, (15 Iowa, 387) 333 
 GelstonB. Hoyt, (1 Johns. Ch. 54) 651 
 General Ins. Co. v. U. S. Ins. Co. (10 Md. 
 
 517) 131 
 General Smith, The, (4 Wheat. 438) 484 
 Genesee Co. Sav. Bk. v. Mich. Barge Co. 
 
 (53 Mich. 164) 345 
 Genobles v. West, (33 S. C. 154) 306 
 G«orge V. Bussing, (15 B. Mon. 558) 155, 
 
 160 
 George v. Kent, (7 Allen 16) 104, 114, 116 
 George v. Norrls, (25 Ark. 121) 294 
 George v. Wood, (9 Allen, 80) 101, 103 
 George V. Wood, (11 Allen, 43) 497 
 Gerald v. El ley, (45 Iowa, 332) 219, 222 
 German Am. Ins. Co. v. Davis, (131 Mass. 
 
 316) 223 
 German v. Machin, (6 Paige, 388) 583 
 German Sav. Inst. v. Adae, (8 Fed. Rep. 
 
 106) 460 
 Germania Sav. Bk., Appeal of, (95 Pa. 
 
 St. 329) 407 
 German town, &c. R. R. v. Fitler, (60 Pa. 
 
 St. 131; 60 Pa. St. 124) 25, 50, 53 
 Gerry v. Stimson, (60 Me. 186) 308 
 Gerson v. Pool, (31 Ark. 85) 67 
 Gervis v, Gervis, (14 Sim. 654) ' 
 
722 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Gest V. Packwood, (39 Fed. Rep. 535) 488 
 Getchell v. Chase, (37 N. H. 110) 363 
 Gettlngs V. Nelson, (86 111. 591) 447 
 Gettins v. Scudder, (71 111. 86) 365 
 Getman v. Oswego Bank, (23 Hun, 498) 
 
 293 
 Getty V. Blnsse, (49 N. Y. 385) 38, 441 
 Getty V. Devlin, (7 N. Y. 504) 265 
 Gety's Estate, (12 Phila. 143) 365 
 Ghiselin v. Furgusson, (4 Har. & J. 523) 
 
 473 
 Glbbes V. Cobb, (7 Rich. Eq. 54) 94, 112 
 Gibbes v. Elliott, (5 Rich. Eq. 327) 415 
 Gibbon ». Gibbon, (40 Ga. 562) 173 
 Gibbs V. Champion, (3 Ohio, 335) 263 
 Gibbs V. Elliott, (5 Rich. Eq. 327) 415 
 Gibbs V. Jenkins, (3 Sand. Ch. 130) 359 
 Gibbs V. Marsh, (3 Met. 243) 216, 360 
 Gibbs B. Penny, (43 Tex. 560) 489 
 Gibert c.Peteler, (38 N. Y. 165) 114 
 Gibler v. Trimble, 114 Ohio, 323) 58, 74, 
 
 75, 125, 127 
 Gibson, In re, (L. R. 2 Eq. 669; L. R. 7 
 
 Ch. 52) 423 
 Gibson V. Cooke, (20 Pick. 15) 455 
 Gibson v. Crehore, (3 Pick. 475; 5 Pick. 
 
 146) 148, 149, 153 
 Gibson V. Eller, (13 Ind. 124) 488 
 Gibson v. Fifer, (31 Tex. 260) 263 
 Gibson v. Finley, (4 Md. Ch. 75) 453, 455 
 Gibson «. Foote, (40 Miss. 788) 335 
 Gibson v. Gibson, (1 Drew. 42) 170 
 Gibson V. Goldthwaite, (7 Ala. 281) 658, 
 
 661 
 Gibson v. Hill, (21 Tex. 235) 395 
 Gibson v. Dove, (4 Fla. 217, 238) 295 
 Gibson v. Rees, (50 111. 383) 343 
 Giddings v. Eastman, (5 Paige, 561) 3.56 
 Glddings v. Giddings, (3 Russ. 241) 288 
 Giddings v. Seward, (16 N. Y. 365) 426 
 Glfford V. CarvlUe, (29 Cal. 589) 241, 250, 
 
 262 
 Glfford V. Thorn, (1 Stockt. Ch. 702) 273 
 Gilbert v. Chapin, (19 Conn. 342) 331 
 Gilbert v. Dickerson, (7 Wend. 449) 613 
 Gilbert v. Gilbert, (9 Barb. 533) 319 
 Gilbert v. Peteler, (38 N. Y. 165) 104 
 Gilchrist v. Cator, (1 De G. & Sm. 188) 31 
 Gilchrist K. Stevenson, (9 Barb. 9) 361 
 Gildart's Heirs v. Starke, (1 How., Miss., 
 
 450) 418 
 Gilder v. Gilder, (1 Del. Ch. 331) 483 
 Glldersleeve v. Burrows, (34 Ohio St. 204) 
 
 87 
 Giles V. Austin, (62 N. Y. 486) 216 
 Giles V. Austin, (38 N. Y. S. C. 215) 33, 43, 
 
 44,51 
 
 Giles V. Hunter, (103 N. C. 194) 234 
 Giles V. Ortman, (11 Kans. 59) 640 
 Gill V. Claggett, (4 Md. Ch. 470) 233 
 Gill V. Clark, (54 Mo. 415) 465 
 Gill V. Fauntleroy, (3 B. Mon 177) 107 
 Gill V. McAttee, (2 Md. Ch. 2.i.-,) 113 
 Gill's Estate, (1 Pars. Eq. 139) 183, 185, 
 
 186 
 Gillenwaters v. Miller, (49 Miss. 150) 280 
 Gillespie's Adm'r v. Burleson, (28 Ala. 
 
 551) 395 
 Gillespie v. Brooks, (2Redf., N. Y., 349) 
 
 366 
 Gillespie u. Moon, (3 Johns. Ch. 585) 333, 
 
 236, 333, 235, 336, 338 
 Gillespie v. Reed, (3 McLean, 377) 105 
 Gillett V. Hall, (13 Conn. 436) 635 
 Gilliam v. Brown, (43 Miss. 641) 192, 193 
 Gilliam v. Chancellor, (43 Miss. 437) 183, 
 
 188, 192, 194 
 Gillies V. Longlands, (4 De G. & Sm. 372) 
 
 202, 207, 208 
 Gillig V. Maass, (28 N. Y. 191) 149 
 Gillis i>. Hall, (2 Brews. 343; 7 Phila. 432) 
 
 46, 50 
 Gillis V. Martin, (2 Dev. Eq. 470) 53, 489 
 Gill's Estate, (1 Pars. Eq. 139) 183 
 Gilman v. Andrus, (38 Vt. 241) 440 
 Gilman v. Brown, (1 Mason, 191) 474 
 Gilman v. Hamilton, (16 111. 225) 124 
 Gilman v. Reddington, (24 N. Y. 9) 340 
 Gilmer's Legatees v. Gilmer's Ex'rs, (42 
 
 Ala. 9) 432 
 Gllmore v. Tuttle, (32 N. J. Eq. 611) 365 
 Gilroy v. Alis, (22 Iowa, 174) 235 
 Gilson V. Gilson, (2 Allen, 115) 52, 463 
 Giltenan v. Lemert, (13 Kans. 476) 640 
 Girard v. Philadelphia, (7 Wall. 1) 349 
 Girard L. Ins. Co. v, Guerard, (3 Woods 
 
 C. C. 427) 265 
 Glraud v. Giraud, (58 How. Pr. 175) 209 
 Gitt V. Watson, (18 Mo. 274) 544 
 Givan v. Doe, (7 Blackf. 210) 101 
 Given v. Marr, (37 Me. 312) 149, 150 
 Givens v. McCalmont, (4 Watts, 460) 467 
 Glass V. Ellison, (9 N. H. 69) 491 
 Glass V. Hulbert, (103 Mass. 24) 236, 239 
 Glasscock v. Minor, (11 Mo. 655) 256, 259 
 Glassell v. Thomas, (3 Leigh, Va., 113) 
 
 221 
 Glassock V. Glassock's Adm'r, (17 Tex. 
 
 480)473 
 Glastenbury it McDonald, (44 "Vt. 450) 
 
 265 
 Glaze V. Drayton, (1 Desau. 109) 437 
 Glazebrook's Adm'r v. Ragland's Adm'r, 
 (8 Gratt. 344) 107, 110 
 
TABLE OF CASES CITEDi 
 
 723 
 
 REFERENCES ARE TO PAGES. 
 
 Glazier v. Bailey, (47 Miss. 395) 640 
 Gleaveso. Paine, (1 De G. J. & S. 87) 30 
 Glen V. Fisher, (6 Johns. Ch. 33) 31, 155 
 Glen V. Statler, (43 Iowa, 107) 219 
 Glengall v. Barnard, (1 Keen, 769) 183 
 Glenn D.Davis, (35 Md. 215) 106, 109 
 Glenn v. Glenn, (47 Ala. 332) 397 
 Glenn «. Statler, (43 Iowa, 107, 110) 236 
 Glenn's Adm'r v. Billingslea, (64 Ala. 
 
 345)418 
 Glidden v. Strupler, (52 Pa. St. 400) 143 
 Gliddon v. Hunt, (24 Picli. 231) 67, 77, 105 
 Glidewell v. Spaugh, (36 Ind. 319) 117, 133 
 Glisson V. Hill, (3 Jones' Eq. 356) 490 
 Globe, &c. Ins. Co. v. Eeals, (48 How. Pr. 
 
 503) 
 Globe, &c. Ins. Co. v. Reals, (50 How. Pr. 
 
 237)365 
 Globe, &c. Ins. Co. v. Eeals, (79 N. Y. 
 
 202) 365 
 Glover v. Alcott, (11 Mich. 470) 407 
 Glover v. Austin, (6 Pick. 309) 536 
 Glover c. Glover, (16 Ala. 440) 367, 413 
 Glover v. Hartcup, (34 Beav. 134) 193 
 Glover v. Payne, (19 Wend. 518) 53 
 Gluck V. Elken, (36 Minn. 80) 51 
 Glynn v. Bank of England, (3 Ves. Sen. 
 
 281) 214 
 Glynn v. Phetteplace, (20 Mich. 383) 635 
 Gobble V. Linder, (76 111. 157) 48 
 Goddard v. Brown, (12 R. I. 31) 363, 643 
 Goddard v. Carlisle, (9 Price, 169) 385 
 Goddard v. Leech, (Wright, Ohio, 176) 663 
 Goddard v. Pomeroy, (36 Barb. 546) 483 
 Goddard v. Prentice, (17 Conn. 546) 70 
 Goddard v. Sawyer, (9 Allen, 78) 501 
 Godeflroy v. Caldwell, (3 Cal. 489) 66 
 Godfrey, Bk. of, (23 111. 579, 606) 68 
 Godfrey v. Thornton, (46 Wis. 677) 139, 
 
 144 
 Godfrey v. Disbrow, (Walk. Ch. 260) 109 
 Goelet V. McManus, (1 Hun, 306) 105 
 Goembel v. Arnett, (100 111. 34) 464 
 GofE V. Gott, (5 Sneed, 562) 223 
 Going V. Emery, (16 Pick. 107) 346 
 Going V. Orns, (8 Kans. 85) 407 
 Goins V. Allen, (4 Bush, Ky., 608) 117 
 Goldberg v. Taylor, (2 Utah, 486) 640 
 Golder v. Littlejohn, (30 Wis. 344) 431 
 Goldsborough v. Ringgold, (1 Md. Ch. 
 
 339) 239, 234 
 Goldsmid v. Goldsmid, (1 Sw. 211) 196, 
 
 197 
 Goldsmith v. Goldsmith, (1 Sw. 211) 180, 
 
 195 
 Goldsworthy v. Stnitt, (1 Exch. 659, 665) 
 50 
 
 Golpin V. Wilson, (40 Iowa, 90) 275 
 Goltra V. Sanasack, (53 111. 456) 319, 234 
 Gooch V. Ass'n for Relief, &c. (109 Mass. 
 
 558) 345 
 Good V. Kerr, (7 Watts & S. 253) 219, 224, 
 
 337 
 Goode V. Goode, (22 Mo. 518) 231 
 Goodell V. Blumer, (41 Wis. 436) 638 
 Goodell V. Field, (15 Vt. 448) 233, 334 
 Goodell V. Union Ass'n, &c. (29 N. J. Eq. 
 
 32) 345 
 Goodenow v. Ewer, (16 Cal. 461) 220, 32S 
 Goodfellow V. Goodfellow, (18 Beav. 356) 
 
 172 
 Goodfellow V. Burchett, (3 Vern. 298) 190 
 Goodheart v. Johnson, (88 111. 58) 298 
 Goodman v. Simonds, (30 How. 343) 67, 
 
 68 
 Goodman v. Winter, (64 Ala. 410) 136 
 Goodrich v. City of Milwaukee, (24 Wis. 
 
 432) 327 
 Goodright v. Cato, (Dougl. 460) 380 
 Goodrum v. Goodrum, (8 Ired. Eq. 313) 
 
 395 
 Goodsell V. Sullivan, (40 Conn. 83) 106 
 Goodspeed v. Fuller, (46 Me. 141) 238 
 Good title v. Southern, (1 M. & S. 299) 333 
 Goodwin v. Cloudman, (43 Me. 577) 110 
 Goodwin V. Richardson, (11 Mass. 469) 39 
 Goodwyn v. Goodwyn, (20 Ga. 600) 294 
 Goodyear v. Day, (2 Wall., Jr., U. S., 383) 
 
 563 
 Gordere v. Downing, (18 111. 493) 220, 236 
 Gordon, In re, (L. R. 6 Ch. D. 531) 207 
 Gordon v. Bell, (50 Ala. 213) 472 
 Gordon v. Butler, (105 U. S. 553) 242, 259 
 Gordon v. Cheltenham Ry. (5 Beav. 239) 
 
 35 
 Gordon v. Gordon, (3 Sw. 400) 227 
 Gordon v. Hertford, (2 Madd. 106) 235 
 Gordon v. Lowell, (21 Me. 251) 33, 54 
 Gordon v. Parmlee, (12 Allen, 212) 343, 
 
 250 
 Gordon v. Stevens, (2 Hill's Ch. 46) 170 
 Gore V. Carl, (47 Conn. 291) 407 
 Gore V. Sumersall, (5 T. B. Mon., Ky., 
 
 504) 286 
 Gorham v. Daniels, (23 Vt. 600) 313 
 Gorin v. Gordon, (38 Miss. 214) 216 
 Goss V. Neale, (5 Moore, 29) 292 
 Gossler v. Eagle Sugar Ref. (103 Mass. 
 
 331) 253, 260 
 Gossom V. Donaldson, (18 B. Mon. 230) 
 
 124 
 Gothard v. Flynn, (25 Miss. 58) 467 
 GottB. Cook, (7 Paige, 521) 203, 318, 326 
 Gott V. Cook, (7 Paige, 533) 36 
 
724 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 GottwallSB. MulhoUand, (15 Up. Can. C. 
 
 P. 62) 393 
 Gouchenour v. Moury, (33 111. 331) 103 
 Gough D.Crane, (3 Md. Ch. 119) 437 
 Gough V. Edelen, (5 Gill, 101) 296 
 Gough V. Manning, (26 Md. 347) 173 
 Gould V. Bugbee, (6 Gray, 371, 375) 43 
 Gould V. Gould, (3 Story, 516) 563 
 Gould V. Hayes, (10 Ala. 438) 417, 418 
 Gould V. Lynde, (114 Mass. 366) 308 
 Gould V. Marsh, (1 Hun, 566) 79 
 Gould V. Taylor Orphan Asylum, 46 Wis. 
 
 106) 198, 199, 200 
 Gould V. West, (32 Tex. 338) 143 
 Gould V. Womack, (2 Ala. 83) 437 
 Goulder v. Camm, (1 De G. F. & J. 146) 
 Goundiei). Northampton W.Co. (7Barr. 
 
 233) 141 
 Gourley v. Linsenbigler, (51 Pa. St. 345) 
 
 432 
 Gore V. Learoyd, (140 Mass. 524) 309 
 Governeur v. Lynch, (2 Paige, 300) 123 
 Groverneuri). Titus, (6 Paige, 347) 69, 70, 
 
 71, 129, 239, 238 
 Gower v. Andrew, (8 Pac. L. J. 617) 359 
 Gower v. Doheney, (33 Iowa, 36) 70, 110 
 Gower v. Howe, (20 Ind. 396) 501 
 Gower v. Saltmarsh, (11 Mo. 27) 47 
 Gower v. Sterner, (2 Whart. 75) 233, 238 
 Grace v. Mercer (10 B. Mon. 157) 491 
 Grace v. Wade, (45 Tex. 523) 70 
 Graff V. Castleman, (5 Rand., Va., 207) 112 
 Graham v. Birkenhead, <fec. Ey. (2Macn. 
 
 & G. 146) 35 
 Graham v. Castor, (55 Ind. 559) 274 
 Graham v. Graham, (8 Bush, 334) 613 
 Graham v. Henry, (17 Tex. 164) 447 
 Graham v. Little, (3 Jones' Eq. 152) 374 
 Graham v. McCampbell, (Meigs, 52) 465 
 Graham v. Nesmith, (24 S. C. 285) 117 
 Graham v. Newman, (31 Ala. 497) 501 
 Graham v. O'Fallon, (3 Mo. 507) 419 
 Graham v. Pancoast, (6 Casey, 89) 372 
 Graham v. Railroad Co. (103 U. S. 153) 
 
 391 
 Graham v. Roberts, (1 Head, 56) 365, 566 
 Graham v. Samuel, (1 Dana, 166) 102, 105 
 Grain v. Aldrich, (38 Gal. 514) 454 
 Grain v. Shipman, (45 Conn. 573) 394 
 Grand Chute v. Wlnegar, (15 Wall, 373) 
 
 265 
 Grandini). Anderson, (15 Ohio St. 286) 
 
 104 
 Grange Union v. Burkhart, (8 Or. 51) 420 
 Grant c. Burr, (54 Cal. 398) 337 
 Grant «. Cole, (8 Ala. 519) 130 
 Grant v. Dodge, (43 Me. 489)' 59 
 
 Grant v. Dyer, (2 Dow, 73) 233 
 Grant v. King, (31 Mo. 313) 640 
 Grant v. Lewis, (14 Wis. 487) 395 
 Grant v. Ludlow's Adm'r, (8 Ohio St. 1) 
 
 445 
 Grant v. Mills, (2 V. & B. 306) 474 
 Grant v. National Bk. (97 U. S. 80) 293 
 Grantham v. Hawley, (Hob. 132) 464 
 Grathshore v. Chalie, (10 Ves. 1) 196 
 Grattan v. Appleton, (3 Story, 755) 431 
 Grattan «. Grattan, (18 111. 167) 418 
 Gratzt!. Cohen, (11 How. 1) 374 
 Grave v. Salisbury, (1 Bro. Ch. 435) 186, 
 
 190 
 Graves v. Blondell, (70 Me. 190) 140, 143 
 Graves v. Coutant, (31 N. J. Eq. 763) 473 
 Graves v. Deterling, (120 N. Y. 447) 438 
 Graves v. Graves, (36 Iowa, 310) 413 
 Graves v. Graves, (29 N. H. 129) 308 
 Graves v. Graves, (3 Mete.' 167) 355 
 Graves v. Lebanon Bk. (10 Bush, 23) 
 
 256 
 Graves v. Lake Shore Road, (137 Mass. 
 
 33) 138 
 Graves v. Mattlngly, (6 Bush, 361) 233 
 Graves v. Spier, (58 Barb. 349) 261, 362, 
 
 445 
 Graves B.Trueblood, (96 N. C. 395). 383 
 Graves v. Ward, (3 Duv. 301) 106, 110 
 Graves v. White, (4 Baxt. 38) 275 
 Gray v. Blanchard, (8 Pick. 284) 51 
 Gray v. Chiswell, (9 Ves. 118) 38 
 Gray v. Dougherty, (25 Cal. 266) 237 
 Gray O.Henderson, (71 Pa. St. 368) 362 
 Gray v. Lynch, (8 Gill, 403) 361 
 Gray v. Mathias, (5 Ves. 286) 27 
 Gray v. Missionary Soe. (2 N. Y. S. 878) 
 
 383 
 Gray u.Obear. (59 Ga. 675) 303 
 Gray v. Ohio, &c. R. R. (1 Grant's Cas. 
 
 412) 385 
 Gray v. Reamer, (11 Bush, 113) 371 
 Gray v. Robb, (4 Heisk. 74) 394 
 Gray v. Sullivan, (10 Nev. 416) 296 
 Gray's Adm'rs v. Cruise, (36 Ala. 559> 
 
 107, lio 
 Gray Coat Hospital v. Westminster, &c. 
 
 Comm'rs, (1 De G. & J. 531) 128 
 Grayson v. Deakin, (3 De G. & Sm. 298) 
 
 173 
 Greated v. Greated, (36 Beav. 621) 233 
 Great Falls Co. v. Worster, (15 N. H. 412) 
 
 121 
 Great West. Ry. v. Birmingham, &c. Ry. 
 
 (2 Phil. 597) 551 
 Great West. Ry. v. Oxford, &c. Ey. (3De 
 
 G. M. & G. 341) 25 
 
TABLE OF CASES CITED. 
 
 725 
 
 REFERENCES ARE TO PAGES. 
 
 Great West. Ry. v. Wheeler, (20 Mich. 
 
 419) 131 
 Green v. Allen, (5 Humph. 170) 348 
 Green v. Banks, (24 Tex. 508) 295 
 Green v. Baverstock, (14 C. B., n. s., 204) 
 
 244 
 Green v. Blddle, (8 Wheat. 1, 77, 78) 470 
 Green v. Blackwell, (31 N. J. Eq. 37) 
 
 362 
 Green v. Bridges, (4 Sim. 96) 33 
 Green v. Britten, (1 De G. J. & S. 649) 
 
 205 
 Green v. Brooks, (81 Cal. 328) 350 
 Green v. Collins, (3 Cliff. 494) 271 
 Green v. Creighton, (7 E. I.l) 438 
 Green v. Creighton, (10 Sm. & Mar. 159) 
 
 418 
 Green v. Dietrich, (114 111. 636) 354 
 Green v. Drinker, (7 W. & S. 440) 105, 
 
 107, 109 
 Green v. Early, (39 Md. 223) 114 
 Green v. Garrington, (16 Ohio St. 548) 106 
 Green v. Givan, (33 N. Y. 343) 62 
 Green v. Glynn, (71 Ind. 336) 640 
 Green v. Green, (14 N. Y. S. C. 492) 279 
 Green v. Green, (2 Meriv. 86) 158 
 Green v. Hart, (1 Johns. 580) 79, 486 
 Green v. Johnson, (4 Bush, 164) 198 
 Green v. Lake, (54 Miss. 540) 559 
 Green v. Morris, &c. E. E. (1 Beasl. 165) 
 
 220, 221, 222, 233 
 Green v. Nunnemacher, (36 Wis. 50) 563 
 Green v. Oakes, (17 111. 249) 559 
 Green v. Price, (13 M. & W. 695) 47 
 Green v. Putnam, (1 Barb. 500) 613 
 Green v. Eamage, (18 Ohio, 428) 526 
 Green v. Eowland, (16 Gray, 58) 298 
 Green v. Sherrod, (105 N. C. 197) 490 
 Green v. Slayter, (4 Johns. Ch. 38) 115, 
 
 124,126 
 Green v. Smith, (1 Atk. 572) 36 
 Green v. Spaulding, (76 Va. 411) 16 
 Green v. Stephens, (17 Ves. 64) 203 
 Green v. Sutton, (50 Mo. 190) 383 
 Green v. Tanner, (8 Met. 411) 289 
 Green v. Treiber, (3 Md. 28) 296 
 Green v. Tweed, (13 Abb. Pr. 427) 48 
 Green v. Warnick, (64 N. Y. 230) 58 
 Green v. White, (7 Blackf. 242) 135 
 Green v. Winter, (1 Johns. Ch. 26) 382, 469 
 (ireen v. Witherspoon, (37 La. An. 751) 
 
 105 
 Greene v. Barnard, (18 Kans. 518) 474 
 Greene v. Cook, (29 111. 186) 472 
 Greene v. Creighton, (7 E. I. 1) 438 
 Greene v. Haskell, (5 R. I. 447) 387 
 Greene v. Mumford, (4 R. I. 313) 661 
 
 Greene v. Smith, (57 Vt. 268) 138 
 Greene v. Warnick, (64 N. Y. 230) 81,82,87 
 Greene v. Wilbur, (15 R. I. 251) 337 
 Greenfield v. Edwards, (3 De G. J. & S. 
 
 582) 114 
 Greenfield's Estate, (3 Harris, 489; 12 
 
 Harris, 233) 279 
 Greenfield Savings Bk. v. Simons, (133 
 
 Mass. 415) 280 
 Greenleaf v. Edes, (2 Minn. 364) 71, 139 
 Greenleaf v. Queen, (1 Pet. 100) 651 
 Greenough v. Rolfe, (4 N. H. 357) 331 
 Greensboro', Bank of v. Chambers, (30 
 
 Gratt. 302) 397 
 Greenway, Ex parte, (6 Ves. 812) 213 
 Greenwood v. Greenwood, (1 Bro. Ch. 
 
 31 n) 192 
 Greenwood v. Spring, (54 Barb. 375) 383 
 Greenwood's Appeal, (92 Pa. St. 181) 357 
 Greer v. Cad well, (14 Ga. 207) 333, 234 
 Greer v. Cagle, (84 N. C. 385) 419 
 Greer B. Greer, (9 Gratt. 330) 374 
 Greer v. Mezes, (34 How. 268) 31 
 Gregg V. Crosby, (18 Johns. 319, 326) 50 
 Gregg V. Currier, (36 N. H. 200) 382 
 Gregg V. Irish, (6 Pa. St. 311) 349 
 Gregg V. Landis, (6 C. E. Green, 356, 494, 
 
 850) 50, 54 
 Gregg V. Sanford, (34 111. 17) 536 
 Gregg V. Von Phul, (1 Wall. 374) 137, 139 
 Gregory v. Congill, (19 Mo. 415) 381 
 Gregory v. Gregory, (Coop 301) 384 
 Gregory v. Ingwersen, (32 N. J. Eq. 199) 
 
 579 
 Gregory v. Savage, (32 Conn. 250) 146, 148 
 Gregory v. Schoenell, (55 Ind. 101) 245, 
 
 258 
 Gregory v. Van Vleck, (31 Tex. 40) 407 
 Gregorys. Wilson, (9 Hare, 683) 33, 43, 50, 
 
 54 
 Grellett v. Heilshorn, (4 Nev. 536) 106, 
 
 109, 149 
 Grelton v. Howard, (1 Sw. 433) 33 
 Gresley v. Mousley, (4 De G. & J. 78) 36 
 Gress v. Evans, (1 Dak. Ter. 387) 112 
 Greswold v. Marsham, (3 Ch. Cas 170) 147 
 Gretton v. Haward, (1 Sw. 409, 413, 420, 
 
 425, 433) 157, 160, 175 
 Greyt). Ohio & Penn. E. E. (Grant's Cas. 
 
 412) 25, 144, 573 
 Grice v. Shaw, (10 Hare, 76) 148, 149 
 Gridley v. Andrews, (8 Conn. 1) 483 
 Gridley v. Watson, (53 111. 186) 290 
 Gridley's Heirs v. Phillips, (5 Kans. 349) 
 
 315 
 Griesbach v. Tremantle, (17 Beav. 314) 
 
 307 
 
726 
 
 TABLE OF OASES CITED. 
 
 REFERENCES ARE TO RAGES. 
 
 Griffies v. Griffles, (11 W. R. 943) 613 
 Griffin v. Augusta, &c. R. Co. (70 Ga. 164) 
 
 573 
 Griffin v. Blanchar, (17 Cal. 70) 328 
 Griffin v. Camack, (36 Ala. 695) 472 
 Griffin v. Graham, (1 Hawks, 96) 346 
 Griffin v. Griffin, (18 N. J. Eq. 104) 467 
 Griffin v. Harrison, (52 Miss. 824) 640 
 Griffin v. Haskins, (22 111. App. 264) 117 
 Griffin v. Marquardt, (17 N. Y. 28) 68 
 Griffin v. Nitcher, (57 Me. 270) 618 
 Griffin v. Shepard, (40 Hun, 355) 446 
 Griffith V. Douglass, (73 Me. 533) 534 
 Griffith V. Fred. Co. Bk. (6 Gill & J. 424) 
 
 275 
 Griffith V. Griffith, (1 HofE. Ch. 153) 77, 
 
 91, 93, 98, 99, 111 
 Griffith V. Judge, (49 Mo. 536) 247 
 Griffith V. Ricketts, (7 Hare, 399) 201 
 Griffith V. Sebastian Co. (49 Ark. 34) 321 
 Griffiths. State, (3 Del. Ch. 421) 349 
 Griffith's Adm'rs «. Griffith, (5 B. Mon. 
 
 113) 360 
 Griffiths V. Cope, (17 Pa. St. 96) 349 
 Griffiths V. Robins, (3 Madd. 391) 386 
 Grigg V. Swindall, (67 Ala. 187) 638 
 Griggs V. Clark, (33 Cal. 437) 419 
 Griggs V. Landis, (21 N. J. Eq. 494) 32 
 Griggs V. Veghte, (N. J. '90, 19 Atl. 867) 
 
 173 
 Griggsby v. Hair, (25 Ala. 337) 477 
 Grim v. Byrd, (32 Gratt. 393, 300) 25.5, 256 
 Grime's Ex'rs v. Harmon, (35 Ind. 198) 
 
 349 
 Grimes v. Blake, (16 Ind. 160) 328 
 Grimstone». Carter, (3 Paige, 421) 58, 74, 
 
 75, 106, 111, 119, 133 
 Grimnan v. Dean, (62 Tex. 318) 138 
 Grinnell v. Baxter, (17 Pick. 383) 420 
 Grissell v. Swinhoe, (L. R. 7 Eq. 391) 156, 
 
 159, 160 
 Grissler v. Powers, (81 N. Y. 57) 142, 143, 
 
 145 
 Grissom v. Hill, (17 Ark. 483) 348 
 Griswold v. Chandler, (5 N. H. 492) 367 
 Griswold v. Davis, (31 Vt. 390) 68 
 Griswold v. Haven, (25 N. Y. 595) 261 
 Griswold v. Hazard, (26 Fed. Rep. 135) 
 
 234 
 Griswold v. Shelden, (4 N. Y. 501) 296 
 Griswold v. Smith, (10 Vt. 453) 106, 109, 
 
 233 
 Gritton v. McDonald, (3 Mete, Ky., 252) 
 
 473 
 Groesbeck v. Mattison, (43 Minn. 547) 103 
 Grode v. Van Valen, (25 N. J. Eq. 95) 480 
 GrofE i). Rohrer, (35 Md. 327) 234 
 
 Gross V. Leber, (11 Wright, 530) 233, 334 
 Grosvpnor v. Allen, (9 Paige, 74) 56, 58 
 Grothe's Appeal, (36 W. N. C. 365) 326 
 Groton Sav. Bk. v. Batty, (30 N. J. Eq. 
 
 133) 119 
 Grove v. Hodges, (55 Pa. St. 504) 343 
 Grove v. Miles, (58 111. 338) 473 
 Grover v. Grover, (24 Pick. 261) 433 
 Grover v. Hugell, (3 Russ. 428) 280 
 Grover v. Thatcher, (4 Gray, 526) 149 
 Groverman v. Diffenderffer, (11 Gill & J. 
 
 15)31 
 Groves v. Webber, (27 111. 606) 643 
 Grubb V. Kolb, (55 Ga. 630) 216 
 Grubb's Appeal, (90 Pa. St. 228) 265 
 Grubbs v. Greer, (5 Coldw. 160) 295 
 Grubbs v. Wysors, (32 Gratt. 127) 472 
 Grum V. Bainey, (55 Cal. 254) 295 
 Grumleyu Webb, (44 Mo. 444) 279 
 Grundy i?. Grundy, (13 B. Mon. 269) 229 
 Grymes v. Hone, (49 N. Y. 17) 86, 434 
 Grymes v. Sanders, (3 Otto, 55) 285 
 Gschwend v. Estes, (51 Cal. 134) 327 
 Guedici v. Boots, (43 Cal. 453) 237 
 Guelich v. Clark, (3 T. & C. 315) 483 
 Guernsey v. Am. Ins. Co. (17 Minn. 104) 
 
 234, 237 
 Guernsey v. Miller, (80 N. Y. 181) 293 
 Guerrant v. Anderson, (4 Rand. 208) 70 
 Guerro v. Ballerino, (48 Cal. 118) 359 
 Guest V. Brooklyn, City of, (69 N. Y. 506) 
 
 606 
 Guest B.Farley, (19 Mo. 147) 313 
 Guest V. Guest, (74 Tex. 664) 354 
 Guidot». Guidot, (3 Atk. 254) 36 
 Guignard v. Mayrant, (4 Desau. 614) 188, 
 
 194 
 Guild V. Baldridge, (3 Swan, 395) 338 
 Guild V. Guild, (16 Ala. 131) 545 
 Guion V. Knapp, (6 Paige, 35) 114, 115 
 GuiteauB. Wisely, (47 III. 433) 71 
 Gulden v. O'Byrne, (7 Phila. 93) 45 
 Gulicki). Ward, (5 Halst. 87) 247 
 Gull V. Noble, (40 Me. 459, 480) 123 
 Gump's Appeal, (65 Pa. St. 476) 328, 230, 
 
 233 
 Gunby v. Sinter, (44 Md. 237) 356 
 Gunby v. Thompson, (56 Ga. 316) 671 
 Gunn V. Barrow, (17 Ala. 743) 363 
 Gunter v. James, (9 Cal. 643) 369 
 Gunter v. Williams, (40 Ala. 561) 405 
 Gurnee v. Maloney, (38 Cal. 85) 419 
 Guthrie v. Byles' Appeal, (93 Pa. St. 
 
 369)449 
 Guthrie v. Kahle, (46 Penn. 333) 497 
 Gnthrie v. Quinn, (43 Ala. 561) 137 
 Guy V. Brown, (5 Moore. 644) 153 
 
TABLE OF CASES CITED. 
 
 727 
 
 REFERENCES ARE TO PAGES. 
 
 Guy V. Carriere, (5 Cal. 511) 59 
 Guy V. Sharp, (1 My. & K. 589) 183 
 Gwin V. Biel, (70 Ind. 505) 449 
 Gwynn v. Hamilton, C39 Ala. 333) 319, 330 
 
 H. 
 
 Haag V. Sparks, (27 Ark. 594) 419 
 
 Haake, In re, (2 Sawy. 331) 539 
 
 Haas V. Chicago Bldg. Soc. (89 III. 498) 
 
 671 
 Haase v. Mitchell, (58 Ind. 213) 263 
 Hachett v. Pattle, (6 Madd. 4) 217 
 Hack V. Leonard, (9 Mod. 90) 53 
 Hacker v. Barton, (84 111. 313) 603 
 Hackett 77. Alcock, (1 Coll. 463) 43 
 Hackett v. Callander, (33 Vt. 97) 69, 70, 
 
 139 
 Hackett v. Reynolds, (4E. I. 512) 467 
 Hackley v. Draper, (60 N. T. 88) 365 
 Haddenw. Chorn, (8 B. Mon. 70) 348 
 Hadden v. Hemingway, (39 Mich. 615) 
 
 640 
 Hadden v. Spader, (20 Johns. 554) 126 
 Haddow v. Lundy, (59 N. Y. 320) 419 
 Haden v. Ivey, (51 Ala. 381) 394 
 Haden v. Ware, (15 Ala. 149) 330, 223 
 Hadley C.Clinton, &c. Co. (13 Ohio St. 
 
 502) 353, 353 
 Hadley v. Hopkins Academy, (14 Pick. 
 
 240)348 
 Hadley v. Nash, (69 N. C. 162) 472 
 Haescig v. Brown, (34 Mich. 503) 569 
 Hafner v. Irwin, (1 Ired. L. 490) 292 
 Hagar v. Buck, (44 Vt. 385) 32, 43, 50, 444 
 Hagee v. Crossman, (31 Ind. 333) 360 
 HagerB. Buechler, 6 III. App. 463) 569 
 Hager v. Shindler, (39 Cal. 47) 637 
 Haggerty v. Palmer, (6 Johns. Ch. 437)68 
 Hagthorp v. Hook, (1 Gill & J. 272) 104, 
 
 114, 370, 653 
 Hahn v. Concordia Soc. (42 Md. 460) 51, 
 
 555 
 Hahn v. Horstman, (13 Bush, 249) 46 
 Haigh V. Kaye, (L. R. 7 Ch. 469) 268 
 Haight V. Badgeley, (15 Barb. 499) 591 
 Haight V. Burr, (19 Md. 130) 668 
 Haight V. Hayt, (19 N. Y. 464) 244, 256, 
 
 445 
 Haight V. McVegh, (69 111. 634) 407 
 Haight V. Moore, (37 N. Y. S. C. 161) 282 
 Haines' Appeal, (73 Pa. St. 169) 
 Haines v. Beach, (3 Johns. Ch. 459) 
 Haines v. Carpenter, (1 Woods, 262) 671 
 Haines v. Haines, (6 Md. 435) 
 Haines v. Mice, (1 Bro. Ob. 129) 197 
 
 Haines v. Thompson, (70 Pa. St. 434) 53 
 Hair v. Goldsmith, (32 S. C. 566) 173 
 Haire v. Baker, (5 N. Y. 357) 337 
 Haldeman v. Jennings, (14 Ark. 329) 48 
 Hale V. Darter, (5 Humph. 79) 
 Hale V. Hale, (4 Beav. 369; 4 Humph. 
 
 183) 
 Hale». Metr. Omnibus Co. (28 L. J. Ch. 
 
 777) 389 
 Hale V. Omaha Nat. Bk. (49 N. Y. 636) 
 
 463 
 Hale V. Skinner, (117 Mass. 474) 136 
 Hale V. Stone, (14 Ala. 803) 233, 394 
 Hale V. Webb, (2 Bro. Ch. 78) 217 
 Hale V. Wilkinson, (21 Gratt. 75) 272 
 Hales V. Darrell, (3 Beav. 324) 193 
 Hales V. Holland, (92 111. 494) 418 
 Haley v. Bennett, (5 Port. 453) 473 
 Halifax Guard'ns v. Wheelwright, (L. 
 
 K. 10 Ex. 183) 
 Hall V. Arnott, (80 Cal. 348) 489 
 Hall u. Buffalo, (2 Abb. App. Dec. 301) 
 
 449 
 Hall V. Carter, (8 Ga. 388) 371 
 Hall V. Chafeee, (14 N. H. 215) 446 
 Hall V. Christy, (8 Neb. 264) 407 
 Hall V. Clagett, (2 Md. Ch. 151) 227, 233,, 
 
 334 
 Hall V. Crawley, (5 Allen, 304) 49 
 Hall V. Dotson, (55 Tex. 520) 407 
 Hall V. Erwin, (66 N. Y. 649) 81 
 Hall V. Fisher, (9 Barb. 17) 137 
 Hall V. Pullerton, (69111. 448) 262 
 Hall V. Hall, (78 N. Y. 535; 9 N. Y. 504, 
 
 511) 176 
 Hall V. Hall, (1 Bland Ch. 130, 135) 159, 
 
 160 
 Hall V. Hall, (2 McCord Ch. 269) 165, 177, 
 
 178 
 Hall V. Hall, (8 Rich. 407) 170 
 Hall V. Hall, (48 Conn. 250) 448 
 Hall V. Hickman, (2 Del. Ch. 318) 79 
 Hall V. Hill, (IConn. & Law. 139) 171 
 Hall V. Hill, (1 Dr. & War. 94) 173, 182 
 Hall V. Howard, (Rice, 310) 434 
 Hall V. Johnson, (41 Mich. 286) 343 
 Hall V. Jones, (31 Md. 439) 471 
 Hall V. Kellogg, (16 Mich. 135) 640 
 Hall V. Lance, (35 III. 277) 491 
 Hall V. Linn, (8 Col. 364) 359 
 Hall V. McDuff, (34 Me. 311) 105, 467 
 Hall V. Naylor, (18 N. Y. 588) 248, 352 
 Hall V. Palmer, (3 Hare, 532) 27 
 Hall V. Perkins, (3 Wend. 636) 373 
 Hall V. Priest, (6 Bush, Ky., 14) 633 
 Hall V. Reed, (2 Barb. Ch. 500) 319 
 Hall V. Robinson, (3 Jones' Eq. 348) 447 
 
728 
 
 TABLE OF OASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Hall V. Short, (81 N. C. 273) 407 
 Hall V. Snowhill, {14 N. J. L. 8) 295 
 Hall V. Thompson, (23 Hun, 334) 482 
 Hall V. Tullerton, (69 111. 448) 262 
 Hall V. Young, (37 N. H. 134) 335 
 Hall's Case, (1 Bland Ch. 203) 170 
 Hall's Heirs v. Hall, (2 Root, 383) 106, 108 
 Hallam v. Corlett, (71 Iowa, 446) 236 
 Hallett V. Thompson, {5 Paige, 583) 341 
 Hallett V. Wylie, (3 Johns. 44) 213 
 Halley v. Ball, (66 III. 250) 407 
 Hallock V. Smith, (3 Barb. 267) 477 
 Halloran v. Whitcomb, (43 Vt. 306) 136 
 Halloway v. Platner, (2 Iowa, 121) 70 
 Halls V. Thompson, (1 Sm. & Mar. 443) 
 
 252, 253 
 Halsey v. Keed, (9 Paige, 446) 152 
 Halsey v. Whitney, (4 Mason, 206) 292 
 Halstat V. Blakeslee, (41 Conn. 301) 295 
 Halstead v. Bank of Kentucky, (4 J. J. 
 
 Marsh. 554) 68, 73, 74, 75, 77, 102, 103, 
 
 105 
 Halstead B.Gordon, (34 Barb. 422) 343 
 Hamaker v. Shroers, (49 Mo. 406) 46, 49 
 Hamberger v. Root, (5 Barr. 108) 186 
 :Hamberliu v. Terry, (7 How., Miss., 143; 
 
 17 How. 143) 418 
 'Hamblett v, Hamblett, (6 N. H. 333) 155, 
 
 168 
 Hamblin v. Dinneford, (2Edw. Ch. 529) 
 
 555, 591 
 Hamburg M. Co. v. Edsall, (1 Halst. Ch. 
 
 249)247 
 Hamet v. Dundass, (4 Barr. 178) 272 
 Hamilton v. Batlin, (8 Minn. 403) 596 
 Hamilton B. Bishop, (8 Yerg. 33) 392 
 Hamilton v. Brooks, (51 Tex. 142) 407 
 Hamilton©. Buckwalter, (2 Yeates, 389) 
 
 170, 171 
 Hamilton v. Cummings, (1 Johns. Ch. 
 
 517) 596 
 Hamilton ». Dobbs, (19 N. J. Eq. 227) 
 
 507 
 Hamilton v. Fowlkes, (16 Ark. 340) 106, 
 
 110, 117, 475 
 Hamilton v. Gilbert, (2 Heisk. 680) 477 
 Hamilton v. Hamilton, (5 Rich.Eq. 355) 
 
 347 
 Hamilton v. Nutt, (34 Conn. 501) 104, 114 
 Hamilton 1!. Overton, (6 Blackf. 206) 46 
 Hamilton v. Rogers, (8 Md. 301) 448 
 Hamilton©. Russell, (1 Cranch, 316)288 
 Hamilton v. Whitridge, (11 Md. 128) 559 
 Hamilton v. Wright, (9 CI. & Fin. Ill) 280 
 Hamlen v. Werner, (144 Mass. 396) 438 
 Hamlin v. Hamlin, (19 Me. 141) 136 
 Hamlin 0. Sears, (82 N. Y. 327) 137, 142 
 
 Hamlin v. Wright, (26 Wis. 50, 113) 113 
 Hamman v. Keigwin, (39 Tex. 34) 66, 73 
 Hammatt v. Emerson, (27 Me. 308) 341, 
 
 356 
 Hammersley v. Lambert, (3 Johns. Ch. 
 
 509, 510) 38 
 Hammersley v. Smith, (4 Whart. 126) 400 
 Hammerslough v. Kansas City Assoc. 
 
 (79 Mo. 81) 138' 
 Hammond v. Corbett, (51 N. H. 311) 407 
 Hammond v. Pennock, (61 N. Y. 145) 356, 
 
 363 
 Hammonds v. Pennock, (61 N. Y. 145) 263 
 HammontreeB. Lott, (40 Mich. 190) 640 
 Hamor©. Moore, (8 Ohio St. 239) 434 
 Hampden v. Rice, (24 Conn. 350) 348 
 Hampson v. Edelen, (2 Har. & J. 64, 66) 
 
 69, 129 
 Hampson v. Fall, (64 Ind. 382) 353 
 Hampton, Case of, (17 S. & R. 144) 279 
 Hampton v. Levy, (1 McCord Ch. 107) 
 
 69, 129 
 Hamson v. Brown, (15 N. Y. 354) 113 
 Hanbest's Estate, (12 Phila. 72) 370 
 Hanbury v. Litchfield, (2 My. & K. 629) 
 
 97, 120 
 Hanchett v. Mansfield, (16 Ilk App. 407) 
 
 248 
 Hancock v. Beverly, (6 B. Mon. 532) 104 
 Hancock v. Carlton, (6 Gray, 39) 43, 50, 
 
 51 
 Hancock v. Hancock, (23 N. Y. 568) 149, 
 
 150 
 Hancock©. Titus, (33 Miss. 234) 33, 34 
 Hancock Bk. v. Joy, (41 Me. 568) 407 
 Hand v. Dexter, (41 Ga. 454) 668 
 Handley v. Pfister, (39 Gal. 383) 337 
 Handley's Exr's v. Fitzhugh, (1 A. K. 
 
 Marsh. 34) 17 
 Handy ©. Noonan, (51 Miss. 166) 144, 640 
 Hanford v. Artcher, (4 Hill, 371) 295 
 Hankinson v. Barbour, (29 111. 80) 90, 96, 
 
 HI 
 Hanks v. Folsom, (11 Lea. 555) 350 
 Hanly v. Morse, (32 Me. 287) 106, 110, 120 
 Hanna v. Sayburn, (84 111. 533) 242 
 Hanna v. Spotts, (5 B. Mon. 513) 281 
 Hannah v. Carrington, (18 Ark. 85) 531 
 Hannauer v. Doane, (13 Wall. 342) 371 
 Hannon v. Madden, (10 Bush, 664) 406 
 Hanover F. Ins. Co. v. Ames, (39 Minn. 
 
 150) 113 
 Hansand v. Robinson, (7 B. & C. 90) 314 
 Hansen v. Denmson, (7 Bradw. 73) 448 
 Hanson v. Eiigcrly, (29 N. H. 343) 251, 
 
 252, 353, 255, 360 
 Hanson v. Jones, (20 Mo. App. 595) 227 
 
TABLE OF OASES CITED. 
 
 729 
 
 REFERENCES ARE TO PAGES. 
 
 Hanson v. Keating, (4 Hare, 1) 29, 30, 31 
 Hanson v. Millett, (55 Me. 184) 407 
 Harbaugh v. Hohn, (52 Ind. 243) 265 
 Harbison v. Lemon, (2 Blackf. 51) 275 
 Harcourt®. Seymour, (2 Sim.,N. s.,12) 
 
 36,207 
 Hardaway v. Semmes, (34 Ga. 305) 107, 
 
 110 
 Hardee v. Howard, (SSGa. 533) 50 
 Hardeman v. Battersby, (53 Ga. 36) 214 
 Hardenbergh v. Bacon, (33 Cal. 356) 279 
 Hardigree v. Mltchum, (51 Ala. 151) 219, 
 
 230 
 Hardin v. Harrington, (11 Bush, 367) 66, 
 
 73,77 
 Hardin v. Jones, (86 111. 313) 640 
 Harding u Allen, (70 Md. 395) 107 
 Harding v. Handy, (11 Wheat. 103) 274 
 HardingD. Kandall,(15Me.332)254,356 
 Hardingham v. Thomas, (2 Drew. 353) 
 
 184,194 
 Hardman v. Booth, (33 L. J., n. s., Ex. 
 
 105) 245 
 Hardwick v. Forbes' Adm'rs, (1 Bibb, 
 
 212) 265 
 Hardy v. Citizens' Bk. (61 N. H. 34) 279 
 Hardy v. Holly, (84 N. C. 661) 393 
 Hardy v. Martin, (1 Cox, 27; 1 Bro. Ch. 
 
 419 n) 43, 47 
 Hardy v. Potter, (10 Gray, 89) 297 
 Hardy v. Summers, (10 Gill & J. 316) 111, 
 
 117 
 Harford v. Furrier, (1 Madd. Ch. 532) 36 
 Harkness v. Board of Pub. Wks. (1 Mc- 
 
 Arthur, 121) 606 
 Harlan v. Seaton, (18 B. Mon. 312) 104 
 Harlan v. Sweeny, (1 Lea. 682) 621 
 Harlln v. Maglaughlan, (90 Pa. St. 293) 
 
 291 
 Harman 1;. Gurner, (35 Beav. 478; 333 
 Harman v. South London Water Co. (2 
 
 Meriv. 61) 51 
 Harmer v. Gywnne, (5 McLean, 313) 602 
 Earner v. Fisher, (58 Pa. St. 453) 245 
 Harnet v. Yielding, (2 Sch. & Lef.549)235 
 Harnett v. Baker, (L. R. 20 Eq. 50) 257 
 Harney v. Charles, (45 Mo. 157) 220 
 Harney v. Indianapolis, &c. K. K. (32 
 
 Ind. 244) 606 
 Harpers. Barsh, (10 Rich. Eq. 149) 102 
 Harper v. Bibb, (47 Ala. 547) 425 
 Harper v. Ely, (70 111. 581; 56 111. 179) 45, 
 
 497 
 Harper v. Perry, (28 Iowa, 57) 280 
 Harper v. Phelps, (21 Conn. 257) 331 
 Harper v. Reno, (1 Freem. Ch. 323) 103, 
 
 105 
 
 Harper v. Tapley, (35 Miss. 510) 102 
 Harper v. Whitehead, (33 Ga. 138) 265 
 Harral v. Gray, (10 Neb. 186, 189) 106, 110, 
 
 640 
 Harral v. Leverty, (50 Conn. 46) 117 
 Harrall, In re, (31 N. J. Eq. 101) 304 
 Harrell v. Normandie, (26 Tex. 120) 221 
 Harrer v. Wallner, (80 111. 197) 407 
 Harrington v. Bigelow, (11 Paige, 349) 
 
 27, 268 
 Harrington v. Portner, (58 Mo. 468) 465 
 Harrington v. Slade, (22 Barb. 161) 135 
 Harris v. Arnold, (1 R. 1. 135) 103. 118 
 Harris v. Bell, (10 S. & R. 39) 107, 109 
 Harris v. Burns, (50 Cal. 140) 390 
 Harris v. Burwell, (65 N. C. 584) 88 
 Harris v. Carstarphen, (69 N. C. 416) 551 
 Harris v. Clark, (3 N. Y. 93) 433, 434 
 Harris v. Clark, (7 N. Y. 343) 338 
 Harris v. Clark, (2 Barb. 94) 432 
 Harris v. Clark, (3 Const. 243) 457 
 Harris v. Columbian Ins. Co. (18 Ohio, 
 
 116) 236 
 Harris v. Cornell, (80 111. 54) 265 
 Harris v. Douglas, (64 111. 466) 418 
 Harrisu Ferguson, (16 Sim. 303) 39 
 Harris v. Fly, (7 Paige, 421) 114 
 Harris v. Hanie, (37 Ark. 348) 472 
 Harris v. Hanks, (25 Ark. 510) 472 
 Harris v. Harris, (7Ired. Eq. Ill) 397 
 Harris v. Harris, (23 Gratt. 737) 437 
 Harris V. Kemble, (1 Sim. Ill) 254, 260 
 Harris v. Knapp, (21 Pick. 416) 381 
 Harris v. Morton, (16 Barb. 374) 73 
 Harris v. Parker, (41 Ala. 604) 365 
 Harris v. Petty, (66 Tex. 514) 362 
 Harris v. Ranson, (24 Miss. 234) 633 
 Harris v. Reece, (5 Gilm. 213) 237 
 Harris v. Rhode Island, &c. Co. (10 R. I. 
 
 313) 192 
 Harris v. Rucker, (13 B. Mon. 564) 366 
 Harris v. Slaght, (46 Barb. 470) 302 
 Harris v. Smith, (2 Dana, 10) 640 
 Harris v. Sumner, (2 Pick. 139) 392 
 Harris v. Tremenhere, (15 Ves. 40) 379 
 Harris v. Tyson, (13 Harris, 347) 252, 253 
 Harris v. Vineyard, (40 Mo. 568) 
 Harris v. Wamsley, (41 Iowa, 671) 374 
 Harrison v. Cachelln, (23 Mo. 117) 70, 104, 
 
 105 
 Harrison v. Dewey, (46 Mich. 173) 628 
 Harrison v. Field, (2 Wash., Va., 136) 38, 
 
 441 
 Harrison v. Guest, (6 De G. M. & G. 424) 
 
 272 
 Harrison v. Harrison, (1 Keen, 765) 170 
 Harrison v. Harrison, (9 Ala. 470) 418 
 
730 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Harrison v. Harrison, (36 N. Y. 543) 340 
 Harrison v. Howard, (1 Ired. Eq. 407) 232, 
 
 234, 237 
 Harrison v. Lemon, (3 Blackf. 51) 53 
 Harrison v. Talbott, (2 Dana, Ky., 258) 
 
 229 
 Harrison v. Town, (77 Mo. 237) 272 
 Harrison v. Trustees, (12 Mass. 456) 276 
 Harrison v. Wright, (100 Ind. 515) 459 
 Harrison v, Harrison's Adm'x, (3 Gratt. 
 
 1)331 
 Harrold v. Simonds, (9 Mo. 326) 107 
 Harrop, In re, (3 Drew. 726) 206, 207 
 Harrop v. Landers, &c. Co. (45 Conn. 
 
 561) 84, 449 
 Harryman v. Collins, (18 Beav. 11) 116 
 Harshberger's Adm'r v. Alger, (31 Gratt. 
 
 52) 405 
 Hart V. Chase, (46 Conn. 207) 148, 149 
 Hart V. Epstein, (71 Tex. 752) 489 
 Hart ■!>. Farm. & Mech. Bk. (33 Vt. 252) 
 
 69, 70, 105, 129, 132 
 Hart V. Freeman, (42 Ala. 567) 654 
 Hart V. Giles, (67 Mo. 175) 139, 144 
 Hart V. Goldsmith, (1 Allen, 145) 31, 369 
 Hart V. Hart, (39 Miss. 221) 418 
 Hart V. Holcombe, (32 N. H. 185) 252 
 Hart V. Homlier, (8 Harris, 248) 51 
 Hart V. Marshall, (4 Minn. 296) 547 
 Hart V. McDade, (61 Tex. 309) 113 
 Hart ». Tallmadge, (3 Day, Conn., 382) 
 
 360 
 Hart V. Ten Eyck, (2 Johns. Ch. 62) 372 
 Hart V. The Bank, (33 Vt. 253) 65, 68 
 Hart V. Tulk, (2 De G. M. & G. 300) 231 
 Hart V. "Williams, (77 N. C. 426) 483 
 Hartford, City of v. Chipman, (21 Conn. 
 
 488) 16 
 Hartley v. Tapley, (2 Gray, 565) 445 
 Hartley's & Minor's App. (53 Pa. St. 
 
 212) 384 
 Hartman v. Heady, (57 Ind. 545) 566 
 Hartrayer v. Gates, (1 Root, 61) 106, 108 
 Hartopp V. Hartopp,(17Ves. 184) 182, 185 
 Hartshorn v. Cuttrell, (1 Green's Ch. 297) 
 
 230, 231 
 Hartshorn v. Eames, (31 Me. 81, 93) 618 
 Hartshorn v. Potrofl, (89 111. 509) 137 
 Hartshorn v. South Reading, (3 Allen, 
 
 501) 559 
 Hartshbrne v. Hartshorne, (3 N. J. Eq. 
 
 349)306 
 Harvard Colleger. Soc. for Prom. Theol. 
 
 Ed. (3 Gray, 380) 348 
 Harvey v. Harvey, (5 Beav. 134) 205 
 Harvey v. Jones, (1 Dissney, 65) 640 
 Harvey v. Kelly, (41 Miss. 490) 473 
 
 Harvey v. Mitchell, (31 N. H. 532) 101 
 Harvey v. Smith, (17 Ind. 272) 250 
 Harvey v. Sullens, (46 Mo. 147) 287 
 Harvey v. Varney, (98 Mass. 118) 268 
 Harvlll V. Lowe, (47 Ga. 2l4) 472 
 Harwick v. Thompson, (9 Ala. 409) 121 
 Haskell v. Haskell, (3 Cush. 540) 649, 651 
 Haskell v. House, (3Brev. 242) 382 
 Haskell v. Scott, (56 Ind. 564) 473 
 Haskins v. Hawkes, (108 Mass. 379) 507 
 Hass V. Plantz, (56 Wis. 105) 140 
 Hassam v. Barritt, (115 Mass. 256) 489 
 Hastead v. Searle, (1 Ld. Raymond, 7281 
 
 232 
 Hastie v. Couturier, (9 Exch. 102) 235 
 Hastings v. Clifford, (32 Me. 132) 173 
 Hastings v. Cooper, (3 Del. Ch. 165) 659 
 Hastings v. Cutler, (4 Fost. 481) 95, 103 
 Hastings v. Drew, (76 N. T. 9) 350 
 Hastings v. O'Donnell, (40 Cal. 148) 252 
 Hasten v. Castner, (31 N. J. Eq. 697) 358 
 Hatch'i). Atkinson, (56 Me. 324) 431, 432 
 Hatch V. Bassett, (53 N. Y. 359) 171 
 Hatch V. Bigelow, (39 111. 136) 133 
 Hatch V. Fogarty, (33 N. Y. S. C. 166) 46 
 Hatch V. Skelton, (20 Beav. 453) 150 
 Hatche's Estate, In re, (18 Atl. 814) 170 
 Hatcher's Adm'r v. Hatcher's Ex'rs, (1 
 
 Rand. 53) 479 
 Hatfield ». McWhorter, (40 Ga. 269) 663 
 Hatfield v. Pryme, (2 Coll. 204) 210 
 Hathaway v. Brady, (23 Cal. 122) 233 
 Hathaway v. Poy, (40 Mo. 540) 657 
 Hathaway v. Johnson, (55 N. Y. 93) 262 
 Hathaway v. Noble, (55 N. H. 508) 25, 262 
 Hathaway v. Thayer, (8 Allen, 421) 420 
 Hathorne v. Hodges, (28 N. Y. 486) 65 
 Hauberger ii. Root, (5 Pa. St. 108) 185 
 Hauck V. Craighead, (67 N. Y. 432) 441 
 Haughwaut v. Murphy, (22 N. J. Eq. 
 
 531) 36, 471 
 Haughwaut v. Murphy, (21 N. J. Eq. 
 
 118) 66, 71, 72, 125 
 Haughwaut v. Murphy, (7 C. E. Green, 
 
 531) 303 
 Hause v. Hause, (57 Ala. 363) 418 
 Hauser v. Lash, (2 Dev. & B. Eq. 212) 488 
 Hausett v. Vilmar, (2 Abb. N. C. 222) 289 
 Hausett v. Vilmar, (76 N. Y. 630) 343 
 Havelicku. Havelick, (18 Iowa, 414) 418 
 Haven v. Foster, (9 Pick. Ill) 218, 219, 
 
 330, 235 
 Haven v. Richardson, (5 N. H. 113) 393 
 Havens v. Adams, (8 Allen, 363) 124 
 Havens v. Havens, (1 Sandf. Ch. 324, 
 
 325) 170, 171, 423 
 Havens v. Middleton, (10 Hare, 641) 53 
 
TABLE OF CASES CITED. 
 
 731 
 
 REFERENCES ARE TO PAGES. 
 
 Havens v. Sackett, (15 N. Y. 365) 159, 160, 
 
 167, 168 
 Haverstick v. Sipe, {33 Pa. St. 368) 153 
 Haverstick v. Trudel, (51 Gal. 431) 419 
 Haviland v. Bloom, (6 Johns. Ch. 178) 30, 
 
 408 
 Haviland v. Myers, (6 Johns. Ch. 25) 408 
 Hawes v, Marchant, (1 Curtis, 136) 343 
 Hawes v. Oakland, (14 Otto, 450) 555 
 Hawes Place Cong. Soc. v. Trustees, &e. 
 
 (5 Cush. 454) 364 
 Hawkins, Ex parte, (13 Sim. 569) 205 
 Hawkins' Appeal, (32 Pa. St. 263) 283 
 Hawkins v. Day, (Ambl. 160) 217 
 Hawkins v. Hawkins, (50 Cal. 558) 377 
 Hawkins v. Methodist Ch. (23 Minn. 256) 
 
 138 
 Hawkins v. Palmer, (57 N. Y. 664) 256 
 Hawley v. Bradford, (9 Paige, 200) 206 
 Hawley v. Bristol, (39 Conn. 26) 445 
 Hawley v. Bullock, (29 Tex. 216) 117 
 Hawley v. Cramer, (4 Cow. 717) 17, 94, 111 
 Hawley v. James, (7 Paige, 213) 371 
 Hawley v. James, (5 Paige, 318) 176, 350 
 Hawley v. Simons, (111., 14 N. B. Rep; 7) 
 
 16 
 Haworth v. Taylor, (108 111. 375) 120 
 Hawralty v. Warren, (18 N. J. Eq. 124) 
 
 330 
 Hay v. Star Fire Ins. Co. (77 N. Y. 335) 
 
 243 
 Haydel v. Hurck, (5 Mo. App. 267) 363 
 Hayden v. Bucklin, (9 Paige, 512) 124, 
 
 125 
 Hayden v. Snow, (14 Fed. Eep. 70) 17 
 Haydoek v. Haydock, (33 N. J. Eq. 494) 
 
 387 
 Hayes v. Garvey, (2 Jo. & Lat. 268) 194 
 Hayes v. Hayes, (48 N. H. 319) 430 
 Hayes v. Hayes, (3 Del. Ch. 191) 194 
 Hayes v. Johnson, (4 Ala. 267) 657 
 Hayes v. Livingston, (34 Mich. 384) 136, 
 
 139, 145 
 Hayes v. McGuire, (8 Yerg. 93, 100) 106 
 Hayes v. Ward, (4 Johns. Ch. 123) 631,633 
 Hayes v. Willis, (11 Abb. Pr., N. Y., 167) 
 
 555 
 Haygarth v. Wearing, (L. K. 13 Eq. 330) 
 
 350 
 Hayham v. Combs, (14 Ohio, 428) 107 
 Haynes v. Crutchfield, (7 Ala. 189) 247 
 Haynes v. Mico, (1 Bro. Ch. 130) 193 
 Haynes v. Onderdonk, (5 T. & C. 176) 640 
 Haynes v. Seachrist, (13 Iowa, 455) 110 
 Haynes v. Swan, (6 Heisk. 560) 489 
 HaynieiJ. Dickens, (68 111. 267) 173 
 Hays V. Cockrell, (41 Ala. 75) 418 
 
 Hays V. Cruteher, (54 Ind. 260) 441 
 Hays V. Jackson, (6 Mass. 149) 483 
 Hays V. McGuire, (8 Yerg. 92) 110 
 Hays V. Quay, (68 Pa. St. 263) 339 
 Hays V. Reger, (103 Ind. 534) 140 
 Hayward v. Stearns, (39 Cal. 58) 81 
 Hayward v. White, (3 Kerr, 319) 289 
 Haywood v. Haywood, (79 N. C. 42) 419 
 Haywood v. Nooney, (3 Barb. 643) 59 
 Hazard v. Durant, (11 R. 1. 195) 555 
 Hazard v. Irwin, (18 Pick. 95) 241, 256 
 Hazelington v. Gill, (3 T. R. 620) 294 
 Hazeltinec. Moore, (31 Hun, 355) 473 
 Hazen v. Thurber, (4 Johns. Ch. 604) 
 
 609 
 Hazlett V. Sinclair, (76 Ind. 400) 116 
 Head v. Fordyce, (17 Cal. 149) 640 
 Head v. Goodwin, (37 Me. 181) 447 
 Head v. James, (13 Wis. 641) 637 
 Head v. Temple, (4 Heisk. 34) 393, 398 
 Headle'y v. Goundry, (41 Barb. 279) 486 
 Headrick v. Brattain, (63 Ind. 438) 448 
 Heald v. Builder's Ins. Co. (HI Mass. 
 
 38) 448 
 Heane v. Rogers, (9 B. & C. 577) 137 
 Heard v. Stamford, (Cas. tem,p. Talb. 
 
 173) 23 
 Hearler. Greenbank, (3 Atk. 695, 715) 
 
 163, 166, 411 
 Hearst v. Pujol, (44 Cal. 330) 319, 335, 596 
 Heath v. Erie Ry. (8 Blatchf. 347) 374 
 Heath v. Erie Ry. (9 Blatchf. 316) 644 
 Heath v. Waters, (40 Mich. 457) 369, 374 
 Heath v. Williams, (30 Ind. 495) 489 
 Heathman v. Hall, (3 Ired. Eq. 414) 394 
 Heatley v. Finster, (3 Johns. Ch. 159) 73 
 Heaton v. Fryberger, (38 Iowa, 185) 219 
 Heaton v. Knowlton, (65 Ind. 355) 430 
 Heaton v. Parther, (84 III. 330) 111 
 Heavenridge v. Mondy, (49 Ind. 434) 219, 
 
 239, 233 
 Hebert v. Ins. Co. (8 Sawyer, U. S., 198) 
 
 17 
 Hebb V. Hebb, (5 iiiU, 506) 433 
 Heburn v. Warner, (113 Mass. 371) 406 
 Hebron v. Centre Harbor, (11 N. H. 571) 
 
 53 
 Hedges v. Hedges, (Prec. Chan. 369) 431 
 Hedges v. Wallace, (2 Bush, 442) 371 
 Heermans v. Burt, (78 N. Y. 359) 327 
 Heermans v. Robertson, (64 N. Y. 333) 
 
 ' 337 
 Heilman v. Union Canal Co. (37 Pa. St. 
 
 100) 17 
 Heine v. Levee Com. (19 Wall. 658) 33 
 Heineckey v. Earle, (8 El. & B. 410) 299 
 Heiss V. Murphy, (40 Wis. 276) 349 
 
T32 
 
 TABLE OF CASES CITED. 
 
 REFERENOBS ARE TO PAGES. 
 
 Heist V. Baker, (49 Pa. St. 9) 474 
 Heister v. Green, (48 Pa. St. 96) 474 
 Heistner v. Fortner, (3 Binu. 40) 70, 102, 
 
 105 
 Helfenstein's Estate, (77 Pa. St. 328) 434 
 Hellman v. MeWilliams, (70 Cal. 449) 328 
 Helme v. Philadelphia Ins. Co. (61 Pa. 
 
 St. 107) 51 
 Helmetag v. Frank, (61 Ala. 67) 394 
 Helms V. Chadbourne, (45 Wis. 60) 93, 
 
 94, 97, 98, 111, 113 
 Helms V. Franciscus, (3 Bland, 544) 408 
 Helms V. O'Bannon, (26 Ga. 132) 107, 117 
 Helsham v. Langley, (1 Y. & C. Ch. 175) 
 
 337 
 Hemmer v. Cooper, (8 Allen, 334) 249, 850 
 Hemming v. Gurrey, (2 S. & S. 311) 191 
 Hemmingway u. Hemmlugway, (33 
 
 Conn. 463) 383 
 Hempfield E. R. v. Thornburg, (1 W. Va. 
 
 361) 474 
 Hemphill v. Moody, (64 Ala. 468) 418 
 Hempstead v. Johnson, (18 Ark. 123) 294 
 Henagan v. Harlice, (10 Rich. Eq. 385) 59 
 Henderson v. Burton's Ex'rs, (3 Ired. Eq. 
 
 259) 474 
 Henderson v. Dickey, (35 Mo. 120; 50 Mo. 
 
 161) 137 
 Henderson v. Downing, (24 Miss. 106) 71 
 Henderson v. Hays, (2 Watts, 148) 373 
 Henderson v. Henderson, (31 Mo. 379; 55 
 
 Mo. 534) 65, 329, 370 
 Henderson v. Hicks, (58 Gal. 364) 587 
 Henderson v. Hunter, (59 Pa. St. 335) 349 
 Henderson v. N. Y. Cent. R. R. (78 N. Y. 
 
 423) 563 
 Henderson v. Pierce, (9 N. E.Rep.449) 393 
 Henderson v. Railroad Co. (17 Tex. 560) 
 
 261 
 Hendersons. Vaulx, (10 Yerg., Tenn.)643 
 Henderson v. Walker, (55 Ga. 481) 675 
 Hendricks v. Robinson, (2 Johns. Ch. 
 
 383) 392 
 Hendricks v. Tuckwiller, (20 W. Va. 489) 
 
 370 
 Hendrickson v. Hinchley, (17 How. 443, 
 
 445) 566 
 Hendrickson v. Ivins, (Saxt. 562) 336, 238 
 Hendrickson's Appeal, (12 Harris, 363) 
 
 60,105 
 Hendrix v. Nunn, (46 Tex. 141) 357 
 Heneke v. Floring, (114 111. 554) 353 
 Henkle's Ex'x v. Allstadt, (4 Gratt. 384) 
 
 536 
 Henley v. Hotaling, (4 Cal. 22) 53 
 Hennequin v. Naylor, (34 N. Y. 139) 348, 
 
 349, 353, 253 
 
 Hennessy v. Andrews, (6 Cush. 170) 119 
 Hennessy v. Walsh, (55 N. H. 515) 353 
 Henrioid v. Neusbaumer, (69 Mo. 96) 379 
 Henry v. Blackburn, (33 Ark. 44,5) 406 
 Henry v. Davis, (7 Johns. Ch. 40) 52, 488 
 Henry v. Doctor, (9 Ohio, 49) 545 
 Henry v. Elliott, (6 Jones' Eq., N. C, 
 
 175) 633 
 Henry v. Raiman, (1 Casey, 354) 90, 96 
 Henshaw v. Robins, (9 Met. 83, 90) 253, 
 
 360 
 Hensler v. Sefrin, (19 Hun, 564) 117 
 Henson v. Westcott, (83 111. 334) 473 
 Hentz V. Miller, (94 N. Y. 64) 142 
 Henwood v. Jarvis, (37 N. J. Eq. 247) 569 
 Hepburn v. Dunlop, (1 Wheat. 189, 197) 17 
 Hepburn v. Hepburn, (3 Bradf. 74) 363 
 Hepburn v. Snyder, (3Barr. 73) 474 
 Hepburn's Appeal, (65 Pa. St. 468) 400 
 Herbert v. Bronson, (135 Mass. 475) 449 
 Herberts. Scofield, (1 Stockt. Ch. 492) 
 
 473 
 Herbert v. Wren, (7 Cranch, 370) 170, 171 
 Herberts v. Herberts' Ex'rs, (85 Ky. 134) 
 
 333 
 Hereford v. Ravenhill, (1 Beav. 481; 5 
 
 Beav. 51) 200, 210 
 Herndon v. Kimball, (7 Ga. 433) 103, 105, 
 
 107, 110 
 Heron v. HofiEner, (3 Rawle, 393) 173 
 Herr's Estate, (1 Grant Cas. 373) 356 
 Herrick v. Blair, (1 Johns., N. Y., Ch. 
 
 101) 331 
 Herrick v. Wolverton, (41 N. Y. 581) 87 
 Herring v. Wickham, (30 Gratt. 628) 393 
 Herrington v. McCollum, (73 111. 476) 135 
 Herschfeldt v. George, (6 Mich. 466) 291 
 Hersey v. Turbett, (3 Casey, 418) 124 
 Hershey v. Weiting, (14 Wright, 244) 36 
 Hertel v. Van Buren, (3 Edw. Ch. 20) 
 
 384 
 Herty v. Clark, (46 Ga. 649) 638 
 Hervey v. Audland, (14 Sim. 531) 33 
 Hervey v. Savery, (48 Iowa, 313) 234 
 Hervey v. Smith, (22 Beav. 299) 95, 113 
 Hervey v. Smith, (1 Kay & J. 392) 551 
 Heslop V. Gatton, (71 III 538) 481 
 Hesse v. Briant, (6 De G. M. & G. 633) 
 
 284 
 Hesse v. Young, (59 Ind. 379) 260 
 Hesser v. Wilson, (36 Iowa, 152) 295 
 Hessing v. McCloskey, (37 111. 341) 289 
 Hester v. Memphis, &c. R. E. (32 Miss. 
 
 378) 261 
 Hesthal v. Myles, (53 Cal. 623) 397 
 Hetherington D. Clark, (6 Casey, 393) 103, 
 
 104, 107, 109 
 
TABLE OF CASES CITED. 
 
 733 
 
 REf^ERENCES ARE TO PAGES. 
 
 Hetherington v. Oakman, (2 T. & C. Ch. 
 
 299) 332 
 Hetrich's Appeal, (58 Pa. St. 477) 374 
 Hetzel V. Barber, (69 N. Y. 1) 105 
 Heuisler v. Nickum, (38 Md. 270) 58, 59 
 Heuser v. Harris, (43 111. 435) 349 
 Heustis V. Johnston, (84 111. 61) 418 
 Hevenerr. Berry, (17 W. Va. 474) 621 
 Heward v. Stagle, (52 111. 336) 418 
 Hewes v. Wiswell, (8 Me. 94) 118, 121, 122 
 Hewitt V. Clark, (91 111. 605) 111 
 He-Witt V. Crane, (3 Halst. Ch. 159) 286 
 Hewitt V. Loosemore, (9 Hare, 449) 57, 97, 
 
 98, 133 
 Hewitt V. Wright, (1 Bro. Ch. 86) 201, 
 
 211 
 Hewlett V. Cutler, (137 Mass. 185) 392 
 Heyder v. Pruyn, (7 Paige, 465) 569 
 Heyland v. Badger, (35 Gal. 404) 539 
 Heyman v. Dubois, (L. K. 13 Eq. 158) 33 
 Haywood v. Buffalo, City of, (14 N. Y. 
 
 534) 606, 637 
 Hiatt's Heirs v. Calloway's Heirs, (7 B. 
 
 Mon. 178) 640 
 Hibbard v. Eastman, (47 N. H. 507) 569 
 Hibberd v. Bovier, (1 Grant's Cas. 266) 70 
 Hibernian Bank v. Everman, (53 Miss. 
 
 500) 126 
 Hibernian, &c. Soc. v. Ordway, (28 Cal. 
 
 679) 26 
 Hickey v. Hickey, (26 Conn. 261) 176 
 Hickman v. Painter, (11 W. Va. 386) 214 
 Hicks V. Hicks, (5 Gill & J. 75) 53 
 Hickson v. Collis, (1 Jo. & Lat. 94) 128 
 Hidden v. Jordan, (31 Cal. 93) 353 
 Hidden v. Jordan, (38 Cal. 301) 354 
 Hler V. Staples, (51 N. Y. 136) 404 
 Higbee ». Camden, &c. R. E. (19 N. J. 
 
 Eq. 376) 559 
 Higdon V. Heard, (14 Ga. 355) 651 
 Higdon V. Higdon, (57 Miss. 264) 355 
 Higgenbottom v. Peyton, (3 Rich. Eq. 
 
 398) 336 
 Higgenbottom v. Short, (35 Miss. 160) 613 
 Higgenbotham v. Cornwall, (8 Gratt.83) 
 
 160, 168, 170 
 Higgins v. Bicknell, (82 111. 502) 243 
 Higgins V. Curtis, (82 HI . 28) 279 
 Higgins V. Ferguson, (14 111. 269) 66 
 Higgins V. Hargroves, (42 Miss. 18) 475 
 Higgins V. Kendall, (73 Ind. 522) 473 
 Higgins V. White, (18 111. App. 480) 117 
 Higginson v. Clowes, (15 Ves. 516) 239 
 High V. Batte, (10 Yerg. 186) 72 
 High V. Worley, (33 Ala. 196) 199 
 Higham v. Harris, (108 Ind. 246) 262 
 Highberger v. Stiffler, (21 Md. 338) 275 
 
 Hightower v. Nuber, (36 Ark. 604) 596 
 Hile V. Davison, (30 N. J. Eq. 338) 551 
 Hileman v. Wright, (9 Ind. 136) 334 
 Hiler v. Hefterick, (5 Daly, 33) 618 
 Hill, In re, (31 N. J. Eq. 203) 303 
 Hill V. Andrews, (12 Cush. 185) 640 
 Hill V. Armistead, (56 Ala. 118) 418 
 Hill V. Barclay, (16 Ves. 402) 32, 53 
 Hill V. Barclay, (18 Ves. 56, 58, 62) 54 
 Hill V. Billingsley, (53 Miss. Ill) 569 
 Hill V. Bowman, (35 Mich. 191) 393 
 Hill V. Boyland, (40 Miss. 618) 418 
 Hill V. Curley, (8 Hun, 636) 346 
 Hill V. Den, (54 Cal. 6) 327 
 Hill V. Eldred, (49 Cal. 398) 465 
 Hill V. Epley, (31 Pa. St. 331) 108, 137, 139 
 
 141 
 Hill V. Grlggsby, (33 Cal. 55) 471 
 Hill V. Jones, (65 Ala. 214) 483 
 Hill V. McCarter, (37 N. J. Eq. 41) 103 
 Hill V. McLaurin, (28 Miss. 288) 274, 418 
 Hill V. McRae, (27 Ala. 175) 341 
 Hill V. Meeker, (24 Conn. 211) 104 
 Hill V. Parrish, (14 N. J. Eq. 380) 555 
 Hill V. Pine River Bk. (45 N. H. 300) 288 
 
 407 
 Hill V. Pixley, (63 Barb. 200) 149 
 Hill V. Smith, (3 McLean, 446)491 
 Hill V. Speer, (50 N. H. 253) 270, 371 
 Hill V. Spencer, (Ambl. 641) 27 
 Hilleary <i. HlHeary, (26 Md. 274) 173 
 Hilliard v. Benford, (10 Ala. 977) 173 
 Hilliard v. Cagle, (46 Miss. 300) 395 
 Hills V. Elliott, (13 Miss. 31) 358 
 Hills V. Parker, (HI Mass. 508) 675 
 Hills V. Rowland, (4 De 6. M. & G. 430) 
 
 54 
 Hillyard v. Miller, (10 Barr. 336) 348 
 Hilton v. Hilton, (3 McArthur, 70) 198» 
 
 199, 303 
 Hilton V. Lathrop, (46 Me. 297) 507 
 Hinchcliffe v. Hinchcliffe, (3 Ves. 516) 
 
 188, 189 
 Hinchcliffe v. Hinman, (18 Wis. 135) 102 
 Hinchman v. Emans, (Saxt.lOO) 149, 151, 
 
 219 
 Hinchman v. Paterson, &c. R. R. (17 N. 
 
 J. Eq. 75) 559 
 Hinchley v. Railroad Co. (10 Otto, 153> 
 
 673 
 Hinchley v. Smith, (51 N. Y. 21) 404 
 Hinchley's Estate, (8 Pac. Coast L. J. 
 
 407)348 
 Hinckley v. Arey, (27 Me. 362) 283 
 Hinckley v. House of Refuge, (40 Md. 
 
 461) 173 
 Hinde v. Vattier, (1 McLean, 110) 9' 112 
 
734 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Hinde's Lessee v. Longworth,(ll Wheat. 
 
 199) 290 
 Hindman v. Dill, (11 Ala. 689) 293 
 Hinds V. Ballou, (44 N. H. 619) 59, 149 
 Hine v. Hine, (39 Barb. 507) 183, 183, 185, 
 
 187, 188 
 Hine v. Bobbins, (8 Conn. 343) 106, 107, 
 
 108 
 Hlnes V. Perkins, (3 Heisk. 395) 471 
 Hines v. Eawson, (40 Ga. 356) 566 
 Hinkle v. Margerum, (50 Ind. 340) 551 
 Hinkson v. Williams, (41 N. J. L. 35) 404 
 Hinman v. Hinman, (4 Conn. 575) 106, 
 
 108 
 Hinton v. Citizens' Mut. Ins. Co. (63 Ala. 
 
 488) 234 
 Hlscock V. Norton, (42 Mich. 320) 473 
 Hlse V. Foster, (17 Iowa, 33) 48 
 Hitchcock V. Harrington, (6 Johns. 390) 
 
 491 
 Hitchcock V. Kiely, (41 Conn. 611) 407 
 Hitchcock V. Skinner, (Hoff. Ch. 81) 613 
 Hitchlns v. Pettlngill, (58 N. H. 386) 229 
 Hltti;. Holiday, (3 Lltt. 332) 507 
 Hlx V. Gosling, (1 Lea. 560) 398 
 Hoadley «. Hadley, (48 Ind. 452) 56, 58 
 Hoadley v. House, (33 Vt. 129) 264 
 Hoag V. McGlnnls, (22 Wend. 163) 50 
 Hoagland v. Latourette, (1 Green's Ch. 
 
 254) 36, 69, 129, 202 
 Hobbs V. Beaver, (2 Ind. 142) 245 
 Hobbs V. Blandford, (7 Mon. 469) 408 
 Hobbs V. Carr, (27 Mass. 533) 298 
 Hobbs V. Smith,' (15 Ohio St. 419) 389 
 Hobday v. Peters, (38 Beav. 349, 354) 286 
 Hobson V. Edwards, (57 Miss. 123) 478 
 Hobson V. Stevenson, (ITenn. Ch. 203) 84 
 Hocker v. Gentry, (3 Mete, Ky., 463) 198 
 HockettB. Bailey, (86111.74) 144 
 Hodge V. Twltchell, (33 Minn. 389) 359 
 Hodgeden v. Hubbard, (18 Vt. 504) 65, 68, 
 
 348, 353 
 Hodges V. Ammerman, (40 N. J. Eq. 99) 
 
 117 
 Hodges V. Coleman, (76 Ala. 103) 112 
 Hodges V. King, (7 Met. 583) 47, 49 
 Hodges V. Howard, (5 R. 1. 149) 358 
 Hodges 11. Tenn. Marine, &c. Ins. Co. (8 
 
 N. J. 416) 488 
 Bodgklns v. Montgomery Co. Ins. Co. 
 
 (34 Barb. 313) 131 
 Hodgson V. Barrett, (33 Ohio St. 63) 345 
 Hodgson V. Butts, (3 Cranch, 140) 103, 105 
 Hodgson V. Clarke, (1 De G. F. & J. 394) 
 
 334 
 Hodgson V. Farrell, (3 McCart. 88) 372 
 Hodgson V. King, (7 Met. 583) 47 
 
 Hodgson V. Powis,Earl of, (1 DeG. M. & 
 
 G. 6) 555 
 Hoffman v. Blume, (64 Tex. 334) 119 
 Hoffman v. Noble, (6 Met. 68) 249 
 Hoffman v. Rice, (38 Md. 284) 406 
 Hoffman v. Stigers, (28 Iowa, 303) 544 
 Hoffman, &c. Co. v. Cumberland C. Co. 
 
 (16 Md. 456) 284 
 Hoffmann, &c. Co. v. Cumberland C. Co. 
 
 (16 Barb. 456) 356 
 Hofman v. Strohecker, (7 Watts, 90) 107, 
 
 109 
 Hogan V. Jaques, (19 N. J. Eq. 123) 352 
 Hogan V. Stayhorn, (65 N. C. 279) 352 
 Hogan V. Stone, (1 Ala. 496) 499 
 Hoge V. Hoge, (1 Watts, 163) 358 
 Hogel V. Llndell, (10 Mo. 483) 489 
 Hogg V. Wilkins, (1 Grant's Cas. 67) 358 
 Hoghton V. Hoghton, (15 Beav. 278) 286 
 Holblrd V. Anderson, (5 T. R. 235) 293 
 Holbrook v. Bust, (22 Pick. 546) 258, 259 
 Holbrook v. Campau, (32 Mich. 388) 420 
 ■Holbrook v. Connor, (60 Me. 578) 343, 349, 
 
 350, 359 
 Holbrook v. Finney, (4 Mass. 566) 59 
 Holbrook v. N. J. Zinc Co. (57 N. Y. 616) 
 
 81,85 
 Holdane v. Cold Spring, (31 N. Y. 474) 
 
 143 
 Holden v. N. Y. & Erie Bank, (73 N. Y. 
 
 386) 139, 130, 131, 133, 134, 328 
 Holden v. Pike, (24 Me. 427) 149 
 Holden v. Torrey, (31 Vt. 690) 142 
 Holder v. Jackson, (11 Up. Can. C. P. 
 
 543) 245 
 Hoiderman v. Jennings, (14 Ark. 329) 50, 
 
 51 
 Holdlch V. Holdich, (2 Y. & C. 18) 172 
 Holdrldge v. Gillespie, (3 Johns. Oh. 30) 
 
 376 
 Holdsworth v. Tucker, (143 Mass. 369) 
 
 323 
 Holgate V. Jennings, (24 Beav. 623) 305 
 Holland v. Cruft, (3 Gray, 162) 199, 209 
 Hollandw.Cruft, (20 Pick. 321) 68 
 Holland v. Trotter, (33 Gratt. 136) 216 
 Holley V. Adams, (16 Vt. 206) 432 
 Holley V. Hawley, (39 Vt. 532) 103 
 Holliday v. Franklin Bk. (16 Ohio, 533) 
 
 69 
 HoUingsworth v. Pearson, (53 Iowa, 53 
 
 621 
 Hollinshead v. Slmms, (51 Cal. 158) 357 
 HoUis V. Francois, (5 Tex. 195) 407 
 Hollist;. Hollls, (4Baxt. 524) 472 
 Hollocher v. Hollocher, (62 Mo. 267) 596 
 Holloway v. RadcliSe, (33 Beav. 163) 208 
 
TABLE OF CASES CITED. 
 
 T35 
 
 REFERENCES ARE TO PAGES. 
 
 Holly 1). Adams, (16 Vt. 206) 434 
 Holman v. Johnson, (Cowp. 341) 270, 371 
 Holman v. Patterson's Heirs, (29 Ark. 
 
 337) 124, 472 
 Holmes' Appeal, (77 Pa. St. 50) 352, 353, 
 
 257, 258, 359 
 Holmes v. Chester, (26 N. J. Eq. 79) 640 
 Holmes v. Clark, (10 Iowa, 433) 228 
 Holmes v. Crowell, (73 N. C. 613) 137, 139, 
 
 141 
 Holmes' Estate, (3 Giff. 337) 279 
 Holmes v. Fresh, (9 Mo. 200) 273 
 Holmes v. Grant, (8 Paige, 343) 52 
 Holmes v. Holmes, (36 Vt. 535) 654 
 Holmes v. Kidd, (3 H. & N. 891) 81 
 Holmes v. McGinty, (44 Miss. 94) 501 
 Holmes v. Mead, (53 N. Y. 332) 348 
 Holmes v. Powell, (8 De G. M. & G. 573) 
 
 118, 121 
 Holmes v. Seeley, (19 Wend., N. T., 507) 
 
 438 
 Holmes v. Stateler, (57 111. 209) 566 
 Holmes v. Steele, (28 N. J. Eq. 173) 566 
 Holmes v. Stout, (3 Green Ch. 492) 77, 121, 
 
 123 
 Holridge v. Gillespie, (2 Johns. Ch. 30) 
 
 359 
 Holsen v. Kockhonse, (83 Ky. 233) 383 
 Holsmaa v. Boiling Spring Co. (1 McCar- 
 
 ter, 335) 602 
 Holthans v. Hornbostle, (60 Mo. 439) 392 
 Holyoke v. Mayo, (50 Me. 385) 628 
 Home Building & Loan Ass'n v. Clark, 
 
 (43 Ohio St. 427) 108 
 Homoeopathic Mut. Life Ins. Co. d. Mar- 
 shall, (32 N. J. Eq. 103) 406 
 Homer v. Grosholz, (38 Md. 531) 107, 109 
 Homer v. Homer, (L. E. 8 Ch. D. 758) 
 Homer v. Homer, (107 Mass. 83, 85) 34, 
 
 335 
 Homer v. Perkins, (124 Mass. 431) 232, 
 
 350, 251, 253, 359 
 Hommel v. Devinney, (39 Mich. 532) 117 
 Hon V. Hon, (70 Ind. 135) 336 
 Honneger». Wettsteln, (5 J.&S. 135) 370 
 Honore v. Bakewell, (6 B. Mon. 67) 115, 
 
 475 
 Honore v. Colmesnil, (1 J. J. Marsh., 
 
 Ky., 506) 688, 631 
 Hood V. Aston, (1 Russ. 413) 551 
 Hood V. Clapham, (19 Beav. 90) 204 
 Hood V. Easton, (2 GifE. 692) 497 
 Hood V. Fahnestock, (8 Watts, 480; 1 
 
 Barr. 470) 65 
 Hood V. Haden, (83 Va. 588) 383, 387 
 Hood V. Hood, (85 N. Y. 561) 199, 203 
 Hook V. Turner, (33 Mo. 333) 347 
 
 Hooker v. Hamill, (7 Neb. 234) 106, 110 
 Hooker v. Jarvis, (6 Up. Can. Q. B., 
 
 O. s., 439) 289 
 Hooker v. Pinchon, (8 Gray, 550) 50 
 Hoole V. Atty.-Gen. (23 Ala. 190) 134 
 Hooley v. Hatton, (1 Bro. Ch. 390) 190 
 Hooper v. Holmes, (3 Stockt. Ch. 123) 
 
 336 
 Hooper v. Smith, (.57 Ala. 557) 418 
 Hoopes V. Knell, (31 Md. 550) 107, 109 
 Hoopes V. Smart, (L. R. 18 Eq. 683) 337 
 Hooper v. Strasburger, (37 Md. 390) 363 
 Hooton V. Ransom, (6 Mo. App. 19) 405 
 Hoover v. Hoover, (5 Barr. 351) 353, 437 
 Hoover v. Reilly, (3 Abb., n. s., 471) 
 
 219, 222 
 Hoover v. Senseman, (Pa. 1886) 229 
 Hope V. Carnegie, (L. R. 1 Ch. 320) 566 
 Hope ■». Jones, (24 Cal. 89) 419 
 Hope V. Lawrence, (50 Barb. 258) 137 
 Hope V. Stone, (10 Minn. 154) 478 
 Hope Fire Ins. Co. v. Cambreling, (1 
 
 Hun, 493) 134 
 Hopgood V. Ernest, (3 De G. J. & S. 
 
 116) 113 
 Hopkins v. Beebe, (26 Pa. St. 85) 453 
 Hopkins v. Duman, (42 N. H. 204) 357 
 Hopkins v. Garrard, (7 B. Mon. 312) 
 
 119 
 Hopkins u. Gilman, (22 Wis. 476) 591 
 Hopkins v. Glunt, (HI Pa. St. 287) 331 
 Hopkins v. Masynk, (1 Hill Eq. 242) 
 
 219, 221 
 Hopkins v. McLaren, (4 Cow. 667) 124 
 Hopkins v. Roberts, (54 Md. 312) 583 
 Hopklnson v. Duman, (43 N. H. 303) 353 
 Hopkinson v. Dumas, (43 N. H. 296) 
 
 335 
 Hopper V. Hopper, (16 N. J. Eq. 147) 
 
 575 
 Hopper V. Parkinson, (5 Nev. 233) 59 
 Hoppin V. Doty, (25 Wis. 573) 95, 112 
 Hopping V. Burnham, (2 Iowa, 39) 101, 
 
 118 
 Hoppock V. Johnson, (14 Wis. 303) 130 
 Hoppock V. Ramsey, (38 N. J. Eq. 413) 149 
 Hoppock V. United, &c. R. R. (37 N. J. 
 
 Eq. 386) 646 
 Hoppough V. Struble, (60 N. Y. 430) 237 
 Hopwood V. Hopwood, (7 H. L. Cas. 728) 
 
 185 
 Hopwood i;. Hopwood, (23 Beav. 493) 187 
 Horn V. Cole, (51 N. H. 287) 135, 137, 138, 
 
 140, 142 
 Horn V. Jones, (28 Cal. 194) 64fl 
 Horn V. Keteltas, (46 N. Y. 605) 489 
 Hornbeck v. Van Metre, (9 Ohio, 153) 295 
 
736 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Home V. Lyeth, (4 Har. & J. 431) 434 
 Hornei). Thompson, ( 1 Saus. & Scully, 
 
 615) 53 
 Horner v. McGaughy, (62 Pa. St. 189) 192, 
 
 193 
 Horning v. Wiederspalen, (28 N. J. Eq. 
 
 387) 480 
 Horsburg v. Baker, (1 Pet. 232, 236) 51, 
 
 651 
 Horseley v. Garth, {2 Gratt. 471) 106 
 Horst V. Dague, (34 Ohio St. 871) 447 
 Horton v. Horner, (14 Ohio, 437) 477 
 Horton v. Moseley, (17 Ala. 794) 418 
 Horwitz V. Norris, (49 Pa. St. 211) 384 
 Hosea v. Jacobs, (98 Mass. 65) 348 
 Hosklns V. Wilson, (4 Dev. & B. 245) 279 
 Hotchkiss i;. Elting, (36 Barb. 38)378 
 Hough V. Oook, &c. Co. (73 111. 23) 596 
 Hough V. Evans, (4 McCord, 169) 252 
 Hough V. Richardson, (3 Story, 659) 241, 
 
 252, 254, 256, 259, 260 
 Houghton V. Bartholomew, (10 Mete. 
 
 138) 110 
 Houghton V. Hapgood, (13 Pick. 154, 158) 
 
 148, 152, 410 
 Houghton V. Jones, (1 Wall. 702) 102 
 Houghton V. Lees, (1 Jur., N. s., 862)33 
 Houp V. Cook, (1 Carter, 13) 33 
 House V. Grant, (4 Lans. 296) 431 
 House V. Thompson, (3 Head, 512) 32 
 Houseman v. Girard, &c. Ass'n, (81 Pa. 
 
 St. 256) 131 
 Houston V. Embry, (1 Sneed, 480) 394 
 Houston V. Howie, (84 N. C. 349) 415 
 Houston V. Sneed, (15 Tex. 307) 140 
 Hout v. Hout, (20 Ohio St. 119) 215 
 Hovenden v. Annesley, (2 Sch. & Lef. 
 
 607)277 
 Hovey v. Blanchard, (13 N. H. 145) 129 
 How V. Vigures, (1 Rep. in Ch. 32) 530 
 How V. Weldon, (2 Ves. Sen. 516) 277 
 How V. Wildes, (34 Me. 566) 407 
 Howard v. Am. Peace Soc. (49 Me. 288) 
 
 349 
 Howard v. Bryant, (9 Gray, 239) 409 
 Howard v. Carpenter, (11 Md. 259) 215, 
 
 230 
 Howard v. Chase, (104 Mass. 249) 58, 116 
 Howard v. Edgell, (17 Vt. 9) 272 
 Howard ii.IGould, (28 Vt. 523) 251, 252, 253 
 Howard v. Howard, (3 Mete. 548) 150 
 Howard v. Hudson, (2 E. & B. 1) 142 
 Howard v. MofEatt, (2 Johns. Ch. 206) 30 
 Howard v. Moore, (4 Sneed, 317) 583 
 Howard v. Watson, (76 Iowa, 229) 170 
 Howard Ins. Co. v. Halsey, (8 N. Y. 271) 
 
 103, 111, 114, 115, 131 
 
 Howe, In re, (1 Paige, 125) 129, 463 
 
 Howe, In re, (1 Paige, 214) 314 
 
 Howe V. Dartmouth, Earl of, (7 Ves. 137} 
 
 204 
 Howe V. Howe, (99 Mass. 88) 274 
 Howe V. Nickerson, (14 Allen, 400) 579 
 Howe V. Taylor, (6 Oreg. 284) 214 
 Howe V. Ward, (4 Greenl. 195) 289 
 Howe V. Willis, (51 Me. 226) 117 
 Howell V. Ashmore, (1 Stockt. Ch.82) 651 
 Howell V. Biddlecom, (62 Barb. 131) 253 
 Howell V. Buffalo, City of, (2 Abb. App. 
 
 Dec. 412) 606, 637 
 Howell V. Hooks, (4 Ired. Eq. 188) 422 
 Howell V. Howell, (26 111. 460) 231 
 Howell V. Ransom, (11 Paige, 538) 282 
 Howell V. Western R. R. (4 Otto, 463) 45 
 Howl and v. Woodruff, (60 N. Y. 73) 138 
 Howze V. Howze, (14 Tex. 232) 415 
 Howze ■». Mallett, (4 Jones' Eq. 194) 184, 
 
 185, 187 
 Hoy V. Allen, (27 Iowa, 208) 69 
 Hoy V. Bramhall, (19 N. J. Eq. 41, 563> 
 
 94, 103, 113 
 Hoy V. Master, (6 Sim. 568) 383 
 Hoyle V. Plattsburgh, &c. R. R. (54 N.Y. 
 
 314) 370 
 Hoyt V. Hoyt, (85 N. Y. 142) 112^ 482 
 Hoyt V. Jones, (31 Wis. 389) 73 
 Hoyt V. Martense, (16 N. Y. 231) 507 
 Hoyt V. McLaughlin, (52 Wis. 280) 628 
 Hoyt u. Sprague, (13 Otto, 613) 375 
 Hoyt V. Thompson, (19 N. Y. 207) 501 
 Hoyt V. Thompson, (5 N. Y. 320, 347) 106, 
 
 108,445 
 Hoyt D.Turner, (84 Ala. 523) 112 
 Hoxie V. Carr, (1 Sumner, 173) 94, 95, 126 
 Hoxie V. Hoxie, (7 Paige, 187) 350 
 Hubbard, In re, (82 N. Y. 90) 300 
 Hubbard u. Burrell, (41 Wis. 365) 357 
 Hubbard v. Hubbard, (2 Hem. & M. 38) 
 
 51 
 Hubbard v. Long, (20 Iowa, 149) 117 
 Hubbard v. Moore, (24 La. Ann. 591) 271 
 Hubbard v. Smith, (2 Mich. ?07) 118 
 Hubbard v. Young, (10 Beav. 203) 205 
 Hubbart C.Walker, (19 Neb. 94) 106 
 Hubbell V. Currier, (10 Allen, 333) 65 
 Hubbell V. Flint, (13 Gray, 277) 270 
 Hubbell V. Medbnry, (53 N. Y. 98) 356 
 Hubbell V. Von Schoening, (49 N. Y. 326) 
 
 587 
 Hubbell V. Warren, (8 Allen, 173) 438 
 Huckins v. Straw, (34 Me. 166) 491 
 Hudelson v. Armstrong, (70 Ind. 99) 441 
 Hudson V. Conway, (9 Lea. 410) 223 
 Hudson u King, (2 Heisk. 560) 273 
 
TABLE OF CASES CITED. 
 
 737 
 
 REF^ERENCES ARE TO PAGES. 
 
 Hudson V. Warner, (3 Har. & G. 415) 94, 
 
 116 
 Hudson V. "Wheeler, (34 Tex. 356) 363 
 Hudson E. R. v. Loeb, (7 Robt. 418) 559 
 Hudspeth v. Thomason, (46 Ala. 470) 314 
 Huebsch v. Scheel, (81 111. 381) 149 
 Huff V. Earle, (3 Iiid. 306) 356 
 Huff V. Ripley, (58 Ga. 11) 16 
 Huff V. Wright, (39 Ga. 41) 407 
 Huffman v. Hummer, (3 C. E. Green, 264) 
 
 36, 203 
 Huge V. Gallans, (10 Phila. 618) 246 
 Hughes V. Blake, (6 Wheat, 453) 654 
 Hughes V. Cannon, (3 Humph. 589) 105 
 Hughes V. Cory, (30 Iowa, 399) 397 
 Hughes V. Edwards, (9 Wheat. 500) 486, 
 
 531 
 Hughes V. Graves, (1 Litt. 317) 536 
 Hughes V. Hatchett, (55 Ala. 539) 478, 671 
 Hughes V. Jones, (3 De G. F. & J. 307) 39 
 Hughes V. Kearney, (1 Sch. & Lef. 133) 
 
 474 
 Hughes V. Monty, (34 Iowa, 499) 289 
 Hughes V. Peters, (1 Coldw. 67) 406 
 Hughes V. Piedmont, &c. Ins. Co. (55 Ga. 
 
 Ill) 437 
 Hughes V. Eobotham, (Cro. Ellz. 302) 146 
 Hughes V. Sheaff, (19 Iowa, 335) 53 
 Hughes V. Sloan, (2 Ark. 146) 360 
 Hughes V. Washington, (73 111. 84) 379 
 Hughes V. Wells, (9 Hare, 749) 315 
 Hughes V. Williams, (3 Macn. & G. 690) 
 
 32, 497 
 Hughlett V. Harris, (1 Del. Ch. 349) 603 
 Hugill V. Kinney, (9 Oreg. 350) 138 
 Hugo V. Williams, (L. K. 14 Eq. 334) 233 
 Huguenin v. Baseley, (14 Ves. 373; 13 Ves. 
 
 105) 375 
 Hugunin v. Cochrane, (51 HI. 302) 59 
 Hulett V. Whipple, (58 Barb. 324) 62 
 Huling V. Cabell, (9 W. Va. 522) 449 
 Hulings V. Guthrie, (4 Barr. 123) 70 
 Hull V. C. B. & Q. E. K. Co. (65 Iowa, 
 
 713) 438 
 Hull V. Noble, (40 Me. 459) 91, 93, 98, 111, 
 
 117, 118 
 Hull V. Ruggles, (56 N. Y. 435) 270 
 Hull V. Russell, (3 Sawyer, 506) 25 
 Hull V. Sigsworth, (48 Conn. 258) 298 
 Hull V. Sturdivant, (46 Me. 34) 50, 587 
 Hull V. Swarthout, (39 Mich. 349) 73 
 HuUman v. Honcomp, (5 Ohio St. 337) 
 
 349 
 Hulse V. Wright, (Wright, 61) 547 
 Hulson V. Walker, (34 How. Pr. 385) 531 
 Humane Fire Co.'s Appeal,:(88 Pa. St.389) 
 
 346 
 
 Hume V. Franzen, (73 Iowa, 25) 115 
 Hummer v. Schott, (21 Md. 307) 473 
 Humphrey v. Copeland, (54 Ga. 543) 407 
 Humphrey v. Haskell, (7 Allen, 498) 251 
 Humphrey v. Hurd, (39 Mich. 44) 119 
 Humphrey v. Mattoon, (43 Iowa, 556) 263 
 Humphrey v. Moore, (17 Iowa, 193) 117 
 Humphreys v. Crane, (5 Cal. 173) 441 
 Humphreys v. Newman, (51 Me. 40) 105 
 Hun V. Carey, (82 N. Y. 65) 365 
 Hundley v. Mount, (8 Sm. & Mar. 387) 
 
 105 
 Hundley v. Webb, (3 J. J. Marsh. 643) 395 
 Hungerford v. Siegerson, (30 How. 156) 
 
 566 
 Hunklns». Hunkins, (18 Atl.655) 174 
 Hunley v. Hunley, (15 Ala. 91) 418 
 Hunsacker v. Sturgis, (39 Cal. 143) 379 
 Hunt V. Bullock, (23 111. 330) 534 
 Hunt V. Danforth, (2 Curtis, 592) 16 
 Hunt V. Elmes, (3 De G. F. & J. 578) 97, 
 
 98 
 Hunt V. Frazier, (6 Jones' Eq. 90) 239 
 Hunt V. Hamilton, (9 Dana, 90) 418 
 Hunt V. Hunt, (73 N. Y. 217) 365 
 Hunt V. Hunt, (11 Nev. 442) 331 
 Hunt V. Hunt, (14 Pick. 374) 146, 149, 150. 
 Hunt V. Hunt, (119 Mass. 474) 338 
 Hunt V. Moore, (3 Barr. 105) 354 
 Hunt V. Potter, (58 Miss. 96) 418 
 Hunt V. Roberts, (40 Me. 187) 358 
 Hunt V. Rousmania, (8 Wheat. 174, 212,. 
 
 313) 38, 319, 333 
 Hunt V. Rousmaniere, (3 Mason, 251) 315, 
 
 222 
 Hunt V. Rowland, (38 Iowa, 349) 26 
 Hunts. Sneed, (64 N. C. 176) 419 
 Hunt V. Stoneburner, (93 111. 75) 111 
 Hunt V. White, (24 Tex. 643) 231 
 Hunter v. Atkins, (3 My. & K. 113) 286 
 Hunter v. Bilyeu, (30 111. 328) 333, 234, 
 
 236, 337, 238 
 Hunter v. Bosworth, (43 Wis. 583) 448 
 Hunter v. Gondy, (1 Ohio, 449)' 227 
 Hunter v. Hudson River Iron Co. (80 
 
 Barb. 494) 345, 261 
 Hunter v. Lawrence, (11 Gratt., Va., Ill) 
 
 279 
 Hunter V. Stembridge, (13 Ga. 193) 331 
 Hunter v. Walters, (L. R. 11 Eq. 393) 57 
 Hunter v. Watson, (13 Cal. 363) 69, 106, 
 
 109, 129 
 Huntington v. Allen, (44 Miss. 654) 640 
 Huntington v. Cotton, (31 Miss. 353) 491 
 Huntington v. NicoU, (3 Johns. 566) 603 
 Huntington v. Rogers, (9 Ohio St. 511) 
 
 335 
 
 47 
 
738 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Hurd V. Kelly, {78 N. T. 588) 137, 143 
 Hnrlbut v. Phelps, (30 Conn. 42) 33, 237 
 Hurley v. Hollyday, (35 Md. 469) 479 
 Hurley v. Mclver, (119 N. Y. 13) 177 
 Hurley v. Osier, (44 Iowa, 642) 65 
 Hurling v. Cabell, (9 W. Va. 522) 447 
 Hurst i». Beach, (5Madd. 351) 191,433 
 Hurst V. Beade, (5 Madd. 358) 190 
 Hurtti). Fisher, (1 Har. &6ill, 88) 35 
 Husband v. Aldrich, (135 Mass. 317) 17 
 Husband v. Eping, (81 111. 172) 407 
 Huson V. Wallace, (1 Rich. Eq. 1) 359 
 Hussi). Morris, (63 Pa. St. 367) 215, 223 
 Husted V. Ingraham, (75 N. Y. 251) 463 
 Huston v. Cantril, (11 Leigh, 176) 290 
 Huston V. Huston, (37 Iowa, 668) 194 
 Huston 1). Markley, (49 Iowa, 162) 329 
 Hutchins v. Carleton, (19 N. H. 487) 
 
 151 
 Hutchins V. Chapman, (37 Tex. 612) 72 
 Hutchins v. Hey wood, (50 N. H. 491) 
 
 340 
 Hutchinson v. Ford, (9 Bush, 318) 
 Hutchinson v. Harttmann, (15 Kans. 
 
 133) 73 
 Hutchinson v. Rust,~(2 Gratt. 394) 103 
 Hutchinson i;. Skel ton, (2Macn.492) 178 
 Hutchinson v. Tindall, (2 Green's Ch. 
 
 357) 274, 336 
 Hutchinson v. Underwood, (27 Tex. 355) 
 
 407 
 Huthmachter v. Harris' Adm'r, (38 Pa. 
 
 St. 491) 235 
 Hutson V. Townsend, (6 Rich. Eq. 249) 
 
 300 
 Hutter V. EUwanger, (4 Lans. 9) 453, 454 
 Hutton V. Laws, (55 Iowa, 710) 418 
 Hutton V. Moore, (36 Ark. 382) 471 
 Huxley v. King, (40 Mich. 73) 265 
 Huxley v. Rice, (40 Mich. 73) 357 
 Huyler v. Westervelt, (7 Paige, N. Y., 
 
 155) 625 
 Huyler's Ex'rs v. Atwood, (26 N. J. Eq. 
 
 504)322 
 Huzzard v. Trego, (35 Pa. St. 9) 283 
 Hyde v. Baldwin, (17 Pick. 303, 308) 155, 
 
 160, 168 
 Hyde v. Tanner, (1 Barb. 75) 236 
 Hydraulic, &c. Co. v. Saville, (1 Mo. 
 
 App. 96) 453 
 Hyden v. Hyden, (6 Baxt. 406) 353 
 Hyer v. Little, (20 N. J. Eq. 443) 274, 
 
 596 
 Hyman v. Cameron, (46 Miss. 725) 659 
 Hyman v. Devereux, (63 N. C. 624) 501 
 Hyndman v. Hyndman, (19 Vt. 9) 276 
 Hyslopu. Clarke, (14 Johns. 458) 343 
 
 Ibbitson's Estate, In re, (L. R. 7 Eq. 226) 
 
 200,202 
 Ibbotson V. Rhodes, (2 Vern. 554) 100 
 Iglehart v. Armiger, (1 Bland Ch. 519) 
 
 472 
 Iglehart v. Crane, (42 111. 361) 102, 103 
 lies V. Martin, (69 Ind. 114) 363 
 Illinois Cent. R. E. ». McCullough, (59 
 
 III. 166) 99, 118, 119 
 Illinois Co. v. St. Louis, (3 Dill., U. S., 
 
 70)559 
 Imlay v. Huntington, (20 Conn. 146) 318, 
 
 407 
 Indiana, &c. R. Co. v. McBroom, (114 
 
 Ind. 598) 111 
 Indianapolis, &c. Ry. v. Tyng, (83 N. Y. 
 
 653)361 
 India Wharf v. Central Wharf, (117 Mass. 
 
 504) 640 
 Ingalls V. Henick, (108 Mass. 351) 394 
 Ingersoll v. Roe, (65 Barb. 346) 287 
 Ingle V. Culbertson, (43 Iowa, 265) 344 
 Ingle V. Hartman, (37 Iowa, 374) 279 
 Ingle V. Richards, (28 Beav. 361) 201 
 Inglehart ». Crane, (42111.361)526 
 Ingles ». Patterson, (36 Wis. 373) 237 
 Inglis V. Floyd, (33 Mo. App. 565) 635 
 Inglis V. Sailor's Snug Harbor, (3 Peters, 
 
 99)346 
 Ingraham v. Disborough, (47 N. Y. 431) 
 
 79, 81, 82 
 Ingraham v. Wheeler, (6 Conn. 377) 392 
 Ingram v. Praley, (29 Ga. 553) 331 
 Ingram v. Ingram, (1 Ves. Sen. 258) 156 
 Ingram v. Kirkpatrick, (6 Ired. Eq. 463) 
 
 343 
 Ingram v. Wheeler, (6 Conn. 377) 289 
 Inloes' Lessees. Harvey, (11 Md.519) 124 
 Inman v. Jackson, (4 Greenl. 337) 383 
 Innes v. Templeton, (95 Pa. St. 363) 407 
 Insurance Co. v. Bailey, (13 Wall. 616) 
 
 365 
 Insurance Co. v. Eggleston, (6 Otto, 573) 
 
 145 
 Insurance Co. v. Mowry, (96 U. S. 544) 
 
 138, 141 
 In the Matter of Opening Eleventh Ave» 
 
 (81N.Y. 436)438 
 Ireland v. Ireland, (84 N. Y. 331) 337 
 Irich V. Fulton, (3 Gratt. 193) 233 
 Irick V. Black, (17 N. J. Eq. 189) 631 
 Irish V. Nutting, (45 Barb. 370) 432 
 Irnham?;. Child, (lBro.Ch.92) 233, 236 
 Irvin V. Bond, Creditors of, (41 6a. 630) 
 
 419 
 
TABLE OF CASES CITED. 
 
 739 
 
 REFERENCES ARE TO PAGES. 
 
 Irvln V. Garner, (50 Tex. 48) 473 
 Irvin V. Smith, (17 Ohio, 226) 101, 107, 110 
 Irvine v. Greever, (33 Gratt. 411) 394 
 Irvine B. Muse, (10 Heisk. 477) 473 
 Irving V. Nat. Bit. of Alleg. (79 N. Y. 536) 
 
 140 
 Irving V. Thomas, (18 Me. 418) 259 
 Irwin V. Tabb, (17 Serg. & K.419) 169 
 Isham V. Bennington Iron Co. (19 Vt. 
 
 230) 103, 105 
 Isham V. Gilbert, (3 Conn. 166) 17 
 Iverson v. Wilburu, (65 Ga. 103) 239 
 Ives V. Ashley, (97 Mass. 198) 287 
 Ives V. Carter, (24 Conn. 403) 350 
 Ives V. Harris, (7 R. 1. 413) 398 
 Ives V. North Canaan, (33 Conn. 402) 137 
 Ivey V. Coleman, (42 Ala. 409) 367 
 Ivimey v. Stocker, (L. E. 1 Ch. 396) 563 
 I Vinson v. Hatton, (98 U. S. 79) 234 
 Ivory V. Burns, (56 Pa. St. 300) 336 
 
 J. 
 
 Jack V. Nabor, (15 Iowa, 450) 233 
 Jaekman v. Ringland, (4 W. & S. 149) 354 
 Jackman iJ. Nowling, (69Ind. 188) 406 
 Jackson v. Allen, (130 Mass. 64) 138 
 Jackson v. Andrews, (59 N. Y. 224; 7 
 
 Wend. 153) 338 
 Jackson r. Andrews, (7 Wend. 152) 134 
 Jackson v. Ashton, (11 Pet. 239) 583 
 Jackson v. Baker, (2 Edw. Ch. 471) 49 
 Jackson v. Bell, (31 N. J. Eq. 554) 566 
 Jackson v. Blodget, (5 Cow. 303) 79 
 Jackson v. Caldwell, (1 Cow. 633) 111 
 Jackson v. Carswell, (34 Ga. 279) 465 
 Jackson v. Gary, (16 Johns. 302) 315 
 Jackson v. Chamberlain, (8 Wend. 620) 
 
 70 
 Jackson v. Churchill, (7 Cow. 387) 171, 
 
 176 
 Jackson v. Cleveland, (15 Mich. 94) 353 
 Jackson SJ. Collins, (39 Mich. 557) 250, 351, 
 
 258, 359 
 Jackson v. Crysler, (1 Johns. 126) 51 
 Jackson v. Dean, (1 Dougl. 519) 294 
 Jackson v. Dubois, (4 Johns. 216) 69, 139 
 Jackson v. Feller, (2 Wend. 465) 353 
 Jackson ■«. Garnsay, (16 Johns. 189) 288 
 Jackson v. Given, (8 Johns. 137) 113 
 Jackson v. Henry, (10 Johns. 185) 289 
 Jackson V. Hill, (25 Ark. 22-5) 408, 409 
 Jackson v. Hubbard, (36 Conn. 10) 407 
 Jackson B. Jackson, (4 Mo. 310) 419 
 Jackson ti. Jansen, (6 Johns. 73) 382 
 Jackson v. Lawrence, (117 U. S. 679) 490 
 
 Jackson ». -Leek, (19 Wend. 339)101,139 
 Jackson «. Losee, (4 Sandf.Ch. 381) 124 
 Jackson «. Ludeling, (31 Wall. 616) 69, 
 
 376 
 Jackson v. Matadurf, (11 Johns. 91) 355 
 Jackson v. Magbee, (31 Fla. 633) 334 
 Jackson v. McChesney, (7 Cow. 360) 650 
 Jackson v. Morter, (83 Pa. St. 291) 246 
 Jackson v. Myers, (3 Johns. 383) 315 
 Jackson v. Ogden, (7 Johns. 338) 140 
 Jackson v. Payne, (2 Mete, Ky., 567) 231 
 Jackson v. Phillips, (14 Gray, 539; 14 
 
 Allen, 539) 346, 348 
 Jackson v. Post, (15 Wend. 588) 70, 110 
 Jackson v. Robbins, (16 Johns.) 537 
 Jackson v. Rowe, (4 Russ. 514; 3 S. & S. 
 
 472) 98 
 Jackson V. Schauber, (7 Cow. 194) 361 
 Jackson v. Small, (34 Ind. 241) 36 
 Jackson v. Somerville, (1 Harris, 359) 65 
 Jackson v. Town, (4 Cow. 599) 70 
 Jackson v. Twenty-third St. Ry. (88 N. 
 
 Y. 520) 433 
 Jackson v. "Van Slick, (8 Johns. 487) 363 
 Jackson v. Van Valkenburgh, (8 Cow. 
 
 260) 77, 99 
 Jackson v. Warner, (32 111. 331) 124 
 Jackson v. Warren, (33 111. 331) 125 
 Jackson v. Willard, (4 Johns. 41) 486 
 Jackson v. Winslow, (9 Cow. 13) 72 
 Jacob Dold Packing Co. v. Ober, (Md., 
 
 18 Atl. Rep. 34) 110 
 Jacobs V. Morange, (47 N. Y. 57) 219 
 Jacobson v. Legrange, (3 Johns. 199) 193 
 Jacobus V. Jacobus, (37 N. J. Eq. 17) 366 
 Jacox V. Jacobs, (40 Mich. 473) 286 
 Jacques v. Weeks, (7 Watts, 261, 270) 71, 
 
 93, 105, 107, 109, 111, 112, 117, 119 
 Jaffray v. Brown, (17 Hun, 575) 126, 138 
 Jamaica Pond v. Chandler, (9 Allen, 169) 
 
 108 
 James, Ex parte, (L. R. 9 Ch. 609) 321, 
 
 325 
 James v. Brown, (11 Mich. 35) 103, 112 
 James D. Cowing, (82 N. Y. 449) 363 
 James v. Cutler, (54 Wis. 172) 223, 329 
 James v. Faulk, (54 Ala. 184) 418 
 James v. Fulerad, (5 Tex. 513) 347 
 James v. James, (.55 Ala. 535) 379 
 James v. Johnson, (6 Johns. Ch. 417) 103, 
 
 148, 149 
 James I). Mayrant, (4 Desau. 591) 406 
 James v. Mechanics' Bk. (12 R. 1. 460) 293 
 James v. Morey, (3 Cow. 246) 80, 105, 146, 
 
 147, 148, 149, 488 
 James v. Penny, (76 Ga. 796) 108 
 James v. Roberts, (18 Ohio, 548) 551 
 
740 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 James v. Rumsey, (L. R. 11. Ch. D. 398) 
 
 288 
 Jamesons. Gregory, (4 Met., Ky., 363)371 
 Jameson v. Smith, (4 Bibb, 307) 382 
 Jamison v. Brady, (6 Serg. & R. 466) 392 
 Jamison v. Dimock, (95 Pa. St. 52) 117 
 Jamison v. King, (50 Cal. 132) 290 
 Janes v. Throckmorton, (57 Cal. 368) 198, 
 
 199 
 Janey «. Bird, (3 Leigh, 510) 26 
 Janvrin v. Janvrin, (60 N. H. 169) 117 
 Jaques v. Meth. Epis. Church, (17 Johns. 
 
 548) 397 
 Jaques v. Weeks, (7 Watts, 261) 70, 91, 
 
 94, 120, 123 
 Jaquith v. Hudson, (5 Mich. 123) 50 
 Jarrel «. Jarrel, (27 W. Va. 743) 234 
 Jarvis v. Aikens, (25 Vt. 635) 103 
 Jarvis v. Dutcher, (16 Wis. 307) 465 
 Jarvis v. Prentice, (19 Conn. 273) 395 
 Jauretche v. Proctor, (48 Pa. St. 466) 331 
 Jeacock v. Falkener, (1 Bro. Ch. 295) 193 
 Jeflferson v. Barkto, (1 Bradw. 568) 539 
 JefEerys v. Jefferys, (l Cr. & Ph. 138) 33 
 Jeffrey v. Bigelow, (13 Wend. 518) 261 
 Jeffries v. Clark, (23 Kans. 448) 137 
 Jeffries ■». Evans, (6 B. Mon. 119) 79 
 Jeffries v. Michell, (20Beav. 15) 193 
 Jeffries I!. Wiester, (2 Sawy.135) 279 
 Jemison v. Woodruff, (84 Ala. 143) 262 
 Jemmison v. Gray, (29 Iowa, 537) 47, 49 
 Jenckes v. Goffe, (1 R. 1. 511) 536 
 JencksD. Alexander, (11 Paige, 619) 355 
 Jenkins v. Bacon, (30 Mich. 154) 640 
 Jenkins v. Bodley, (1 Sm. & Mar. Eq. 
 
 338 or Ch. 338) 63 
 Jenkins B.Compton, (23 N. E. Rep. 1091) 
 
 383 
 Jenkins v. Doolittle, (69 111. 415) 357 
 Jenkins B. Einstein, (3 Biss. 128) 283 
 Jenkins v. Frink, (30 Cal. 586) 84, 247 
 Jenkins v. German Luth. Cong. (58 Ga. 
 
 125) 219 
 Jenkins v. Hannan, (26 Fed. Rep. 657) 16 
 Jenkins v. Hogg, (2 Const., S. C, 821) 
 
 244 
 Jenkins «.Kemis,(l Chan. Cas. 103)213 
 Jenkins ». McConico, (26 Ala. 213) 397 
 Jenkins v. Pye, (13 Pet. 341) 276 
 Jenkins*. Rosenberg, (105 111. 157) 112 
 Jennings v. Brighton, &c. Bd. (4 De G. 
 
 J. &. S. 735) 555 
 Jennings v. Broughton, (5 De G. M. & 
 
 G. 126) 356 
 Jennings v. Davis, (31 Conn. 134) 407 
 Jennings v. Hart, (1 Russ. & Ches. 15) 
 
 245 
 
 Jennings v. Jennings, (31 Ohio St. 56) 
 
 173, 178 
 Jennings v. McConnel, (17 111. 148) 418 
 Jennings v. Weeks, (1 Rice, S. C, 453) 
 
 367 
 Jennison v. Hapgood, (7 Pick. ]) 306, 420 
 Jennor v. Hardie, (1 Leo. 283) 883 
 Jermyn v. Moffitt, (75 Pa. St. 399) 445, 
 
 449 
 Jerome v. Carter, (94 U. S. 784) 514 
 Jerome v. Ross, (7 Johns. Ch. 315) 547 
 Jerrard v. Saunders, (3 Ves. 454) 41, 61 
 Jersey City v. Gardner, (33 N. J. Eq. 632) 
 
 547 
 Jersey City ». Lembeck, (31 N. J. Eq. 255> 
 
 640 
 Jervis v. Smith, (Hoff. Ch. 470) 437 
 Jessop V. Watson, (1 My. & K.665) 310 
 Jessup V. Cook, (6 N. J. L. 434) 631 
 Jessup V. Hulse, (21 N. Y. 168) 848 
 Jesus College 1). Bloom, (8 Atk. 363, 363) 
 
 17 
 Jeter v. Barnard, (42 Ga. 43) 419 
 Jewett V. Bailey, (5 Me. 87) 489 
 Jewett V. Bowman, (29 N. J. Eq. 174) 365 
 Jewett V. Carter, (182 Mass. 335) 361 
 Jewett?;. Miller, (ION. Y. 402) 137, 143 
 Jewett V. Palmer, (7 Johns. Ch. 64) 71, 
 
 73, 78, 74 
 Jewett V. Warren, (13 Mass. 800) 398 
 Jewson V. Moulson, (3 Atk. 417) 80 
 JezephiJ. Ingram, (8 Taunt. 838) 376 
 John Hancock Ins. Co. v. Patterson^ 
 
 (108 Ind. 583) 158 
 Johns V. Norris, (7 C. E. Green, 102) 25 
 Johns V. Reardon, (3Md. Ch. 57) 102, 105 
 Johns V. Scott, (5 Md. 81) 90 
 Johns V. Sewell, (88 Ind. 1) 477 
 Johns V. Smith, (56 Miss. 727) 800 
 Johnsbury v. Morrill, (55 Vt. 165) 117 
 Johnson v. Buck, (85 N. J. L. 888) 284 
 Johnson v. Cain, (15 Kans. 532) 419 
 Johnson v. Carpenter, (7 Minn. 176) 80,. 
 
 108 
 Johnson i;. Cawthorne, (1 Dev. & Bat 
 
 Eq. 32) 475 
 Johnson v. Clark, (18 Kans. 157) 106, 110^ 
 
 118, 123 
 Johnson v. Conn. Bk. (31 Conn. 148) 340, 
 
 547 
 Johnson «. Cooper, (2 Yerg. 524) 637 
 Johnson v. Cooper, (3 Yerg. 521) 638 
 Johnson v. Cummins, (16 N. J. Eq. 97) 
 
 406 
 Johnson v. Cushing, (15 N. H. 398) 315„ 
 
 330 
 Johnson v. Johnson, (5 Ala. 90) 283 
 
TABLE OF CASES CITED. 
 
 741 
 
 REFERENCES ARE TO PAGES. 
 
 ■Johnson v. Johnson, (8 Baxt. 261) 239 
 Johnson v. Johnson, (2 Coll. 441) 204 
 Johnson v. Deloney, (35 Tex. 43) 336 
 Johnson v. Diversey, (83 111. 446) 25 
 Johnson v. Dougherty, (3 Green's Gas. 
 
 406) 34 
 Johnson v. Dougherty, (18 N. J. Eq. 406) 
 
 357 
 Johnson v. Farnum, (56 Ga. 144) 292, 671 
 Johnson v. Fleet, (14 Wend. 176) 337 
 Johnson v. Garrett, (33 Minn. 465) 631 
 Johnson v. Godden, (33 Ark. 600) 471 
 Johnson v. Graves, (27 Ark. 557) 68 
 Johnson v. Gunter, (6 Bush, 534) 673 
 Johnson v. Harvey, (84 N. T. 363) 621 
 Johnson v. Holloway, (82 111. 334) 298 
 Johnson v. Hubbell, (3 Stock t. Eq. 332) 231 
 Johnson v. Jordan, (2 Mete. 334) 153 
 Johnson v. La Motte, (6 Rich. Eq. 347) 
 
 247 
 Johnsons. Maxey, (43 Ala. 531) 667 
 Johnson v. Mayne, (4 Iowa, 180) 349 
 Johnson v. McGrew, (42 Iowa, 555) 473 
 Johnson c. Medlicott, (3 P. Wms. 131) 275 
 Johnson v. Monell, (3 Abb. App. 470) 353 
 Johnson v. Noble, (13 K. H. 806) 331 
 Johnson v. Nott, (1 Vern. 271) 376 
 Johnson v. Nunnerly, (30 Ark. 153) 471 
 Johnson v. Phifer, (6 Neb. 401) 275 
 Johnson B. Pie, (1 Keb. 913; 1 Lev. 169) 
 
 246 
 Johnsons. Poulson, (32 N. J. 390) 483 
 Johnson v. Quarles, (46 Mo. 423) 353 
 Johnson ». Rice, (8 Me. 157) 529 
 Johnson v. Shrewsbury, &c. R. R. (3 De 
 
 G. M. & G. 914) 27, 555 
 Johnson v. Smart, (2 Giff. 151) 258, 259 
 Johnson v. Smith, (39 Iowa, 549) 489 
 Johnson v. Spies, (5 Hun, 468) 434 
 Johnson v. Sugg, (13 Sm. & Mar. 346) 476 
 Johnson C.Telford, (1 Russ. & My. 344, 
 
 518, 519) 1.59, 165 
 Johnson v. Thweatt, (18 Ala. 741) 115 
 Johnson v. Vail, (1 McCarter, 423) 406 
 Johnson v. Webster, (4 De G. M. & G. 
 
 474) 150, 152 , 
 
 Johnson v. Whitewell, (7 Pick. 74) 392 
 Johnson 1). Williams, (4 Minn. 260) 526 
 Johnson's Admr's «. Longmire, (39 Ala. 
 
 143) 348 
 Johnson's Appeal, (43 Pa. St. 471) 366 
 Johnston v. Glancy, (4 Blatchf., U. S., 
 
 94) 117 
 Johnston V. Gray, (16 Serg. &R. 361) 52 
 Johnston v. Gwathmey, (4 Litt. 317) 114 
 Johnston v. Laflin, (103 U. S. 800) 83 
 Johnston v. Preer, (51 Ga. 313) 638 
 
 Johnston v. Zane's Trustees, (11 Gratt. 
 
 552) 341 
 Johnstone v. Dick, (37 Miss. 377) 289 
 Johnstone v. Harrowby, (1 De G. F. & J. 
 
 183) 190 
 Joice V. Taylor, (6 Gill & J. 54) 254 
 Jolland V. Stainbridge, (3 Ves. 478) 96 
 Jones' Appeal, (70 Pa. St. 169) 304 
 Jones' Appeal, (57 Pa. St. 369; 8 Watts & 
 
 S. 143) 398 
 Jones' Appeal, (8 Watts & S. 143) 374 
 Jones V. Bamford, (31 Iowa, 217) 129, 131, 
 
 133 
 Jones V. Beach, (3 De G. M. & G. 886) 38 
 Jones «. Blake, (3 Hill Ch. 636) 295 
 Jones V. Bolles, (9 Wall. 364) 365 
 Jones V. Bowden, (4 Taunt. 847) 353 
 Jones V. Brewington, (58 Mo. 210) 465 
 Jones V. Brinker, (30 Mo. 87) 419 
 Jones V. Caswell, (3 Johns. Cas. 39) 247 
 Jones V. Caldwell, (97 Pa. St. 42) 199, 301, 
 
 303 
 Jones V. Clifton, (11 Otto, U. S., 325) 392 
 Jones V. Collins, (16 Wis. 594) 640 
 Jones V. Collins, (Ambl. 730) 171 
 Jones V. Creveling, (4 Harr. 127) 190, 191, 
 
 192 
 Jonts V. Davies, (L. R. 8 Ch. D. 205) 301 
 Jones V. Davies, (7 H. & N. 507) 146 
 Jones V. De Graffenreid, (60 Ala. 145) 638 
 Jones V. Dexter, (130 Mass. 380) 356 
 Jones V. Deyer, (16 Ala. 221) 433 
 Jones V. Doss, (27 Ark. 518) 477 
 Jones V. Dougherty, (10 Ga. 273) 363 
 Jones. V. Geor^a R. R. (62 Ga. 718) 640 
 Jones V. Gibbons, (9 Ves. 410) 103 
 Jones V. Gorman, (7 Ired. Eq. 31) 368 
 Jones V. Green, (L. R. 5 Eq. 555; 1 Wall. 
 
 330; 3 Y. & J. 298) 47 
 Jones V. Habersham, (3 Woods, 443) 345 
 Jones «. Hathaway, (77 Ind. 14) 242 
 Jones V. Heavens, (L. R. 4 Ch. D. 636) 50 
 Jones V. Hurst, (7 Ired. Eq. 134) 381 
 Jones V. Jenkins, (34 Md. 1) 153 
 Jones V. Johnson Harvester Co. (8 Neb. 
 
 451) 106, 110 
 Jones V. Jones, (11 Phila. 559) 587 
 Jones V. Jones, (8 Sim. 633) 56 
 Jones V. Jones, (8 Gill, 197) 159, 160, 163, 
 
 164, 166 
 Jones V. Jones, (56 Ga. 325) 474 
 Jones V. Keep, (33 Wis. 45) 38, 441 
 Jones V. King, (86 111. 235) 289 
 Jones V. Lapham, (15 Kans. 540) 57, 90, 
 
 106, 110, 465 
 Jones V. Lewis, (3 Ves. Sen. 340) 217 
 Jones V. Lock, (L. R. 1 Ch. 25) 33 
 
Y42 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Jones V. Logging, (37 Miss. 546) 117 
 Jones V. Marks, (4 Cal. 243) 106, 109 
 Jones V. Mason, (5 Rand. 577) 183, 183, 
 
 185, 186, 187, 188 
 Jones V. McDougall, (32 Miss. 179) 358 
 Jones V. McNarrin, (68 Me. 334) 136, 138 
 Jones V. Moffett, (5 Serg. & E. 533) 361 
 Jones V. Mitchell, (1 S. & S. 390) 310 
 Jones V. Munroe, (33 Ga. 181) 230, 327 
 Jones V. Myrick's Ex'rs, (8 Gratt. 179) 
 
 526 
 Jones V. Neale, (3 P. & H. 339) 638 
 Jones V. Nevers, (3 Pugs. & Bur. 627) 
 
 290 
 Jones V. Newhall, (115 Mass. 244) 575 
 Jones V. Obenchaiu, (10 Gratt. 359) 338 
 Jones V. Perkins, (1 Jones, N. C, Eq. 
 
 337) 334 
 Jones V. Phelps, (3 Barb. Ch. 440) 58 
 Jones ■«. Portsmouth R. R. Co. (32 N. H. 
 
 544)247 
 Jones V. Powles, (3 My. & K. 581) 76 
 Jones V. Reeder, (22 Ind. Ill) 358 
 Jones D. Reese, (65 Ala. 134) 405 
 Jones V. Reid, (13 W. Va. 350) 396 
 Jones V. Richardson, (10 Met. 481) 447, 
 
 534 / 
 
 Jones V. Robbins, (29 Me. 351) 54, 583 
 Jones V. Sackett, (36 Mich. 192) 472 
 Jones V. Slubey, (5 Har. & J. 372) 569 
 Jones V. Smith, (1 Hare, 43) 97, 101, 113, 
 
 120 
 Jones V. Sweet, (77 Ind. 187) 229, 233 
 Jones V. Webster, (48 Ala. 109) 534 
 Jones V. Williams, (1 Coll*156) 113 
 Jones V. Wood, (16 Pa. St. 25) 384 
 Jones' Heirs v. Perry, (10 Yer. 59) 638 
 Jordan v. Black, (2 Murph. 30) 79 
 Jordan v. Cooper, (3 S. & R. 564) 35 
 Jordan v. Forlong, (19 Ohio St. 89) 149 
 Jordan v. Mead, (12 Ala. 247)107, 110 
 Jordan v. Money, (5 H. L. Gas. 185) 343 
 Jordan 1). Stevens, (55 Mo. 361) 640 
 Jordan v. Stevens, (.51 Me. 78) 230, 321, 
 
 327 
 Jordan v. Thomas, (34 Miss. 72) 572 
 Jordan v. Volkenning, (72 N. Y. 300) 265 
 Jordan v. Wells, (3 Woods, 527) 675 
 Jordon v. Fenno, (13 Ark. 593) 489 
 Joseph ■». Fisher, (122 Ind. 399) 203 
 Joseph V. McGill, (52 Iowa, 137) 551 
 JosUn V. Cowee, (60 Barb. 48) 65, 68 
 Jowers V. Phelps, (33 Ark. 465) 138 
 Joy V. Campbell, (1 Sch. & Lef. 338) 28, 
 
 268 
 Joyce V. Haines, (33 N. J. Eq. 99) 396 
 Joyces!. Williams, (26 Mich. 332) 140 
 
 Judah V. Judd, (5 Day, 534) 84 
 Judd V. Selkins, (62 N. Y. 366) 149 
 Judd V. Woodruff, (2 Root, 298) 106, 108 
 Judevine v. Hardwick, (49 Vt. 180) 280 
 Judson V. Corcoran, (17 How. 612) 81, 86, 
 
 87 
 Judson V. Dada, (79 N. Y. 373) 108 
 Julian V. Abbott, (73 Mo. 580) 367 
 Jumel V. Jumel, (7 Paige, 591) 153, 569 
 Junkins v. Simpson, (14 Me. 364) 364 
 Justice V. Scott, (4 Ired. Eq. 108) 569 
 Justis V. English, (30 Gratt. 565) 396 
 Juvenal v. Jackson, (8 Harris, 519) 71 
 Juzan V. Toulmin, (9 Ala. 663) 336 
 
 K. 
 
 Kahnweiler v. Anderson, (78 N. C. 133> 
 
 453 
 Kahn v. Gumberts, (19 Ind. 430) 358 
 Kanada v. North, (14 Mo. 615) 280 
 Kain v. Gibboney, (11 Otto, 363) 349 
 Kain v. Smith, (80 N. Y. 458) 675 
 Kaine?>. Denniston, (10 Harris, 303) 116 
 Kalbfleisch v. Kalbfleiseh, (67 N. Y. 354) 
 
 483 
 Kamena v. Huelbing, (23 N. J. Eq. 78) 79 
 Kane v. Bloodgood, (7 Johns. Ch. 90) 
 
 362, 563 
 Kane v. Gott, (34 Wend. 641; 46 Wend. 
 
 641) 35 
 Kane v. Roberts, (40 Md. 590) 107, 109 
 Kane Co. v. Herrington, (50 III. 232) 143 
 Kansas City Land Co. v. Hill, (87 Tenn» 
 
 589) 115 
 Kantrowitz v. Prather, (31 Ind. 92) 406 
 Kase V. Painter, (77 111. 543) 407 
 Kauflelt V. Bauer, (7 Serg. & R. 64) 467 
 Kauffman v. Peacock, (115 111. 212) 206 
 Kausler v. Ford, (47 Miss. 389) 478 
 Kay V. Whittaker, (44 N. Y. 505) 514 
 Kealing v. Voss, (61 Ind. 466) 484 
 Kean v. Hoffecker, (3 Harr. 103) 447 
 Kearney v. Jeffries, (48 Miss. 343) 644, 646 
 Kearney v. Kearney, (17 N. J. Eq. 59) 373 
 Kearney v. Macomb, (1 C. E. Green, 189) 
 
 53, 163, 164, 166 
 Kearney v. Sacer, (37 Md. 364) 218 
 Kearney v. Taylor, (15 How. 494) 247 
 Kearney v. Vaughan, (.50 Mo. 384) 73, 215 
 Keats V. Hugo, (115 Mass. 304) 153 
 Keefe v. Malone, (3 McArthur, 236) 419 
 Keen v. Hartman, (13 Wright, 497) 143 
 Keepfer v. Force, (86 Ind. 81) 229 
 Keeton v. Spradling, (13 Mo. 321) 17 
 Kefler V. Grayson, (76 Va. 517) 437 
 
TABLE OF CASES CITED. 
 
 743 
 
 REFERENCES ARE TO PAGES. 
 
 Keighler v. Savage Man. Co. (13Md.383) 
 
 279 
 Keirsted v. Avery, (4 Paige, 9) 67 
 Kelsselbrack v. Livmgston,{4 Johns. Ch. 
 
 144), 233, 236, 238 
 Keith V. Horner, (33 111. 524) 473 
 Keith V. Hudson, (741nd. 333) 631 
 Keith V. Trapier, (Bailey, Eq. 63) 206, 609 
 Kekewich v. Manning, (1 De G. M. & G. 
 
 176) 33 
 Kellam v. Janson, (5 Harris, 467) 70 
 Kelland v. Fulford, (L. R. 6 Ch. D. 491) 
 
 204, 206 
 Kellaway v. Blanchard, (19 La. An. 53) 
 
 294 
 Keller v. Fisher, (7 Ind. 718) 587 
 Keller v. Nutz, (5 Serg. & E. 346) 103 
 Kelleran v. Brown, (4 Mass. 443) 489 
 Kellett V. Rathbun, (4 Paige, N. Y., 102) 
 
 370 
 Kelley v. Greenleaf, (3 Story, 93) 359 
 Kelley v. Jenness, (50 Me. 455) 353 
 Kelley v. Johnson, (28 Mo. 249) 354 
 Kelley v. Mayor, &c. (4 Hill, 263) 453 
 Kelley v. McKinney, (5 Lea. 164) 236 
 Kellogg V. Aldrich, (39 Mich. 576) 420 
 Kellogg V. Ames, (41 N. Y. 259) 148, 152 
 Kellogg V. Chapman, (30 Fed. Rep. 882) 
 
 229 
 Kellogg V. Rockwell, (19 Conn. 446) 496 
 Kellogg V. Slawsen, (11 N. Y. 302) 343 
 Kellogg V. Smith, (26 N. Y. 18) 80, 98, 
 
 111, 113 
 Kellum V. Smith, (33 Pa. St. 158) 354 
 Kelly O.Alabama, &c. R. R. (58 Ala. 489) 
 
 668 
 Kelly V. Bryan, (6 Ired. Eq. 283) 490 
 Kelly V. Hendricks, (57 Ala. 193) 139 
 Kelly V. Herrick, (131 Mass. 373) 621 
 Kelly V. Kelly, (6 Rand. 176) 194 
 Kelly V. Lenihan, (56 Ind. 448) 60 
 Kelly V. Maguire, (15 Ark. 555) 272 
 Kelly V. Maripose, &c. Co. (14 Hun, N. 
 
 Y., 632) 555 
 Kelly V. Mills, (41 Miss. 267) 69, 71 
 Kelly V. Roberts, (40 N. Y. 433) 80 
 Kelly V. Thompson, (7 Watts, 401) 53 
 Kelly V. Turner, (74 Ala. 513) 319 
 Kemp V. Tucker, (L. R. 8 Ch. 369) 566 
 Kemper v. Kemper's Adm'r, (1 Duv. 401) 
 
 433 
 Kempson v. Ashbee, (L. R. 10 Ch. 15) 
 
 275 
 Kempston's Appeal, (23 Pick. 163) 170 
 Kenaday v. Edwards, (134 U. S. 117) 360 
 Kendall, Ex parte, (17 Ves. 514) 38 
 Kendall v. Fitts, (22 N. H. 1) 295 
 
 Kendall v. Hughes, (7 B. Mon. 368) 296 
 Kendall v. Lawrence, (23 Pick. 542) 121 
 Kendall v. Mann, (11 Allen, 15) 353 
 Kendall v. New Eug. Co. (13 Conn. 384) 
 
 32 
 Kendall v. Simpson, (13 Vt. 515) 397 
 Kenicott v. Supervisors, (16 Wall, 452) 
 
 79 
 Kenistons v. Sceva, (54 N. H. 24) 434 
 Kenkle v. Wolfersberger, (6 Watts, 126) 
 
 53 
 Kennard v. George, (44 N. H. 440) 319, 
 
 322, 324 
 Kennard v. Sax, (3 Oreg. 363) 407 
 Kennebec, &e. E. R. c. Portland, &c. R. 
 
 R. (54 Me. 173) 
 Kennedy v. Daly, (1 Sch. & Lef.) 78 
 Kennedy i;. Daniels, (30 Mo. 104) 
 Kennedy v. Fury, (1 Ball. 73) 363 
 Kennedy v. Green, (3 My. & K. 699) 97, 
 
 131 
 Kennedy i;. Guise, (63Ga.71) 17 
 Kennedy v. Johnson, (56 Pa. St. 541) 175 
 Kennedy v. Kennedy, (2 Ala. 571) 281 
 Kennedy v. Lee, (3 Meriv. 441) 
 Kennedy v. McKay, (43 N. J. L. 288) 261 
 Kennedy v. Nedrow, (1 Dall. 415) 170 
 Kennedy v. New York, &c. R. Co. (3 
 
 Duer, N. Y.,69)331 
 Kennedy v. Northup, (15111. 148) 103, 637 
 Kennedy v. Nunan, (53 Cal. 326) 353 
 Kennedys. Parke, (17 N. J. Eq. 415) 84 
 Kennedy v. Price, (57 Miss. 771) 354 
 Kennedy v. Richardson, (70 Ind. 534) 343, 
 
 359 
 Kennedy v. St. Paul, &c. R. R. (3 Dillon, 
 
 448) 673 
 Kennedy v. St. Paul, &c. R. R. (5 Dillon, 
 
 519) 673 
 Kennedy v. Taylor, (30 Kans. 558) 355 
 Kenner v. Harding, (85 111. 264) 250 
 Kennerty v. Etiwan Phosphate Co. (31 
 
 S. Car. 236) 318 
 Kennett v. Plummer, (38 Mo. 142) 491 
 Kenniston v. Leighton, (53 N. H. 311) 308 
 Kenny v. Udall, (5 Johns. Ch. 464) 31, 408 
 Kent V. Gerhard, (13 R. I. 92) 474 
 Kent V. Plumb, (57 Ga. 207) 407 
 Kent'U. Plummer, (7 Me. 464) 106, 110, 123 
 Kent V. Priest, (86 Mo. 476) 280 
 Kentr. Quicksilver Min. Co. (78 N. Y. 
 
 159) 142, 145, 555 
 Kent's Adm'r 4). Cloyd's Adm'r, (306ratt. 
 
 555) 419 
 Kentucky v. Nichols, (1 R. I. 411) 153 
 Ker V. Wauchope, (1 Biigh, 1) 160, 166, 167 
 Kerbs v. Ewing, (33 Fed. Rep. 693) 293 
 
744, 
 
 TABLE OF OASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Kerchneru. Kempton, (47 Md. 568) 406 
 Kerfoot v. Hyman, (52 III. 513) 279 
 Kern v. Hazlerieg, (11 Ind. 443) 124 
 Kernaghan v. Williams, (L. E. 6 Eq. 228) 
 
 555 
 Kerns v. Swope, (2 Watts, 75) 94, 95, 102, 
 
 105, 107, 109, 112 
 Kerr v. Day, (2 Harris, 113; 14 Pa. St. 112) 
 
 36, 130, 133, 202 
 Kerr v. Freeman, (33 Miss. 392) 640 
 Kerr v. Gilmore, (6 Watts, 405) 489 
 Kerr v. Harris, (112, 114) 201 
 Kerr v. Kitchen, (5 Harris, 433) 114 
 Kerr v. Union Bank, (18 Md. 396) 658 
 Kessler v. State, (23 Ind. 315) 107 
 Ketchum v. Bank of Commerce, (19 N. 
 
 Y. 499) 225 
 Ketchum v. Brennan, (53 Miss. 596) 295 
 Ketchum v. Mobile, &c. E. E. (3 Woods, 
 
 532) 362 
 Ketchum v. Stout, (20 Ohio, 453) 339 
 Kettleby v. Atwood, (1 Vern. 398) 36 
 Key V. Griffin, (1 Eich. Eq. 67) 158, 178 
 Keys V. Test, (33 111. 316) 66, 117 
 Keyser v. Harback, (3 Duer, 373) 65 
 Keyser v. Mitchell, (67 Pa. St. 473) 341 
 Keyton v. Brawford, (5 Gratt. 39) 233 
 Kiah V. Grenier, (56 N. Y. 220) 327 
 Kidder v. Chamberlin, (41 Vt. 63) 372 
 Kidder 1). Kidder, (9 Casey, 368) 194 
 Kidder v. Kidder, (33 Pa. St. 268) 33 
 Kid well V. Kirkpatrick, (70 Mo. 214) 396 
 Kidney v. Cousmaker, (12 Ves. 136) 169 
 Kieflfer v. Ehler, (6 Harris, 388) 136 
 Kiersted v. Avery, (4 Paige, 9) 69, 129 
 KifEer v. Imhoflf, (36 Pa. St. 438) 153 
 Kilborn v. Eobbins, (8 Allen, 466) 153 
 Kilbourn v. St. John, (59 N. Y. 21) 606 
 Kilby V. Godwin, (2 Del. Ch. 61) 393, 431 
 Kilg V. Clark, (3 Paige, 76) 569 
 Killey v. Wilson, (33 Cal. 690) 118, 123 
 Killiam v. Allen, (52 Barb. 605) 382 
 Killiam v. Badgett, (27 Ark. 166) 274 
 Killmer v. Smith, (77 N. Y. 236) 242 
 Kilpatrick v. Kilpatrick, (23 Miss. 124) 
 
 475 
 Kilpatrick v. Strozler, (67 Ga. 247) 229 
 Kilvington v. Gray, (2 S. & S. 396) 204 
 Kimball v. ^tna Ins. Co. (9 Allen, 540) 
 
 138, 141, 243 
 Kimball v. Blaisdell, (5 N. H. 533) 103 
 Kimball v. Cunningham, (4 Mass. 503) 
 
 263 
 Kimball v. Keyes, (11 Wend. 33) 440 
 Kimball v. Lockwood, (6 E. 1. 138) 496 
 Kimball v. Moreland, (559 a. 164) 255 
 Kimball v. Morton, (1 Halst. Ch. 26) 336 
 
 Kimball v. Eeding, (31 N. H. 353) 368 
 Kimball v. Thompson, (4Cush. 447) 289 
 Kimm v. Weipert, (46 Mo. 532) 405 
 Kincaid v. Dormey, (51 Mo. 552) 139 
 King V. Baldwin, (3 Johns. Ch. 554) 633 
 King V. Baldwin, (17 Johns. 384) 17 
 King V. Bell, (28 Conn. 593) 125 
 King V. Berry, Ex'rs of, (2 Green Ch. 
 
 44) 418 
 King V. Bill, (28 Conn. 593) 363, 544 
 King V. Carpenter, (37 Mich. 363) 637, 
 
 640 
 King V. Doolittle, (1 Head, Tenn., 77) 
 
 233, 242 
 King V. Donnelly, (5 Paige, 46) 360 
 King V. Eagle Mills, (10 Allen, 551) 263 
 King V. Erases, (23 S. C. 543) 107 
 King V. French, (2 Sawy. 441) 640 
 King V. Gilson, (32 111. 654) 101 
 King V. Hamlet, (4 Sim. 323) 276 
 King V. King, (3 Johns. Ch. 552) 366, 
 
 368 
 King V. King, (6 Ves. 173) 551 
 King V. King, (15 Ir. Ch. 479) 163 
 King V. Lagrange, (50 Cal. 338) 174 
 King V. Portis, (77 N. C. 25) 69, 105 
 King V. Eay, (11 Paige, 235) 650 
 King V. Euckman, (20 N. J. Eq. 316) 587 
 King V. Euckman, (21 N. J. Eq. 599) 36 
 King V. Talbot, (40 N. Y. 76) 366 
 King V. Trice, (3 Ired. Eq. 567) 292 
 King V. Young Men's Ass'n, (1 Woods, 
 
 386) 478 
 King V. Watson, (3 Price, 6) 292 
 King V. Wilder, (76 111. 275) 25 
 Kingman v. Perkins, (105 Mass. Ill) 
 
 453 
 Kingsbury v. Burnside, (58 111. 310) 335 
 Kingsford v. Merry, (11 Exch. 577) 245 
 Kingsley v. White, (57 Vt. 565) 298 
 Kinleside v. Harrison, (2 Phillim. 551) 
 
 287 
 Kinnear v. Lowell, (34 Me. 299) 152 
 Kinnear v. Mackey, (85 111. 96) 143 
 Kinnear v. White, (2 Kerr, N. B., 335) 
 
 289 
 Kinner v. Kiernan, (3 Lans. 493) 262 
 Kinney v. Con. Verg. M. Co. (4 Sawy. 
 
 382, 383) 28, 66, 234 
 Kinney v. Kiernan, (49 N. Y. 164) 65 
 Kinney v. Showdy, (1 Hill, 544) 245 
 Kinsey v. Woodward, (3 Harring. 459) 
 
 170 
 Kinter v. Jenks, (43 Pa. St. 445) 331 
 Kintner v. Jones, (122 Ind. 148) 328 
 Kintzing v. McElrath, (5 Barr. 467) 251, 
 
 253 
 
TABLE OF OASES CITED. 
 
 745- 
 
 REFERENCES ARE TO PAGES. 
 
 Kip V. Bank of New York, (10 Johns. 
 
 63) 340, 370 
 Kip V. Munroe, (39 Barb. 579) 225 
 Kirby v. Goodykoontz, (26 Gratt. 298) 
 
 368 
 Kirby v. Miller, (4 Coldw. 3) 398 
 Kirby v. State, (51 Md. 383) 370 
 Kirby v. Taylor, (6 Johns. Ch. 242) 285 
 Kirby v. Turner, (1 Hopk. 309) 285 
 Kirchner v. Miller, (39 N. J. Eq. 355) 
 
 140 
 Kirk V. Eddowes, (3 Hare, 509) 182 
 Kirk V. Hamilton, (102 U. S. 68) 136, 138 
 Kirkbride's Trusts, (L. R. 2 Eq. 400) 233 
 Kirkham v. Boston, (67 111. 599) 473 
 Kirkham v. Smith, (1 Ves. Sen. 358) 28, 
 
 156 
 Kirkmans. America, Bank of, (3 Coldw. 
 
 397) 621 
 Kirkman v. Benham, (38 Ala. 501) 370 
 Kirkman v. Greensboro', Bk. of, (77 N. 
 
 C. 394) 407 
 Kirkman v. Miles, (13 Ves. 338) 36, 207 
 Kirkpatrick v. Brown, (59 Ga. 450) 139 
 Kirkpatrick v. Chestnut, (5 S. C. 216) 481 
 Kirkpatrick v. Kirkpatrick, (13 Ves. 
 
 476) 232 
 Kirksey v. Means, (43 Ala. 426) 4^ 
 Kirksey v. Snedecor, (60 Ala. 192) 391 
 Kirtland v. Snow, (31 Conn. 33) 395 
 Kisch V. Cent. Ry., &c. of Venezuela, (3 
 
 De G. J. & S. 132) 354 
 Kisler v. Kisler, (3 Watts, 333) 358 
 Kisling V. Shaw, (33 Cal. 425) 282 
 Kitchen v. Bedford, (13 Wall. 413) 338 
 Kite V. Lumpkin, (40 Ga. 506) 318 
 Kittle V. Kittle, (8 Daly, 73) 566 
 Kittle V. Van By eke, (1 Sandf. Ch. 76) 
 
 59 
 Kittredge v. Chapman, (36 Iowa, 348) 
 
 71, 72 
 Kittredge v. Claremont Bk. (3 Story, 
 
 590) 653 
 Klapworth v. Dressier, (3 Beasl.63)569 
 Klase V. Bright, (71 Pa. St. 186) 638 
 Kleeman v. Frisbie, (63 111. 483) 79, 80 
 Klein v. Jewett, (26 N. J. Eq. 474) 673 
 Klein v. Jewett, (11 C. E. Green, 474) 675 
 Klein v. Rector, (57 Miss. 538) 348, 253 
 Klenke v. Koeltz, (75 Mo. 239) 405 
 Klien ». French, (57 Miss. 662) 365. 
 Klinck V. Keckeley, (2 Hill Ch. 350) 59 
 Kline v. Baker, (99 Mass. 353) 348, 349 
 Klock V. Buell, (56 Barb. 398) 199, 303 
 Klock V. Walter, (70 111. 416) 489 
 Kloepping v. Stellmacher, (21 N. J. Eq. 
 
 328) 273 
 
 Klopenstein v. Mulcahy, (4 Nev. 296) 348, 
 
 253, 358 
 Klussman v. Copeland, (18 Ind. 306) 38, 
 
 441 
 Knabe v. Ternot, (16 La. An. 13) 380 
 Knaggs V. Mastin, (9 Kans. 532) 407 
 Knapp V. Lee, (3 Pick. 457) 363 
 Knapp V. Maltby, (13 Wend. 587) 48 
 KnatchbuU v. Grueber, (1 Madd. 153) 
 
 29 
 Knecht's Appeal, (71 Pa. St. 333) 436 
 Knell V. Build. Ass'n, (34 Md. 67) 69, 107, 
 
 109, 129 
 Knight V. Ashland, (61«Wis. 246) 16 
 Knight V. Bunn, (7 Ired. Eq. 77) 336 
 Knight V. Majoribanks, (3 Macn. & G. 
 
 10) 381 
 Knight V. Paxton, (134 U. S. 553) 446 
 Knight ■». Weatherwax, (7 Paige, 182) 
 
 327 
 Knighton v. Curry, (63 Ala. 404) 621 
 Knighton v. Young, (33 Md. 359) 173 
 Knisely v. Williams, (3 Gratt. 365) 479 
 Knobb V. Lindsay, (5 Ohio, 568) 273 
 Knott, Ex parte, (U Ves. 609, 617) 76 
 Knott V. Stephens, (5 Oreg. 335) 587 
 Knotts V. Bailey, (54 Miss. 335) 483 
 Knouflf V. Thompson, (4 Harris, 357) 112, 
 
 141 
 Knowles v. Carpenter, (8 R. I. 548) 149 
 Knowles v. Inches, (13 Cal. 213) 603 
 Knowles v. Lawton, (18 Ga. 476) 149, 151 
 Knowles v. McCamly, (10 Paige, 342) 397 
 Knowles u. Rablin, (30 Iowa, 101) 135 
 Knowles v. Toothaker, (58 Me. 174) 140 
 Knowltonu. Cooley, (103 Mass. 233) 449 
 Knox V. Easton, (38 Ala. 345) 496 
 Knox V. Jones, (47 N. Y. 389) 332 
 Knox V. Jordan, (5 Jones' Eq. 175) 407 
 Knox V. New York, (55 Barb. 404) 559 
 Knox V. Sllloway, (10 Me. 301) 77 
 Knox V. Thompson, (ILitt., Ky., 350) 117 
 Koch V. Briggs, (14 Cal. 256) 344 
 Konvalinka v. Schlegel, (39 Hun, 451) 
 
 170 
 Koons V. Grooves, (30 Iowa, 373) 106, 110 
 Koonegay v. Everitt, (99 N. Car. 30) 321, 
 
 323 
 Korne v. Korne, (30 W. Va. 1) 337 
 Kostenbader v. Peters, (80 Pa. St. 488) 
 
 229 
 Kottwitz V. Alexander, (11 Cush. 223) 
 
 270 
 Kramer v. Arthurs, (7 Barr. 165) 56, 60, 
 
 77 
 Kraushaar v. Brant, (22 Mo. App. 162) 
 
 237 
 
746 
 
 TABLR OP CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Kreider v. Boyer, {10 Watts, 54) 186 
 Kreiser's Appeal, (69 Pa. St. 194) 175, 176, 
 
 177 
 Kreiss v. Seligman, (8 Barb. 439) 271 
 Kreiter v. Bomberger, (82 Pa. St. 59) 229 
 Krideri;. Lafferty, (1 Whart. 303) 109, 
 
 122 
 Kriechbaum v. Bridges, (1 Iowa, 14) 573 
 Krouskop V. Shoutz, (51 Wis. 204) 407 
 Krumm v. Beach, (25 Hun, 293) 261 
 Kruse v. Steflens, (47 111. 112) 287 
 Krutz V. Fisher, (8 Kans. 90) 280 
 Krutz V. Paola Town Co. (20 Kans. 397) 
 
 625 
 Kuchenbeiser v. Beckert, (41 111. 172) 
 
 234 
 KuhlB. Martin, (26 N. J. Eq. 60) 671 
 Kuhl V. Mayor, &c. (23 N. J. Eq. 84) 137, 
 
 142 
 Kuhlman v. Baker, (50 Tex. 630) 218 
 Kuhn V. Meyers, (37 Iowa, 351) 50 
 Kuhn V. Newman, (3 Casey, 227; 26 Pa- 
 
 St. 227) 327, 400 
 Kuhn V. Rumpp, (46 Cal. 299) 489 
 Kuhn V. Stansfield, (28 Md. 210) 406 
 Kuhner v. Butler, (11 Iowa, 419) 31 
 Kukuer v. Butler, (11 Iowa, 419) 269 
 Kunkle v. Wolfersberger, (6 Watts, 126) 
 
 71, 73 
 Kursheedt v. Union Dime Sav. Inst. (118 
 
 N. Y. 358) 514 
 Kuye V. Moore, (1 S. & S. 61) 27 
 Kyle V. Thompson, (11 Ohio St. 610) 81, 
 
 103 
 Kyle V. Ward, (81 Ala. 120) 112 
 Kyles V. Tail's Adm'r, (6 Gratt. 44) 474 
 Kyne v. Kyne, (48 Iowa, 21) 176 
 
 Lackay «. Curtlss, (6 Ired. Eq. 199) 79 
 Lacon v. Briggs, (3 Atk. 105) 25 
 Lacoste's Estate, (Myrick's Prob.) 370 
 La Crosse, &c. Co.». Reynolds, (13 Minn. 
 
 213) 566 
 Lacustrine, &c. Co. v. Lake Guano, &c. 
 
 Co. (83 N. Y. 476) 106, 108 
 Lacy V. Hale, (37 Pa. St. 360) 359 
 Lacy V. Wilson, (4 Munf. 313) 77 
 Ladd V. Ladd, (8 How. 10) 383 
 LaddD. Rice, (57 N. H. 374) 265 
 La Farge P. Ins. Co. v. Bell, (33 Barb. 
 
 54)131 
 Lafayette v. Cox, (34 Tnd. 140) 606 
 Laffan v. Naglee, (9 Cal. 662) 359 
 Lafferty v. Jelly, (32 Ind. 471) 380 
 
 Lagow V. Badollet, (1 Blackf. 416) 473 
 La Grange Co., Comm's of v. Rogers, (55 
 
 Ind. 397) 349 
 Lagrave, In re, (45 How. Pr. 301) 302 
 Laidlow v. Organ, (2 Wheat. 178) 351, 352, 
 
 253, 258 
 Laing v. McKee, (13 Mich. 124) 358 
 Laird v. Bass, (50 Tex. 413) 345 
 Lakes. Brown, (116 111. 83) 344 
 Lake v. Gibson, (1 Eq. Cas. Abr. 290 pi. 
 
 3) 39 
 Lake v. Meachan, (13 Wis. 355) 234 
 Lake v. Morris, (30 Conn. 201) 297 
 Lake Bigler Road Co. v. Bedford, (3 
 
 Nev. 399) 640 
 Lakin v. Sierra Buttes Mining Co. (25 
 
 Fed. Rep. 337) 357 
 Lamar Co. v. Clements, (49 Tex. 347) 139 
 Lamare v. Dixon, (L. R. 6 H. L. 414) 26 
 Lamb v. Cannon, (38 N. J. Law, 362) 59 
 Lamb v. Harris, (8 Ga. 546) 218 
 Lamb v. Lamb, (5 W. R. 720) 159, 166 
 Lamb v. Pierce, (113 Mass. 72) 93 
 Lambert v. GriiEth, (44 Mich. 65) 628 
 Lambert v. Jones, (2 Patton & H. 144> 
 
 457 
 Lambert v. Newman, (56 Ala. 633) 93, 94> 
 
 111 
 Lamberton v. Van Voorhis, (15 Hun, 336) 
 
 473 
 Lamborn v. Covington Co. (2 Md. Ch. 
 
 409) 563 
 Lamborn v. Dickinson Com. (97 U. S. 
 
 181) 220 
 Lammot v. Bowly, (6 Har. & J. 500) 233 
 Lamoille Co. N. Bk. v. Bingham, (50 Vt. 
 
 105) 
 Lamont v. Cheshire, (65 N. Y. 30) 111 
 Lament v. Stimson, (5 Wis. 443) 113 
 L'Amoreux v. Vandenberg, (7 Paige, 316) 
 
 60 
 Lamoreaux v. Huntley, (68 Wis. 34) 117 
 Lampman v. Cochran, (16 N. Y. 269) 49, 
 
 50 
 Lampman v. Milks, (31 N. Y. 505) 153 
 Lamson v. Drake, (105 Mass. 564, 567) 148, 
 
 152 
 Lancaster v. Dolan, (1 Rawle, 231) 398 
 Lance's Appeal, (113 Pa. St. 456) 490 
 Landers v. Bolton, (26 Cal. 393) 106, 109> 
 
 120. 
 Landrum v. Farmer, (7 Bush, 46) 640 
 Lanfair.'B. Lanfalr, (18 Pick. 399) 52 
 Lane v. Black, (31 W. Va. 617) 383 
 Lane v. Dighton, (Ambl. 409) 33 
 Lane v. Doty, (4 Barb. 530, 534) 38, 441 
 Lane v. Duchac, (75 Wis. 646) 106, 107 
 
TABLE OF CASES CITED. 
 
 74T 
 
 REF^ERENCES ARE TO PAGES. 
 
 Lane v. Ewing, (31 Mo. 75) 339 
 Lane v. Jackson, (20 Beav. 535) 128 
 Lane v. King, (8 Wend. 584) 496 
 Lane v. Ludlow, (6 Paige, 316) 478 
 Lane v. Mason, (5 Leigh, 520) 107,' 110 
 Lane v. Pere Marquette Boom Co. (62 
 
 Mich. 63) 228 
 Lane v. Stebbins, (9 Paige, 623) 649 
 Lane v. Taylor, (40 Ind. 495) 279 
 Lanfear v. Sumner, (17 Mass. 110) 294 
 Lang V. Lang, (8 Sim. 451) 196 
 Lang V. Stockwell, (55 N. H. 561) 290 
 Langdon v. Astor's Ex'rs, (3 Duer, 47) 
 
 423 
 Langdon v. Astor, (16 N. T. 9) 182, 183, 
 
 186, 187, 188, 433 
 Langdon v. Buel, (9 Wend. 80) 539 
 Langdon v. Doud, (10 Allen, 433) 138, 243 
 Langdon v. Goddard, (3 Story, 13) 650 
 Langdon v. Keith, (9 Vt. 299) 233 
 Lange v. Baranco, (33 Ala. Ann. 697) 640 
 Langer). Week, (3 Ohio St. 519) 49 
 Langen v. Sankey, (55 la. 52) 138, 141 
 Langstaffe v. Fenwick, (10 Ves. 405) 231 
 Langston v. Hughes, (1 Maule & S. 593) 
 
 271 
 Lanier v. Allison, (31 Fed. Eep. 100) 17 
 Lanier v. Griffin, (11 S. C. ,565) 375 
 Lanier v. Hill, (26 Ala. 554) 254 
 Lanier v. Irvine, (24 Minn. 116) 441 
 Lanning v. Carpenter, (48 N. Y. 408) 
 
 232, 233 
 Lanning v. Smith, (1 Pars. Eq. 16) 28 
 Lanning v. Tompkins, (45 Barb. 308) 463 
 Lanoy v. Athol, Duke of, (2 Atk. 444) 
 
 32, 529 
 Lansden v. McCarthy, (45 Mo. 106) 445 
 Lapham v. Clapp, (10 R. I. 543) 482 
 Lapp V. Firstbrook, (24 Up. Can. C. P. 
 
 239) 242 
 Lapping V. Dufly, (47 Ind. 51) 454 
 Larabee v. Colby, (99 Mass. 559) 406 
 Large v. Penn, (6 S. & R., Penn., 488) 
 
 229 
 Larimer v. Kelley, (10 Kans. 298) 407 
 Larking, Ex parte, (L.R. 4 Oh. D. 566) 
 
 130 
 Larkins v. Biddle, (31 Ala. 253) 222, 224, 
 
 233 
 Larmon v. Carpenter, (70 111. 549) 539 
 Laroe v. Gaunt, (63 Tex. 481) 117 
 Larrabee v. Larrabee, (34 Me. 477) 276 
 Larrabee v. "Van Alstyne, (1 Johns. 307) 
 
 169 
 Larren v. Brewer, (51 Me. 402) 358 
 Larrowe v. Beam, (10 Ohio, 498) 63 
 Larsen v. Burke, (39 Iowa, 703) 596 
 
 Lash V. Bush, (4 Iowa, 215) 117 
 Lasher v. Lasher, (13 Barb. 106) 170, 171 
 La Societe Francaise v. District Court, 
 
 (53 Cal. 495) 668 
 Latham v. Henderson, (47 111. 185) 353 
 Latham v. Morrow, (6 B. Mon. 630) 244, 
 
 245 
 Latham v. Staples, (46 Ala. 462) 477 
 Lathrop v. Bampton, (31 Cal. 17) 357 
 Lathrop v. Godfrey, (6 T. & C. 96) 87 
 Latimer v. Batson, (4 Barn. & C. 652> 
 
 296 
 Lattimore v. Simmons, (13 Serg. & E. 
 
 183) 444 
 Lattin v. McCarty, (41 N. Y. 107) 237 
 Lanb v. Buckmiller, (17 N. Y. 620) 237 
 Lauchner v. Rex, (8 Harris, 464) 233 
 Lauderdale b. Hallock, (7 Sw. & Mar. 
 
 632) 333 
 Laughlin v. Lamas Co. (6 Ind. 223) 547 
 Lauman v. Lebanon Valley R. Co. (30 Pa. 
 
 St. 46) 555 
 Lavassar v. Washburne, (50 Wis. 200) 265 
 Lavender v. Abbott, (30 Ark. 192) 472 
 Lavender v. Lee, (14 Ala. 688) 389 
 Laverty v. Moore, (33 N. Y. 658) 117 
 Laverty v. Sexton, (41 Iowa, 435) 640 
 Lavette v. Sage, (29 Conn. 577) 274 
 LawTJ. Grant, (37 Wis. 548) 252, 253, 361 
 Lawes v. Bennett, (1 Cox, 167) 201, 203 
 Lawl V. Hyde, (39 Wis. 353) 54 
 Lawrence v. Beaubein, (2 Bailey, S. C, 
 
 L. 633) 219, 231 
 Lawrence v. Brown, (5 N. Y. 304) 66, 137 
 Lawrence ?J. Burnham, (1 Nev. 361) 296 
 Lawrence v. Clark, (36 N. Y. 128) 67, 68 
 Lawrence v. Conklin, (17 Hun, N. Y., 228) 
 
 117 
 Lawrence v. Dale, (3 Johns. Ch. 23) 285 
 Lawrence v. Elliott, (3 Redf. 235) 199, 
 
 200, 202 
 Lawrence v. Hand, (23 Miss. 103) 261 
 Lawrence v. Lawrence, (42 N. H. 109) 214 
 Lawrence v. Luhr, (65 Pa. St. 236) 137 
 Lawrence v. Nelson', (21, N. Y. 158) 88 
 Lawrence v. Staigg, (8 R. I. 256) 233 
 Lawrence v. Stratton, (6Cush. 163) 70 
 Lawrence v. Tucker, (7 Me. 195) 106, 110 
 Lawrence I). Zimpleman, (37 Ark. 643) 637 
 Lawrence Univ. v. Smith, (32 Wis. 587) 
 
 138 
 Lawson v. Shotwell, (27 Miss. 630) 413 
 Lawson's Appeal, (11 Harris, 85) 182, 18S 
 Lawton v. Case, (73 Ind. 6Q) 484 
 Lawton v. Gordon, (37 Cal. 202) 90, 94,96, 
 
 106, 109, 112 
 Layman v. Conrey, (60 Md. 286) 387 
 
748 
 
 TABLK OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Layton v. Chaplin, (1 Edw. Ch., N. Y., 
 
 467) 223 
 Lea V. Polk Co. C. Co. (21 How., U. S., 493) 
 
 117 
 Leach v. Ansbacher, (55 Pa .St. 85) 58, 75, 
 
 131, 123 
 Leach v. Beattle, (33 Vt. 195) 103, 105, 613 
 Leach v. Fowler, (22 Ark. 143) 280 
 Leach v. Leach, (18 Blck. 68) 359 
 Leach v. Noyes, (45 N. H. 364) 223 
 Leake v. Richmond Co. (64 N. C. 132) 377 
 Leake v. Sutherland, (25 Ark. 219) 380 
 Leake's Exr's v. Leake, (75 Va. 792) 370 
 Learned v. Holmes, (49 Miss. 290) 365 
 Learned v. Welton, (40 Cal. 349) 337 
 Leary v. Laflin, (101 Mass. 334) 49 
 Leas V. Eldson, (9 Gratt., Va., 377) 234 
 Leas V. Garverich, (77 Iowa, 275) 111 
 Leavenson v. Lafontaine, (3 Kans. 523) 
 
 88 
 Leavenworth Co. v. Chicago, &c. R. Co. 
 
 (18 Fed. Rep. 209) 113 
 Leavitti). Beirne, (21 Conn. 1) 341, 364 
 Leavitt v. Jones, (54 Vt. 433) 399 
 Leavitt v. Palmer, (3 N. T. 19) 219, 222 
 Leavitt v. Pratt, (53 Me. 14) 148 
 Leaycroft v. Hedden, (3 Green Ch. 512) 
 
 3&7 
 Leehmereu.Carlisle, Earlof, (3 P. Wms. 
 
 211, 233) 34, 35, 195, 196, 199, 303 
 Lechmeres. Lechmere, (Cas. temp. Talb. 
 
 80) 34, 196, 211 
 Leddel's Ex'r v. Starr, (19 N. J. Eq. 163) 
 
 671 
 Leddel's Ex'r v. Starr, (30 N. J. Eq. 374) 
 
 659 
 Ledford v. Smith, (6 Bush, 139) 473 
 Ledwich v. McKim, (53 N. Y. 307) 81, 82 
 Ledyard v. Butler, (9 Paige, 132) 65, 491 
 Lee I). Browder, (51 Ala. 388) 353 
 ILeev. Boak, (11 Gratt. 183) 433 
 Lee «. Cato, (37 Ga. 637) 107, 110 
 Lee V. Evans, (8 Cal. 424) 53 
 Lee 1). Green, (6 De 6. M. & G. 155) 138 
 Leeu. Howell, (68 N. C. 313) 279 
 Lee V. Jones, (17 C. B., u. s., 506) 351 
 Lee V. Kirby, (104 Mass. 430) 373 
 Lee V. Kirkpatrick, (1 McCarter, 264) 60, 
 
 145 
 Lee V. Lee, (19 Mo. 420) 244, 345 
 Lee V. Munroe, (7 Cranch, 366) 59 
 Lee V. Overstreet, (44 Ga. 507) 47, 49 
 Lee V. Pain, (4 Hare, 201) 191, 193 
 Lee V. Portwood, (41 Miss. 109) 245 
 Lee V. Price, (13 Md. 353) 418 
 Lee V. Simmons, (65 Wis. 533) 349 
 Lee V. Tannenbaum, (63 Ala. 510) 405 
 
 Lee V. Templeton, (73 Ind. 315) 140 
 Leebrick v. Stable, (68 Iowa, 515) 117 
 Leech's Appeal, (8 Wright, 140) 106 
 Lee Co. ■». Rogers, (7 Wall, 181) 125 
 Leedom v. Lombaert, (80 Pa. St. 381) 373 
 Leeds v. Wakefield, (10 Gray, 514, 519) 
 
 387 
 Leet V. Rider, (48 Cal. 623) 640 
 Lefever v. Hasbrouck, (2 Dem., N. Y., 
 
 567) 366 
 Lefever ». Lefever, (30 N. Y. 37) 140 
 Lefever v. Mires, (81 111. 456) 395 
 Lefevre v. Lefevre, (59 N. Y. 435) 160, 
 
 167, 170 
 Le Fevre v. Laraway, (33 Barb. 168) 379 
 Le Fevre v. Toole, (84 N. Y. 95) 483 
 Lefforge v. West, (3 Ind. 514) 33 
 Legal V. Miller, (2 Ves. Sen. 290) 236 
 Leger v. Doyle, (U Rich. L. 109) 107 
 Leggett V. Bullock, (Bush L. 283) 106, 
 
 108 
 Leggett V. Cole, (1 McCreary, 515) 640 
 Leggett V. Mutual Life Ins. Co. (50 Barb. 
 
 616) 48 
 Leggett V. Perkins, (3 N. Y. 297) 319, 333 
 Le Grand v. Eufaula Bk. (81 Ala. 133) 
 
 113 
 Le Grand v. Pitch, (76 Va. 635) 368 
 Le Grice v. Finch, (3 Meriv. 50) 422 
 Le Grice v. Lord, (10 Me. 161) 291 
 Legro V. Staples, (16 Me. 253) 453 
 Lehman v. Rothbarth, (111 111. 185) 356 
 Lehmberg v. Biberstein, (51 Tex. 457) 291 
 Leib V. Stribling, (51 Md. 285) 
 Leiby's Ex'rs v. Wolf, (10 Ohio, 83) 103, 
 
 107, 110 
 Leigh V. Savidge, (1 McCart. 134) 483 
 Leigh's Estate, (L. R. 6 Ch. Div. 256; L. 
 
 R. 6 Ch. 887) 
 Leighton v. Orr, (44 Iowa, 679) 387 
 Leighton v. Sheldon, (16 Minn. 243) 407 
 Leiman, Estate of, (32 Md. 225) 107, 109 
 Leinaweaver v. Stoever, (1 Watts & S. 
 
 160) 173 
 Leis V. Stubb, (6 Watts, Pa., 48) 226, 227 
 Leitch V. Hpllister, (4 N. Y. 211) 292 
 Leitch V. Wells, (48 Barb. 637) 125, 126 
 Leitensdorfer v. Delphy, (15 Mo. 160) 234, 
 
 336 
 Leland v. Stone, (10 Mass. 459) 333 
 Leman v. Whitley, (4 Russ. 433) 355 
 Lemmon v. Hartrook, (80 Mo. 13) 140 
 Lemmond v. Peoples, (6 Ired. Eq. 137) 
 
 352 
 Lemon v. Phoenix, &c. Ins. Co. (38 Conn. 
 
 294) 231 
 Lemon v. Sweeney, (6 111. App. 507) 578 
 
TABLE OF CASES CITED. 
 
 Y49 
 
 REFERENCES ARE TO PAGES. 
 
 Le Neve v. Le Neve, (Ambl. 436) 41, 56, 
 
 61 
 Lennlng v. Ocean City Ass'n, (41 N. J. 
 
 Eq. 606) 438 
 Lenox v. Roberts, (3 Wheat. 373) 444 
 Lentz V. Earnhart, (12 Heisk. 711) 241 
 Leonard v. Baker, (1 Maule &S. 251) 396 
 Leonard v. Hart, (N. J., 7 Atl. Rep. 865) 
 
 17 
 Leonard v. Steele, (4 Barb. 20) 160, 170, 
 
 176 
 Leonard v. Wills, (24 Kans. 331) 222 
 Lepage v. McNamara, (5 Iowa, 124) 347 
 Lepper v. Nutmann, (35 Ind. 384) 261 
 Leppoc V. Nat. Union Bk. (33 Md. 136) 
 
 109 
 Lerow v. Wilmarth, (9 Allen, 382) 290 
 Lerow v. Wilmarth, (9 Allen, 385) 288 
 Leroy v. Lowber, (1 Abb. Pr., N. Y., 67) 
 
 628 
 Lesesne v. Witte, (5 S. C. 450) 331 
 Lesley v. Johnson, (41 Barb. 359) 59 
 Leslie v. Baillie, (3 Y. & C. Ch. 91) 218, 
 
 220 
 Lessem v. Nerriford, (44 Mo. 23) 296 
 Lester v. Given, (8 Bush, 358) 461 
 Lester u Hardesty, (29 Md. 50) 107, 109 
 Lestrade v. Barth, (19 Cal. 660) 117, 233 
 Lethbridge v. Thurlow, (15 Beav. 334) 
 
 190 
 Letourno v. Ringgold, (3 Cranch. C. 0. 
 
 103) 534 
 Leupold V. Krause, (95 111. 440) 265 
 Leuty V. Hillas, (2 De G. & J. 110) 238 
 Levi V. Earl, (30 Ohio St. 147) 405 
 Levick v. Brotherline, (74 Pa. St. 149) 
 
 258 
 Levy V. Brush, (45 N. Y. 589) 319 
 Levy V. Hart, (54 Barb. 248) 637 
 Levy V. Levy, (33 N. Y. 97) 347 
 Levy V. Loeb, (85 N. Y. 365) 283 
 Levy V. Ward, (33 La. Ann. 1033) 229 
 Lewin v. Lewin, (2 Ves. Sen. 415) 429 
 Lewis, In re, (81 N. Y. 421) 343, 364 
 Lewis V. Adams, (6 Leigh, 320) 395 
 Lewis V. Aldred, (57 Ala. 638) 375 
 Lewis V. Baird, (3 McLean, 56) 28 
 Lewis V. Berry, (64 Barb. 593) 453 
 Lewis V. Boskins, (27 Ark. 61) 73, 473 
 Lewis V. Bourbon Co. (12 Kans. 186) 116 
 Lewis V. Bradford, (10 Watts, 67) 107, 
 
 109, 113. 130 
 Lewis V. Caperton's Ex'r, (8 Gratt. 148) 
 
 475 
 Lewis V. Darling, (16 How., U. S., 1) 482 
 Lewis B. Elrod, (38 Ala. 17) 395 
 Lewis V. Hawkins, (23 Wall. 119) 478 
 
 Lewis V. Hillman, (3 H. L. Cas. 607) 378 
 Lewis V. Latham, (74 N. C. 383) 371 
 Lewis V. Lewis, (5 Or. 169) 226 
 Lewis V. Lewis, (13 Pa. St. 79) 158, 178 
 Lewis V. Madison, (1 Munf. 303) 135 
 Lewis V. Reed, (11 Ind. 339) 371 
 Lewis V. Smith, (9 N. Y. 503) 36, 159, 160, 
 
 168, 169, 170, 171, 176 
 Lewis V. Soule, (52 Iowa, 11) 640 
 Lewis V. Stein, (16 Ala. 314) 563 
 Lewis V. Yale, (4 Fla. 418) 407 
 Lewis' Appeal, (67 Pa. St. 166) 36 
 Leyland v. Illingworth, (2 De G. F. & 
 
 J. 248) 257 
 Libby v. Eosekrans, (55 Barb. 203) 668 
 Liddel's Ex'rs v. Starr, (30 N. J. Eq. 
 
 374) 386 
 Lidderdale's Ex'rs v. Robinson, Ex'r of, 
 
 (12 Wheat. 594) 631 
 Life Ass'n v. Boogher, (3 Mo. App. 173) 
 
 547 
 Life Ins. Co. v. Light, (31 Pa. St. 407) 178 
 Light V. Light,. (9 Harris, 407) 320, 224 
 Lightbody v. Smith, (125 Mass. 51) 454 
 Lightfoot V. Heron, (3 Y. & C. 586) 275 
 Lightfoot^. Lightfoot's Ex'rs, (37 Ala. 
 
 351) 438 
 Lightner v. Menzell, (35 Cal. 453) 48 
 Lightner v. Mooney, (10 Watts, 407) 103, 
 
 107, 109 
 Lightner's Appeal, (83 Pa. St. 301) 453 
 Lignoskiv. Bruce, (8 Fla. 369) 407 
 Ligon V. Rogers, (13 Ga. 281) 65, 314, 334 
 Lillard v. Ruckers, (9 Yerg. 64)70, 101 
 Lillardu. Turner, (16 B. Mon. 374) 406 
 Lilliendhal v. Stegnar, (45 N. J. Eq. 
 
 648) 635 
 Lilly V. Gurry's Ex'r, (6 Bush, 590) 421 
 Lilly V. Palmer, (51 111. 331) 148, 149, 152 
 Lily V. The Fifty Association, (101 Mass. 
 
 432) 51 
 Lincoln v. Rowe, (51 Mo. 571) 403 
 Lincoln D.Rutland, &c. R. R. (24 Vt.639) 
 
 657 
 Lincoln v. Wilbur, (125 Mass. 349) 393 
 Lincoln v. Wright, (4 De G. & J. 16) 368 
 Lincoln B. & S. Ass'n v. Hass, (10 Neb. 
 
 583) 106, 110 
 Llndauer v. Hay, (61 Iowa, 633) 246 
 Linden v. Hepburn, (3 Sandf. 668) 28 
 Lindley, Ex parte, (33 Ind. 367) 349 
 Lindley v. Cross, (31 Ind. 93) 406 
 Lindon v. Sharp, (6 M. & G. 895, 898) 
 
 394 
 Lindsay I). Davenport, (18 111. 375) 329 
 Lindsay v. Harrison, (3 Eng., Ark., 303) 
 400 
 
^60 
 
 TABLE or CASES CITED. 
 
 REFERENGES ARE TO PAGES. 
 
 liindsay v. Pleasants, (4 Ired. Eq. 320 
 
 321) 36, 202, 209, 210 
 Lindsey v. Bates, (42 Miss. 397) 473 
 Lindsey v. Lindsey, (50 111. 79) 596 
 Lindsey v. Rankin, (4 Bibb, 482) 77 
 Lindsley v. Ferguson, (49 N. Y. 623) 264 
 Lindsley v. James, (3 Coldw. 477) 651 
 Lines v. Darden, (5 Flor. 51) 215 
 Lingan v. Henderson, (1 Bland Ch. 236) 
 
 472 
 Lingen v. Sowray, (1 P. Wms. 172) 207 
 Lingsley «. Abbott, (19 Me. 430, 434) 39 
 Linker v. Linker, (32 N. J. Eq. 174) 394 
 Linker v. Smith, (4 Wash. 224) 408 
 Linn v. Barkey, (7 Ind. 69) 234 
 Linsay v. Piatt, (9 Plor. 150) 187 
 Linsenblgler ». Gourley, (6 Pa. St. 166) 
 
 420 
 Linthlcnm v. Tapscott, (28 Ark. 267) 472 
 Linton v. Butz, (7 Pa. St. 89) 298 
 Linville v. Savage, (58 Mo. 248) 476 
 liippencott v. Stokes, (2 Halst. Ch. 122) 
 
 215, 230 
 Lippincott v. Leeds, (77 Pa. St. 420) 407 
 Lippincott v. Mitchell, (4 Otto, 767) 394 
 Lippincott v. Stokes, (6 N. J. Eq. 22) 230 
 Llppmlns V. McCranle, (3 La. An. 1251) 
 
 139 
 Lipse V. Spear, (4 Hughes, C. Ct., 535) 368 
 Lister v. Pickford, (34 Beav. 576) 232 
 Litchfield V. White, (7 N. Y. 483) 343 
 Litchfield Bk. v. Peck, (29 Conn. 384) 262 
 Little V. Bird well, (21 Tex. 597) 415 
 Littler. Brown, (2 Leigh, 353) 476 
 Little iJ. Gould, (2Blatchf.,U.S.,165, 362) 
 
 563 
 Little V. Price, (1 Md. Ch. 182) 25, 144, 566 
 Littlefield v. Cole, (33 Me. 552) 364 
 Littlefield v. Nichols, (42 Cal. 372) 56, 58 
 Littlefield v. Smith, (17 Me. 327) 84 
 Littlejohn v. Gordon, (32 Miss. 235) 473 
 lilttleton V. Giddings, (47 Tex. 109) 98, 
 
 99, 100, 101 
 Livermore v. Aldrich, (5 Cush. 431) 353 
 Livermore«. Bushnell, (5 Hun, 285) 441 
 Xiivermore v. Peru, (55 Me. 469) 225 
 Liverpool Adelphi Loan Ass'n v. Fair- 
 hurst, (9 Exch. 422) 246 
 Liverpool Whf. v. Prescott, (7 Allen,494) 
 
 139 
 Livingston v. Dean, (2 Johns. Ch. 479) 87 
 Livingston v. Hubbs, (2 Johns. Ch. 512) 
 
 264 
 Livingston v. Livingston, (2 Johns. Ch. 
 
 537) 355 
 Xiivingston v. Livingston, (4 Johns. 294) 
 
 214 
 
 Livingston v. Livingston, (6 Johns. Ch. 
 
 287) 602 
 Livingston v. Peru Iron Co. (2 Paige, 
 
 390) 252, 253 
 Livingston v. Story, (9 Pet. 632) 21 
 Livingston v. Tompkins, (4 Johns. Ch. 
 
 415) 33, 54 
 Livingston v. Van Ingen, (1 Paine, 45) 21 
 Livingston v. Wells, (8 S. C. 347) 370 
 Lloyd V. Attwood, (3 De G. & J. 614) 280 
 Lloyd V. Banks, (L. R. 3 Ch. 488) 84, 95 
 Lloyd V. Brewster, (4 Paige, 537) 248, 253 
 Lloyd V. Bruce, (41 Iowa, 660) 291 
 Lloyd V. Cokton, (5 Bush, 587) 283 
 Lloyd V. Harvey, (3 Euss. & My. 310, 
 
 316) 183 
 Lobdell V. Baker, (3 Mete. 469) 243 
 Lobdell V. Hayes, (4 Allen, 187) 203 
 Lobley v. Stocks, (19 Beav. 392) 192 
 Lochenour v. Lochenour, (61 Ind. 595) 
 
 355 
 Lock's Ex'r v. Palmer, (26 Ala. 312) 276 
 Locke V. Stearns, (1 Met. 560) 361 
 Lockett V. Hurt, (57 Ala. 198) 637 
 Lockhart v. Cameron, (29 Ala. 374) 833, 
 
 409 
 Lockwood V. Sturdevant, (6 Conn. 373) 
 
 146, 149 
 Lockwood V. Thome, (11 N. Y. 170) 372 
 Loder v. Hatfield, (4 Hun, 36) 480 
 Loder v. Simonton, (2 P. & W., Pa., 
 
 439) 112, 116 
 Lodging House Ass'n v. City of Boston, 
 
 (114 Mass. 133) 146, 149 
 Loel V. Flash, (66 Ala. 526) 348 
 Loesser v. Loesser, (81 Ky. 139) 638 
 Loften V. Witboard, (93 III. 461) 355 
 Loftis V. Glass, (15 Ark. 680) 202 
 Logan V. Gigley, (11 Ga. 243) 268 
 Logan V. Logan, (3 B. Mon. 143) 413 
 Logan V. Simmons, (3 Ired. Eq. 487) 408 
 Logan V. Thrift, (20 Ohio St. 62) 405 
 Logan V. Walker, (1 Wis. 527) 353 
 Logue V. Bateman, (43 N. J. Eq. 434) 
 
 381 
 Lohman v. Crouch, (19 Gratt. 331) 28 
 Lomax v. Bird, (1 Vern. 182) 507 
 London, &c. Ry. v. London, &c. E. (4 
 
 De G. & J. 362) 555 
 London, &c. Ey. v. Winter, (Cr. & Ph. 
 
 57) 236 
 Long V. Dollarhide, (24 Cal. 318) 102, 
 
 106, 109 
 Long V. Hewitt, (44 Iowa, 363) 215 
 Long V. Long, (9 Md. 348) 374 
 Long V. Long, (5 Yes. 445) 178 
 Long V. Stafford, (103 N. Y. 374) 38, 39 
 
TABLE OF CASES CITED. 
 
 761 
 
 REFERENCES ARE TO PAGES. 
 
 Long V. Towle, (42 Mo. 548) 48, 49 
 Long V. Warren, (68 N. Y. 426) 360 
 Long V. Weller, (39 Gratt. 34T) 114 
 Long V. Woodman, (58 Me. 49) 343, 350, 
 
 359 
 Long V. Wortham, (4 Tex. 381) 420 
 Long's Adm'r v. White's Adm'rs, (5 J. 
 
 J. Marsh. 226) 393 
 Longley v. Hudson, City of, (4 T. & 0. 
 
 353) 637 
 Longmate v. Ledger, (2 Giff. 157) 273 
 Longworth v. Taylor, (1 McLean, 395) 
 
 587 
 Lonsdale v. Brown, (4 Wash. C. C. 148) 
 
 68 
 Lonsdale's Estate, (29 Pa. St. 407) 338 
 Loome v. Wheelwright, (3 Sandf. Ch. 
 
 135, 157) 150 
 Loomer v. Wheelwright, (3 Sandf. Ch. 
 
 135) 149 
 Loomis V. Brush, (36 Mich. 40) 393 
 Loomis V. Eagle Bk. (10 Ohio St. 327) 
 
 88 
 Loomis V. Loomis, (36 Vt. 198) 80, 84 
 Loomis V. Riley, (34 111. 307) 125 
 Loomis?;. Euck, (56 N. Y. 463) 404 
 Loomis V. Stuyvesant, (10 Paige Ch. 490) 
 
 514 
 Loosemore v. Smith, (13 Neb. 343) 430 
 Lopes V. Eobinson, (54 Tex. 510) 355 
 Lord V. Lord, (23 Conn. 337) 170, 176 
 Lord V. McGaffrey, (46 Pa. St. 410) 459 
 Lord V. SutclifEe, (3 Sim. 273) 191 
 Lord V. Underdanck, (1 Sandf. Ch. 46) 
 
 437 
 Lord V. Wightwick, (4 De G. M. & G. 
 
 803) 199 
 Lorentz v. Lorentz, (14 W. Va. 809) 355 
 Lorillard v. Coster, (5 Paige, 172, 173) 35, 
 
 198 
 Loring v. Downer, (McAll. 360) 21 
 Lorlng V. Eliot, (16 Gray, 568) 352, 446 
 Loring v. Palmer, (118 U. S. 321) 336 
 Loring v. Salisbury Mills, (125 Mass. 138) 
 
 82 
 Loring v. Woodward, (41 N. H. 391) 422 
 Lorman v. Clark, (3 McLean, 568) 21 
 Lormore v. Campbell, (60 Barb. 62) 391 
 Loscombe v. Russell, (4 Sim. 8) 625 
 Loseyt). Simpson, (UN. J. Eq. 246)71, 
 
 73, 74, 87, 102, 103, 105, 117 
 Loss V. Obry, (23 N. J. Eq. 52) 329, 330 
 Lothrop V. Wightman, (5 Wright, 397) 
 
 296 
 Loudu. Lane, (8 Met. 517) 148, 149, 150, 
 
 151, 153 
 Louden v. Tiffany, (5 Watts & S. 367) 80 
 
 Loughridge v. Bowland, (52 Miss. 546) 
 
 93, 94, 97, 98, 111, 112, 113, 118, 133 
 Louisville, &c. R. R. Co. v. Power, (119 
 
 Ind. 269) 233 
 Love V. Graham, (25 Ala, 187) 230 
 Love V. Lea, (3 Ired. Eq. 627) 279 
 Love V. Sierra Nevada, &c. Co. (33 Cal. 
 
 • 639) 315, 230, 464 
 Love V. Taylor, (36 Miss. 567) 68 
 Lovell V. Hicks, (3 Y. & C. Ex. 46) 342 
 Lovell?;. Minot, (30 Pick. 116) 368 
 Loveman v. Taylor, (85 Tenn. 1) 363 
 Loveridge v. Cooper, (3 Russ. 30, 31) 40 
 Loving V. Cairo, (10 Iowa, 282) 618 
 Low, Estate of, (Myrlck's Prob., Cal., 
 
 148) 174 
 Low V. Harmony, (72 N. Y. 408) 340 
 Low V. Nolte, (16 111. 478) 46 
 Low V. Pratt, (53 111. 438) 125 
 Low v. Staples, (2 Nev. 209) 637 
 Lowe ■». Wing, (56 Wis., 1882, 31) 539 
 Lowell V. Boston, &c. R. R. (33 Pick. 34, 
 
 33) 37, 269 
 Lowell V. Daniels, (2 Gray, 161) 143 
 Lowell u. Middlesex Ins. Co. (8Cush. 127) 
 
 478 
 Lowery v. Steward, (25 N. Y. 230) 453 
 Lowes V. Lowes, (5 Hare, 501) 172 
 Lowndes v. Chisolm, (3 McCord's Eq. 455) 
 
 321 
 Lownsbury v. Pardy, (18 N. Y. 515) 319 
 Lowry v. Brown, (1 Coldw. 456) 112 
 Lowry v. McLane, (3 Grant, Pa., 333) 263 
 Lowry v. Spear, (7 Bush, 451) 275 
 Lowther v. Carlton, (2 Atk. 242) 96 
 Loxley v. Heath, (27 Beav. 523) 243 
 Loyd V. Malone, (23 111. 43) 247 
 Lozear i;. Shields, (23 N. J. Eq. 509) 274 
 Lozier's Ex'rs v. Van Saun's Adm'rs, (2 
 
 Green Ch. 325) 658 
 Lucas V. Cobbs, (1 Dev. & B., N. Car., L. 
 
 228, 232) 402 
 Lucas V. Jamec, (7 Hare, 410) 257 
 Lucas V. Lockhart, (10 Sm. & Mar. 466) 
 
 331 
 Lucas V. Lucas, (1 Atk. 370) 219 
 Luch's Appeal, (44 Pa. St. 519) 466 
 Lucich V. Medin, (3 Nev. 93) 420 
 Lucos V. Labertue, (88 Ind. 277) 234 
 Luddington v. Ford, (33 Mich. 133) 334 
 Luddington v. Gabbert, (5 W. Va. 330) 
 
 479 
 Ludgater v. Love, (44 L. T., n. s., 694) 
 
 363 
 Ludington v. Elizabeth, City of, (37 N. 
 
 J. Eq. 56S) 640 
 Ludwig V. Highley, (5 Barr. 133) 68 
 
152 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAQES. 
 
 Luey V. Bundy, (9 N. H. 298) 262 
 Luff V. Pope, (5 Hill, 413) 453 
 Luigart v. Ripley, (19 Ohio St. 24) 173 
 Luigi V. Luchesi, (12 Nev. 306) 363 
 Lumbard v. Abbey, (73 111. 177) HI 
 liumley v. Wagner, (1 De G. M. & 6.604) 
 
 555 
 Lund V. Seaman's Bk. (37 Barb. 129) 663 
 Lunt V. North America, Bk. of,(49 Barb. 
 
 221) 453 
 Lupton V. Almy, (4 Wis. 242) 497 
 Lupton V. Lupton, (2 Johns. Ch. 614) 483 
 Lush's Trusts, In re, (L. E. 4 Ch. 591) 
 
 409 
 Lusk V. Hopper, (3 Bush, 179) 479 
 Lyell V. Hammond, (2 Lea.,Tenn., 378) 365 
 Lyford v. Thurston, (16 N. H. 408) 340 
 Lyle V. Burke, (40 Mich. 499) 338 
 Lyman v. Babcock, (40 Wis. 503) 49 
 Lyman v. Little, (15 Vt. 576) 233 
 Lyman v. Lyman, (32 Vt. 79) 526 
 Lyman v. Lyman, (2 Paine, 11) 544, 545 
 Lyman v. Russell, (45 111. 381) 122 
 Lyman v. Union Ins. Co. (17 Johns. 373) 
 » 236 
 Lyman v. U. S. Ins. Co. (2 Johns. Ch. 
 
 630) 226, 233, 236 
 Lyme v. Allen, (51 N. H. 242) 262 
 Lynch v. Bitting, (6 Jones' Eq., N. Car., 
 
 238) 628 
 Lynch v. Clements, (24 N. J. Eq. 431) 
 
 335 
 Lynch v. Fallon, (11 E. I. 311) 283 
 Lynch u. Mayor, i&c. (76 N. Y. 60) 563 
 Lynch v. Eotan, (39 111. 14) 300 
 Lynch v. Utiea Ins. Co. (18 Wend. 236) 
 
 52, 465 
 Lynde v. Thompson, (2 Allen, 456) 46, 
 
 47, 48, 50 
 Lyne's Ex'r v. Crouse, (1 Barr. Ill) 398 
 Lynn v. Gebhardt, (27 Md. 547) 173, 199 
 Lyon V. Colville, (1 Call, 449) 190 
 Lyon V. Home, (L. R. 6 Eq. 655) 287 
 Lyon V. Lyon, (1 Tenn. Ch. 235) 371 
 Lyon V. Mellvaine, (24 Iowa, 9) 149 
 Lyon V. McLaughlin, (32 Vt. 423) 602 
 Lyon V. Sanders, (23 Miss. 530) 219 
 Lyons v. Miller, (6 Gratt. 439) 654 
 Lyons v. Van Riper, (26 N. J. Eq. 337) 
 
 277, 596 
 Lytle V. Beveridge, (58 N. Y. 592) 287 
 Lytle V. Turner, (12 Lea., Tenn., 641) 115 
 
 M. 
 
 M., &c. K. Co-B. Woodruff, (26 Ark. 649) 
 
 16 
 Maas V. Goodman, (2 Hilt. 275) 79, 87 
 
 Macartney v. Graham, (2 Sim. 285) 314 
 Macauley v. Philips, (4 Ves. 15, 19) 30 
 Maccubbin v. Cromwell, (7 Gill <fe J. 
 
 164) 371 
 Macdowell v. Halfpenny, (2 Vern. 484) 
 
 194 
 Machem v. Machem, (28 Ala. 374)331,409 
 Macher v. Foundling Hospital, (1 V. & 
 
 B. 187) 54 
 Machinists' Nat. Bk. o. Field, (136 Mass. 
 
 345) 83 
 Machir v. Burrows, (14 Ohio St. 519) 405 
 Macintosh v. Thurston, (25 N. J. Eq., 
 
 10 C. E. Green, 242) 59 
 Mack's Appeal, (18 Smith, Pa., 231) 437 
 Mackenzie v. Childers, (43 Ch. Div. 265) 
 
 438 
 Mackenzie v. Coulson, (L. R. 8 Eq. 368) 
 
 228 
 Mackenzie v. Mackenzie, (2 Russ.363) 191 
 Macknett v. Macknett, (29 N. J. Eq. 54) 
 
 177, 178 
 Mackinnon v. Peach, (2 Keen, 555) 191 
 Mackreth v. Symmons, (15 Ves. 329, 354) 
 
 36, 40, 61, 474 
 Maclay v. Love, (25 Cal. 367) 407 
 Macomberu. Doane, (2 Allen, 541) 454 
 Macomber v. Jaffray, (4 Gray, 416) 640 
 Macon v. Sheppard, (2 Humph. 335) 123 
 Macon, &c. R. R. v. Georgia, &c. R. R. 
 
 (63 Ga. 103) 364 
 Macoupin Co. v. People, (58 111. 191) 372 
 Macpherson v. Macpherson, (1 Mae- 
 queen, 243) 204 
 Maddeford v. Austwick, (2 My. & K. 
 
 279) 387 
 Madden v. Barnes, (45 Wis. 135) 473 
 Maddox v. Simmons, (31 Ga. 512) 273 
 Maddox v. Stephenson, (60 Ga. 135) 631 
 Madison Co. v. People, (58 111. 456) 272 
 Magee v. Magee, (51 III. 500) 59 
 MaGehee v. Sneed, (1 Dev. & Bat. Eq. 
 
 333) 474 
 Magers v. Edward's Adm'r, (13 W. Va. 
 
 832) 415 
 Maggs V. Benedicks, (49 Ala. 512) 294 
 Maghee v. Robinson, (98 111. 458) 117 
 Magrnder v. Admire, (4 Mo. App. 133) 
 
 621 
 Magruder v. Peter, (11 Gill & J. 817) 473, 
 
 474 
 Magulre v. Maguire, (7 Dana, 181) 300 
 Maguire v. Maguire, (3 Mo. App. 458) 
 Magwood V. Johnston, (1 Hill Ch. 238) 
 
 406 
 Mahagan v. Mead, (63 N. H. 570) 526 
 Mahar v. O'Hara, (4 Gilm. 424) 418 
 
TABLE OF CASES CITED. 
 
 753 
 
 REFERENCES ARE TO PAGES. 
 
 Maher v. Swift. (14 Nev. 324) 388 
 Mahnke v. Neale, (23 W. Va. 57) 628 
 Mahon v. McGraw, (26 Wis. 614) 283 
 Mahoney v. Middleton, (41 Cal. 41) 105, 
 
 106,109 
 Mahood v. Tealza, (36 La. An. 108) 271 
 Mai ben v. Bobe, (6 Fla. 381) 407 
 Maine v. Howland, (Rich. Eq. Cas., S. 
 
 Car., 653) 638 
 Maine Bank v. International Bk. (9 Wis. 
 
 57, 68) 45 
 Maine Bap. Miss. Con. v. Portland, (65 
 
 Me. 92) 345 
 Mainprice v. Westley, (6 Best & S. 430) 
 
 244 
 Mainwairing o. Templeman, (51 Tex. 
 
 205) 70, 117 
 Maire v. Garrison, (83 N. Y. 14) 347 
 Major V. Buckley, (51 Mo. 237) 98, 114, 
 
 115 
 Majors v. Cowell, (51 Cal. 478) 128 
 Majors v. Everton, (89 111. 56) 393 
 Malcolm u. Allen, (49 N. Y. 448) 45 
 Maiden v. Menil, (2 Atk. 8) 214 
 Malone v. Kelley, (54 Ala. 532) 369 
 Mallett V. Dexter, (1 Curtis C. C. 178) 
 
 419 
 Malloney v. Horan, (49 N. Y. Ul) 137, 
 
 142, 148 
 Mallory v. Craige, (3 McCarter, 73) 418 
 Mallory v. Hitchcock, (29 Conn. 127) 
 
 149, 151 
 Mallory v. Stodder, (6 Ala. 801) 70, 77, 
 
 107 
 Mallory v. Vanderheyden, (3 Barb. Ch. 
 
 10)397 
 Mallory v. West Shore, &c. R. E. (35 
 
 N. Y. S. C. 175) 45 
 Malone v. Majors, (8 Humph. 577) 173 
 Mance v. Mance, (28 111. App.587) 353 
 Manchester v. McKee, (4 Gilm. 511) 618 
 Manchester Print Works v. Stimson, (2 
 
 E. I. 415) 667 
 Manchester, &c. Ky., In re, (19 Beav. 
 
 365) 205 
 Manderson v. Commer. Bk. (28 Pa. St. 
 
 379) 555 
 Mandeville v. Mandeville, (8 Paige, N. 
 
 Y., 475) 643 
 Mandeville v. Welch, (5 Wheat. 277) 453, 
 
 467 
 Manes v. Durant, (2 Rich. Eq. 404) 408 
 Maney v. Ebbert, (9 Heisk.153) 295 
 Maney v. Killough, (7 Yerg. 443) 295 
 Mangles v. Dixon, (3 H. L. Cas. 702) 81, 87 
 Manhattan Life Ins. Co. v. Smith, (44 
 
 Ohio St. 167) 42 
 
 Manhattan Man., &c. Co. v. N. J. Stock 
 
 Yard, &c.Co. (23 N. J. Eq 161) 555 
 Manhattan, &c. Co. v. Barker, (7 Robt. 
 
 523) 559 
 Manhattan, &c. Co. v. Thompson, (58 
 
 N. Y. 80) 404 
 Manice v. Maniee, (43 N. Y. 303) 340 
 Maaice v. Manice, (1 Lans. 348) 426 
 Manly v. Kidd, (33 Miss. 141) 418 
 Manly v. Slason, (21 Vt. 271) 474,475 
 Mann v. Betterly, (31 Vt. 326) 273 
 Mann v. Darlington, (3 Harris, 310) 358 
 Mann v. McDonald, (10 Humph. 275) 281 
 Mann v. Pearson, (2 Johns., N. Y., 37) 
 
 229 
 Mann v. Utica, City of, (44 How. Pr. 334) 
 
 643 
 Mann's Appeal, (IBarr. 24) 70 
 Manning v. Albee, (11 Allen, 323) 250 
 Manning v. Craig, (3 Green Ch. 436) 422 
 Manning v. Frazier, (96111. 379) 473 
 Manning v. Hayden, (5 Sawy. 360) 280 
 Manning v. Keenan, (73 N. Y. 45) 65 
 Manning v. Manning, (79 N. C. 300)407 
 Manning v. Manning, (1 Johns. Ch. 530) 
 Manning v. Markel, (19 Iowa, 103) 507 
 Manning i;. McClure, (36111. 490) 68 
 Manning v. Thesiger, (3 My. & K. 39) 192 
 Manser v. Back, (6 Hare, 443) 235 
 Mansfield v. Alwood, (84 111. 497) 363, 365 
 Mansfield v. Gregory, (8 Neb. 435) 106, 
 
 110 
 Mansfield, &c. Co. v. Veeder, (17 Ohio, 
 
 382) 331, 334 
 Man. & Trad. Bk.'B. Hazard, (30 N. Y. 
 
 336) 137, 143 
 Many v. Beekman Iron Co. (9 Paige, 188) 
 
 650 
 Many v. Beeckman Iron Co. (9 Paige, 
 
 580) 333 
 Manzy v. Hardy, (13 Neb. 36) 228 
 Mapes V. Scott, (4 III. App. 368) 668 
 Maples V. Geller, (1 Nev. 333) 38, 441 
 Mapps V. Sharpe, (33 III. 13) 501 
 Mara v. Pierce, (9 Gray, 306) 118 
 Marble v. Whitney, (38 N. Y. 297) 223 
 Marble Co. v. Ripley, (10 Wall. 339) 27, 
 
 583, 591 
 Marbury v. Brooks, (7 Wheat. 556) 292 
 March v. Davison, (9 Paige, 182, 188, 190, 
 
 193, 235) 649 
 March V. Eastern R. E. (40 N. H. 548) 
 
 555 
 March v. Ludlam, (3 Sandf. Ch. 35)653 
 Marcy v. Dunlap, (5 Lans. 365) 36 
 MargrafF' v. Muir, (57 N. Y. 155) 333, .583 
 Marimer v. Milwaukee, (31 Wis. 84) 13Q 
 
 48 
 
754 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Marine Bank v. Fulton Bk. (2 Wall. 252) 
 
 370 
 Marine Bank v. Jauncey, (1 Barb. 486) 
 
 79 
 Marine Ins. Co. v. Hodgson, (7 Cranch, 
 
 332, 336) 213, 566 
 Marine, &c. Ins. Bank v. Jauncey, (3 
 
 Sandf. 257) 457 
 Mariner v. Smith, {5 Helsk., Tenn., 208) 
 
 365 
 Markham v. Guerrant, (4 Leigh, 279) 
 
 341 
 Markham v. Porter, (33 Ga. 508) 377 
 Markillie v. Ragland, (77 111. 98) 482 
 Markoe v. Andras, (67 111. 34) 478 
 Marlattu. Warwick, (19 N. J. Eq. 439) 
 
 268 
 Marlett v. Marlett, (14 Hun, 313) 415 
 Marlow v. Barlew, (53 Cal. 456) 404 
 Marlow v. Marlow, (77 111. 633) 265 
 Marr's Appeal, (78 Pa. St. 66) 260 
 Marriott, In re, (2 Moll. 516) 175 
 Marriott v. Badger, (5 Md. 306) 158, 178 
 Marrow v. Marrow, (Bush Eq. 148) 415, 
 
 643 
 Marsh v. Brooklyn, City of, (59 N. Y. 280) 
 
 637 
 Marsh v. Cook, (32 N. J. Eq. 262) 261 
 Marsh v. Falker, (40 N. Y. 563) 356 
 Marsh v. Gilbert, (2 Eedl, N. Y., 465) 366 
 Marsh v. Goodrell, (11 Iowa, 474) 38, 441 
 Marsh v. Lee, (2 Vent. 337) 76 
 Marsh v. Nelson, (101 Pa. St. 51) 130d 
 Marsh v. Pike, (10 Paige, 595) 569, 621 
 Marsh v. Benton, (99 Mass. 133) 369 
 Marsh v. Turner, (4 Mo. 253) 473 
 Marsh v. Webber, (13 Minn. 109) 251 
 Marsh v. Wheeler, (2 Edw. Ch. 156) 209 
 Marsh v. Whitmore, (21 Wall. 178) 280 
 Marshal v. Vixburg, (15 Wall. 149) 43 
 Marshall v. Billingsly, (7 Ind. 250) 375 
 Marshall ». Carson, (38 N. J. Eq. 350) 387 
 Marshall v, Christmas, (3 Humph. 616) 
 
 473 
 Marshall v. Collett, (1 Y. & C. Exch.233) 
 
 214 
 Marshall v. Fowler, (16 Beav. 249) 31 
 Marshall v. Fowler, (7 Hun, 237) 255 
 Marshall v. Fisk, (6 Mass. 34) 110 
 Marshall v. Joy, (17 Vt. 546) 279 
 Marshall v, Moore, (37 B. Mon., Ky., 69) 
 
 371 
 Marshall v. Stephens, (8 Humph. 159) 
 
 230, 318 
 Marshall v. Stewart, (17 Ohio, 356) 52 
 Marston v. Brackett, (9 N. H. 336) 60 
 Mars ton v. Marston, (54 Me. 476) 291 
 
 Martin; Ex parte, (13 Ark. 198) 563 
 Martin®. Blight, (4 J. J. Marsh. 491) 847 
 Martin v. Campbell, (35 Ark. 137) 419 
 Martin v. Cauble, (72 Ind. 67) 473 
 Martin v. Cotter, (3 Jo. & Lat. 496) 114 
 Martin v. Funk, (75 N. Y. 134) 327 
 Martin v. Hamlin, (18 Mich. 354) 819, 
 
 329 
 Martin v. Hewitt, (44 Ala. 418) 66 
 Martin v. Jackson, (3 Casey, 504) 67, 
 
 121, 132 
 Martin v. Jordan, (60 Me. 531) 244, 250 
 Martin v. KuntzmuUer, (37 N. Y. 397) 87 
 Martin ». Martin, (16 B. Mon. 8) 358 
 Martin v. Martin, (35 Ala. 560) 263 
 Martin v. Martin, (1 Hofl. Ch. 462) 408 
 Martin v. Martin, (1 Heisk. 644) 275 
 Martin ». Mayberry, (1 Dev. Eq. 169) 
 
 661 
 Martin v. McCord, (5 Watts, 493) 349 
 Martin v. McCormick, (8 N. Y. 331) 235 
 Martin v. McMillan, (65 N. C. 199) 271 
 Martin v. McReynolds, (6 Mich. 70) 501 
 Martin v. Melville, (3 Stockt. Ch. 838) 
 
 45 
 Martin v. Moulton, (8 N. H. 504) 279 
 Martin v. Nash, (31 Miss. 324) 114 
 Martin v. Neblett, (86 Tenn. 383) 116 
 Martin v. O'Bannon, (35 Ark. 62) 471 
 Martin v. Pycroft, (3 Be G. M. & G. 
 
 785) 236 
 Martin v. Quattlebaum, (3 McCord, 305) 
 
 101 
 Martin v. Richardson, (68 N. C. 355) 79, 
 
 87 
 Martin v. Righter, (3 Stockt. Ch. 510) 
 
 145 
 Martin v. Tidwell, (36 Ga. 167, 168, 342, 
 
 243, 249) 17 
 Martin v. Veeder, (30 Wis. 466) 446 
 Martindale v. Alexander, (36 Ind. 104) 
 
 613 
 Martindale v. Booth, . (3 Barn. & Ad 
 
 498) 394 
 Martineau v. McCollum, (4 Chand. 153) 
 
 79 
 Martinez v. Cooper, (2 Russ. 198) 60 
 Marvin v. Bennett, (36 Wend., N. Y., 
 
 169) 329 
 Marvin v. Ellwood, (11 Paige, 365) 663 
 Marvin v. Inglis, (39 How. Pr. 329) 81 
 Marx V. McGlynn, (88 N. Y. 357) 287 
 Masich v. Shearer, (49 Ala. 226) 475 
 Maskell v. Goodale, (3 Disney, 383) 158, 
 
 178 
 Mason v. Anthony, (3 Keyes, 609) 141 
 Mason v. Bauman, (63 111. 76) 380 
 
TABLE OF CASES CITED. 
 
 755 
 
 REFERENCES ARE TO PAGES. 
 
 Mason v. Gardiner, (4 Bro. Ch. 436) 31, 
 
 269 
 Mason v. Grant, (31 Me. 160) 376 
 Mason v. Lord, (40 N. Y. 476) 81 
 Mason v. Martin, (4 Md. 134) 278 
 Mason v. Mason's Ex'rs, (4 Sandf. Ch. 
 
 623) 364 
 Mason v. M. E. Church, (37 N. J. Eq.47) 
 
 191, 314, 345 
 Mason v. Moody, (26 Miss. 184) 488 
 Mason v. Payne, (Walk. Ch. 459) 536 
 Mason v. Pelletier, (83 N. Car. 40) 230 
 Mason v. Eaplee, (66 Barb. 180) 242 
 Mason v. Eing, (3 Abb. App. Dec. 310) 
 
 282 
 Mason's Ex'rs v. Meth. Epis. Ch. (37 N. 
 
 J. Eq. 47) 348 
 Massaker v. Massaker, (2 Beasl. 264) 483 
 Massee v. Sneed, (29 Ga. 51) 17 
 Massey v. Cotton States Life Ins. Co. (70 
 
 Ga. 794) 218 
 Massey v. Mcllwain, (3 Hill Ch. 421, 
 
 438)465 
 Massey v. Thompson, (2 Nott & McC. 
 
 105) 107, 110 
 Massey v. Westcott, (40 111. 160) 69, 71 
 Massie v. Watts, (6 Cranch, 148) 387, 545 
 Masson v. Bovet, (1 Denio, 69) 344 
 Masson's Appeal, (70 Pa. St. 36) 363 
 Massop V. Eadon, (16 Ves. 430, 433, 434) 
 
 314 
 Masten v. Blackwell, (8 Hun, 313) 38, 441 
 Mastersonu. Cohen, (46 Tex. 530) 478 
 Masterson v. Masterson, (3 Cranch, U.S., 
 
 C. C. 53) 573 
 Masterson v. Pullen, (63 Ala. 145) 199, 300, 
 
 303 
 Masterson v. West End, &c. E. E. (5 Mo. 
 
 App. R. 64) 122 
 Masterton v. Beers, (1 Sweeney, 406) 358 
 Mastick v. Thorp, (39 Cal. 444) 330 
 Mastln V. Halley, (61 Mo. 196) 591 
 Mastin v. Mario w, (65 N. C. 695) 376 
 Materne v. Horwitz, (101 N. Y. 469) 270 
 Matesky v. Feldman, (75 Wis. 103) 119 
 Mather v. Eobinson, (47 Iowa, 403) 243 
 Mathews v. Demerritt, (22 Me. 312) 131 
 Mathews v. Hey ward, (2 S. C. 239) 357 
 Mathews v. Light, (32 Me. 305) 283 
 Mathews v. Mathews, (2 Ves. Sen. 636) 
 
 193 
 Mathews v. Poythress, (4 Ga. 337) 113 
 Mathews v. Terwilliger, (3 Barb. 50) 363 
 Mathias v. Mathias, (3 Sim. & Glff. 552) 
 
 195 
 Mathias V. Stuflebeam, (94111. 481) 353 
 Mattair v. Payne, (15 Fla. 683) 596 
 
 I Matteson v. Holt, (45 Vt. 336) 262 
 Matthew v. Hanburg, (3 Vern. 187> 37 
 Matthews v. Sheehan, (69 N. Y. 585) 
 
 81 
 Matthews v. Wallwyn, (4 Ves. 118) 487 
 Mattingly v. Nye, (8 Wall. 370) 391 
 Ma gly V. Speak, (4 Bush, 316) 333 
 Matti Weand, (19 Ind. 151) 473 
 
 Maughlln v. Tyler, (47 Md. 545) 393 
 Maul V. Eider, (59 Pa. St. 167) 91, 94, 97, 
 
 103, 113 
 
 Maun V. State, (116 Ind. 383) 108 
 Maundrell v. Maundrell, (10 Ves. 346) 
 
 383 
 Maunsell v. White, (4 H. L. Cas. 1039) 
 
 343 
 Maupin v. Emmons, (47 Mo. 304) 91, 93, 
 
 104, 108, 111 
 
 Maupin v. McCormick, (2 Bush, 206) 
 
 473 
 Maurer's Appeal, (86 Pa. St. 380) 398 
 Maxfield v. Burton, (L. E. 17 Eq. 15) 
 
 91, 98, 113 
 Maxfield v. Patchen, (29 III. 43) 276 
 Maxon v. Ayers, (28 Wis. 612) 640 
 Maxon v. Scott, (55 N. Y. 247) 404 
 Maxwell v. Hyslop, (L. E. 4 Eq. 407) 
 
 159, 166 
 Maxwell v. Kennedy, (8 How. 310) 263 
 Maxwell v. Maxwell, (3 De G. M. & G. 
 
 705, 713) 159, 166 
 Maxwell v. Pittenger, (2 Green's Ch. 156) 
 
 375 
 May V. Adams, (58 Vt. 74) 337 
 May V. Bennett, (1 Euss. 370) 317 
 May V. Borel, (13 Cal. 91) 131, 133 
 May V. Hanson, (6 Cal. 643) 38, 441 
 May V. Le Claire, (11 Wall. 217) 73 
 May V. McKeenon, (6 Humph. 209) 110 
 May V. Taylor, (6 Man. & Gr. 261) 363 
 May V. Walter, (56 N. Y. 8) 295 
 Mayberry v. Morris, (63 Ala. 113) 136, 
 
 138 
 Maybin v. Kirby, (4 Eich. Eq. 105) 81, 
 
 86, 87, 94 
 Maybury v. Brien, (15 Pet. 31, 36) 39, 
 
 59 
 Mayer v. Chattacoochie Nat. Bank, (51 
 
 Ga. 335) 459 
 Mayer v. Clark, (40 Ala. 359, 369) 294 
 Mayer v. Galluchat, (6 Eich. Eq. 1) 
 
 373 
 Mayer v. Eamsey, (46 Tex. 371) 136 
 Mayer v. Eives, (11 Ala. 760) 383 
 Mayer v. See. for Visitation, &c. (2 
 
 Brews. 385) 349 
 Mayes v. Hendry, (33 Ark. 340) 472 
 
756 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAQES. 
 
 Mayfield, In re, {17 Mo. App. 684) 362 
 May field 1). Averitt, (H Tex. 140) 112 
 Mayham v. Coombs, (14 Ohio, 428) 69, 
 
 70, 110 
 Maynard v. Brown, (41 Mich. 298) 583 
 Maynard v. Maynard, (49 Vt. 297) 252 
 Maynard v. Eailey, (2 Nev. 313) 643 
 Maynes v. Atwater, (88 Pa. St. 496) 296 
 Mayo V. Carrington, (19 Gratt. 74) 272 
 Mayo V. Hutchinson, (57 Me. 546) 407 
 Mayo V. Judah, (5 Munf. 495) 45 
 Mayo V. Keaton, (54 Ga. 496) 419 
 Mayor, &c. v. Baumberger, (7 Robt. 219) 
 
 559 
 Mayor v. Bolt, (5 Ves. 129) 559 
 Mayor v. Mererole, (26 Wend. 132, 140) 
 
 606 
 Mayor v. Williams, (6 Md. 235) 
 Mays V. Wherry, (3 Tenn. Ch. 34) 668 
 McAdams, In re, (19 Hun, 292) 303 
 McAdams v. Gates, (24 Mo. 223) 253 
 McAffee v. Ferguson, (9 B. Mon. 475) 408 
 McAfferty v. Conover, (7 Ohio St. 99) 136 
 McAIeer v. Horsey, (35 Md. 439) 241, 354 
 McAllister v. Butterfield, (31 Ind. 25) 231 
 McAlpine v. Burnett, (23 Tex. 649) 473 
 McAlpine v. Tourtelotte, (24 Fed. 69) 16 
 McArthur v. Franklin, (16 Ohio St. 193) 
 
 507 
 McArthur v. Martin, (23 Minn. 74) 631 
 McAteer v. McMullen, (2Barr. 32) 114 
 McAuley v. Wilson, (1 Bev. Eq. 276) 348 
 McAvoy, Estate of, (12 Phila. 83) 199, 
 
 203,204 
 McBean v. Fox, (1 111. App. 177) 258 
 McBee, Ex parte, (63 N. C. 332) 199, 202 
 McBee v. Lottis, (1 Strobh. Eq. 90) 73 
 McBeth V. Trabue, (69 Mo. 642) 144 
 McBlair v. Gibbes, (17 How. 232, 237) 28, 
 
 268 
 McBrayer v. Roberts, (3 Dev. Eq. 75) 488 
 McCaa v. Woolf, (42 Ala. 389) 35, 144 
 McCabe v. Bellows, (1 Allen, 269) 507 
 McCabe v. Bellows, (7 Gray, 148) 148,152 
 McCabe v. Franks, (44 Iowa, 208) 631 
 McCabe i). Grey, (30 Cal. 509) 87, 104, 106, 
 
 107, 109, 
 McCabeB. Raney, (33 Ind. 309) 137, 142 
 McCabe 1). Swap, (14 Allen, 188, 191) 148, 
 
 150, 152 
 McCaffrey v. Woodin, (65 N. Y. 459) 449 
 McCaleb v. Crichfield, (5 Heisk. 288) 410 
 McCall V. Davis, (56 Pa. St. 431) 243 
 McCall V. Hinchley, (4 Gill, 128) 293, 393 
 McCall V. McCall, (Drury, 383) 166 
 McCall V. Yard, (3 Stockt., N. J., 58) 
 
 117, 131 
 
 McCall's Appeal, (56 Pa. St. 363) 613 
 McCampbell v. McCampbell, (3 Lea. 661) 
 
 394 
 McCandless v. Warner, (26 W. Va. 754) 
 
 336 
 McCanni). Letcher, (8 B. Mon. 320) 229, 
 
 233 
 MeCann v. Meyer, (4 Bradw. 376) 295 
 McCann v. Otoe Co. (9 Neb. 324) 566 
 MoCants?). Bee, (1 McCord Eq. 383) 378 
 McCarron v. Cassidy, (18 Ark. 34) 53 
 McCarthy v. Nicrosi, (73 Ala. 333) 132 
 McCarty v. Blevins, (5 Yerg. 195)448 
 McCarty v. Deming, (4 Lans. 440) 209, 
 
 210 
 McCarty v. Kearnan, (86 111. 291) 432 
 McCarty v. Kitchenman, (47 Pa. St. 343) 
 
 153 
 McCarty v. Kyle, (4Coldw. 348) 373 
 McCaskle v. Amarine, (53 Ala. 17) 117 
 McCaslin v. State, (44 Ind. 151) 471 
 McCaull V. Brahan, (16 Fed. Rep. 37> 
 
 555 
 McChesney v. Brown's Heirs, (35 Gratt. 
 
 393) 397 
 McClartey v. Gokey, (31 Iowa, 505) 54, 
 
 587 
 McClellan v. McClellan, (65 Me. 500) 335 
 McClellan v. Scott, (34 Wis. 81) 350, 251, 
 
 354, 261 
 McClellan's Appeal, (130 Pa. St. 451> 
 
 336 
 McClosky V. McCormick, (44 III. 336) 333, 
 
 234 
 McClung V. Sneed, (3 Head, 318) 173 
 McClure u. Evans, (29 Beav. 433) 187 
 McClure v. Harris, (13 B. Mon. 261) 59 
 McClure v. McDearmon, (26 Ark. 66) 
 
 464 
 McClure v. Miller, (Bailey Eq. 108) 408, 
 
 566 
 McClure v. Thistle's Ex'rs, (2 Gratt. 182) 
 
 70, 110 
 McClure v. Tomey, (107 Pa. St. 414) 299 
 McClure's Appeal, (73 Pa. St. 414) 199, 
 
 201, 303 
 McClurgi). Phillips, (49 Mo. 315) 465 
 McClurkan v. Thompson, (69 Pa. St. 305) 
 
 53 
 McCluskey v. Provident Inst. (103 Mass. 
 
 300)406 
 MeCobb U.Richardson, (24 Me. 82) 227 
 McCollum V. Prewitt, (37 Ala. 573) 649 
 McComas v. Easley, (31 Gratt. 23) 235 
 McComb V. Wright, (4 Johns. Ch., N. 
 
 Y., 659) 284 
 McCombs V. Merry hew, (40 Mich. 721) 675 
 
TABLE OF OASES CITED. 
 
 757 
 
 REFERENCES ARE TO PAGES. 
 
 McConihay v. Wright, (131 U. S. 201) 
 
 16 
 McConihe v. McManny, (27 Vt. 95) 271 
 McConnell v. McCoimell, (11 Vt. 390) 434 
 McConnell v. Scott, (67 111. 374) 539 
 McConnell v. Sherwood, (84 N. Y. 522) 
 
 343 
 McConnell v. Wenrich, (4 Harris, 365) 87 
 McCord V. McCord, (19 Ga. 603) 381 
 McCorkle v. Brown, (9 Sm. & Mar. 167) 
 
 363 
 McCormick v. Grarnett, (5 De G. M. & G. 
 
 278) 318, 220 
 McCormick v. Grogan, (L. R. 4 H. L. 83, 
 
 97) 233 
 McCormick v. Lawton, (3 Neb. 449) 407 
 McCormick v. Malin, (5 Blackf. 509) 272 
 McCormick v. Rossi, (70 Cal. 474) 43 
 McCormick v. Wheeler, (36 111. 114) 131, 
 
 134 
 McCornack v. Sage, (87 111. 484) 583 
 McCornike v. McMann, (37 Vt. 95) 371 
 McCoy V. Bailey, (8 Oreg. 196) 234 
 McCrae v. Hollis, (4 Desau. 122) 231 
 McCrary v. Foster, (1 Iowa, 276) 356 
 McCravey v. Remson, (19 Ala. 430) 143 
 McCraw v. Wolch, (2 Coll. 284) 295- 
 McCready v. Rumsey, (6 Duer, 574) 85 
 McCreary v. Casey, (50 Cal. 349) 353 
 McCreery ». Schaffer, (36 Neb. 173) 539 
 McCrillis v. Allen, (57 Vt. 505) 345 
 McCrocklin v. McCrocklin, (3 B. Mon. 
 
 370) 579 
 McCue V. Gallagher, (33 Cal. 53) 345 
 McCulloch V. Cowper, (5 Watts & S. 427) 
 
 117, 358 
 McCulloch V. Endaly, (3 Yerg. 346) 104 
 McCullough V. Colby, (5 Bosw. 477) 618 
 McCullough V. Ford, (96 111. 439) 354 
 McCullough V. Wilson, (9 Harris, 436) 143 
 McCullum V. Turpie, (32 Ind. 146) 526 
 McCully V. Swackhamer, (6 Oreg. 438) 
 
 395 
 McDaniel v. Crosby, (19 Ark. 533) 387 
 McDaniel v. Bk. of Rutland, (29 Vt. 330) 
 
 235 
 McDaniels v. Flower Brook, &c. Co. (32 
 
 Vt. 274) 94, 112 
 McDaniels v. Lee, (37 Mo. 204) 16 
 McDavid v. Adams, (77 111. 155) 407 
 McDermott v. Strong, (4 Johns. Ch. 687) 
 
 126 
 McDole V. Purdy, (23 Iowa, 377) 473 
 McDonald v. Arnout, (14 111. 58) 331 
 McDonald v. Aten, (1 Ohio St. 393) 419 
 McDonald v. Mass. Gen. Hospital, (130 
 
 Mass. 432) 345 
 
 McDonald v. McDonald, (5 Jones' Eq. 
 
 311) 447 
 McDonald v. Neilson, (3 Cow. 139) 29 
 McDonnell v. Milholland, (48 Md. 540) 
 
 234 
 McDonough v. O'Niel, (113 Mass. 92) 357 
 McDonough v. Squire, (111 Mass. 256) 
 
 489 
 McDougald ij. Dougherty, (14 Ga. 674) 621 
 McDowell V. Sims, (6 Ired. Eq. 278) 345 
 McElderry v. Shipley, (3 Md. 35) 319 
 McElfresh v. Schley, (3 Gill, 181, 301) 159, 
 
 160, 164, 165, 166 
 McElroy v. Hiuer, (111. '90, 24 N. E. 435) 
 
 357 
 McElroy v. MCElroy, (113 Mass. 509) 328 
 McEwen v. Brewster, (17 Hun, 323) 454 
 McFadden v. Robison, (35 Ind. 34) 350 
 McPadden v. Rogers, (70 Mo. 431) 594 
 McFadden v. Worthington, (45 111. 363) 71 
 McFall V. Sherrard, (Harper, 395) 107,110 
 McParland v. Morris Canal & Banking 
 
 Co. (34 N. J. Eq. 369) 17 
 McGar v. Adams, (65 Ala. 106) 283 
 McGarrah v. Prather, (1 Blackf. 299)667 
 McGarvy v. Hall, (33 Cal. 140) 575 
 McGavock v. Puryear, (6 Coldw. 34) 271 
 McGee v. McGee, (10 Ga. 477) 413 
 McGee v. Wilcox, (11 Mich. 358) 117 
 McGehee v. Gindrat, (20 Ala. 95) 94, 100, 
 
 112 
 McGinn v. SchaefCer, (7 Watts, 413) 278 
 McGinnis v. McGinnis, (1 Kelly, 496, 503) 
 
 155, 159 
 McGirr v. Aron, (1 Penn. 49) 360 
 McGirriJ. Sell, (60 Ind. 249) 138 
 McGiven v. Wheelock, (7 Barb. 23) 149, 
 
 151 
 McGlaughlin v. McGlaughlin, (13 Harris, 
 
 20) 482 
 McGonigal v. Plummer, (30 Md. 433) 476 
 McGoon V. Shirk, (54 111. 408) 31 
 McGowan v. McGowan, (14 Gray, 119) 354 
 McGowan u. Smith, (44 Barb. 232; 26 L. 
 
 J., N. s., Ch. 8) 59 
 McGrade v. German Sav. Inst. (4 Mo. 
 
 App. 330) 458, 459 
 McGrath v. McGrath, (38 Ala. 346) 173 
 McGrath v. Reynolds, (116 Mass. 566) 431 
 McGreedy v. Mier, (64 111. 495) 418 
 McGregor v. McGregor, (21 Iowa, 441) 
 
 125 
 McGuireu. Bowman, (6 Bush, 550) 596 
 McGuireu. Evans, (5 Ired. Eq. 369) 421, 
 
 433 
 McGuire v. Stevens, (43 Miss. 734) 583 
 McHendry v. Reilly, (13 Cal. 75) 474 
 
Y58 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 McHenry v. Hazard, (45 Barb. 657) 661 
 McHugh V. County of Schuylkill, (67 
 
 Pa. St. 391) 263 
 Mcllrath v. Snure, (23 Minn. 391) 673 
 Mcllvaine v. Smith, (42 Mo. 45) 341 
 Mclntire v. Parks, (3 Met. 307) 270 
 Mcintosh V. Saunders, (68 111. 128) 594 
 Mcln tire's School v. Zanesville, (9 Ohio, 
 
 203) 349 
 McJimsey v. Traverse, (1 Stew., Ala., 
 
 244) 231 
 McKay v. Clapp, (47 Iowa, 318) 295 
 McKay ». Simpson, (6 Ired. Eq. 452) 222, 
 
 333 
 McKean v. Mitchell, (35 Pa. St. 269) 103 
 McKechnie v. Vaughan, /L. K. 15 Eq. 
 
 389) 231 
 McKecknie v. Hoskins, (23 Me. 330) 117, 
 
 119, 120 
 McKecknie v. Sterling, (48 Barb. 330) 213 
 McKee v. Garcelon, (60 Me. 165) 294 
 McKee v. McKinley, (9 Casey, 33 Pa. St. 
 
 93) 401 
 McKee v. Wilcox, (11 Mich. 358) 121 
 McKee's Adm'rs v. Means, (34 Ala. 349) 
 
 331 
 McKelvey v. Truley, (4 W. & S. 323) 60, 
 
 66 
 McKelway v. Armour, (3 Stockt. Oh. 115) 
 
 66 
 McKennan v. Phillips, (6 Whart. 571) 392 
 McKenzie v. Anderson, (2 Woods, U. S. 
 
 C. C, 357, 359, 364) 370 
 McKenzie v. Downing, (25 Ga. 669) 433 
 McKenzie v. Johnston, (4 Madd. 373) 17 
 McKenzie v. Perrill, (15 Ohio St. 162) 
 
 117, 133 
 McKenzie v. Steele, (18 Ohio St. 38, 41) 
 
 137, 143 
 McKenzie's App. (41 Conn. 607) 338 
 McKeon v. Hagan, (18 Hun, 65) 404 
 McKesson v. Stanton, (50 Wis. 297) 407 
 McKibben v. Martin, (64 Pa. St. 352) 296 
 McKim V. Whitehall Co. (2 Md. Ch. 510) 
 
 33, 54 
 McKinney v. Andrews, (41 Tex. 363) 271 
 McKinney v. Brights,(4 Harris, 399) 90,95 
 McKinney v. Miller, (19 Mich. 143) 536 
 McKinney v. Pinckard, (2 Leigh, 149) 273 
 McKinnie v. Rutherford, (1 Dev. & Bat. 
 
 Eq. 14) 79 
 McKnight v. Brady, (3 Mo. 110) 473 
 McKnight v. Pittsburg, (91 Pa. St. 273) 
 
 141 
 McKnight v. Wimer, (38 Mo. 132) 333, 382 
 McLain v. School Directors, (51 Pa. St. 
 
 196) 347 
 
 McLain v. Thompson, (52 Miss. 418) 
 
 473 
 McLanahan v. Beeside, (9 Watts, 508) 
 
 105 
 McLane v. Johnson, (43 Vt. 48) 291 
 McLaren v. Brewer, (51 Me. 403) 33, 34 
 McLaughlin v. Barnum, (31 Md. 435) 470 
 McLaughlin v. Curts, Estate of, (32 Wis. 
 
 644) 507 
 McLaughlin v. Lange, (42 Mich. 81) 294 
 McLaughlin v. McLaughlin, (5 C. E. 
 
 Green, 190) 31 
 McLaughlin v. Shepherd, (32 Me. 143> 
 
 117, 119, 133 
 McLaurie v. Thomas, (39 111. 291) 473 
 McLean v. McLean, (10 Pet. 625) 474 
 McLean v. Eobertson, (126 Mass. 537) 428 
 McLean v. Wallace, (10 Pet. 635) 474 
 McLellan v. Longfellow, (33 Me. 494) 653 
 McLellan v. Nelson, (37 Me. 129) 407 
 McLemore v. Carter, (Miss. '90, 7 So. 357) 
 
 359 
 McLenan v. Sullivan, (13 Iowa, 521) 353 
 McLeod V. First Nat. Bk. (42 Miss. 99) 
 
 66, 67, 94, 112 
 McLucas V. Durham, (20 S. Car. 303) 638 
 McMahon v. Burchell, (3 Phil. 137) 654 
 McMahon v. McGraw, (26 Wis. 614) 283 
 McMahon v. Smith, (6 Heisk. 167) 383 
 McMahon v. Thornton, (4 Mont. 46) 625 
 McMannus v. State, (2 Head, Tenn., 213) 
 
 652 
 McMaster v. Geddes, (19 Up. Can. Q. B. 
 
 216) 260 
 McMasters I). Wilhelm, (85 Pa. St. 218) 
 
 79 
 McMecham v. GrifBng, (3 Pick. 149) 113, 
 
 121, 122 
 McMichael v. Kilmer, (76 N. Y. 36) 252 
 McMillan v. New York Co. (39 N. J. Eq. 
 
 610) 222, 229 
 McMillan v. Peacock, (57 Ala. 137) 392 
 McMillan v. Richards, (9 Cal. 365) 487 
 McMillen v. Rose, (54 Iowa, 522) 472 
 McMillon V. Bissell, (63 Mich. 66) 489 
 McMinn v. O'Connor, (27 Cal. 238) 105, 
 
 109 
 McMinn v. Phipps, (B Sneed, 196) 247 
 McMullen v. Wenner, (16 S. & R. 18) 
 
 80 
 McMurray v. St. Louis, &c. Co. (33 Mo. 
 
 377) 219 
 McMurray v. Van Gilder, (56 la. 605) 17 
 McMurtrig v. Ramsey, (35 Ark. 338) 271 
 MoNab V. Young, (81 111. 11) 65, 313 
 McNair's Appeal, (4 Eawle, Pa., 154) 371 
 McNairy v. Eastland, (10 Yerg. 310) 618 
 
TABLE OF CASES CITED. 
 
 759 
 
 REFERENCES ARE TO PAGES. 
 
 McNary v. South worth, (58 111. 473) 73 
 McNaughton v. Partridge, (11 Ohio, 232) 
 
 223 
 McNeil V. Baird, (6 Munf. 616) 252 
 McNeil V. Tenth Nat. Bk. (55 Barb. 59) 
 
 81, 85 
 McNeil V. Tenth Nat. Bk. (46 N. Y. 325) 
 
 142 
 McNeill V. Arnold, (17 Ark. 154) 409 
 McNeill V. Cahill, (2 Bligh, 228) 27 
 McNeill V. Hodges, (83N.C. 504) 375 
 McNeill V. Magee, (5 Mason, 244) 41, 583, 
 
 650 
 McNeill's Adm'r v. McNeill's Cr's, (36 
 
 Ala. 109) 418 
 McNish V. Guerrard, (4 Strobh. Eq. 66) 
 
 362 
 McNish V. Pope, (8 Rich. Eq. 112) 356 
 McNulty V. Cooper, (3 Gill & J. 214) 338 
 McPheeters v. Hannibal, &c. R. R. (45 
 
 Mo. 22) 365 
 McPherson v. Cox, (6 Otto, 404) 362 
 McPhersou v. Housel, (2 Beasley, 299) 
 
 124 
 McQueen v. McQueen, (2 Jones' Eq. 16) 
 
 175 
 McQuie V. Peay, (58 Mo. 56) 465, 488 
 McRae v. McKenzie, (2 Dev. & B. Eq., 
 
 N. Car., 232) 625 
 McRaven v. McGuire, (9 Smed. & M. 
 
 34) 107 
 McRea v. Walker, (4 How., Miss., 455) 
 
 418 
 McRee's Adm'rs v. Means, (34 Ala. 349) 
 
 331 
 McRimmons v. Martin, (14 Texas, 318) 
 
 475 
 McRoberts v. Washburne, (10 Minn. 23) 
 
 602 
 McShaneB. Hazelhurst, (50 Md. 107) 241, 
 
 258, 259, 260 
 McShirley v. Birt, (44 Ind. 382) 77 
 McTaggart v. Thompson, (14 Pa. St. 149) 
 
 491 
 McTavish v. Carroll, (7 Md. 352) 153, 438 
 McVey v. McQuallty, (97 111. 93) 365 
 McWhinne v. Martin, (Wis. '90, 46 N. W. 
 
 118) 350 
 McWilliams v. Nisly, (2 Serg. & R. 567) 
 
 447 
 McWilliams v. Webb, (32 Iowa, 577) 84, 
 
 453 
 Meach v. Meach, (34 Vt. 591) 432 
 Meacham v. CoUignor, (7 Daly, 402) 248 
 Meacham v. Stearns, (9 Paige, 398) 373 
 Meacham v. Steele, (93 111.135) 149 
 Mead, In re, (L. R. 15 Ch. D. 651) 433 
 
 Mead 17. Coombs, (26 N. J. Eq. 173) 274, 596 
 Mead v. Johnson, (3 Conn. 592) 221 
 Mead v. Merritt, (3 Paige, 402) 545 
 Mead v. Noyes, (44 Conn. 487) 295 
 Mead II. Randolph, (8 Tex. 191) 489 
 Mead v. Westchester, &c. Ins. Co. (64 N. 
 
 Y. 453) 233, 234 
 Mead v. Wheeler, (13 N. H. 301) 48, 49 
 Meade v. Gardiner, (13 R. I. 257) 395 
 Meader v. Norton, (11 Wall. 442) 263 
 Meador v. Meador, (3 Heisk. 562) 467 
 Meads v. Merchants' Bk. (25 N. Y. 143) 
 
 67,68 
 Meara's Adm'r v. Holbrook, (20 Ohio St. 
 
 137) 675 
 Mears v. Waples, (3 Houst. 581) 348, 253 
 Meason v. Kaine, (63 Pa. St. 335) 583 
 Mechanics' Bk. v. N. Y. & N. H. R. R. 
 
 (13N. Y. 599) 261 
 Meckreth v. Symmons, (15 Ves. 329, 350) 
 
 57 
 Meddeford v. Austwick, (1 Sim. 89) 257 
 Medley v. Davis, (5 Humph. 387) 473 
 Medmer v. Medmer, (26 N. J. Eq. 269) 
 
 353 
 Meechu. Bennett, (Hill & D. 192) 247 
 Meech v. Stoner, (19 N. Y. 26) 444 
 Meehan v. Williams, (12 Wright, 338) 95, 
 
 131, 133 
 MeekB. Carter, (6 W. R. 853) 51 
 Meek v. Devenish, (L. R. 6 Ch. D. 5661, 
 
 308 
 Meek 17. Kettlewell, (1 Phil. 342) 33 
 Meek v. Perry, (36 Miss. 190) 279 
 Meeker v. Clinton, &c. R. R. (3 La. Ann. 
 
 971) 
 Meeker v. Marsh, (Saxt. 198) 418 
 Meeker v. Wilson, (1 Gall. 419) 288 
 Meeting St. Bap. Soc. v. Hail, (8 R. I. 
 
 234) 345 
 Megis V. Dimock, (6 Conn. 458, 464) 474 
 Meharry v. Meharry, (59 Ind. 257) 303 
 Meier v. Blume, (80 Mo. 179) 112 
 Meighen «.Slrong, (6 Minn. 177) 102, 640 
 Meig's Appeal, (63 Pa. St. , 13 P. F. Smith, 
 
 38, 35) 54 
 Meilly v. Butler, (36 Ohio St. 535) 405 
 Meinertzhagenc. Walters, (L. R. 7 Ch. 
 
 670) 186 
 Melchor v. Burger, (1 Dev. & Bat. Eq. 
 
 634) 163, 164, 166 
 Melindy ». Keen, (89111. 395) 243 
 Melizet's Appeal, (5 Harris, 449) 173 
 Mellish V. Robertson, (35 Vt. 603) 319, 
 
 507 
 Mellon's Appeal, (46 Pa. St, 165) 68, 70, 
 433 
 
760 
 
 TABLE OF CASES CITED. 
 
 RErERENCBS ARE TO PAGES. 
 
 Mellor V. Daintree, (33 Chan. Div. 198) 
 
 232 
 Mellor's Appeal, (33 Pa. St. 121) 107 
 Memphis E. K. v. Steckel, (47 Md. 454) 
 
 234 
 Mende v. Delaire, (2 Desau. 564) 488 
 Mendenhall v. Treadway, (44 Ind. 131) 
 
 261 
 Mendesu. Guedalla, (3 J. & H. 259) 366 
 Meni v. Rathbone, (21 Ind. 454) 117 
 Mercantile Ins. Co. v. Corcoran, (1 Gray, 
 
 75)86 
 Mercantile Ins. Co. v. Hope Ins. Co. (8 
 
 Mo. App. 408) 283 
 Mercer v. Mercer, (29 Iowa, 557) 290 
 Merchant v. Thompson, (34 N. J. Eq. 73) 
 
 406 
 Merchants' Bk. v. Evans, (51 Mo. 335) 
 
 637 
 Merchants' Bk.'B. Spalding, (12 Barb. 302) 
 
 218, 270 
 Merchants' Nat. Bk. u. Coates, (79 Mo. 
 
 258) 458 
 TVTercier v. Hemme, (50 Cal. 606) 357 
 :Meredith Sav. Bk. v. Simpson, (32 Kans. 
 
 414) 673 
 ;Meres v. Chrisman, (7 B. Mon., Ky., 422) 
 
 17 
 Merest t!. James, (6 Madd. 118)147 
 Meridiths v. Saunders, (2 Dow. 514) 273 
 Merithew v. Andrews, (44 Barb., N. Y., 
 
 207) 111 
 Meriweather v. Herran, (8 B. Mon. 163) 
 
 376 
 Merriam v. Barton, (14 Vt. 501) 507 
 Merriam v. Boston R. R. (117 Mass. 341) 
 
 143 
 Merriam v. Cunningham, (11 Cush. 40) 
 
 246 
 Merriam v. Hemmenway, (26 Vt. 565) 420 
 Merriam v. Pine City Lumber Co. (23 
 
 Minn. 314) 258, 259 
 Merrian v. Arbuckle, (81 111. 501) 250 
 Merrick v. Wallace, (19 III. 486) 114 
 Merrill v. Allen, (38 Mich. 487) 473 
 Merrill v. Bickford, (65 Me. 118) 483 
 Merrill v. Emery, (10 Pick. 507) 176 
 Merrill v. Green, (55 N. Y. 370) 87 
 Merrill 1). Humphrey, (24 Mich. 170) 39,31 
 Merrill v. Ireland, (k) Me< 569) 106, 110 
 Merrill v. Smith, (37 Me. 394) 407 
 Merriman v. Hyde, (9 Neb. 120) 106, 110 
 Merriman v. Polk, (5 Heisk. 717) 643 
 MerrittB. Brown, (31 N. J. Eq. 401) 358 
 Merritt v. Judd, (14 Cal. 59) 472 
 Merritt v. Lambert, (10 Paige, 358) 283 
 Merritt v. Merritt, (11 111. 565) 231 
 
 Merritt v. Seaman, (6 N. Y. 168) 88 
 Merritt v. Robinson, (35 Ark. 483) 263 
 Merritt v. Wells, (18 Ind. 171) 473 
 Merry v. Abney, (1 Chan. Cas. 38) 57 
 Merryweather v. Jones, (4 Gift. 509) 330 
 Mershon v. Duer, (40 N. J. Eq. 333) 353 
 Merwin v. Arbuckle, (81 111. 501) 343, 255, 
 
 259 
 Mesick «. Mesick, (7 Barb. 120) 371 
 Mesick v. Sunderland, (6 Cal. 297) 104, 
 
 105 
 Metcalf V. Cook, (2 R. I. 355) 398 
 Metcalf V. Putnato, (9 Allen, 97) 336 
 Methodist Ch. v. Clark, (41 Mich. 730) 
 
 349,640 
 Methodist Ch. v. Jaques, (3 Johns. Ch. 
 
 77) 396 
 Methodist Ch. ■». Remington, (1 Watts, 
 
 318) 345 
 Methodist Episc. Ch.i». Jaynes,(l Johns. 
 
 Ch. 65) 653 
 Methodist Episc. Soc. v. Harriman, (54 
 
 N. H. 444) 420 
 Metier v. Metler's Adm'rs, (19 N. J. Eq. 
 
 457) 551 
 Metier v. Metier, (4 Green Ch. 457) 649 
 Metrop. Bk. v. Godfrey, (23 111. 579) 117, 
 
 119, 220 
 Metrop. Bk. v. Taylor, (53 Mo. 444) 405 
 Metteer?). Wiley, (34 Iowa, 215) 160, 168 
 Mettler v. Miller, (139 111. 630) 411 
 Metts V. Northern Ry. (L. R. 5 Ch. 621) 
 
 555 ( 
 
 Metz V. Bk. of Brownville, (7 Neb. 171) 
 
 106, 110 
 Metzgar v. Metzgar, (1 Rawle, 237) 87 
 Meyer v. Amidon, (33 Hun, 553) 346 
 Meyer v. Graeber, (19 Kans. 165) 45 
 Meyer v. Hanchett, (39 Wis. 419) 383 
 Meyer v. Johnson, (53 Ala. 237) 668 
 Meyer v. Yesser, (32 Ind. 394) 36 
 Meyers v. Davis, (33 N. Y. 489) 87 
 Meyers ■». Farquharson, (46 Cal. 190)419 
 Meyers v. Funk, (56 Iowa, 53) 342 
 Meyers v. Rahte, (46 Wis. 655) 407 
 Mezes v. Greer, (1 McAll. 401) 31 
 Miami Ex. Co. v. U. S. Bk. (Wright, 
 
 Ohio, 353) 489 
 Michael v. Bacon, (49 Mo. 474) 271 
 Michigan Mut. Ins. Co. v. Conaut, (40 
 
 Mich. 530) 113 
 Michigan State Bank v. Hammond, (1 
 
 Doug. 537) 43, 54 
 Michigan, &c. Co. v. Parsell, (38 Mich. 
 
 475) 137, 145 
 Mich., &c. Co. V. White, (44 Mich. 25) 
 
 657 
 
TABLE OF CASES CITED. 
 
 761 
 
 REFERENCES ARE TO PAGES. 
 
 Mich., &c. R. R. V. Meelen, (44 Mich. 
 
 321) 358 
 Micboud v. Girod, (4 How. 503) 263 
 Mickles v. Dillaye, (17 N. Y. 80) 152 
 Mlckles V. Townsend, (18 N. Y. 575) 148, 
 
 153 
 Micou V. Lamar, (17 Blatch. 378) 375 
 MiddlekuflE v. Barrick, (4 Gill, Md., 290) 
 
 633 
 Middletown Bank v. Russ, (3 Conn. 135, 
 
 166) 17 
 Midland Ry. v. Fisher, (24 N. E. 756, 
 
 758) 438 
 Midland Ry. v. Taylor, (8 H. L. Cas. 
 
 751) 83 
 Mifflin's Appeal, (131 Pa. St. 205) 389 
 Mikell V. Mlkell, (5 Rich. Eq., S. C, 220) 
 
 365 
 Miles V. Dyer, (5 Sim. 435) 232 
 Miles V. Ervin, (1 McCord's Eq. 534) 283 
 Miles V. King, (5 S. C. 146) 70 
 Miles V. Langley, (1 Russ. & My. 39) 132 
 Miles V. Lefi, (60 la. 168) 138 
 Milhaw V. Sharp, (37 N. Y. 611) 559 
 Mill an v. Peacock, (57 Ala. 127) 394 
 Millard v. Hall, (24 Ala. 209) 294 
 Millard v. Richard, (13 La. Ann. 572) 
 
 640 
 Millard's Ex'rs v. Ramsburg, (33 Md. 
 
 206) 109 
 Miller v. Albertson, (73 Ind. 343) 406 . 
 Miller v. Atkinson, (63 N. C. 537) 347 
 Miller v. Barber, (66 N. Y. 558) 242, 243, 
 
 250 
 Miller v. Bingham, (1 Ired. Eq. 423; 39 
 
 Vt. 83) 60, 318 
 Miller v. Birdsong, (7 Baxt. 531) 354 
 Miller v. Blose's Ex'r, (30Gratt.744) 353 
 Miller ■». Bowman's Appeal, (60 Pa. St. 
 
 404) 199 
 Miller v. Bradford, (12 Iowa, 14) 103, 106 
 Miller v. Bradford, (12 la. 456) 110 
 Miller v. Brown, (47 Mo. 504) 405 
 Miller v. Chetwood, (1 Green's Ch. 99) 
 
 339 
 Miller v. Chittenden, (2 Clarke, 315) 360 
 Miller v. Chittenden, (2 Iowa, 371) 316, 
 
 346 
 Miller v. Conklin, (17 Ga. 430) 
 Miller v. Craig, (83 Ky. 623, 635) 339 
 Miller v. Cresson, (5 W. &S. 284) 107, 109 
 Miller v. Davison, (31 Iowa, 425) 640 
 Miller v. Fichthorn, (31 Pa. St. 353) 150 > 
 Miller v. Flour, (15 Ohio St. 148) 87 
 Miller v. Garman, (69 Pa. St. 134) 396 
 Miller v. HolUngSworth, (36 Iowa, 163) 
 
 404 
 
 Miller v. Howard, (36 N. J. Eq. 166) 631 
 Miller B. III. Cent. R. R. (3 Barb. 313) 131 
 Miller v. Jeffress, (4 Gratt. 473) 433 
 Miller v. Jones, (9 Gratt. 584) 382 
 Miller v. Lincoln, (6 Gray, 556) 497 
 Milleru Long, (3 Marsh. 334) 633 
 Miller v. McGuire, (Morr., Iowa, 150) 
 
 573 
 Miller v. Morgan, (11 Neb. 131) 295 
 Miller ■». Newton, (33 Cal. 554) 397, 407 
 Miller v. Pancoast, (39 N. J. L. 350) 295 
 Miller v. Porter, (53 Pa. St. 393) 349 
 Miller v. Pearce, (6 Watts & S. 101) 390 
 Miller v. Scammon, (53 N. H. 609) 365 
 Miller v. Sherry, (2 Wall. 337) 134, 126, 
 
 137 
 Miller v. Simons, (5 Mo. App. 33) 286 
 Millers. Simon ton, (5 S.C. 20) 373 
 Miller?!. Stetson, (33 Ala. 161) 293 
 Miller v. Stump, (3 Gill, 304) 59 
 Miller v. Vose, (62 Ala. 123) 393 
 Miller v. Williamson, (5 Md.319) 398 
 Miller v. Woodward, (8 Mo. 169) 419 
 Miller c. Young, (33 111. 355) 342,349 
 Miller's Adm'r v. Miller, (35 N. J. Eq. 
 
 354) 587 
 Miller's Adm'r v. Potterfield, (Va. '90, 
 
 S. E. 486) 383 
 Miller's Ex'rs v. Simpson, (2 S. W. Rep. 
 
 171) 367 
 Millican v. Millican, (24 Tex. 426) 386 
 Milliken v. Bailey, (61 Me. 316) 497 
 Milliken v. Chapman, (75 Me. 322) 252 
 Milliken ■». Thorndike, (103 Mass. 385) 
 
 360 
 Millingar v. Sorg, (55 Pa. St. 215) 145 
 Mills V. Bliss, (55 N. Y. 139) 128 
 Mills V. Haines, (3 Head, 335) 360 
 Mills V. Lee, (6 T. B. Mon., Ky., 91) 
 
 337 
 Mills V. Lockwood, (43 III. Ill) 233, 234 
 Mills V. Lumpkin, (1 Kelly, 511)419 
 Mills V. Mills, (36 Conn. 213) 376 
 Mills V. Mills, (7 Sim. 701) 304 
 Mills V. Mills, (38 Barb. 454) 160, 168, 170, 
 
 171 
 Mills V. N. J. Cent. Rd. (41 N. J. Eq. 1) 
 
 137 
 Mills V. Van Voorhies, (30 N. Y. 412) 59 
 Mills V. Warner, (19 Vt. 609) 396 
 Millsaps V. Pfeiffer, (44 Miss. 805) 646 
 Millspaugh v. McBride, (7 Paige, 509) 
 
 149 
 Milner v. Patton, (49 Ala. 423) 271 
 Milner v. Ramsey, (48 Ala. 287) 479 
 Milnes v. Duncan, (6 B. & C. 671) 335 
 Miltenberger v. Morrison, (39 Mo. 71) 347 
 
762 
 
 TABLF. OF CASES CITED. 
 
 REFBRSNOES ARE TO PAGES. 
 
 Milwaukee, &c. U- B,- v. Arms, (91 U. S. 
 
 494) 365 
 Milwaukee, &c. R. R. v. Soutter, (2 Wall. 
 
 531) 668 
 Mimmo v. Davis, (7 Tex. 26) 447 
 Mims V. Mims, (35 Ala. 23) 107 
 Miner v. Atherton, (11 Casey, 528) 185, 
 
 186, 187 
 Miner v. Beckman, (50 N. Y. 337) 470 
 Miner v. Bradley, (23 Pick. 457) 262 
 Miner v. Hess, (47 111. 170) 234 
 Miner v. Judson, (2 Hun, 441) 530 
 Miner v. Pearson, (16 Kans. 27) 407 
 Mines v. Hess, (47111. 170) 233 
 Mingus V. Condit, (23 N. J. Eq. 313) 68 
 Minnesota v. Minor, (11 111. 43) 300 
 Minnesota Co. v. St. Paul Co. (2 Wall. 
 
 609) 675 ' 
 Minnesota Oil Co. v. Palmer, (20 Minn. 
 
 468) 606 
 ' Minor v. Rogers, (40 Conn. 512) 329 
 Minor v. Willoughby, (3 Minn. 225) 117 
 Minot V. Taylor, (129 Mass. 160) 643 
 Minot V. Tilton, (64 N. H. 371) 234 
 Minturn v. Seymour, (4 Johns. Ch. 497) 
 
 33, 437, 583 
 Minturn v. Smith, (3 Sawy. 143) 637 
 Mission Society's Appeal, (30 Pa. St. 425) 
 
 349 
 Mississippi Bank v, Duncan, (52 Miss. 
 
 740) 418, 668 
 Miss., &c. R. R. V. Cromwell, (1 Otto, 
 
 443) 26 
 Miss., &c. R. R. V. Ward, (2 Black, 485) 
 
 545, 559 
 Missouri Valley Land Co. v. Bushnell, 
 
 (11 Neb. 192) 361 
 Mitchell V. Berry, (1 Mete, Ky., 602) 356 
 Mitchell V. Burnham, (44 Me. 286) 103 
 Mitchell V. Butts, (45 Ga. 162) 477 
 Mitchell V. Denson, (39 Ala. 327) 215 
 Mitchell B.Fullington, (83 Ga. 301) 489 
 Mitchell V. Jones, (50 Mo. 438) 272 
 Mitchell V. McDougall, (62 111. 498) 252 
 Mitchell V. Mims, (8 Tex. 6) 261 
 Mitchell V. Oakley, (7 Barb. Ch. 68) 369 
 Mitchell V. Skinner, (17 Kans. 563) 355 
 Mitchell V. Smith, (53 N. Y. 413) 135, 138 
 Mitchell i;. Smith, (33 Iowa, 484) 404 
 Mitchell V. Tinsley, (69 Mo. 443) 329 
 Mitchell V. West, (55 N. Y. 107) 395 
 Mitchell V. Winslow, (2 Story, 630) 449, 
 j 450 
 Mitchell V. Worden, (20 Barb. 253) 248. 
 
 249 
 Mitchell V. Zimmerman, (4 Tex. 75) 356 
 Mitchelson v. Smith, (44 N. W. 871) 539 
 
 Mitford V. Mitford, (9Ves. 87) 30 
 Mitleeri). Wiley, (34 Iowa, 214) 170, 171 
 Mitter v. Harris, (9 Ind. 88) 294 
 Mix's Appeal, (35 Conn. 121) 420 
 Mixon V. Dunklin, (48 Ala..455) 618 
 M. & O. Plaster Co. v. White, (44 Mich. 
 
 25) 661 
 Moale V. Buchanan, (11 Gill & J. 314)236, 
 
 238 
 Mobile, &c. R. Co. v. Felrath, (67 Ala. 
 
 189) 112 
 Mobile, &c. Co. v. Huder, (35 Ala. 713) 
 
 .536 
 Mobile, &c. R. R.o.Talman, (15 Ala. 472) 
 
 465 
 Mobile Br. Bk. v. Hunt, (8 Ala. 876) 151 
 Mobray v. Deckle, (42 Md. 474) 45 
 Mobry v. Mobry, (64 111. 383) 173 
 Mocatta v. Murgatroyd, (1 P. Wms. 393) 
 
 147 
 ■Mock V. Pleasants, (34 Ark. 63) 419 
 Model Lodge H. Ass'n v. Boston, (114 
 
 Mass. 133) 146, 149 
 Modissett v. Johnson, (2Bla;ckf. 431) 273 
 Moffatt V. McDowell, (1 McCord Eq. 434) 
 
 192 
 Moffatt V. Winslow, (7 Paige, 137) 285 
 Moffitt V. Loughridge, (51 Miss. 211) 368 
 Mohawk, &c. R. R. v. Clute, (4 Paige, 
 
 384) 657 
 Mohawk Bridge Co. v. Utica, &c. R. R. 
 
 (6 Paige, 554) 559 
 Mohter v. Robinson, (40 Mich. 300) 396 
 Moinett v. Days, (1 Baxt. 431) 280 
 Molitor B.Robinson, (40 Mich. 300) 394 
 Molony v. Rourke, (100 Mass. 190) 319 
 Monahan v. Noyes, (53 N. H. 335) 263 
 Monck V. Monck, (1 Ball & B. 398) 182, 
 
 185 
 Moncrief v. Goldsborough, (4 Har. & 
 
 McH. 282) 344, 345 
 Moncrief v. Ross, (50 N. Y. «1) 199, 201 
 Monelli;. Monell, (5 Johns. Ch. 283) 371 
 Money v. Dorsey, (7 Sm. & Mar. 15) 69, 
 
 129, 472 
 Money v. Ricketts, (62 Miss. 209) 138 
 Monnin v. Beronjon, (51 Ind. 196) 375 
 Monro v. Taylor, (3 Maen. & G. 713) 338 
 Monroe v. May, (9 Kans. 406) 407 
 Monroe v. Skelton, (36 Ind. 303) 234 
 Monroe v. Smith, (79 Pa. St. 459) 291 
 Montagu v. Flockton, (L. R. 16 Eq. 189) 
 
 555 
 Montagu v. Weil, (3 La. An. 50) 138 
 Montague v. Montague, (15 Beav. 565)187 
 Montefiore v. Browne, (7 H. L, Cas, 241) 
 
 57,104 
 
TABLE OF CASES CITED. 
 
 763 
 
 REFERENCES ARE TO PAGES. 
 
 Montefiore v. Guadella, (1 De G. F. & J. 
 
 93) 186 
 Montesquieu v. Sandys, (18 Ves. 303) 379 
 Montford v. Cadogan, (17 Ves. 485) 360 
 Montgomery v. Agricultural Bk. (1 Sm. 
 
 & Mar. 566) 398 
 Montgomery v. Chadwick, (7 Iowa, 114) 
 
 53,497 
 Montgomery v. Gordan, (51 Ala. 377) 144 
 Montgomery v. Hunt, (5 Cal. 366) 298 
 Montgomery v. McEwen, (7 Minn. 351) 
 
 337 
 Montgomery v. McEwen, (9 Minn. 108) 
 
 547 
 Montgomery v. McGee, (7 Humph. 334) 
 
 618 
 Montgomery ■». Milliken,(Sm. & Mar. Ch. 
 
 495) 199 
 Montgomery v. Shoekey, (37 Iowa, 107) 
 
 319, 330, 596 
 Montgomery v. Sprankle, (31 Ind. 113) 
 
 406 
 Monticello Hydraulic Co. v. Loughry, 
 
 (73 Ind. 562) 464 
 Monticello Hydraulic Co. v. Loughry, 
 
 (71 Ind. 563) 465 
 Montreal, Bk. of v. Chicago, &c. E. R. 
 
 (48 Iowa, 518) 673, 677 
 Montville^J. Haughton, (7 Conn. 543) 339 
 Moody V. Bibb, (50 Ala. 345) 304 
 Moody V. EUerbie, (36 Ga. 666) 419 
 Moody V. Harper, (38 Miss. 599) 418 
 Moody V. Haseldon, (I S. C. 139) 539 
 Moody V. Sitton, (3 Ired. Eq. 383) 79 
 Moody V. Wright, (13 Met. 17) 447, 536 
 Mooney v. Miller, (103 Mass. 317) 342, 343, 
 
 250, 359, 360 
 Moore v. Barnett, (17 Ind. 349) 331 
 Moore 1). Beasom, (44 N. H. 215) 149, 507 
 Moore v. Beauchamp, (4 B. Mon., Ky., 
 
 71) 367 
 Moore v. Beckwith's Ex'r, (14 Ohio St. 
 
 139) 483 
 Moore v. Bowman, (47 N. H. 494) 143 
 Moore v. Burrows, (34 Barb. 173) 36 
 Moore v. Butler, (3 Sch. & Lef. 366) 158, 
 
 177 
 Moore v. Byram, (10 S. C. 453) 448 
 Moore v. Cable, (1 Johns. Ch. 385) 469 
 Moore v. Clay, (7 Ala. 743) 73, 74, 75 
 Moore v. Curry, (36 Tex. 668) 77 
 Moore v. Floyd, (4 Oreg. 101) 395 
 Moore®. Gravelot, (3 111. App. 443) 453 
 Moore v. Hamilton, (4 Fla. 713) 366 
 Moore v. Harrisburg Bk. (8 Watts, 138) 
 
 149 
 Moore v. Hegemann, (72 N. Y. 376) 
 
 Moore v. Hilton, (13 Leigh, 1) 185, 186 
 Moore v. Holcombe, (3 Leigh, 597) 87 
 Moore v. Holt, (3 Tenn. Ch. 348) 265 
 Moore v. Hood, (9 Rich. Eq. 311) 545 
 Moore v. Jaeger, (3 McArthur, 465) 545 
 Moore v. Jourdan, (14 La. An. 414) 118 
 Moore v. Lackey, (53 Miss. 85) 478 
 Moore v. Lesueur, (33 Ala. 337) 418 
 Moore v. Mandlebaum, (8 Mich. 433) 280 
 Moore 1). Metropolitan Bank, (55 N. Y. 
 
 41) 81, 83, 142 
 Moore v. Mitchell, (3 Woods, 483) 366 
 Moore v. Moore, (14 B. Mon. 208) 409 
 Moore v. Moore, (3 Ves. Sen. 596) 317 
 Moore v. Moore, (4 Dana, 354) 347 
 Moore v. Moore, (5 Barb. 356) 379 
 Moore v. Moore, (56 Cal. 89) 265 
 Moore v. Murdock, (36 Cal. 514) 539 
 Moore v. Pickett, (63 111. 158) 336 
 Moore v. Pierson, (6 Iowa, 279) 117 
 Moore v. Piatt, (8 Mo. 467) 44, 50 
 Moore v. Raymond, (15 Texas, 554) 477 
 Moore v. Rollins, (45 Me. 493) 59 
 Moore v. Tisdale, (5 B. Mon. 353) 358 
 Moore v. Titman, (44 111. 367)497 
 Moore v. Wade, (8 Kans. 380) 489 
 Moore v. Waller's Heirs, (1 A. K. Marsh. 
 
 488) 418 
 Moore v. Williams, (55 N. Y. Super. Ct. 
 
 116) 353 
 Moore v. Worthy, (56 Ala. 163) 473 
 Moore's Adm'rs v. Fitz-Randolph, (6 
 
 Leigh, 175) 583 
 Moorman v. Collier, (33 Towa, 138) 129 
 Moors c. Albro, (139 Mass. 9) 138 
 Moote V. Scriven, (33 Mich. 500) 587 
 Moran v. McLarty, (75 N. Y. 35) 328 
 Moran v. Palmer, (13 Mich. 367) 640 
 Mordecai v. Parker, (3 Dev. 425) 363 
 Morehead v. Eades, (3 Bush, 121) 350, 359 
 Morehead v. Hunt, (1 Dev. Eq. 415) 344 
 Morehouse v. Ballou, (16 Barb. 389) 38, 
 
 441 
 Morehouse v. Yeager, (9 Jones & S. 135) 
 
 255 
 Moreland v. Atchison, (19 Tex. 303) 331, 
 
 333 
 Moreland v. Lemasters, (4 Blackf., Ind., 
 
 383) 111 
 Moreland v. Myall, (14 Bush, 474) 406 
 Moren v. McCown, (33 Ark. 93) 419 
 Moreton v. Harrison, (1 Bland Ch. 491) 
 
 472 
 Morgan v. Bergen, (3 Neb. 309) 587 
 Morgan v. Bogue, (7 Neb. 429) 395 
 Morgan v. Fisher, (82 Va. 417) 112 
 Morgan v. Morgan, (14 Beav. 73) 304 
 
764 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO RAGES. 
 
 Morgan ti. Morgan, (41 N. J. Eq. 235) 173 
 Morgan v. Railroad Co. (6 Otto, 716; 1 
 
 Woods, 15) 137 
 Morgan v. Smith, (35 S. C. 337) 203 
 Morgan v. Titus, (2 Green, Ch. 201) 173 
 Morgan v. Wright, (35 S. C. 601) 203 
 Morgan's Appeal, (110 Pa. St. 271) 331 
 Morgan's Estate, (8 Pa. Co. Ct. 360) 363 
 Morganthan v. White, (1 Sweeney, 395) 
 
 233 
 Moriarty u Martin, (3 Ir. Ch. K. 36) 163 
 Morland v. Cook, (L. E,. 6 Eq. 252) 113 
 Morley v. Bird, (3 Ves. 628, 631) 39 
 Morley v. Morley, (5 De G. M. & G. 610) 
 
 148, 151, 153 
 Mornington, Countess of v. Keane, (3 
 
 DeG. & J. 392) 195, 197 
 Morreti). Blackman, (43Conn. 334) 348. 
 
 253 
 Morrill v. Noyes, (56 Me. 458) 449 
 Morris' Appeal, (71 Pa. St. 106) 380 
 Morrisc. Clark, (SStockt. Ch. 51) 170 
 Morris v. Edwards, (62 Tex. 205) 573 
 Morris v. Hoyle, (37 111. 150) 114 
 Morris v. McCoy, (7 Nev. 399) 49, 50 
 Morris v. Morris, (3 Houst. 568) 193 
 Morris v. Mowatt, (2 Paige, 586) 69, 71, 
 
 139 
 Morris v. Murray, (83 Ky. 36) 116 
 Morris v. Pate (31 Mo. 315) 59 
 Morris v. Eoss, (3 H. & M., Va., 408) 231 
 Morris v. Stokes, (31 Ga. 553) 387 
 Morris v. Thomas, (17 111. 113) 16 
 Morris v. Thompson, Ex'rs of, (16 N. Y. 
 
 Eq. 322, 542) 436 
 Morris v. Wadsworth, (17 Wend. 103) 104 
 Morris w. Woodward, (35 N. J. Eq. 33) 
 
 246 
 Morris Canal Co. v. Emmett, (9 Paige, 
 
 168) 329, 341, 358 
 MorrisoD.Philliber, (30 Mo. 145) 373 
 Morrison u. Beirer, (2 W. &. S. 81) 329 
 Morrison v. Bowman, (29 Cal. 337) 160, 
 
 167, 168, 174 
 Morrison v. Collier, (79 Ind. 417) 229 
 Morrison v. Funk, (23 Pa. St. 431) 70 
 Morrison v. Hershire, (32 Iowa, 271) 29, 31 
 Morrison v. Kelly, (23 111. 610) 108, 111, 
 
 114, 117, 131 
 Morrison v. Kinstra, (55 Mi.=s. 71) 328 
 Morrison v. Lods, (39 Cal. 381) 260, 262 
 Morrison v. March, (4 Minn. 423) 112, 
 
 117 
 Morrison v. Marquardt, (24 Iowa, 35) 
 
 153 
 Morrison v. Morrison, (27 Gratt. 190) 
 
 596 
 
 Morrison v. McLeod, (2 Dev. & Bat. 
 
 Eq. 221) 275 
 Morrison v. Miller, (46 Iowa, 84) 369 
 Morrison v. Shuster, (1 Mackey, 190) 
 
 348 
 Morrison v. Thistle, (67 Mo. 596) 394 
 Morrison v. Wilson, (13 Cal. 494) 117 
 Morrow v. Brenizer, (3 Rawle, 185) 35, 
 
 209, 310 
 Morrow ■». Reed, (30 Wis. 81) 536 
 Morrow v. Saline Co. Comm'rs, (31 Kans. 
 
 484) 365 
 Morrow v. Turney's Adm'r, (35 Ala. 131) 
 
 464 
 Morrow's Assignees v. Bright, (30 Mo. 
 
 398) 87 
 Morse v. Curtis, (140 Mass. 112; 54 Am. 
 
 Rep. 456) 104 
 Morse v. Morrell, (82 Me. 80) 363 
 Morse v. Proper, (83 Ga. 13) 446 
 Morse v. Eathborn, (43 Mo. 594, 605) 47, 
 
 48 
 Morse v Shaw, (134 Mass. 59) 250, 351 
 Morse v. Slason, (13 Vt. 396) 430 
 Morse v. Stearns, (131 Mass. 389) 661 
 Mortimer v. Bell, (L. R. 1 Ch. 10) 344 
 Mortimer v. Capper, (1 Bro. Ch. 156) 213 
 Mortimer v. Pritehard, (1 Bailey's Eq. 
 
 505) 320, 337, 235 
 Morton v. Barrett, (22 Me. 257) 314 
 Morton v. Deane, (13 Met., Mass., 385) 284 
 Morton v. Naylor, (1 Hill, 583) 453 
 Morton v. Eagan, (5 Bush, 334) 396 
 Morton v. Robards, (4 Dana, 358) 69, 
 
 123, 129 
 Morton v. Scull, (33 Ark. 289) 261 
 Morton v. Sims, (64 Ga. 298) 303 
 Morton v. Southgate, (28 Me. 41) 363 
 Mosby u.Mosby, (9 Gratt. 584) 382 
 Mosby V. Wall, (23 Miss. 81) 233, 236 
 Moseby v. Burrow, (53 Tex. 396) 673 
 Moseby v. Partee, (5 Heisk. 26) 406 
 Moseby v. Wall, (23 Miss. 81) 334 
 Moseby v. Ward, (39Beav. 407) 158 
 Moseley v. Boush, (4 Rand. 392) 444 
 Moser v. Libenguth, (3 Rawle, 438) 332 
 Moses V. Franklin Bk. (34 Md. 574) 458 
 Moses V. Johnson, (88 Ala. 517) 363 
 Moses V. Johnson, (88 Ala. 517) 351 
 Moses V. Sanford, (2 Lea. 655) 569 
 Moshier v. Meek, (80111. 79) 473 
 Mosman v. Bender, (8 Mo. 579) 368 
 Moss V. Atkinson, (44 Cal. 3) 133 
 Moss V. Moss, (95 111. 449) 353 
 Motley V. Sawyer, (34 Me. 540) 407 
 Mott V. Clark, (9 Barr. 399) 77, 87, 109 
 Mott V. Harrington, (12 Vt. 199) 382 
 
TABLE OF CASES CITED. 
 
 765 
 
 REFERENCES ARE TO PAGES. 
 
 Mott V. McNiell, (1 Aik. 162) 296 
 Mott V. Mott, (11 Barb. 134) 46, 49 
 Mott V. Shoolbred, (L. R. 20 Eq. 22) 563 
 Moulson V. Moulson, (1 Bro. Ch. 82) 188 
 Mounce v. Byars, (16 Ga. 469) 467, 474 
 Mounger v. Duke, (53 Ga. 277) 394 
 Mounin v. Beroujon, (51 Ala. 196) 231 
 Mount, Matter of, (3 Kedf ., N. Y., 405) 366 
 Mountain v. Bennett, (1 Cox, 355) 287 
 Mount Holly, &c. Co. v. Ferree, (17 N. J. 
 
 Eq. 117) 83, 85, 657 
 Movan v. Hays, (1 Johns. Ch. 339) 335 
 Mowatt V. Wright, (1 Wend. 355) 325 
 Mower v. Orr, (7 Hare, 473) 300 
 Mowlan v. Cain, (3 Allen, 563) 249 
 Mowry v. Wood, (12 Wis. 413) 465, 467, 530 
 Moxey v. Bigwood, (4 De G. F. & J. 351) 
 
 227 
 Moyer v. Hinman, (13 N. Y. 180, 598) 69, 
 
 71, 117, 129 
 Moyer v. Petway, (76 N. C. 327) 366 
 Mozley r. Alston, (1 Phil. 790) 555 
 Mueller v. Engeln, (12 Bush, 441) 114, 115 
 Mueller v. Putnam Ins. Co. (45 Mo. 84) 
 
 365 
 Muir V. Cross, (10 B. Mon. 277) 473 
 Muir V. Schenck, (3 Hill, 338) 40, 80, 84, 
 
 87 
 Muldrow V. Morris, (56 Am. Dec. 313) 331 
 Muldrow V. Norris, (3 Cal. 74) 231 
 Mulford V. Peterson, (35 N. J. Law, 137) 
 
 149, 151 
 Mulhall V. Quinn, (1 Gray, 105) 445 
 Mulhallen v. Marum, (3 Dr. & War. 317 
 
 383 
 Mullany v. Mullany, (3 Green's Ch. 16) 
 
 334 
 Mullen V. Strieker, (19 Ohio St. 135) 153 
 Muller V. Bayly, (31 Gratt. 521) 405 
 Muller V. Khuman, (63 Ga. 333) 234 
 Muller V. Wadlington, (5 S. C. .342) 501 
 Mulligan v. Earing, (3 Daly, 75) 637 
 Mulliken v. Graham, (73 Pa. St. 484) 90, 
 
 95, 111, 113 
 Mulliken v. Miller, (13 R. I. 396) 348 
 MuUins V. Wimberly, (50 Tex. 457) 117, 
 
 118 
 
 Mullison's Estate, (68 Pa. St. 313) 97 
 
 Mulloy V. Ingalls, (4 Neb. 115) 274 
 
 Mulock V. Mulock, (31 N. J. Eq. 594) 286 
 
 Mumford v. Am. Life Ins. Co. (4 N. Y. 
 
 463) 31 
 Mumford v. Stohwasser, (L. R. 18 Eq. 
 
 556) 57 
 Mumford, Estate of, (Myrlck's Prob., 
 
 Cal., 133) 174 
 Mumper v. Eushmore, (79 N. Y. 19) 343 
 
 Munch V. Shabel, (37 Mich. 166) 355 
 Mundine v. Pitts, (14 Ala. 84) 63 
 MundorfE v. Wickersham, (63 Pa. St. 87) 
 
 361 
 Mundrell v. Mundrell, (10 Ves. 346, 271) 
 
 57 
 Mundy v. Sawter, (3 Gratt. 518) 381 
 Munford v. Am. Life Ins. & T. Co. (4N. 
 
 Y. 463, 483) 38 
 Munford v. Murray, (6 Johns. Ch. 1) 370 
 Munger v. Casey, (17 Atl. 36) 490 
 Munger v. Shannon, (61 N. Y. 351) 453 
 Munn V. Berges, (70111. 604) 370 
 Munn V. Best, (63 Mo. 491) 73 
 Munn V. Burch, (35 111. 35) 461 
 Munni;. Burgess, (70 111. 604) 120 
 Munn V. McDonald, (10 Watts, 270) 67 
 Munroe v. Eastman, (31 Mich. 283) 93, 94, 
 
 99, 100, 111 
 Munroe v. Ward, (4 Allen, 150) 640 
 Munson v. Hallowell, (26 Miss. 475) 263 
 Murdoch v. Finney, (21 Mo. 138) 84 
 Murdock u. Clark, (Cal. 1890; 34Pac. 273) 
 
 489 
 Murdock v. Holland's Heirs, (3 Blackf. 
 
 114) 420 
 Murdock v. Hughesv (7 Smed. & M. 219) 
 
 357 
 Murphy v. Calley, (1 Allen, 107) 53, 489 
 Murphy v. Dallam, (1 Bland, 539) 349 
 Murphy v. Hinds, (15 Minn. 183) 640 
 Murphy v. Hubert, (16 Pa. St. 50) 388 
 Murphy v. Murphy, (121 Mass. 167) 449 
 Murphy v. Murphy, (45 N. W. 914) 356 
 Murphy v. Nathans, (46 Pa. St. 513) 101 
 Murphy v. Paynter, (1 Dill. 333) 596 
 Murphy v. Peabody, (63 Ga. 523) 3.53 
 Murphy v. Rooney, (45 Cal. 78) 335, 336, 
 
 337, 338 
 Murphy v. Trigg, (1 Mon. 73) 490 
 Murray v. Ballou, (1 Johns. Ch. 566) 36, 
 
 73,102, 134, 135 203 
 Murray v. Dake, (46' Cal. 644) 336, 338 
 Murray v. Elibank, (10 Ves. 84) 38 
 Murray u Feinour, (3 Md. Ch. 418) 368 
 Murray v. Finster, (3 Johns. Ch. 155) 73, 
 
 74, 124 
 Murray v. Jones, (50 Ga. 109) 143 
 Murray v. Lylburn, (3 Johns. Ch. 441) 87, 
 
 13i, 136 
 Murray v. N. Y. &c. R. Co. (103 Pa. St. 
 
 37) 234 
 Murray v. Palmer, (3 Sch. & Lef. 474) 
 
 373 
 Murray v. Parker, (19 Beav. 305) 333 
 Murray v. Eiggs, (15 Johns. 571) 292 
 Murray v. Sells, (53 Ga. 357) 143 
 
766' 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO f=>AGES. 
 
 Murrell v. Jones, (40 Miss. 565) 501 
 MurrpII V. Watson, (1 Tenn. Ch. 342) 114 
 Murry v. Walker, (31 N. Y. 399) 489 
 Musey v. Desbouvrie, (3 P. Wms. 315) 
 
 284 
 Musgrove v. Bouser, (5 Oreg. 313) 102 
 Musgrove v. Chambers, (12 Tex. 33) 572 
 Musham v. Musham, (87 111. 80) 350 . 
 Muskingum, Bank of v. Carpenter's 
 
 Adm'rs, (7 Ohio, 21) 464 
 Musselman v. Kent, (33 Ind. 452) 26 
 Musselman's Estate, (5 Watts, 9) 186 
 Musson V. Trigg, (21 Miss. 173) 394, 398 
 Mutlow V. Bigg, (L. R. 1 Ch. D. 385) 307 
 Mut. Ass'n Society v. Stone, (3 Leigh, 
 
 218) 74 
 Mut. Life. Ins. Co. v. Dake, (1 Abb. N. 
 
 C. 381) 105 
 Mut. Life Ins. Co. v. Everett, (40 N. J. Eq. 
 
 345) 215 
 Mut. Life Ins. Co. v. Norris, (41 N. J. Eq. 
 
 583) 140, 141, 142 
 Mut. Life Ins. Co. v. Shipman, (119 N. Y. 
 
 324) 387 
 Mut. Life Ins. Co. v. Wager, (27 Barb. 
 
 354) 235 
 Muzzey v. Eeardon, (57 N. H. 378) 407 
 Mypr V. Rives, (11 Ala. 760) 385 
 Myer's Appeal, (3 Barr. 463) 280 
 Myers v. Eddy, (47 Barb. 263) 483 
 Myers v. Harvey, (2 Pa. St. 478) 296 
 Myers v. Kinzie, (26 111. 36) 654 
 Myers v. Ross, (3 Head, 59) 129, 130 
 Myers v. State, (47 Ind. 293) 38, 441 
 Myers v. United, &c. Ass'n Co. (7 De G. 
 
 M. & G. 112) 80 
 Myers v. White, (1 Eawle, 353) 487 
 
 N. 
 
 Naar v. Naar, (41 N. J. 88) 382 
 Nabours v. Cocke, (24 Miss. 44) 220, 237 
 Nace V. Boyer, (6 Casey, 99) 274 
 Nachtrieb v. Harmony Settlement, (3 
 
 Wall. Jr. 66) 387 
 Nagle V. Macy, (9 Cal. 436) 
 Nagle's Appeal, (1 Harris, 260) 209 
 Naglee v. Pacific Wharf Co. (20 Cal. 539) 
 
 83, 86 
 Naglee's Appeal, (9 Casey, 89) 309 
 I^aileri). Stanley, (10 Serg. & R. 450) 
 
 536 
 Nance ?;. Nance, (28111. App. 587) 354 
 Nancrede v. Voorhis, (32 N. J. Eq. 524) 
 
 367 
 Napier v. Napier, (1 Dr. & War. 407) 31 
 
 Narcissa v. Wathan, (2 B. Mon. 341) 279 
 Narr v. Narr, (41 N. J. Eq. 88) 333 
 Nash V. Normont, (5 Mo. App. 545) 405 
 Nash V. Smallwood, (6 Md. 394) 437 
 Nason v. First, &c. Church, (66 Me. 100) 
 
 430 
 Natch V. Fowler, (38 Mich. 205) 294 
 Nat. Bank v. Norton, (1 Hill, 572) 131 
 Nat. Bank v. Sprague, (20 N. J. Eq. 159) 
 
 245,247 
 National Bk. of Mllford v. Town of Mil- 
 ford, (36 Conn. 93, 130) 130 
 Nat. Bk. of the Metropolis v. Sprague, 
 
 (20 N. J. Eq. 159) 344 
 Nat. Fire Ins. Co. v. Loomis, (11 Paige, 
 
 431) 244 
 National Ins. Co. v. Crane, (16 Md. 260) 
 
 234 
 Nat. Sec. Bk. v. Cushman, (131 Mass. 
 
 490) 130 
 Naugatuck Cutlery Co. v. Babcock, (22 
 
 Hun, 481) 245 
 Nave V. King, (27 Ind. 356) 606 
 Naylor v. Winch, (1 S. & S. 555) 224 
 Nazereth Inst. v. Lowe, (1 B. Mon. 357) 
 
 206, 474 
 Neal V. Speigle, (33 Ark. 63) 472 
 Neap V. Ball, (2 East, 133) 399 
 Needles v. Martin, (33 Md. 609) 349 
 Needles' Ex'r v. Needles, (7 Ohio St. 432) 
 
 375,409 
 Neel V. Clay, (48 Ala. 252) 471 
 Neeley v. Anderson, (2 Strobh. Eq. 263) 
 
 373 
 Neely v. Wood, (10 Yerg. 486) 288 
 Neely's Appeal, (85 Pa. St. 387) 25 
 Neff V. Clute, (13 Barb. 466) 343 
 Neff's Appeal, (57 Pa. St. 91) 365 
 Negley v. Lindsay, (67 Pa.' St. 217) 261, 
 
 374 
 Neidefer v. Chastain, (71 Ind. 363) 360 
 Neil V. Cummings, (75 III. 170) 350 
 Neil V. Kinney, (11 Ohio St. 58) 473 
 Neilson v. Cook, (40 Ala. 493) 371 
 Neilson v. Fry, (16 Ohio St. 553) 621 
 Neilson v. McDonald, (6 Johns. Ch. 201) 
 
 376 
 NelighiJ. Micheoor, (3 Stockt. 539) 465 
 Nelson v. Allen, (1 Yerg. 360) 115, 116 
 Nelson v. Betts, (31 Mo. App. 219) 221 
 Nelson v. Carrington, (4Munf. 333) 382 
 Nelson v. Davis, (40 Ind. 366) 319, 330, 
 
 229 
 Nelson v. Garey, (15 Neb. 531) 393 
 Nelson v. Goree's Adm'r, (34 Ala. 531) 659 
 Nelson v. Hagerstown Bk. (37 Md. 51) 
 
 107, 109, 465 
 
TABLE OF CASES CITED. 
 
 767 
 
 REFERENCES ARE TO PAGES. 
 
 Nelson V. Matthews, (2 Hen. & M., Va., 
 
 164) 239 
 Nelson v. Sims, (1 Cush. 383) 91, 93, 94, 
 
 111 
 Nelson v. Stocker, (4 De G. & J. 458) 26 
 Kelson v. Turner, (3 Md. Ch. 73) 566 
 Nelson v. Wade, (21 Iowa, 49) 120 
 Nelson v. Worrall, (30 Iowa, 469) 358 
 Nelson's Admr's v. Cornwell, (11 Gratt. 
 
 724)419 
 Nervine v. White, (50 Ala. 338) 539 
 Nesbit V. Lockman, (34 N. Y. 167) 279 
 Nesmith v. Drum, (8 Watts & S. 9) 453 
 NeuendorffB. World, &c. Ins. Co. (69 N. 
 
 Y. 389) 379 
 Nevada Co., &c. Canal Co. o. Kidd, (37 
 
 Cal. 283) 640 
 Neves v. Scott, (13 How. 370; 9 How. 196) 
 
 216, 329 
 Neville v. Merch., &c. Ins. Co. (19 Ohio, 
 
 453) 579 
 Neville v. Wilkinson, (1 Bro. Ch. 543) 368 
 Nevin v. Drysdale, (L. E. 4 Eq. 517) 185, 
 
 186, 187 
 Nevins v. Dunlap, (33 N. Y. 676) 336, 338, 
 
 234, 236 
 New V. Nicoll, (73 N. Y. 137) 373 
 New c. Wheaton, (24 Minn. 406) 117 
 Newberry's Trusts, In re, (L. E. 5 Ch. 
 
 r>. 746) 211 
 Newbold v. Peoria, &c. R. R. (5 111. App. 
 
 367) 673, 677 
 New Brunswick, &c. Ry. v. Conybeare, 
 
 (9 H. L. Cas. 711) 241 
 New Brunswick, &c. Ry. v. Muggeridge, 
 
 (1 Dr. & Sim. 363) 254 
 Newby v. Hill, (3 Met., Ky., 530) 453 
 Newby v. Sharpe, (L. R. 8 Ch. D. 39) 268 
 Newby ». Skinner, (1 Dev. & Bat. Eq. 
 
 488) 209 
 Newby B. Skinner, (IDev. &Bat.Eq.488) 
 
 210, 453 
 Newcomb v. Bonham, (1 Vern. 7) 275 
 Newcomb v. Brooks, (16 W. Va. 32) 280 
 Newcomb v. Horton, (18 Wis. 93) 606 
 Newcomb v. St. Peter's Ch., Tr's of, (3 
 
 Sandf. Ch. 636) 433 
 Newcomer v. Kline, (11 Gill & J. 457) 233 
 Newell V. Horn, (49 N. H. 422) 360 
 Newell V. Newell, (14 Kans. 202) 357 
 Newell V. Smith, (49 Vt. 255) 227, 328, 675 
 Newell V. Stiles, (21 Ga. 118) 220 
 Newell V. Wheeler, (48 N. Y. 486) 637 
 New Eng. Bank v. Lewis, (8 Pick. 113) 
 
 342 
 New Eng. J. Co. v. Merriam, (3 Allen, 
 390) 59, 149 
 
 Newhall v. Kastens, (70 111. 156) 658 
 Newhall v. Pierce, (6 Pick. 450) 119 
 Newhall v. Savings Bk. (101 Mass. 431) 
 
 148, 152, 206 
 New Hope Bridge Co. v. Phoenix Bk. (3 
 
 N. Y. 156) 130 
 Newhouse v. Hill, (7 Blackf. 584) 465 
 New Ipswich Factory v. Batcheldor, (3 
 
 N. H. 190) 153, 438 
 N. J. Ins. Co. V. Meeker, (40 N. J. L. 18) 
 
 149 
 Newlau v. Freeman, (4 Ired. Eq. 312) 397 
 Newland v. Gaines, (1 Heisk. 730) 273 
 Newlin v. McAffee, (64Ala. 357) 465 
 Newman v. Edwards, (10 Casey, 32) 143 
 Newman v. James, (12 Ala. 29) 394 
 Newman v. Meek, (1 Freem. Ch. 441) 
 
 247 
 Newman v. Samuels, (17Iowa, 528) 343 
 Newman v. Willetts, (52 III. 98) 618 
 New Orleans v. McDonough, (12 La. An. 
 
 240) 349 
 New Orleans v. Morris, (3 Woods, 103) 
 
 566 
 Newsom v. Bufferlow, (1 Dev. Eq. 383) 
 
 236 
 Newsom v. Chrisman, (9 Tex. 113)430 
 Newsom v. Collins, (43 Ala. 656, 683) 114, 
 
 115 
 Newton v. Bronson, (13 N. Y. 587) 545 
 Newton v. Holley, (6 Wis. 564) 233 
 Newton v. McLean, (41 Barb. 285) 55, 57, 
 
 106, 108, 109 
 Newton v. Newton, (L. R. 4 Ch. 143; L. 
 
 R. 6 Eq. 135) 40, 56, 60 
 Newton v. Poole, (13 Leigh, Va., 113) 370 
 Newton^. Porter, (69 N. Y. 133) 357 
 Newton^. Stanley, (38 N. Y. 61) 436 
 Newton v. Swazey, (8 N. H. 9) 437 
 Newton v. Taylor, (32 Ohio St. 399) 356, 
 
 359 
 N. Y. Cent. Ins. Co. v. Nat. Proteo. Ins. 
 
 Co. (14 N. Y. 85) 131, 370 
 N. Y. Cent. E. R. v. Lockwood, (17 Wall., 
 
 U. S., 357) 365 
 N. Y., Corp. of V. Mapes, (6 Johns. 46) 
 
 559 
 N. Y. Ice Co. V. N. W. Ins. Co. (23 N. Y. 
 
 357) 237 
 N. Y. Ice Co. V. N. W. Ins. Co. (31 Barb., 
 
 N. Y., 73) 334 
 N. Y. Life Ins. Co. v. Cutler, (3 Sandf. 
 
 Ch. 176) 119 
 N. Y. Life Ins. Co. v. Mayer, (14 Daly, 
 
 318) 206 
 N. Y. Life Ins. Co. v. Smith, (3 Barb. Ch. 
 
 82)80 
 
768 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO RAGES. 
 
 N. Y. Life Ins. & Trust Co. v. Milnor, (1 
 
 Barb. Ch., N. Y., 353) 438 
 N. Y. & N. H. E. R. V. Schuyler, (34 N. 
 
 Y. 30; 17 N. Y. 593) 29, 83, 361 
 N. Y., &c. R. R. V. Haws, (56 N. Y. 175) 
 
 216 
 N. York, &c. R. R. e. Mayor, (1 Hilb. 562) 
 
 28 
 N. Y., &c. Ry., Receivers of v. Worten- 
 
 dyke, (27 N. J. Eq. 658) 631 
 Neylans v. Burge, (14 Sm. & Mar. 201) 
 
 418 
 Nice's Appeal, (54 Pa. St. 200) 107, 109 
 NiehelsT). Morring, (16 Fla. 76) 628 
 Nicholas «. Adams, (3 Whart. 17) 432 
 Nicholas V. Allen, (130 Mass. 211) 348. 
 Nicholl V. Mumford, (4 Johns. Ch. 522) 
 
 469 
 Nichols V. Allen, (130 Mass. 211) 353 
 Nichols V. Eaton, (1 Otto, 716) 341 
 Nichols V. Glover, (41 Ind. 24) 473 
 Nichols 1). Judson, (2 Atk.300) 193 
 Nichols V. Levy, (5 Wall. 433) 341 
 Nichols V. McCabe, (3 Head, 93) 489 
 Nichols V. McKewen, (17N. Y. 23) 343 
 Nichols V. Overacker, (16 Kans. 54) 59 
 Nichols V. Pinner, (18 N. Y. 295) 248, 249, 
 
 253, 253 
 Nichols V. Reynolds, (1 E. I. 30) 106, 
 
 489 
 Nichols V. Webster, (1 Chandl. 203) 539 
 Nichols V. Williams, (33 N. J. Eq. 63) 583 
 Nicholson v. Caress, (59 Ind. 39) 329 
 Nicholson v. Janeway, (16 N. J. Eq. 285) 
 
 628 
 Nicholsons. Leavitt, (6N. Y. 510) 343 
 Nicholson v. Temple, (4 P. & B. N. B. 
 
 348) 536 
 Nickolson v. Hancock, (4 Hen. & M., 
 
 Va., 491) 547 
 Nicoll V. Mumford, (4 Johns. Ch. 532) 
 
 484 
 Nicoll V. Mumford, (3 Johns. Ch. 529) 
 
 392 
 Nicoll V. Vaughan, (1 CI. & Pin. 495) 
 
 386 
 Nightingale v. Hidden, (7 R. 1. 115) 395 
 Niles V. Harmon, (80 111. 396) 526 
 Niles V. Williams, (24 Conn. 279) 635 
 Nill V. Jenkinson, (15 Ind. 435) 606 
 Niller v. Johnson, (37 Md. 6) 406 
 Nlmmo V. Davis, (7 Tex. 36) 375 
 Nims V. Vaughn, (40 Mich. 356) 583 
 Nisbet V. Cash, (52 Cal. 540) 625 
 Niven v. Balknap, (2 Johns. 573) 66, 137 
 Niverc. Best, (10 Barb. 369) 288 
 Nlver V. Kossman (18 Barb. 50) 49, 50 
 
 Nix V. Bradley, (6 Rich. Eq. 43) 394 
 Nix V. Collins, (65 Ga. 319) 136 
 Nixon V. Rose, (12 Gratt. 435) 395 
 Nixon's Appeal, (63 Pa. St. 379) 353 
 Noble V. Googins, (99 Mass. 331) 229 
 Noble V. Jones, (35 Tex. 693) 365 
 Noble V. McGinnis, (55 Ind. 538) 420 
 Noble V. Smith, (2 Johns. 53) 433 
 Noble V. Walker, (32 Ala. 456) 31, 269 
 Noe V. Christie, (51 N. Y. 273) 455 
 Noe V. Kern, (93 Mo. 367) 331 
 Noel V. Gill, (84 Ky. 841) 239 
 Noel V. Horton, (50 Iowa, 687) 242 
 Noel V. Robinson, (1 Vern. 90) 217 
 Noetling v. Wright, (73 111. 390) 350 
 Nokes V. Gibbon, (3 Brew. 618) 53 
 Nolan V. Grant, (51 Iowa, 519) 123 
 Nolte's Appeal, (45 Pa. St. 361) 476 
 Noonan v. Lee, (2 Black. 499) 21 
 Norcross v. Widgery, (2 Mass. 505) 113 
 Norcum v. D'Oench, (17 Mo. 98) 316, 230 
 Norman v. Norman, (28 S. C. 41) 332 
 Norris v. Clark, (2 Stockt. Ch. 51) 173 
 Norris v. Farrell, (33 Leg. Int. 129) 420 
 Norris B. Johnston, (5 Barr. 387) 341 
 Norris v. Laberee, (58 Me. 360) 319 
 Norris v. Tayloe, (49 111. 17) 283 
 Norris v. Thompson, (4 Green L. 307) 380 
 Norris v. Thomson, Ex'rs of, (19 N. J. 
 
 Eq. 307) 348 
 N. A. & S. R. V. Huff, (19 Ind. 444), 
 
 373 
 North V. Valk, (Dudley's Eq. 212) 209, 
 
 210 
 North Adams, &c. Soc. «. Fitch, (8Grayj 
 
 431) 348 
 North American Fire Ins. Co. v. Graham, 
 
 (5 Sandf. 197) 617, 618 
 North Bait. &c. Ass'n v. Caldwell, (25 
 
 Md.430) 284 
 North Car. R. R. u. Drew, (3 Woods 0. C. 
 
 691) 551 
 North Car. R. R. v. Wilson, (81 N. C. 233) 
 
 362 
 Northern Kansas Town Co. v, Oswald, 
 
 (18 Kans. 336) 437 
 Northern Pac. R. Co. v. Kindred, (14 
 
 Fed. Rep. 77) 380 
 North River Bk. v. Aymar, (3 Hill, 262) 
 
 130, 131, 132, 261 
 Northrup v. Brehmer, (8 Ohio, 392) 107, 
 
 110 
 Northrup v. Bushnell, (38 Conn. 498) 
 
 263 
 Northrup v. Hatch, (6 Conn. 361) 652 
 ■ Northrup's Lessee, v. Brehmer, (8 Ohio, 
 
 393) 107 
 
TABLE OF OASES CITED. 
 
 769 
 
 REFERENCES ARE TO PAGES. 
 
 Northwestern. &c. Co. v. Allis, (23 Minu. 
 
 337) 407 
 Northy v. Northy, (45 N. H. 144) 501 
 Norton, Ex parte, (8 De G, M. & G. 258) 
 
 30 
 Norton v. Beaver, (5 Ohio, 178) 643 
 Norton c.Eirge, (35 Conn. 250) 125, 126 
 Norton v. Foster, (12 Kans. 44) 87, 88 
 Norton v. Highleyman, (88 Mo. 621) 220 
 Norton v. Lewis, (3 S. C. 25) 526 
 Norton v. Norton, (3 Sandf. 396) 314 
 Norton v. Rose, (2 Wash. 233) 79 
 Norton v. "Williams, (9 Iowa, 528) 129 
 Norton v. Toung, (3 Greenl. 30) 263 
 Norvell v. Johnson, (5 Humph. 489) 473 
 Norwood V. Harness, (98 Ind. 134) 366 
 Norwood V. Norwood, (3 Har. & J. 338) 
 
 631 
 Nosser v. Seeley, (10 Neb. 460) 563 
 Nottldge V. Prince, (3 Giff. 246) 275 
 Nottley V. Palmer, (3 Drew. 93) 169 
 Nourse v. Henshaw, (133 Mass. %) 406 
 Nourse v. Merriam, (8 Cush. 11) 348 
 Noyes v. Blakeman, (6 N. Y. 567) 373 
 Noyes v. Blakeman, (3 Sandf. 531) 403 
 Noyes v. Clark, (7 Paige, 179) 45 
 Noyes v. Hall, (7 Otto, 34) 118, 133 
 Noyes v. Mordaunt, (3 Vera. 581) 156 
 Noys V. Mordaunt, (2 Vern. 581) 33 
 Nugent V. Jacobs, (103 N. Y. 125) 289 
 Nugent V. Riley, (1 Mete. 117) 53, 488 
 Nuneaton L. Bd. v. Gen. Sewage Co. (L. 
 
 B. 20 Eq. 127) 
 Nute V. Nute, (41 N. H. 60) 94 
 Nutt V. Nutt, (1 Freem. Ch. 138) 164, 231 
 Nyce's Estate, (5 Watts & S., Pa., 854) 
 
 365 
 Njev. Hoyle, (130 N. Y. 195) 438 
 
 o. 
 
 Cakes v. Turquand, (L. E. 3 H. L. 325) 
 
 261 
 Oakland P. Co. v. Rier, (53 Cal. 370) 137 
 Oakley v. Hurlbut, (100 HI. 204) 640 
 Oakley v. Trustees, &c. (6 Paige, 363) 643 
 Oakville Co. v. Double Pointed Tack 
 
 Co. (105 N. Y. 658) 229 
 Oberholtzen's Appeal, (134 Pa. St. 583) 
 
 101 
 Oberlander v. Spiess, (45 N. Y.175)341 
 Obert t>. Obert, (SStockt. Ch. 98) 613 
 O'Brien o. Creitz, (10 Kans. 203') 640 
 O'Briens. Elliott, (15 Me. 135) 170 
 O'Brien v. Norwich, &c. E. Co. (17 Conn. 
 
 372) 559 
 
 O'Brien, Petition of, (11 R. 419) 406 
 Ocean Ins. Co. u. Fields, (3 Story, 59) 651 
 O'Connell v. Duke, (39 Tex. 399) 339 
 O'Connor v. Rempt, (39 N. J. Eq. 156) 375 
 O'Connor v. Sheriff, (30 La. An., pt. 1, 
 
 441) 566 
 O'Connor v. Tack, (3 Brews. 407) 651 
 O'Daily v. Morris, (31 Ind. Ill) 406 
 O'Daniel v. Crawford, (4 Dev. 203) 388 
 Odd Fellows Sav. Bk. v. Banton, (46 Cal. 
 
 603) 106, 109 
 Odell V. Odell, (10 Allen, 1) 348 
 O'Dell V. Young, (1 McMullan, 155) 367 
 Odessa Tramways Co. v. Mendel, (L. R. 
 
 8 Ch. D. 235) 26, 37 
 Odlin V. Gove, (41 N. H. 465) 25, 141, 144 
 O'Donnell v. Barbey, (139 Mass. 453) 482 
 O'Donnell v. Harmon, (3 Daly, 424) 319, 
 
 332 
 O'Donnell v. Leeman, (43 Me. 158) 284 
 O'Donnell v. Rosenberg, (14 Abb. Pr., n. 
 
 S., 59) 46, 47, 49 
 Oelrichs v. Spain, (15 Wall. 211) 17, 569 
 Officer V. B'd of Home Missions, (47 
 
 Hun, 373) 384 
 Offutt ». Scott, (47 Ala. 105) 204 
 O'Gara v. Dowry, (5 Mont. 427) 299 
 Ogden V. Grant, (6 Dana, 473) 53 
 Ogden V. Guice, (56 Miss. 330) 406 
 Ogden V. Haven, (24 111. 57) 70, 71 
 Ogden V. Kip, (6 Johns. Ch. 160) 54T 
 Ogden V. Larabee, (57 111. 389) 343 
 Ogden V. Peters, (21 N. Y. 23) 343 
 Ogden V. Prentice, (33 Barb. 160) 87 
 Ogden V. Thornton, (30 N. J. Eq. 569) 473 
 Ogden V. Walters, (12 Kans. 282) 104 
 Ogden's Appeal, (70 Pa. St. 501) 400 
 Ogg V. Tate, (52 Ind. 159) 484 
 Ogilvie V. Ogilvie, (1 Bradf. 356) 433 
 Ogle ». Edge, (4 Wash., U. S., 584) 563 
 Ogle V. Tayloe, (49 Md. 158) 482 
 Oglesby Coal Co. v. Pasco, (79 111. 164) 
 
 143, 144 
 O'Halloran v. Fitzgerald, (71 111. 53) 364 
 O'Hare v. Downing, (130 Mass. 16) 643 
 Ohio Life, &c. Co. v. Ledyard, (8 Ala. 
 
 866) 68, 70, 107, 110 
 Ohio Life Ins. Co. v. Ross, (3 Md. Ch. 25) 
 
 87 
 Ohio & Miss. R. R. v. Davis, (23 Ind. 553) 
 
 675 
 Oiler V. Gard, (23 Ind. 313) 219 
 Oil Run Pet. Co. v. Gale, (6 Wa. Va. 525) 
 
 658 
 Olcott V. Heermans, (3 Hun, 431) 673 
 Old Colony R. R. v. Evans, (6 Gray, 25) 
 
 575 
 
 49 
 
770 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Oldenbaugh v. Beadford, (67 Pa. St. 104) 
 
 53 
 Oldham ». Hughes, (3 Atk. 453) 207 
 Oldham v. Oldham, (5 Jones' Eq. 89) 374 
 Olds V. Cummiags, (31 111. 188) 80 
 Old South Soc. -v. Crocker, (119 Mass. 1) 
 
 345 
 Oliver t). Dougherty, (3 Iowa, 371) 354 
 Oliver v. Eaton, (7 Mich. 108) 450 
 Olivers. Grimball, (14S. C. 556) 398 
 Oliver v. Hook, (47 Md. 301) 438 
 Oliver v. Keightley, (34 Ind. 514) 606 
 Oliver v. Mut. Ins. Co. (3 Curtis' C. C. 
 
 377) 232, 230, 338 
 Oliver v. Oliver, (4 Eawle, 141) 236 
 Oliver iJ. Oliver, (L. R. 11 Eq. 506) 422 
 Oliver v. Piatt, (3 How., TJ. S., 333; 3 
 
 How. 401) 34, 73, 113 
 Oliver v. Town, (38 Wis. 338) 536 
 OllifleJ). Wells, (130 Mass. 321) 348 
 Olmsteadc. Hotailing, (1 Hill, 317) 345 
 Olmstead v. Loomis, (9 N. Y. 423) 563 
 Olmstead v. Loomis, (6 Barb., N. Y., 160) 
 
 547 
 ■Olney v. Howe, (89 111. 556) 329 
 Onderdonk v. Mott, (34 Barb. 106)415, 640 
 O'Neil V. Capelle, (63 Mo. 203) 489 
 •O'Neil V. Cleveland, (30 N. J. Eq. 373) 269 
 ■O'Neil V. Teague, (8 Ala. 345) 234 
 •Onsont!. Cown, (22 Wis. 339) 237 
 Ontario Bk. v. Mumford, (3 Barb. Ch. 
 
 596)444 
 Ontario Copper Co. v. Lightning Rod Co. 
 
 (39 Up. Can. C. P. 491) 248, 253 
 Oppeuheim v. Leo Wolf, (3 Sandf. Ch. 
 
 571) 661 
 Orcutt V. Nelson, (67 Mass. 536) 370 
 Ord V. Johnston, (1 Jur., N. S., 1063) 33 
 Ord V. White, (3 Beav. 357) 80 
 O'Reilly v. Nicholson, (45 Mo. 160) 124, 
 
 159 
 Oriental Bk. v. Haskins, (3 Met. 340) 289 
 O'Riley v. McKiernan, (13 S. W. Rep. 
 
 360) 328 
 Ormiston v. Olcott, (84 N. Y. 339) 365, 371 
 Ormonde. Hutchinson, (13 Ves. 47) 379 
 Ormrod v. Huth, (14 M. & W. 650) 249 
 Ormsby v. Barr, (33 Mich. 80) 637, 640 
 Oro, &c. Co. V. Starr, (8 Pac. Rep. 243) 
 
 398 
 O'Rourke v. Beard, (23 N. E. Rep. 576) 
 
 338 
 O'Rourke v. O'Connor, (39 Cal. 443) 70, 
 
 71, 98, 109, 118, 130 
 Orphan Asylum v. McCartee, (Hopk.Ch. 
 
 439) 643 
 Orr V. Hadley, (36 N. H. 575) 140, 491 
 
 Ottv. Kaines, (3 Ves. Sen. 194) 317 
 
 Orr V. Tanner, (13 R. I. 94) 284 
 
 Orr V. Zimmerman, (63 Mo. 73) 33, 50, 
 
 316 
 Orrell v. Orrell, (L. R. 6 Ch. 302) 166 
 Orrick v. Boehm, (49 Md. 72) 199, 303 
 Orrick v. Dunham, (79 Mo. 179) 115 
 Orr Water Ditch Co. v. Larcombe, (14 
 
 Nev. 53) 657 
 Orth V. Jennings, (8 Blackf. 420) 69, 70, 
 
 139 
 Orvis V. Newell, (17Conn. 97) 104, 105 
 Osbaldiston I). Simpson, (13 Sim. 513) 38 
 Osborn v. Carr, (13 Conn. 195) 58, 74, 75 
 Osborn v. Elder, (65 Ga. 360) 138 
 Osborn v. Heyer, (3 Paige, 343) 671 
 Osborn v. Leeds, (5 Ves 369) 191 
 Osborn v. Morgan, (9 Hare, 432) 31 
 Osborn v. Morse, (7 Johns. 161) 288 
 Osborn v. Noble, (46 Miss. 449) 631 
 Osborn v. Osborn, (39 N. J. Eq. 385) 308 
 Osborn v. Phelps, (19 Conn. 63) 233, 335, 
 
 239 
 Osborn i;.U. S. Bank, (9 Wheat. 738) 
 
 551 
 Osborne v. Barge, (30 Fed. Rep. 805) 
 
 •17 
 Osborne v. Brooklyn, &c. B. R. (5 Blatch. 
 
 366) 559 
 Osborne v. McAlpine, (4 Redf. 1) 435 
 Osborne v. Royer, (1 Lea. 217) 478 
 Osborne «. Taylor, (12 Gratt., Va., 17) 
 
 661 
 Osborne v. Williams, (18 Ves. 379) 37, 370 
 Osgood V. De Groot, (36 N. Y. 348) 88 
 Osgood V. Eaton, (63 N. H. 513) 353 
 Osgood V. Franklin, (3 Johns. Ch. 1) 273, 
 
 583 
 Osgood V. Nichols, (5 Gray, 430) 243 
 Osgood V. Thompson Bank, (30 Conn. 27) 
 
 489 
 Ostell V. Le Page, (2 De G. M. & G. 892) 
 
 566 
 Osterman v. Baldwin, (6 Wall. 116) 335 
 Ostrander v. Hart, (8 N. Y. S. 809) 513 
 Oswald V. Hoover, (43 Md. 360) 406 
 Oswald V. McGehee, (28 Miss. 340) 254, 
 
 356 
 Oswald V. Sproehule, (16 111. App. 368) 
 
 230 
 Oswell V. Probert, (3 Ves. 680) 30 
 Other V. Iveson, (3 Drew. 177) 38 
 Otis V. Beckwith, (49 111. 131) 339 
 Otis V. Sill, (8 Barb. 102) 59, 448 
 Otis V. Spencer, (102 111. 622) 113 
 Ottawa PI. Rd. Co. v. Murray, (15 111. 336) 
 
 45,50 
 
TABLE OF CASES CITED. 
 
 771 
 
 REFERENCES ARE TO PAGES. 
 
 Ottenheimer v. Cook, (10 Heisk, 309) 319 
 Otter V. Vaux, (6 De G. M. & G. 638) 153 
 Ould V. Washington Hospital, (5 Otto, 
 
 301) 345 
 Overall v. Ellis, (33 Mo. 333) 516 
 Overing v. Foote. (43 N. Y. 390) 637 
 Overton D. Banister, (3 Hare, 503) 35, 36 
 Overton v. Lang, (6 Mon. 13) 39 
 Overton v. McFarland, (15 Mo. 313) 419 
 O. W. Ditch Co. V. Larcombe, (14 Nev. 
 
 53, 659 
 Owen V. Ellis, (64 Mo. 77) 381 
 Owen V. Phillips, (73 Ind. 384) 563 
 Owen V. State, (25 Ind. 107, 371) 38, 441 
 Owens V. Clayton, (56 Md. 129) 481 
 Owens V. Miller, (39 Md. 144) 107 
 Owens V. Owens, (33 N. J. Eq. 60) 339, 
 
 338 
 ■Owens V. Roberts, (36 Wis. 358) 130, 133 
 Owings V. Meyers, (3 Bibb, 278) 124 
 Ownes V. Ownes, (23 N. J. Eq. 60) 368 
 Oxford, Earl of. Case of, (1 Ch. Rep. 1) 
 
 216 
 Ozley V. Ikelheimer, (36 Ala. 332) 394 
 
 P. 
 
 Pacific Guano Co. v. Mullen, (66 Ala. 
 
 582) 363 
 Pacific R. R. V. Ketchum, (11 Otto, 389) 
 
 330 
 Packard v. Johnson, (51 Cal. 545) 106, 
 
 109 
 Packard v. Putnam, (57 N. H. 43) 335 
 Packard v. Wood, (4 Gray, 307) 394 
 Packer v. Rochester, &c. R. R. (17 N. Y. 
 
 283) 517 
 Padbury v. Clark, (3 Macn. & G. 398) 
 
 177 
 Paddock v. Fletcher, (43 Vt. 389) 354 
 Paddock v. Strobridge, (29 Vt. 470) 252, 
 
 253 
 Paddon v. Taylor, (44 N. Y. 371) 65, 348 
 Padfield v. Padfield, (78 111.16) 173 
 Padfield v. Pierce, (721)1.500) 144 
 Padgett V. Lawrence, (10 Paige, 170) 67, 
 
 68 
 Page V. Bent, (2 Met. 371) 255, 256, 260 
 Page V. Estes, (19 Pick. 369) 30 
 Page v. Foster, (7 N. H. 393) 53 
 Page V. Gardner, (20 Mo. 507) 450 
 Page V. Kennan. (38 Wis. 320) 640 
 Page V. Murray, (N. J. '90, 19 Atl. 11) 438 
 Paget). Naglee, (6 Cal. 341) 369 
 Page V. Parker, (43 N. H. 369) 350, 255 
 Page V. Stubbs, (39 Iowa, 537) 380 
 
 Page V. Trufant, (3 Mass. 159, J62) 437 
 Page V. Waring, (76 N. Y. 463) 105, 135, 
 
 138 
 Page's Estate, (75 Pa. St. 87) 199, 200 
 Paget V. Greenfell, (L. B. 6 Eq. 7) 188 
 Paget V. Huish, (1 H(5m. & M. 663) 426 
 Paige V. Banks, (7 Blatchf., U. S., 153) 
 
 563 
 Paine v. France, (26 Md. 46) 27 
 Paine v. French, (4 Ohio, 318) 60, 501 
 Paine v. Irwin, (16 Hun, 390) 279 
 Paine v. Jones, (75 N. Y. 593) 219, 594 
 Paine v. Lake Erie, &c. R. R. (31 Ind. 
 
 383) 26 
 Paine v. Miller, (6 Ves. 349) 36 
 Paine v. Mooreland, (15 Ohio, 435) 70 
 Paine v. Parsons, (14 Pick. 318) 183, 183, 
 
 185, 187 
 Paine v. Roberts, (83 N. C. 451) 274 
 Paine v. Upton, (87 N. Y. 327) 229, 594 
 Paisley's App. (70 Pa. St. 153) 330 
 Palki). Clinton, Lord, (13 Ves. 48) 507 
 Palmer v. Bethard, (60 111. 539) 330 
 Palmer v. Ford, (70 III. 369) 33, 33, 50, 316 
 Palmer v. Guthrie, (76 Pa. St. 441) 489 
 Palmer v. Hartford Fire Ins. Co. (54 
 
 Conn. 488) 233 
 Palmer v. Merrill, (6 Cush. 282) 453 
 Palmer v. Newell, (20 Beav. 33) 183, 188 
 Palmer v. Oakley, (3 Dougl., Mich., 433) 
 
 357 
 Palmer v. Sterling, (41 Miss. 318) 473 
 Palmer v. Williams, (34 Mich. 338) 67, 
 
 73 
 Palmetto Lumber Co. v. Risley, (35 S. C. 
 
 309) 357 
 Pamperin v. Scanlan, (38 Minn. 345) 507 
 Pancoast v. Duval, (36 N. J. Eq.445) 68 
 Papineau v. Naumkeag, &c. Co. (136 
 
 Mass. 373) 453 
 Parent v. Callerand, (64 III. 97, 99) 403 
 Parfitt V. Chambre, (L. R. 15 Eq. 36) 45 
 Paris V. Lewis, (Preem. Ch., Miss., 399; 
 
 85 111. 597) 77 
 Paris Exch. Bk. v. Beard, (49 Tex. 358) 
 
 473 
 Parish v. Stone, (14 Pick. 198) 432 
 Park V. Johnson, (4 Allen, 359) 335 
 Park's Dist'ee v. Park's Adm'rs, (36 
 
 Ala. 133) 418 
 Parke v. Chadwick, (8 W. & S. 96) 107, 
 
 109 
 Parke v. Hush, (29 Minn. 434) 507 
 Parker v. Barker, (3 Mete. 433; 42 N. 
 
 H. 78) 66 
 Parker v. Byrnes, (1 Low 0. C. 539) 348, 
 
 249 
 
773 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Parker v. Coburn, (10 Allen, 82) 193 
 Parker v. Connor, (93 N. Y. 118) 111 
 Parker v. Crittenden, (37 Conn. 148) 143 
 Parker v. Dacres, (3 Wash. 439) 517 
 Parker v. Fay, (43 Miss. 260) 93, 94, 104, 
 
 111 
 Parker v. Foy, (43 Miss. 360) 112, 47.5 
 Parker v. Hendrick, (29 Vt. 388) 296 
 Parker v. Jacobs, (14 S. C. 112) 448 
 Parker v. Kane, (4 Wis. 1) 93, 111, 112, 118 
 Parker©. Kelly, (10 Sm. & Mar. 184) 
 
 475 
 Parker v. Logan, (82 Va. 376) 353 
 Parker v. May, (5 Cush. 336) 348 
 Parker v. Muwell, (60 N. H. 30) 398 
 Parker v. Nightingale, (6 Allen, 341) 438 
 Parker v. Osgood, (3 Mass. 487) 93 
 Parker v. Snyder, (31 N. J. Eq. 164) 353 
 Parker v. Sowerby, (4 De G, M. & G. 321) 
 
 172 
 Parker v. Syracuse, (31 N. Y. 376) 453 
 Parker v. Turner, (1 Vern. 458) 147 
 Parker v. Vose, (45 Me. 54) 279 
 Parker v. Winnipiseogee, &c. Co. (2 
 
 Black, 545) 547, 563 
 Parker's Ex'rs v. Moore, (35 N. J. Eq. 
 
 228) 425 
 Park hurst v. Alexander, (1 Johns. Ch., 
 
 N. Y., 394) 287 
 Parkhurst v. Howell, (L. E. 6 Ch. 136) 
 
 187, 188 
 Parkhurst ». Muir, (7 N. J. Eq. 307) 638 
 Parkhurst D. Van Cortlandt, (1 Johns. 
 
 Ch. 273) 336, 335 
 Parkinson's Appeal, (32 Pa. St. 455) 199 
 Parkist v. Alexander, (1 Johns. Ch. 394) 
 
 103, 105 
 Parkman v. Welch, (19 Pick. 331) 391. 539 
 Parks V. Evansville R. R. (33 Ind. 567) 145 
 Parks V. Hall, (3 Pick. 311) 488 
 Parks V. Jackson, (11 Wend. 443) 71, 134, 
 
 127 
 Parks V. Parks, (19 Md. 323) 182, 183 
 Parks V. Smith, (94 Pa. St. 46) 296 
 Parlin v. Stone, (1 McCrary, 443) 329 
 Parmalee v. Wheeler, (33 Wis. 429) 79 
 Parmelee v. Cameron, (41 N. Y. 393) 277 
 Parmer's Adm'r v. Parmer, (88 Ala. 545) 
 
 490 
 Parmlee v. Adolph, (38 Ohio St. 10) 256, 
 
 262 
 Parr v. Brady, (37 N. J. L. 301) 295 
 Parrlsh v. Brooks, (4 Brews. 154) 87, 94 
 Parrott v. Baker, (83 Ga. 364) 490 
 Parrott v. Byers, (40 Cal. 614) 85 
 Parrott v. Parrott, (1 Heisk. 681) 596 
 Parsell v. Thayer, (39 Mich. 467) 117 
 
 Parshall v. Eggart, (53 Barb. 367) 530 
 Parshall's Appeal, (65 Pa. St. 324) 380 
 Parsons v. Bedford, (3 Pet. 447) 31 
 Parsons v. Gilbert, (45 Iowa, 33) 587 
 Parsons v. Hoyt, (34 Iowa, 154) 137 
 Parsons v. Hughes, (9 Paige, 591) 363 
 Parsons v. Johnson, (68 N. Y. 63) 153 
 Parsons v. Lyman, (33 Conn. 566) 420 
 Parsons v. Parsons, (9N. H. 309) 413 
 Parsons ». Woodward, (3 Zabr. 196)445 
 Partridge v. Cavander, (96 Mo. 453) 341 
 Partridge v. Chapman, (81 111. 137) 117 
 Partridge v. McKinney, (10 Cal. 181) IIT 
 Partridge v. Messer, (14 Gray, 180) 358 
 Partridge v. Partridge, (38 Pa. St. 78) 501 
 Paschall v. HInderer, (38 Ohio St. 568) 35 
 Passenger R. Co. ■». Philadelphia, (3 W. 
 
 H. C, Pa., 639) 559 
 Patchin v. Pierce, (12 Wend. 61) 539 
 Paterson v. Paterson, (1 Halst. Ch. 389> 
 
 413 
 Paterson, &c. R. R. v. Jersey City, (1 
 
 Stockt. Ch. 434) 569 
 Paton V. Lancaster, (38 Iowa, 494) 640 
 Patrick v. Littell, (36 Ohio St. 79) 405 
 Patten v. Coen, &c.Co. (3 Col. 265) 449 
 Patten v. Moore, (32 N. H. 382) 72, 117» 
 
 131 
 Patten t>. Patten, (75111. 446) 407 
 Patten v. Wilson, (31 Pa. St. 399) 453 
 Patterson v. Allen, (50 Tex. 23) 430 
 Patterson v. Bloomer, (35 Conn. 57) 218» 
 
 330, 333 
 Patterson v. Bondurat, (30 Gratt., Va., 
 
 94) 368 
 Patterson v. Brown, (32 Barb. 81) 125 
 Patterson v. Dela Ronde, (8 Wall. 300) 
 
 108 
 Patterson v. Donner, (48 Cal. 369) 106j 
 
 109 
 Patterson v. Lawrence, (90 111. 174) 407 
 Patterson v. Linder, (14 Iowa, 414) 69, 
 
 473 
 Patterson v. McCamant, (28 Mo. 310)603 
 Patterson v. Patterson, (13 Johns. 379) 
 
 193 
 Patterson v. Patterson, (N. H. 164) 407 
 Patterson v. Perry, (14 How.Pr. 505) 661 
 Patterson v. Wilson, (64 Mo. 193) 384, 386. 
 Patterson v. Yeaton, (47 Me. 308) 276 
 Patteson v. Horsley, (39 Gratt. 363) 368 
 Pattison v. Horn, (1 Grant's Cas. 301) 
 
 358 
 Pattison v. Josselyn, (43 Miss. 373) 345v 
 
 347 
 Patton V. Beecher, (62 Ala. 579) 335 
 Patton V. Campbell, (70 111. 73) 214 
 
TABLE OF CASES CITED. 
 
 773 
 
 RBf='ERENCES ARE TO PAGES. 
 
 Patton V. Chamberlain, (44 Mich. 5) 327, 
 
 336 
 Patton V. Coen, &e. Co. (3 Col. 265) 447 
 Patton V. Crow, (26 Ala. 426) 382 
 Patton, Estate of, (Myrick's Prob., Cal., 
 
 243) 174 
 Patton V. Hoge, (22 Gratt. 443) 478 
 Patton V. Merchants' Bk. (13 W. Va. 
 
 587) 397 
 Patton V. Rankin, (68 Ind. 245) 406 
 Patton V. Thompson, (2 Joues' Bq. 285) 
 
 279 
 Patty V. Goolsby, (51 Ark. 61) 383 
 Patty V. Pease, (8 Paige, 277) 526 
 Paul V. Connersville, &c. R. R. (51 Ind. 
 
 527) 95, 113 
 Paul V. Crocker, (8 N. H. 288) 295 
 Paul V. Fulton, (25 Mo. 156) 71 
 Paul V. Leavitt, (53 Mo. 595) 395 
 Paulk V. Cooke, (39 Conn. 566) 291 
 Paulk V. Wolfe, (34 Ala. 541) 405 
 Paxton V. Harrier, (11 Pa. St. 313) 529 
 Paxton V. Stuart, (80 Va. 873) 358 
 Payne v. Abercrombie, (lOHeisk. 161) 112 
 Payne v. Atterbury, (Harr., Mich., 414) 
 
 473 
 Payne v. Avery, (21 Mich. 524) 382 
 Payne v. Compton, (3 Y. & C. 457) 41 
 Payne v. Dudley, (1 Wash., Va., 196) 573 
 Payne v. Harrell, (40 Miss. 498) 479 
 Payne v. Hutcheson, (33 Gratt. 813) 393 
 Payne v. Mortimer, (1 (Jife. 118) 343 
 Payne v. Parsons, (14 Pick. 313) 183 
 Payne v. Patterson, (77 Pa. St. 134) 358 
 Payne v. Payne, (18 Cal. 291, 292) 174 
 Payne v. SLeldon, (63 Barb. 169) 618 
 Payne v. Twyman, (68 Mo. 339) 392 
 Payne v. Wilson (74 N. Y. 348) 463 
 Paynter v. Evans, (7 B. Mon. 430) 573 
 Payson v'. Burnham, (141 Mass. 547) 438 
 Peabody v. Fenton, (3 Barb. Ch. 451) 74, 
 
 75, 95 
 Peabody «. Flint, (6 Allen, 52) 35, 145 
 Peabody v. Norfolk, (98 Mass. 452) 551 
 Peachy v. Somerset, (1 Stra. 477) 33 
 Peacock v. Evans, (16 Ves. 513) 28 
 Peake v. t,a Baw, (21 N. J. Eq. 369) 397 
 Pearce v. Billings, (10 E. I. 102) 435 
 Pearce v. Blackwell, (13 Ired. 49) 253,260 
 Pearce v. Brooks, (L. E. 1 Exch. 312) 
 
 371 
 Pearce v. Calhoun, (59 Mo. 271) 419 
 Pearce v. Foreman, (29 Ark. 563) 475 
 Pearce v. Suggs, (85 Tenn. 724) 218 
 Pearce v. Wilson, (111 Pa. St. 14) 53 
 Pearl v. Hervey, (70 Mo. 160) 473 
 Pearse v. Pettis, (47 N. Y. 276) 65 
 
 Pearson v. Carter, (94 Pa. St. 275) 296 
 Pearson v. Darrington, (18 Ala. 348; 31 
 
 Ala. 169) 17 
 Pearson v. Lane, (17 Ves. 101) 208 
 Pearson v. Seay, (35 Ala. 612) 53 
 Pearson v. Williams, (24 Wend. 244) 48, 
 
 49 
 Pease v. Jackson, (L. R. 3 Ch. 576) 76 
 Pease v. Kelly, (3 Greg. 417) 473 
 Pease v. McClelland, (2 Bond, 42) 251 
 Peasley v. McFadden, (68 Cal. 611) 117 
 Peay v. Capps, (27 Ark. 160) 73 
 Peck V. Ashley, (12 Met. 478) 649 
 Peck V. Braman, (2 Blackf. 141) 430 
 Peck V. Brighton Co. (69 111. 200) 587 
 Peck V. Brummagim, (31 Cal. 440) 160 
 Peck V. Bullard, (3 Humph. 41) 363 
 Peck V. Gurney, (L. R. 6 H. L. 403) 251 
 Peck V. Jenness, (7 How. 613, 630) 463 
 Peck V. Land, (2 Kelly, 1) 289 
 Peek V. List, (23 W. Va. 338) 244 
 Peck V. Mallams, (10 N. Y. 509) 102 
 Peck V. Walton, (26 Vt. 83) 406 
 Peck V. Ward, (18 Pa. St. 506) 407 
 Pecker v. Cannon, (U Iowa, 30) 38, 441 
 Peckham v. Haddock, (36 111. 38) 465 
 Peckham Iron Co. v. Harper, (41 Ohio 
 
 St. 100) 280 
 Peckham v. Lego, (57 Conn. 553) 383 
 Pedder, In re, (5 De G. M. & G. 890) 35, 
 
 307, 208 
 Pedley v. Dodds, (L. R. 2 Eq. 819) 232 
 Peduck V Porter, (5 Allen, 324) 343, 350 
 Peebles i;. Reading, (8 Serg. &R.484) 113 
 Peek V. Gurney, (L. R. 13 Eq. 79) 254 
 Peery v. Hall, (75 Mo. 503) 141 
 Pegnes v. Pegnes, (5 Ired. Eq. 418) 354 
 Pegram v. Armstrong, (83 N. C. 326) 419 
 Peine v. Weher, (47 111.41) 46, 47 
 Peirce v. U. S. (Ct. of CI. 270) 112 
 Peirsoll v. Elliott, (6 Pet. 95) 596, 637 
 Pelham v. Aldrich, (8 Gray, 515) 291 
 Pell V. McElroy, (36 Cal. 368) 117 
 Peltier v. Peltier, (Harring. Ch. 19) 413 
 Pel ton V. Westchester Fire Ins. Co. (77 
 
 N. Y. 605) 350 
 Pelzer v. Campbell, (15 S. C. 581) 404 
 Pember v. Mathers, (1 Bro. Ch. 52) 235 
 Pemberton v. Johnson, (46 Mo. 342) 405 
 Pemberton v. Pemberton, (29 Me. 408) 
 
 170, 173 
 Pence v. Langdon, (99 U. S. 578) 363 
 Pendarvis i>. Gray, (41 Tex. 326) 255 
 Pendleton v. Fay, (2 Paige, 202) 94, 111 
 Penfield v. Dunbar, (64 Barb. 339) 67, 
 
 68, 71 
 Penfield v. Skinner, (11 Vt. 296) 348 
 
1U 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES, 
 
 Penfield v. Thayer, (2E. D. Smith, 305) 
 
 433 
 Penn ■». Baltimore, Lord, (1 Ves. Sen. 
 
 144) 550 
 Penn v. Hayward, (14 Ohio St. 303) 544 
 Penn v. Whitehead, (17 Gratt. 503) 405 
 Penn v. Young, (10 Bush, 626) 406 
 Pennell v. Davidson, (18 C. B. 355) 294 
 Pennell's Appeal, (8 Harris, 515) 209 
 Pennington v. Sittings, (2 Gill & J. 208) 
 
 433 
 Pennington v. Hanby, (4 Munf. 140) 53 
 Pennock v. Coe, (23 How., U. S., 117) 449 
 Pennock v. Lyons, (118 Mass. 92) 372 
 Pennock's Appeal, (14 Pa. St. 446) 244, 245 
 Pennock's Estate, (30 Pa. St. 268) 331 
 Pennsylvania v. Wheeling, &c. Bridge 
 
 Co. (13 How., U. S., 518) 21, 559 
 Penn. &c. Co. v. Delaware, &c. Co. (31 N. 
 
 Y. 91) 569 
 Penn. Co. for Ins. v. Foster, (35 Pa. St. 
 
 134) 398 
 Penn. Life Ins. Co. v. Stokes, (61 Pa. St. 
 
 136) 159 
 Penny v. Cook, (19 Iowa, 538) 364 
 Penny v. Martin, (4 Johns. Ch. 566) 213, 
 
 218 
 Penny v. Watts, (2 De G. & Sm. 501) 214 
 Penny v. Watts, (1 Maen. & G. 150) 91, 
 
 98, 123 
 Pensonneau v. Bleakley, (14 111. 15) 56, 
 
 60,62 
 People V. Brown, (67 111. 435) 137 
 People V. Crockett, (9 Cal. 112) 85 
 People V. Davidson, (3 Cal. 379, 380) 417 
 People V. Dayton, (50 How, Pr. 143) 449 
 People V. Elmore, (35 Cal. 653) 83, 85, 86 
 People V. Houghtaling, (7 Cal. 348) 265 
 People 1!. Jacobs, (35 Mich. 86) 342, 259 
 People V. Jenkins, (17 Cal. 500) 88, 441 
 People V. Lord, (6 Hun, 390) 246 
 People V. Mercein, (8 Paige, 47) 303 
 People V. New York, (19 Wend. 104) 45 
 People V. Norton, (9 N. Y. 176) 361 
 People V. Open Board of S. B. B. Co. (92 
 
 N. Y. 98) 287 
 People V. Security Ins. Co. (78 N. Y. 114) 
 
 673 
 People V. Third Av. E. E. (45 Barb. 63) 
 
 559 
 People 11. Williams, (8 Daly, 264) 404 
 People's Bank v. Bogart, (81 N. Y. 101) 
 
 251, 352, 353 
 People's Sav. Bk. v. Denlg, (131 Pa. St. 
 
 241) 337 
 Pepper v, George, (51 Ala. 190) 131 
 Pepper v. Lee, (53 Ala. 38) 393 
 
 Pepper's Will, (1 Pars. Eq. 486) 315, 330 
 Percival v. Harger, (40 Iowa, 386) 258 
 Percival v. Hurd, (5 J. J. Marsh., Ky.,. 
 
 670) 633 
 Perfect v. Lane, (3 De G. F. & J. 369) 37S 
 Perkins ■». Bailey, (99 Mass. 61) 262 
 Perkins v. Brierfield & Co. (77 Ala. 408) 
 
 507 
 Perkins v. Elliott, (23 N. J. Eq. 526) 406 
 Perkins v. Emory, (55 Md. 27) 480 
 Perkins ^).Gibson, (51 Mis.=. 699) 473 
 Perkins v. Hays, (3 Gray, 405) 399 
 Perkins v. Hendryx, (23 Fed. Eep. 418) 16. 
 Perkins v. Little, (1 Greenl. 148) 170 
 Perkins v. Lyman, (11 Mass. 76) 47, 49 
 Perkins I). Nichols, (11 Allen, 545) 853 
 Perkins v. Partridge, (80 N. J. Eq. 82) 
 
 241, 250 
 Perkins v. Perkins, (1 Tenn. Ch. 587) 395 
 Perkins v. Perkins, (21 Ga. 13) 419 
 Perkins v. Perkins, (16 Mich. 163) 17 
 Perkins v. Presuell, (100 N. C. 230) 833 
 Perkins v. Swank, (43 Miss. 349) 118, 12a 
 Perkins v. Trippe, (40 Ga. 235) 659 
 Perkins v. Webster, (3 N. H. 287) 239 
 Perot V. Levasseur, (21 La. Ann. 529) 
 Perrin v. Eeed, (35 Vt. 2) 105 
 Perry v. Boileau, (10 Serg. & E. 208)395 
 Perry v. Craig, (3 Mo. 516) 539 
 Perry v. Foster, (8 Harr. 298) 295 
 Perry v. Grant, (10 R. I. 834) 474 
 Perry v. Holl, (2 De G. F. & J. 38) 98, 
 
 130 
 Perry v. Johnston, (59 Ala. 648) 251 
 Perry v. Maxwell, (2 Dev. Eq. 488) 193, 
 
 198 
 Perry v. McHenry, (33 111. 227) 354 
 Perry v. Pearson, (1 Humph. 431) 333, 
 
 338 
 Perry v. Pettlngill, (83 N. H. 438) 536 
 Perry v. Phillips, (4 Ves. 107) 84 
 Perry v. Vezina, (63 Iowa, 25) 393 
 Perry v. Whitehead, (6 Ves. 546) 185 
 Perry Herrick v. Attwood, (2 De G. & 
 
 J. 21) 60 
 Persch v. Quiggle, (57 Pa. St. 347) 282 
 Person v. Oberteuffer, (59 How. Pr. 839) 
 
 450 
 Peruvian Ey. Co., In re, (L. R. 2 Ch. 
 
 617) 131 
 Pervis v. Sherrod, (13 Tex. 140) 415 
 Peter v. Beverly, (10 Peters, 583) 35, 36, 
 
 817, 861 
 Peters v. Beverly, (10 Pet. 533, 533) 302 
 Peters v. Clements, (46 Tex. 114) 478 
 Peters v. Florence, (38 Pa. St. 194) 319. 
 
 233 
 
TABLE OF CASES CITED. 
 
 775 
 
 REFERENCES ARE TO PAGES. 
 
 Peters v. Goodrich, (3 Conn. 146) 94, 105, 
 
 113 
 Peters v. Jones, (35 Iowa, 512) 137, 143 
 Peters v. Mortimer, (4 Edw. Ch. 279) 
 
 268,269 
 Peterson v. Chicago, &c. E. R. Co. (38 
 
 Minn. 511) 264 
 Peterson B/Clark, (15 Johns. 205) 53, 53 
 Peterson v. Glover, (20 Me. 363) 233 
 Peterson v. Railway Co. (5 Phila., Pa., 
 
 199) 559 
 Peterson's Appeal, (88 Pa. St. 397) 199 
 Petesch v. Hambach, (48 Wis. 443) 223 
 Peto V. Hammond, (30 Beav. 495) 40 
 Petree v. Bell, (3 Bush, 58) 125 
 Petrie v. Wright, (6 Sm. & Mar. 647) 464 
 Pettett V. Crawford, (51 Miss. 43) 628 
 Pettibone v. Hamilton, (40 Wis. 402) 559, 
 
 563 
 Pettibone v. La Crosse, &c. R. Co. (14 
 
 Wis. 443) 563 
 Pettingill v. Elkins, (50 Vt. 431) 296 
 Pettis V. Kellogg, (7 Cush. 456) 450 
 Pettit V. Shepherd, (5 Paige, 493) 643 
 Petty V. Malier, (15 B. Mon. 604, 591) 
 
 337 
 Petty V. Mellier, (15 B. Mon. 591) 237 
 Petty V. Sty ward, (1 Eq. Cas. Abr. 290) 
 
 39 
 Peyser v. Wendt, (87 N. Y. 322) 419 
 Pfeifer v. Dargan, (14 S. C. 44) 293 
 Pfeifer v. Snyder, (72 Ind. 78) 265 
 Pfister V. Wade, (56 Cal. 43) 657 
 Phalen v. Clark, (19 Conn. 421) 270 
 Pharis v. Leachman, (20 Ala. 663) 418 
 Phelan v. Crosby, (2 Gill, 462) 346 
 Pheland v. Brady, (19 Abb. N. C, N. 
 
 Y., 289) 117 
 Phelps V. Harris, (51 Miss. 789, 794) 17, 
 
 363 
 Phelps ». Jackson, (31 Ark. 372) 357 
 Phelps V. Morrison, (24 N. J. Eq. 195) 
 
 65, 74, 75 
 Phelps t7. Murray, (2 Tenn. Ch. 746) 449 
 Phelps V. Peabody, (7 Cal. 50) 25, 144 
 Phelps «. Pond, (23 N. Y. 69) 434 
 Phelps V. Watertown, (61 Barb. 121) 606 
 Philadelphia v. Collins, (68 Sandf. 106) 
 
 559 
 Philadelphia v. Davis, (lWhart.510, 513, 
 
 517) 158, 160, 165, 167, 178 
 Philadelphia v. Girard, (45 Pa. St. 9) 348 
 Philadelphia v. Elliott, (3 Rawle, 170) 
 
 349 
 Philadelphia v. Foxj (64 Pa. St. 169) 349 
 Philadelphia u. Loekhardt, (73 Pa. St. 
 811) 445 
 
 Philadelphia v. Williamson, (10 Phila. 
 
 176) 143 
 Phila., &c. R. R. v. Waelpper, (64 Pa. St. 
 
 366) 449 
 Philbrook v. Delano, (29 Me. 410) 308, 
 
 474 
 Philips V. Bank of Lewiston, (18 Pa. St. 
 
 394) 107, 109 
 Phillips tj. Bank of Lewistown, (6 Harris, 
 
 18 Pa. St., 394, 404) 90, 95, 96, 109 
 Phillips V. Belden, (2 Edw. Ch. 1) 262 
 Phillips V. Belding, (3 Edw. Ch. 15) 279 
 Phillips D. Berger, (2Barb. 608) 579 
 Phillips V. Blatchford, (137 Mass. 510) 
 
 625 
 Phillips V. Costley, (40 Ala. 486) 117, 123 
 Phillips V. Crammond, (3 Wash. C. Ct. 
 
 441) 357 
 Phillips V. Eiland, (52 Miss. 721) 671 
 Phillips V. Poxhall, (L. R. 7 Q. B. 679)351 
 Phillips V. Gorham, (17 N. Y. 370) 337 
 Phillips V. Graves, (30 Ohio St. 371) 405 
 Phillips V. Hassell, (10 Humph. 197) 409 
 Phillips V. Moore, (11 Mo. 600) 275 
 Phillips V. Overfield, (100 Mo. 466) 358 
 Phillips V. Phillips, (4 De G. F. & J. 308) 
 
 40, 41, 56, 60, 63, 64, 65, 74 
 Phillips u. Phillips, (50 Mo. 603) 38 
 Phillips V. Phillips, (112 N. Y. 197) 331 
 Phillips V. Prevost, (4 Johns. Ch. 305) 25, 
 
 651 
 Phillips V. Reitz, (16 Kans. 396) 294 
 Phillips V. Sarjent, (7 Hare, 33) 205 
 Phillips V. Skinner, (6 Bush, 663) 473 
 Phillips V. Soule, (9 Gray, 233) 579 
 Phillips V. Slagg, (2 Edw. Ch. 108) 453 
 Phillips V. Stanch, (20 Mich. 369) 36, 591 
 Phillips V. Stone Mountain, (61 Ga. 386) 
 
 547 
 Phillips V. Sylvester, (L. R. 8 Ch. 173) 36 
 Phillips V. Thompson, (1 Johns. Ch. 131) 
 
 437 
 Phillips V. Winslow, (18 B. Mon. 431) 449 
 Philpott V. Elliott, (4 Md. Ch. 373) 233, 
 
 238 
 Phippen v. Stickney, (3 Met. 384) 244, 347 
 Phipps V. Buckman, (30 Pa. St. 403) 360 
 Phipps V. Hope, (16 Ohio St. 586) 435 
 Phoenix Mut. Life Ins. Co. v. Grant, (3 
 
 MacArthur, 320) 671 
 Phyfe V. Warden, (3 Edw. Ch. 47) 238, 
 
 575 
 Piatt V. Longworth's Devisees, (27 Ohio 
 
 St. 159) 287 
 PiattD. Vattier, (9 Pet., U. S., 405, 416, 
 
 417) 563 
 Pickens v. Oliver, (29 Ala. 528) 405 
 
^76 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Plekerell v. Morss, (97 111. 230) 274, 596 
 Pickering v. Coates, (10 Phila. 65) 400 
 Pickering v. Dawson, (4 Taunt. 779) 253 
 Pickering v. Pickering, (3 Beav. 31) 221, 
 
 337 
 Pickering v. Pickering, (4 My. & Cr. 289) 
 
 305 
 Pickering v. Shotwell, (10 Barr. 23) 347 
 Pickering v. Steplienson, (L. R. 13 Eq. 
 
 332) 555 
 Pickersgill v. Lahens, (15 Wall. 140), 38 
 Pickersgill v. Rodgers, (5 Ch. D. 163) 160 
 Pickett V. Barron, (39 Barb. 505) 66, 67 
 Pickett V. Merch. Nat. Bk. (33 Ark. 346; 
 
 38 Iowa, 84) 143, 269 
 Pickett V. Peay, (3 Brevard, 545) 170 
 Pickney v. Pickney, (2 Ricix. Eq. 219, 237) 
 
 176, 177 
 Pickstock V. Lyster, (3 Manle & S. 371) 
 
 292 
 Pier V. Fonddu Lac, (38 Wis. 470) 637, 640 
 Pierce v. Andrews, (6 Cush. 4) 142 
 Pierce v. Boston Sav. Bk. (129 Mass. 425) 
 
 431 
 Pierce v. Emery, (32 N. H. 484) 449 
 Pierce v. Faunce, (47 Me. 507; 53 Me. 351) 
 
 79 
 Pierce v. Felter, (53 Cal. 18) 640 
 Pierce v. Puller, (8 Mass. 233) 46 
 Pierce v. Kittredge, (115 Mass. 374) 406 
 Pierce v. Pierce, (7 B. Mon. 438) 354 
 Pierce v. Robinson, (13 Cal. 116) 52, 489 
 Pierce v. Taylor, (23 Me. 346) 103, 106, 110 
 Pierce v. Tliompson, (26Kans. 714) 640 
 Pierce v. Wilson, (34 Ala. 596) 262 
 Pierpont v. Fowle, (2 Wood & M. 23) 563 
 Pierreponti;. Edwards, (25 N. Y. 128) 426 
 Pierrepont v. Sands, (4 Redf. 206) 426 
 Pierson v. Catlin, (18 Vt. 77) 631 
 Pierson v. David, (4 Iowa, 23) 473 
 Pierson v. Garnet, (2 Bro. Cli. 38) 313 
 Pierson v. Lum, (25 N. J. Eq. 390) 406 
 Pifer V. Ward, (8 Blackf. 252) 206 
 Piggott V. Stratton, (1 De 6. F. & J. 33) 
 
 343 
 Pike V. Calvin, (67 111. 227) 539 
 Pike V. Pay, (101 Mass. 134) 341 
 Pike V. Galvin, (29 Me. 183) 103 
 Pike V. Goodnow, (12 Allen, 473) 114 
 Pike V. Robertson, (97 Mo. 615) 117 
 Pilcher v. Rawlins, (L. R. 7 Ch. 259) 41, 
 
 76 
 Pilkington's Ex'r v. Gaunt's Adm'x, (5 
 
 Dana, 410) 418 
 Pillow V. Helm, (7 Baxt. 545) 478 
 Pillow V. Shannon, (3 Yerg. 508) 73, 74, 
 
 75 
 
 Pillow V. Thompson, (20-Tex. 306) 35, 144 
 Pim V. Downing, (11 Serg. & R. 66) 371 
 Pinch V. Anthony, (8 Allen, 536) 197, 463 
 Pinchaim v. Collard, (13 Tex. 333) 473 
 Pinckard v. Pinckard, (33 Ala. 649) 338 
 Pinckston v. Brown, (3 Jones' Eq. 494) 
 
 270 
 Pindall v. Trevor, (30 Ark. 249) 61, 87 
 Pindell v. Pindell, (4 Md. 537) 173 
 Pindell v. Quin, (7 111. App. 605) 569 
 Pingree v. Comstock, (18 Pick. 46) 343 
 Piugree v. McDuffie, (56 N. H. 306) 433 
 Pinkerton v. Manchester, &c. R. R. (43 
 
 N.H. 434)86 
 Pinnell v. Hallett, (Ambl. 106) 196 
 Pinney v. Fellows, (15 Vt. 535) 335 
 Pinson v. Gilbert, (57 Ala. 35) 373 
 Pinsou V. Ivey, (1 Yerg. 335) 309 
 Pippen V. Wesson, (74 N. C. 437) 407 
 Piscataqua Ins. Co. ■». Hill, (60 Me. 178) 
 
 365 
 Pitcairn v. Ogbourne, (2 Ves. Sen. 375) 
 
 336 
 Pitcher v. Dove, (99 Ind. 175) 138, 140 
 Pitcher v. Hennessy, (48 N. Y. 415) 333 
 Pitkin V. Pitkin, (7 Conn. 315) 430 
 Pitney «. Leonard, (1 Paige, N. Y., 461) 
 
 111 
 PittB.Pidgeon, (1 Ch. Cas. 301) 190 
 Pitt V. Pitt, (22 Beav. 294) 148, 151, 153 
 Pittenger v. Pittenger, (3 Green's Ch.) 
 
 375 
 Pittigrew v. Chellis, (4 N. H. 95) 355 
 Pittman v. Gaty, (5 Gilm.186) 120 
 Pittman v. Sofley, (64 111. 155) 112 
 Pitts V. Aldrich, (11 Allen, 39) 151 
 Pitts V. Parker, (44 Miss. 247) 471 
 Pitts V. Singleton, (44 Ala. 363) 365 
 Pittsburgh R. R. v. Mount Pleasant R. 
 
 R. (26 P. F. Smith) 43 
 Pittsburgh R. R. v. Reno, (22 111. App. 
 
 470) 438 
 Pixley V. Huggins, (15 Cal. 127, 134) 69, 
 
 139 
 Plaisted v. Holmes, (58 N. H. 393) 396 
 Plant V. Barclay, (56 Ala. 561) 637 
 Plant V. Shrylock, (63 Miss. 831) 113 
 Plant V. Smythe, (45 Cal. 161) 69, 139 
 Planters' Bk. v. Kesse, (7 Heisk. 200) 458 
 Planters' Bk. v. Merrit, (7 Heisk. 117) 
 
 458 
 Planters' Bk. v. Prater, (64 Ga. 609) 357 
 Planters' Rice Mill Co. v. Olstead, (78 
 
 Ga. .586) 113 
 Plato V. Roe, (14 Wjs. 453) 52 
 Piatt*. Sleap, (Cro! Jac. 275) 146 
 Piatt V. Squire, (12 Mete. 494) 60 
 
TABLE OF CASES CITED. 
 
 T77 
 
 REF^ERENOES ARE TO PAGES. 
 
 Platteville v. Galena, &c. E. R. (43 Wis. 
 
 493) 555 
 Pleasants' Appeal, (77 Pa. St. 356) 199, 
 
 203, 306 
 Plowden v. Hyde, (2 De G. M. & G. 684) 
 
 165 
 Plum V. Studebaker, (89 Mo. 162) 343 
 Plumer v. Jarman, (44 Md. 632) 406 
 Plumer v. Lord, (9 Allen, 455) 243 
 Plumer v. Robertson, (6 S. & R. 179) 
 
 107, 109, 121 
 Plummer v. Kepler, (26 N. J. Bq. 481) 
 
 26 
 Plummer v. Mold, (22 Minn. 15) 141 
 Plunkettc. Lewis, (3 Hare, 330) 193, 194 
 Pocock V. Redinger, (108 Ind. 573) 232 
 Poillon V. Martin, (1 Sandf. Ch. 569) 81, 
 
 87 
 Poindexter v. Bavis, (6 Gratt. 481) 651 
 Poind^xter v. Jeffries, (15 Gratt. 363) 408 
 Poindexter v. McCannon, (1 Dev. Eq. 
 
 373) 53 
 Pblden v. Bastard, (L. R. 1 Q. B. 156) 
 
 232 
 Pole V. Somers, (6 Ves. 309) 183, 189, 194 
 Poler V. Dubuque, (20 Iowa, 440) 473 
 Polls V. Tice, (28 N. J. Eq. 432) 304 
 Polk V. Cosgrove, (4 Biss. 487) 116 
 Polk V. Pendleton, (31 Md. 118) 638 
 Polk V. Reynolds, (31 Md. 106) 149 
 Polk V. Rose, (25 Md. 153) 638 
 Pollard, Ex pane, (17 Bank Reg. 228) 49 
 Pollard V. Cooke, (19 Ala. 188) 70, 71 
 Pollexfen v. Moore, (3 Atk. 272, 373) 36, 
 
 200 
 Polley V. Seymour, (3 Y. & C. Ex. 708) 
 
 201 
 Pollock V. Gilbert, (16 Ga. 398) 569 
 Pollock V. National Bk. (7 N. Y. 374) 83 
 Poison V. Young, (37 Iowa, 196) 383 
 Pomeroy v. Bailey, (43 N. H. 118) 290 
 Pomeroy v. Benton, (77 Mo. 64) 631 
 Pomeroy v. Latting, (15 Gray, 435) 58 
 Pomeroy v. Wells, (8 Paige, 406) 413 
 Pomroy v. Stevens, (11 Mete. 344) 110, 118 
 Pond V. Carpenter, (13 Minn. 430) 397 
 Pond V. Pond, (10 Cal. 495) 419 
 Pond V. Skeen, (3 Lea. 136) 408 
 Ponder v. Scott, (44 Ala. 341) 94, 95, 101 
 Ponton V. Ballard, (24 Tex. 619) 121 
 Ponton V. McAdoo, (17 N. Car. 101) 551 
 Pool V. Blaikic, (53 III. 495) 411 
 Pool «. Dial, (10 S. C.440) 365 
 Pool V. Docker, (93 III. 501) 16, 230, 418 
 Pool V. Lewis, (41 Ga. 163) 136 
 Pool, Succession of, (14 La. Ann. 677) 367 
 »ooley ». Ray, (1 P. Wms. 355) 217 
 
 Poor V. Hazleton, (15 N. H. 564) 376 
 PoorB. Woodburn, (25 Vt. 234) 65, 68 
 Pope V. Allen, (90 N. Y. 398) 131 
 Pope V. Cheney, (68 Iowa, 563) 398 
 Pope V. Cole, (55 N. Y. 124) 38, 441 
 Pope V. Hooper, (6 Neb. 178) 45 
 Pope V. Melone, (3 A. K. Marsh. 339) 
 Pope's Exr's v. Elliott, (8 B. Mon. 56) 341 
 Porch V. Fries, (18 N. J. Eq. 304) 406 
 Porcher v. Daniel, (13 Rich. Eq. 349) 381 
 Port V. Williams, (6 Ind. 319) 353 
 Port Clinton R. R. v. Cleveland, &c. R. 
 
 R. (13 Ohio St. 544) 579 
 Porter v. Bank of Rutland, (19 Vt. 410) 
 
 133 
 Porter v. Clark, (22 111. App. 567) 117 
 Porter v. Doby, (2 Rich. Eq. 49) 334 
 Porter v. Dubuque, (30 Iowa, 440) 475 
 Porter v. Nelson, (4 N. H. 130) 489 
 Porter r. Parmly, (43 How. Pr. 445) 530 
 Porter v. Parmly, (39 N. Y. S. C. 319) 282 
 Porter v. Peckham, (44 Cal. 204) 380 
 Porter v. Sevey, (43 Me. 519) 106, 110 
 Porter v. Turner, (3 Serg. & R. 108) 315, 
 
 230 
 Porter v. Williams, (9 N. Y. 142) 673 
 Porter v. Williams, (SSeld. 143) 293 
 Porter v. Woodruff, (36 N. J. Eq. 174) 280 
 Port Huron, &c. R. Co. v. Callaman, (61 
 
 Mich. 23) 331 
 Portsmouth lus. Co. i>. Reynold's Adm'x, 
 
 (33 Gratt. 613) 419 
 Posey V. Conaway, (10 Ala. 811) 637 
 Post I). Hover, (33 N. Y. 593) 340, 415 
 Post V. Leet, (8 Paige, 337) 237, 335 
 Posten V. Posten, (4 Whart. 26) 390 
 Poston V. Balch, (69 Mo. 115) 269 
 Poth V. Anstadt, (4 W. & S. 307) 107, 109 
 Potter V. Brown, (11 E. I. 333) 439 
 Potter V. Bunnell, (30 Ohio St. 150) 675 
 Potter V. Couch, (141 U. S. 296) 379 
 Potter V. Gardner, (13 Wheat. 498) 375 
 Potter V. McDowell, (43 Mo. 93) 69, 71, 
 
 129 
 Potter V. Page, (54 Pa. St. 465) 293 
 Potter V. Potter, (27 Ohio St. 84) 333 
 Potter V. Smith, (4 Qonn. 445) 296 
 Potter u. Stevens, (40 Mo. 229) 501 
 Potter V. Thornton, (7 R. I. 252) 346 
 Potter V. Titcomb, (32 Me. 300) 262 
 Potts V. Blackwell, (4 Jones' Eq. 58) 79 
 Pouton V. Ballard, (24 Tex. 619) 117 
 Powdrell v. Jones, (3 Sm. & Giff. 335) 196 
 Powell V. Bradlee, (9 Gill & J. 320) 248, 
 
 253 
 Powell V. Burroughs, (54 Pa. St. 339) 48, 
 49 
 
778 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Powell V. Clark, (5 Mass. 355) 239 
 Powell V. Cleaver, (2 Bro. Ch. 499) 185 
 Powell V. Demming, (22 Hun, 235) 643 
 Powell ». Denning, (22 Hun, 235) 415 
 Powell V. Dillon, (2 Ball& B. 416) 120 
 Powell V. Foster, (59 Ga. 790) 547 
 Powell V. Haley, (28 Tex. 52) 113 
 Powell V. Knowler, (2 Atk. 234) 28 
 Powell V. Mayo, (24 N. J. Eg. 178) 640 
 Powell V. Murray, (3 Edw. Ch. 636) 397 
 Powell V. Powell, (Prec. Ch. 278) 213 
 Powell V. Simms, (5 W. Va. 1) 153 
 Powell V. Smith, (L. E. 14 Eq. 85; 30Mich. 
 
 451) 150 
 Power V. Cassidy, (79 N. Y. 602) 199, 200 
 Power V. Davis, (3 MacArthur, 153) 483 
 Power D. Lester, (33 N. Y.527) 149 
 Power's Appeal, (63 Pa. St. 443) 276 
 Powers V. Bergen, (6 N. Y. 358) 328 
 Powers V. McFerron, (2 Serg. & R. 47) 104 
 Powers V. Chaplain, (50 N. J. Eq. 17) 269 
 Powers V. Hale, (5 Post. 145) 273 
 Powers V. Harris, (98 Ala. 410) 138 
 Powers V. Mayo, (97 Mass. 180) 272 
 Powys V. Mansfield, (3 My. & Cr. 359) 
 
 182, 185, 187 
 Poydras ». Delamere, (13 La., o. s., 1838, 
 
 98) 455 
 Prall V. Tilt, (28 N. J. Eq. 480) 82 
 Pralus V. Jefferson Min. Co. (34 Cal. 558; 
 
 35 Cal. 30) 640 
 Pralus V. Pacific, &o. Min. Co. (35 Cal. 
 
 30) 640 
 Prather v. Prather, (4Desau. 33) 413 
 Pratt V. Barker, (1 Sm. 1) 274 
 Pratt V. Bennington, Bk. of, (10 Vt. 393) 
 
 146 
 Pratt V. Carroll, (8 Cranch, 471) 263 
 Pratt V. Clark, (57 Mo. 189) 473 
 Pratt V. Coman, (37 N. Y. 440) 68 
 Pratt V. Eaton, (65 Mo. 157) 405 
 Pratt ». Pel ton, (4 Cush. 174) 173 
 Pratt V. Hoag, (5 Duer, 631) 135 
 Pratt V. Meyers, (56 111. 24) 290 
 Pratt V. Northam, (5 Mason, 95) 21, 414, 
 
 419 
 Pratt V. Oliver, (2 McLean, 313) 358 
 Pratt V. Philbrook, (33 Me. 17) 254, 259 
 Pratt V. Pratt, (33 Conn. 446) 555 
 Pratt V. Taliaferro, (3 Leigh, 419) 35, 199, 
 
 209 
 Pratt V. Taunton Copper Co. (133 Mass. 
 
 110) 83 
 Pratt V. Thornton, (28 Me. 355) 342 
 Pratt V. Topeka Bk. ((12 Kans. 570) 59 
 Pratt V. Vanwyck' Ex'rs, (6 Gill & J. 
 
 495) 473 
 
 Prattler v. Parker, (24 Iowa, 26) 295 
 Preachers' Aid Society v. Kich, (45 Me 
 
 553) 347 
 Pregnall v. Miller, (31 S. C. 385) 295 
 Prentice v. Achorn, (2 Paige, 30) 275 
 Prentice c.Janssen, (79 N. Y. 478) 19i 
 
 207,208 
 Prentice v. Nutter, (25 Minn. 484) 471 
 Prentice v. Zane, (2 Gratt. 262) 68 
 Prescott V. Hawkins, (16 N. H. 123) 229 
 Prescott V. Hawkins, (13 N. H. 19) 233 
 Prescott V. Heard, (10 Mass. 60) 71 
 Prescott V. Morse, (62 Me. 447) 414, 416 
 Prescott V. Norris, (32 N. H. 101) 27, 271 
 Prescott V. Wright, (4 Gray, 461) 253, 258 
 
 260 
 President v. Cornen, (37 N. Y. 330) 130 
 Pressly v. Stribling, (24 Miss. 537) 363 
 Preston v. Brown, (35 Ohio St. 18) 470 
 Preston v. Jones, (9 Pa. St. 456) 155, 170 
 Preston v. Mann, (35 Conn. 118) 140 
 Preston D. Preston, (5 Otto, 200; 3Jur., 
 
 N. s., 1040) 25 . 
 Preston v. Travelers' Ins. Co. (58 N. H. 
 
 76) 262 
 Preston v. Whitcomb, (17 Vt. 183) 233 
 Preston 17. Wilcox, (38 Mich. 578) 363 
 Prettiplace v. Sayles, (4 Mason, 321, 333) 
 
 294 
 Prettyman v. Supervisors, (19 111. 406) 
 
 606 
 Prevost V. Gratz, (1 Pet. C. Ct. 364) 357 
 Prewettc. Coopwood, (30 Miss. 369) 274 
 Pribble v. Hall, (13 Bush, 61) 392 
 Price V. Cutts, (29 Ga. 143, 148) 488 
 Price V. Dawdy, (34 Ark. 285) 671 
 Price V. Dyer, (17 Ves. 356) 236 
 Price V. Estill, (87 Mo. 378) 230 
 Price V. Keyes, (63 N. Y. 378) 283 
 Price V. Lauve, (49 Tex. 74) 479 
 Price V. Macauley, (2 De G. M. & G. 339> 
 
 257 
 Price V. Martin, (46 Miss. 489) 77 
 Price V. M. E. Church, (4 Ohio, 515) 107 
 Price V. McCoy, (40 Iowa, 533) 559 
 Price V. McDonald, (1 Md. 403) 90, 95, 
 
 101, 111, 116, 117, 125 
 Price V. Perrie, (3 Freem. 358) 531 
 Price ». Punkin, (4 Watts, 85) 65 
 Price V. Sanders, (60 Ind. 310) 440 
 Price V. Sisson, (3 Beasl. 168) 327, 544 
 Price V. Truesdell, (38 N. J. Eq. 200) 621 
 Price V. Winston (4 Munf. 63) 437 
 Prlokett V. Prickett's Adm'rs, (20 N. J. 
 
 Eq. 478) 431 
 Prldeaux v. Lonsdale, (1 De G. J. & S. 
 
 433) 274 
 
TABLE OF CASES CITED. 
 
 77& 
 
 REFERENCES ARE TO PAGES. 
 
 Priest u Parrot, (3 Ves. Sr. 160) 27 
 Priest V. Kice, (1 Picli. 164) 70 
 Primmer v. Patten, (33 111. 538)649 
 Prince v. Griffin, (37 Iowa, 514) 587 
 Prindle v. Holcomb, (45 Conn. Ill) 430 
 Pringle v. Dunn, (37 Wis. 449) 77, 90, 93, 
 
 94, 95, 96, 100, 103, 105, 106, 111, 114,130, 
 
 131, 133 
 Pringle v. Napanee, (43 Up. Can. Q. B. 
 
 385) 370 
 Pringle v. Pringle, (59 Pa. St. 381) 338 
 Pringle v. Ehame, (10 Ricli. 74) 395 
 Printup V. Fort, (40 Ga. 376) 341 
 Pritchard v. Brown, (4 N. H. 397) 117 
 Pritchard v. Todd, (38 Conn. 413) 587 
 Probasco v. Johnson, (3 Disney, 96) 467 
 Probasco v. Probasco, (30 N. J. Eq. 108) 
 
 671 
 Probate Court v. Uecy, (53 Vt. 1S3) 329 
 Proctor V. Ferebee, (1 Ired. Eq. 143) 209 
 Proctor V. Keith, (13 B. Mon. 353) 141 
 Proctor i;. Putnam Machine Co. (137 
 
 Mass. 159) 140 
 Proctor V. Thrall, (33 Vt. 263) 319 
 Proprietors, &c. v. Prescott, (7 Allen, 
 
 494) 140 
 Prosser v. Rice, (38 Beav. 68) 76 
 Prout V. Lomer, (79 111. 331) 631 
 Prout V. Eoby, (15 Wall. 471) 394 
 Providence Bk. u. Wilkinson, (4 R. I. 
 
 507) 658 
 Provost J7. Gratz, (6 Wheat., IT. S.,481) 383 
 Provost V. Provost, (70 N. Y. 141) 327 
 Provost V. Rebman, (31 Iowa, 419) 238 
 Pryor v. Hill, (4 Bro. Ch. 338) 30 
 Pudsey Gas Co. v. Corp. of Bradford, (L. 
 
 R. 15 Eq. 167) 555 
 Pugh, Ex parte, (1 Drew. 203) 30 
 Pugh-u. Chisseldine, (11 Ohio, 109) 284 
 Pugh V. Holt, (37 Miss. 461) 478 
 Pugh V. Pugh, (9 Ind. 133) 358 
 Pugsley -B. Murray, (4 E. D. Smith, N. 
 
 Y., 245) 283 
 Pullan V. Cincinnati R.R. (4Biss. 35) 671 
 Pullin V. Pullin, (3 Bing. 47) 833 
 Pulpress V. African Ch. (48 Pa. St. 204) 
 
 363 
 Pulsford V. Richards, (17 Beav. 87) 140^ 
 
 257 
 Pulteney v. Darlington, Earl of, (1 Bro. 
 
 Ch. 333) 206, 207, 211 
 Pumphrey v. Pumphrey, (53 Ark. 198) 
 
 173 
 Purcell V. Allemong, (33 Gratt. 743) 458 
 Purcell V. Enright, (31 N. J. Eq. 74) 130 
 Purcell o. Purcell, (4 Hen. & Munf. 507) 
 
 413 
 
 Purdy V. Bullard, (41 Gal. 444) 465 
 Purdy V. Huntington, (43 N. J. 334) 146, 
 
 149 
 Purdy V. Purdy, (3 Md. Ch. 547) 354 
 Purnell v. Vaughan, (83 N. C. 134; 77 N. 
 
 C. 268) 369 
 Pusey V. Desbouverie, (3 P. Wms. 315) 
 
 178, 335 
 Putman v. New Albany, (4 Biss. 365) 21 
 Putnam's Free School v. Fisher, (30 Me. 
 
 536) 361 
 Putnam v. Hubbell, (43 N. Y. 106) 343 
 Putnam v. Osgood, (33 N. H. 148) 395 
 Putnam v. Ritchie, (6 Paige, 390) 469 
 Putnam v. Tennyson, (50 Ind. 456) 406 
 Pyatt V. Myers, (56 111. 24) 291 
 Pye, Ex parte, (18 Ves. 140) 185. 
 Pyer v. Carter, (1 H. & N. 916) 113 153 
 Pyke, Ex parte, (L. R. 8 Ch. D. 754) 37 
 Pylant v. Reeves, (53 Ala. 133) 473 
 Pym V. Blackbourne, (3 Ves. 34) 213 
 Pym V. Lockyer, (5 My. & Cr. 39) 185, 186 
 
 Q. 
 
 Queen Anne's Co. v. Pratt, (10 Md. 3) 206 
 Quesnet v. Woodlief, (6 Call, Va., 318) 
 
 339 
 Quinn v. Green, (1 Ired. Eq. 329) 663 
 Quinn v. Patton, (3 Ired. Eq. 48) 663 
 Quinn v. Roath, (37 Conn. 16) 26, 233, 335„ 
 
 236, 238, 587 
 Quirk V. Thomas, (6 Mich. 76) 107 
 Quiznard v. Aldrich, (10 Rich. Eq. 253) 
 
 295 
 
 E. 
 
 Race V. Weston, (86 111. 91) 343) 583 
 Rackleff ». Norton, (19 Me. 274) 106, 110 
 Racouillat v. Sausevain, (32 Cal. 376) 
 
 332, 465 
 Radburnc. Jorvis, (3 Beav. 450) 190 
 Radcliffe v. Rowley, (2 Barb. Ch. 33) 
 
 637 
 Radford v. Carwile, (13 W. Va. 573) 393 
 Radford v. Radford, (1 Keen, 486) 333 
 Radliffe v. Dallinger, (141 Mass. 1) 345 
 Raffensberger V. Callison, (4 Casey, 426) 
 
 238 
 Rafferty u. Mallory, (3 Biss. 363) 114, 115 
 Raffety v. McKenna, (Pa. St., 1 Atl. 
 
 Rep. 546) 298 
 Ragan v. Allen, (7 Hun, 537) 483 
 Ragan v. Walker, (1 Wis. 537) 33 
 Ragland v. Green, (14 Sm. & Mar. 194), 
 
 418 
 
780 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Eaglandw. Justices, &c. (10 Ga. 65) 487 
 Eagsdale i;. Hagy, (9 Gratt. 409) 79, 569 
 Eagsdale v. Holmes, (1 S. C. 91) 420 
 Eailey IJ. Gay, (20 La. Ann. 158) 271 
 Eailroad v. Eagsdale, (54 Miss. 200) 138 
 Eailroad Co. o. Barker, (5 Casey, 160) 68 
 Eailroad Co. v. Dubois, (12 Wall. 47) 137, 
 
 142 
 Eaines v. Calloway, (27 Tex. 678) 229 
 Eaines '». Corbin, (24 Ga. 185) 172 
 Ealey v. Umatilla County, (Oregon, 13 
 
 Pao.Eep.890)17 
 Eameyc. Allison, (64 Tex. 697) 220 
 Eammelsberg v. Mitchell, (29 Ohio St. 
 
 22) 363 
 Eamsay v. Joyce, (1 McMuUen Eq. 236) 
 
 408 
 Eamsdale v. Sigerson, (2 Gill, 78) 292 
 Eamsdell v. Edgarton, (8 Mete. 227) 
 Eamsdell v. Emory, (46 Me. 311) 354 
 Eamsdell v. Eamsdell, (21 Me. 288) 383 
 Eamsden v. Dyson, (L. E. 1 H. L. 129) 
 
 140 
 Eamsey v: Fouts, (67 Ind. 78) 420 
 Eamsey «. Hardy, (43 Ohio St. 157) 117 
 Eancliffe, Lord v. Parkyns, (6 Dow, 149) 
 
 160 
 Eand v. Eeddington, (13 N. H. 72) 231 
 Eandal v. Sweet, (1 Den., N. Y., 460) 440 
 Eandall v. Dusenbury, (63 N. Y. 645) 373 
 Eandall v. Parnum, (53 Vt. 539) 260 
 Eandalli!. Hazleton, (12 Allen, 414) 360 
 Eandall v. Latham, (36 Conn. 48) 591 
 Eandall v. McLaughlin, (10 Allen, 366) 
 
 153 
 Eandall v. Phillips, (3 Mason, 378) 39 
 Eandall v. Pryor, (4 Ohio, 434) 544 
 Eandall v. Sackett, (77 N. Y. 480) 441 
 Eandall v. Silverthorn, (4 Barr. 179) 95, 
 
 99, 107, 109, 113, 117, 131 
 EandleJ). Carter, (63 Ala. 95) 418, 425,671 
 Eandolphi). New Jersey, &e. E. Co. (38 
 
 N. J. Eq. 49) 339 
 Eandolph v. Eandolph, (40 N. J. Eq. 73) 
 
 350 
 Sanger v. Great Western Ey. (5 H. L. 
 
 Cas. 73) 48, 50 
 Eanken v. Patton, (65 Mo. 378) 283 
 Eankin v. Anderson, (8 Baxt. 240) 419 
 Eankin v. Harper, (33 Mo. 579) 355 
 Eankin v. Holloway, (3 Smed. & M. 614) 
 
 395 
 Eankin v. Lodor, (31 Ala. 380) 393 
 Eankin v. Mortimere, (7 Watts, 372) 82, 
 
 219, 220 
 Eankin v. Porter, (7 Watts, 387) 107, 109 
 Eapalee v. Stewart, (37 N. Y. 310) 141 
 
 Eapalje v. Norsworthy, (1 Sandf. Ch, 
 
 399) 383 
 Earitan Water P. Co. v. Veghte, (21 N. 
 
 J. Eq. 463) 94, 95, 113, 145 
 Eatcliffe v. Barnard, (L. E. 6Ch. 652) 91, 
 
 114 
 Eatcliffe v. Barnard, (L. E. 6Ch.652, 654) 
 
 98 
 Eathbonec. Warren, (10 Johns. 587) 17, 
 
 566 
 Eathburn v. Eathburn, (6 Barb. 98) 327 
 Eathburn v. Colton, (15 Pick. 471) 468, 470 
 Eatliff V. Davis, (38 Miss. 107) 418 
 Eavenscrof t v. Jones, (32 Beav. 669) 187 
 Eawden v. Shad well, (Ambl. 268, 269)269 
 Eawdon v. Blatchford, (1 Sandf. 344) 353 
 Eawlingsi;. Adams, (7 Md. 54) 410 
 Eawlings v. Hunt, (90 N. C. 270) 448 
 Eawlings' Ex'r v. Landes, (3 Bush, 158) 
 
 303 
 Eawlins v. Bnrgis, (3 V. & B. 387) 36 
 Eawlins v. Wiekham, (3 De G. & J. 304) 
 
 254, 257 
 Eawson v. Harger, (48 Iowa, 269) 342, 
 
 356 
 Eawson v. Lampmau, (5 N. Y. 456) 327 
 Eay, Ex parte, (1 Madd. 199) 
 Eay V. Beaufort, (3 Atk. 190) 
 Eay V. Bush, (1 Eoot, 81) 106, 108 
 Eay V. McPherson, (11 Neb. 197) 
 Eay V. Simmons, (11 E. I. 366) 329, 339 
 Eay V. Stanhope, (2Ch. Eep. 159) 190 
 Eaybold v. Eaybold, (8 Harris, 308) 328 
 Eayley v. Best, (1 Euss. & My. 659) 
 Eaymond i).Holborn, (33 Wis. 57) 507 
 Eaymond v. Post, (25 N. J. Eq. 447) 640 
 Eaymond v. Sellick, (10 Conn. 480) 433 
 Eaymond v. Squire, (11 Johns. 47) 
 Eaymond's Case, Lord, (Cas. temp. 
 
 Talb. 58) 
 Eaynard c.Spence, (4 Beav. 103) 172 
 Eayne u. Baker, (IGiff. 241) 
 Eaynes v. Crowder, (14 Dp. Can. C. P. 
 
 Ill) 246 
 Eaynori). Lyons, (37Cal. 452) 
 Eaynor v. Pearsall, (3 Johns. Ch., N. Y., 
 
 578) 367 
 Eaynor v. Eaynor, (21 Hun, 36) 
 Eaynor v. Timerson, (51 Barb. 517) 139, 
 
 140 
 Eea V. Copelin, 47 Mo. 76) 356 
 Eead v. Gaillard, (2 Desau. 552) 52 
 Eead v. Huff, (40 N. J. Eq. 227) 355 
 Eead v. Eoblnson, (6 Watts & S. 329) 342 
 Eeade v. Livingston, (3 Johns. Ch. 481) 
 
 390 
 Eeady v. Noakes, (29 N. J. Eq. 497) 272 
 
TABLE OF CASES CITED. 
 
 rsi 
 
 REFERENCES ARE TO RAGES. 
 
 Keal Est. Sav. Inst. v. Collonius, (63 Mo. 
 
 290) 124, 126 
 Real Estate Trust Co. v. Balch, (13 J. & 
 
 S. 528) 229 
 Eearich v. Swlnehart, (1 Jones, 233) 226 
 Eeasoner v. Edmundson, (5 Ind. 393) 107, 
 
 109 
 Reaves v. Garrett, (34 Ala. 563) 176, 177, 
 
 418 
 Receivers v. Paterson Gas Light Co. (3 
 
 Zabr. 283) 673 
 Rector v. Collins, (46 Ark. 167) 220 
 Redden v. Miller, (95 111. 336) 111 
 Reddington v. Roberts, (25 Vt. 694) 248, 
 
 253 
 Redell v. Hoffman, (2 Paige, 199) 657 
 Redfield v. Buck, (35 Conn. 329) 291 
 RedGeld v. Supervisors, (Clarke Ch. 43) 
 
 659 
 Redford v. Gibson, (13 Leigh, 333) 474 
 Redin v. Branhan, (43 Minn. 283) 80 
 Redman v. Graham, (80 N. C. 331) 138 
 Redmond v. Packenham, (66 111. 434) 637 
 Reed v. Calderwood, (33 Cal. 109) 640 
 Reed c. Crapps, (137 Mass. 39) 137 
 Reed v. Dickerman, (13 Pick. 146) 160, 
 
 167, 173 
 Reed v. Fitch, (11 Barb. 399) 34 
 Reed v. Gannon, (50 N. Y. 345; 3 Daly, 
 
 414) 67, 98, 111 
 Reed v. Johnson, (24 Me. 322) 625 
 Reed v. Jones, (6 Wis. 680) 555 
 Reed V. Kemp, (16 111. 445) 105 
 Reed v. McCourt, (41 N. Y. 435) 139, 140 
 Reed v. Minell, (30 Ala. 61) 263 
 Reed v. Morrison, (13 Serg. & R. 18) 59 
 Reed v. Ownby, (44 Mo. 204) 106, 110 
 Reed v. Peterson, (91 111. 297) 261 
 Reed v. Reed, (13 Pa. St. 117) 173 
 Reed V. Reed, (70 Me. 504) 394 
 Reed v. Smith, (14 Ala. 380) 65 
 Reed v. Spaulc^ng, (43 N. H. 114) 435 
 Reed v. Timmins, (53 Tex. 84) 375 
 Reed v. Tyler, (56 111. 388) 31 
 Reed v. Underbill, (12 Barb. 113) 390 
 Reed c. Vannorsdale, (2 Leigh, 569) 338 
 Keed v. Warner, (5 Paige, 650) 379 
 Reed v. Whitney, (7 Gray, 54) 303 
 Rees V. Berrington, (2 Ves. 540) 33 
 Rees V. Waters, (9 Watts, 90) 413 
 Rees ». Watertown, (19 Wall. 121) 33 
 Reese v. Burts, (39 Ga. 565) 471 
 Reese v. Reese, (41 Md. 554) 583 
 Reese v. Wallace, (113 111. 589) 359 
 Reese v. Wyman, (9 6a. 430) 234, 256 
 Reese Riv. Min. Co. v. Smith, (L. E. 4 
 
 H. L. 64) 254 
 
 Reeves v. Ayers, (39 111. 418) 117, 123 
 Reeves v. Cooper, (1 Beasl. 233) 572 
 Reeves v. Kimball, (40 N. Y. 399) 79, 81, 
 
 83 
 Reeves v. Scully, (Walk. Ch. 348) 79 
 Reeves v. Sims, (10 S. Car. 308) 113 
 Refeld v. Perrell, (27 Ark. 534) 472 
 Refeld v. Woodfolk, (22 How., U. S., 318) 
 
 633 
 Regby v. Connol, (L. R. 14 Ch. D. 482) 27 
 Regents' Canal Co. v. Ware, (33 Beav. 
 
 575) 205 
 Reichart v. Castator, (5 Binn. 109) 288 
 Reichert v. McClure, (23 111. 516) 69, 70 
 Reickhoff v. Brecht, (51 Iowa, 633) 356 
 Reid V. Burns, (13 Ohio St. 49) 596 
 Reid V. Campbell, (Meigs, 378) 173 
 Reid V. Fairbanks, (1 C. L. R. 787) 536 
 Reid V. Flippen, (47 Ga. 273) 250 
 Reid V. Gifford, (6 Johns. Ch. 19) 572 
 Reid V. Lamar, (1 Strobh. Eq. 37) 398 
 Reid V. Reid, (38 Ga. 24) 668 
 Reid V. Reid, (13 Rich. Eq. 313) 335 
 Reid V. Sprague, (72 N. Y. 457) 81 
 Reid's Adm'r v. Blackstone, (14 Gratt. 
 
 363) 331 
 ReifE II. Horst, (52 Md. 255) 336 
 Reilly v. Mayor, (13 N. J. Eq. 55) 529 
 Reinders v. Koppelman, (68 Mo- 482) 383 
 Reiners v. Young, (38 Hun, 335) 153 
 Reinhardtu. Gartrell, (33 Ark. 727) 419 
 Reitz V. Reitz, (80 N. Y. 538) 354 
 Relf V. Eberly, (23 Iowa, 467) 263 
 Relfe V. Relfe, (34 Ala. 500) 472 
 Remick v. Butterfield, (31 N. H. 70) 279 
 Remillard v. Prescott, (8 Oreg. 37) 234 
 Remington v. Higgins, (54 Cal. 630) 333, 
 
 465 
 Remington v. Irwin, (3 Harris, 143) 54 • 
 Remington, &c. Co. v. O'Dougherty, (81 
 
 N. Y. 474) 265, 596 
 Rendlesham v. Woodford, (1 Dow, 249) 165 
 Renshaw v. Gans, (7 Barr. 119) 226 
 Rensselaer, &c. R. R. v. Miller, (47 Vt. 
 
 146) 373 
 Renzichausen v. Keyser, (48 Pa. St. 351) 
 
 314 
 Reppu. Repp, (12 Gill & J. 341) 473 
 Respass v. Breckenridge's Heirs, (2 A. K. 
 
 Marsh. 581) 613 
 Revell V. Hussey, (2 Ball & B. 280, 287) 
 
 36, 583 
 Revett V. Harvey, (1 S. & S. 502) 383 
 Rexford v. Rexford, (7 Lans. 6) 40, 41 
 Rexroad v. Wells, (13 W. Va. 812) 415,642 
 Reybold v. Herdman, (2 Del. Ch. 34) 579 
 Reynard v. Spence, (4 Beav. 103) 176 
 
*I82 
 
 TABLE OP CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Eeynell v. Sprye, (1 De G. M. & G. 660) 
 
 26, 357, 258, 260 
 Reynolds v. Brandon, (3 Heisk. 593) 393 
 EeynoldsD. Buckman, (35 Mich. 80) 93 
 Eeynolds v. Canal, &c. Co. (30 Ark. 520) 
 
 497 
 Eeynolds v. Darling, (42 Barb., N. Y., 
 
 423) 111 
 Reynolds i;.Godlee, (Johns. 536) 210 
 Reynolds v. Kingsbury, (15 Iowa, 238) 
 
 102, 105 
 Reynolds v. Pitt, (19 Ves. 140) 33, 43 
 Reynolds D. Reynolds, (16 N. Y. 257) 483 
 Reynolds v. Ruckman, (35 Mich. 80) 94, 
 
 95, 99, 111, 
 Reynolds B. Witte, (13 S. C. 5) 261 
 Reynoll v. Spyre, (1 De G. M. & G. 660, 
 
 679) 27 
 Rhame v. Ehame, (1 McCord Ch. 197) 413 
 Rhea v. Alexander, (5 Ind. 644) 297 
 Rhea v. Dick, (34 Ohio St. 420) 640 
 Rheai;. Puryear, (26 Ark. 344) 280 
 Rheel v. Hicks, (25 N. Y. 289) 225 
 Rhett V. Mason's Ex'r, (18 Gratt. 541) 331 
 Rhines v. Baird, (41 Pa. St. 256) 489 
 Rhoades v. Ehoades, (88 111. 139) 480 
 Rhode Island, &c. Bk. v. Hawkins, (6 
 
 R. I. 198) 218 
 Rhodes v. Buckland, (16 Beav. 212) 507 
 Rhodes v. Canfleld, (8 Paige, 545) 58 
 Rhodes v. Childs, (64 Pa. St. 18) 431 
 Rhodes v. Gibbs, (39 Tex. 433) 407 
 Eicaud, Estate of, (Myrick's Prob., Cal., 
 
 158) 174 
 Rice c. Bird, (4 Pick. 350) 276 
 Rice V. Boston, &c. Aid Soc. (56 N. H. 
 
 191) 190, 191 
 Rice V. Bunce, (49 Mo. 231) 137, 138, 140, 
 
 141, 142 
 Rice V. Cutter, (17 Wis. 362) 248 
 Rice V. Dewey, (54 Barb. 455) 60 
 Rice V. GrafEman, (56 Mo. 434) 137 
 Ricec. Hoffman, (35 Md. 344) 406 
 Rice«. Manley, (66 N. Y. 83) 243 
 Rice V. Railroad Co. (33 Ohio St. 380) 405 
 Rice V. Rice, (3 Drew. 73; 4 Pick. 349) 40, 
 
 53, 119 
 Rice V. Rice, (4 Pick. 349) 52 
 Rice V. Stone, (1 Allen, 566) 444 
 "Rice V. Wood, (113 Mass. 133) 383 
 Rich V. Cockell, (9 Ves. 369) 163 
 Rich V. Doane, (35 Vt. 135) 53 
 Rich V. Rich, (13 Minn. 468) 407 
 Rich V. Whitfield, (L. R. 2 Eq. 583) 200, 
 
 203 
 Richards v. Atty.-Gen. (6 Moo. P. C. 381) 
 
 206 
 
 Richards v. Barrett, (5 111. App. 510) 668 
 Richards v. Daily, (34 Iowa, 437) 88 
 Richards v. Fisher, (8 W. Va. 55) 473 
 Richards v. Griggs, (16 Mo. 416) 86 
 Richards v. Humphreys, (15 Pick. 133) 
 
 183, 184, 185, 187 
 Richards v. McPherson, (74 Ind 158) 473 
 Richards ». Salter, (6 Johns. Ch. 445) 657 
 Richardson v. Baker, (5 J. J. Marsh. 
 
 323) 480 
 Richardson v. Bleight, (8 B. Mon. 580) 
 
 329 
 Richardson v. Chickerlng, (41 N. H. 380) 
 
 66 
 Richardson i). Draper, (87 N. Y. 337) 38 
 Richardson v. Goss, (3 Bos. & P. 119) 299 
 Richardson v. Greese, (3 Atk. 68) 192, 
 
 193 
 Richardson v. HockenhuU, (85 111. 134) 
 
 149 
 Richardson v. Horton, (6 Beav. 185) 38 
 Richardson v. Hunt, (59 Hun, 637) 383 
 Richardson v. Inglesby, (13 Rich. Eq. 59) 
 
 338 
 Richardson v. Knight, (69 Me. 385) 430 
 Richardson v. Linney, (7 B. Mon. 571, 
 
 574) 38, 31, 383 
 Richardson v. Mattison, (5 Biss. 31) 651 
 Richardson v. Rardiu, (88 111. 124)298 
 Richardson v. Rust, (9 Paige, 243) 453 
 Richardson v. Smith, (L. R. 5 Ch. 648) 39 
 Richardson v. Spencer, (18 B. Mon. 450) 
 
 281 
 Richardson v. Tobey, (121 Mass. 157) 438 
 Richardson v. Woodbury, (43 Me. 306) 
 
 489 
 Richart v. Richart, (30 Iowa, 465) 176, 
 
 177 
 Riches v. Evans, (9 C. & P. 940) 389 
 Rieheson v. Richeson, (3 Gratt. 497) 69, 
 
 139 
 Richmond v. Dubuque, &c. R. R. (33 
 
 Iowa, 433) 575, 591 
 Richmond, Common Council of v. State, 
 
 (5 Ind. 334) 349 
 Richmond Engineer v. Robinson, (24 
 
 Gratt. .548) 216 
 Richmond Man. Co. v. Atlantic, &c. Co. 
 
 (10 R. I. 106) 563 
 Rlchter v. Poppenhausen, (43 N. Y. 373) 
 
 38,441 
 Rlchter v. Selin, (8 Serg. & R. 425) 36, 
 
 303 
 Ricketts v. Louisville, &c. E. E. Co. (Ky. 
 
 '91, 15 S. W. 182) 380 
 Ricks V. Reed, (19 Cal. 571) 101 
 Rico V. Cutter, (17 Wis. 362 248 
 
TABLE OF CASES CITED. 
 
 783 
 
 REFERENCES ARE TO PAGES. 
 
 Eico V. Spence, (21 Cal. 5(M) 640 
 Elder v. Johnson, (8 Harris, 190) 60, 
 
 80 
 Kider v. Kelso, (53 Iowa, 367) 286 
 Rider v. Powell, (28 N. Y. 310) 220, 228, 
 
 335, 243 
 Eidges V. Morrison, (1 Bro. Ch. 388) 191 
 Eidgeway v. Holliday, (59 Mo. 444) 73, 
 
 114 
 Eidgway v. Morrison, (28 Ind. 201) 243 
 Eiehl V. Evansville Foundling Ass'n, 
 
 (104 Ind. 70) 358 
 Eife V. Geyer, (59 Pa. St. 393) 341 
 Eigdeu V. Vallier, (2 Ves. Sen. 352, 358) 
 
 39 
 Eiggs V. Hawley, (116 Mass. 596) 638 
 Eighter v. Forrester, (1 Bush, 278) 69,129 
 Eighter v. Eoller, (31 Ark. 170) 250, 255 
 Eighton V. Eighton, (36 L. J. Ch. 61) 205 
 Eigler v. Cloud, (14 Pa. St. 361) 411 
 Eiley v. Pierce, (50 Ala. 93) 405 
 Eiley v. Quigley, (50 111. 304) 123 
 Eing V. Eichardson, (3 Keyes, 450) 105 
 Einggold e. Bryan, (3 Md. Ch. 488)94, 133, 
 
 4.73 
 Einggold V. Einggold, (1 Har. & G. 11) 
 
 378 
 Einggold V. Waggoner, (14 Ark. 69) 94 
 Eingo V. Binns, (10 Pet. 369) 383 
 Eingold V. Bryan, (3 Md. Ch. 488) 111, 
 
 117 
 Eingold V. Einggold, (1 Har. & G. 11) 
 
 282 
 Eingold V. Wagonner, (14 Ark. 69) 112 
 Eiopelle v. Doellner, (26 Mich. 102) 646 
 Eipley v. Waterworth, (7 Ves. 425) 309 
 Eipon, Earl of v. Hobart, (3 My. & K. 
 
 169) 559 
 Eipperdon v. Cozine, (8 B. Mon. 465) 477 
 EippleB. Eipple, (1 Eawle, 386) 96 
 Eippy V. Gant, (4Ired. Eq. 443) 274 
 Eish V. Sherman, (31 Grant Ch., Ont., 
 
 350) 393 
 Eisley v. Brown, (67 N. Y. 160) 441 
 Eisley v. Indianapolis, &c. E. E. (63 N. 
 
 Y. 240) 370 
 Eisley v. Phoenix Bk. (11 Hun, 484) 454 
 Eisley v. Smith, (64 N. Y. 576) 453 
 Eisoni7. Knapp, (1 Dillon, 186) 65 
 Eitter^J. Eitter, (42 Mich. 108) 596 
 Eitter's Appeal, (59 Pa. St. 9) 338 
 Elver V. Plank Road Co. (30 Ala. 92) 261 
 Roach V. Brannon, (57 Miss. 490) 138 
 Eoach V. Ivey, (7 S. Car. 434) 628 
 Eoachw. Karr, (18 Kans. 529) 130, 131, 
 
 132, 133 
 Eoadley v. Dixson, (3 Russ. 193) 171 
 
 Roane v. Rives, (15 Ark. 328) 395 
 Robb V. Mann, (1 Jones, Pa., 300) 36, 202 
 Robb's Appeal, (41 Pa. St. 45)34 
 Robbins v. Bacon, (3 Me. 346) 453 
 Robbins v. Davis, (1 Blatch. C. C. 238) 
 
 653 
 Bobbins v. Fitz, (33 N. Y. 420) 343 
 Eobbins v. Oldham, (1 Duv. 28) 295 
 Robbins v. Swaine, (68 111. 197) 148 
 Eoberts v. Austin, (26 Iowa, 315) 456 
 Roberts v. Bourne, (23 Me. 165) 103, 106, 
 
 110 
 Roberts v. Carter, (38 N. Y. 107) 87 
 Eoberts v. Craft, (24 Beav. 233) 466 
 Eoberts v. Croft, (3 De G. & J. 1) 97, 98, 
 
 123 
 Eoberts v. Davis, (73 Ga. 819) 138 
 Roberts v. Dillon, (3 Daly, 50) 65 
 Roberts v. Eldred, (73 Cal. 394) 625 
 Roberts v. Fleming, (53 111. 196) 134 
 Roberts?). Francis, (3Heisk. 127) 471 
 Roberts v. Kelsey, (38 Mich. 602) 591 
 Roberts v. McMahon, (4 Greene, Iowa, 
 
 34) 489 
 Eoberts v. Moseley, (64 Mo. 507) 378, 354 
 Eoberts v. Eadcliff, (35 Kans. 503) 394 
 Eoberts v. Eose, (3 Humph. 145) 475 
 Eoberts v. Smith, (1 S. & S. 513) 173 
 Roberts v. Stanton, (2 Munf. 129) 215 
 Roberts V. Tunstall, (4 Hare, 257) 376 
 Roberts v. Ware, (40 Cal. 634) 535 
 Eoberts v. Weatherford, (10 Ala. 73) 185, 
 
 187, 188 
 Roberts v. West, (15 Ga. 133) 397 
 Roberts^. Wilcoxon, (36 Ark. 355) 407 
 Eobertson v. Bingley, (1 McCord Ch. 333) 
 
 653 
 Eobertson i;. Campbell, (2 Cal. 431)497 
 Eobertson v. Moseley, (64 Mo. 507) 370 
 Eobertson v. Stephens, (1 Ired. Eq. 347) 
 
 175 
 Eobertson v. Smith, (11 Tex. 311) 318 
 Eobertson v. Walker, (51 Ala. 484) 222 
 Eobertson v. Wilburn, (1 Lea. 633) 394 
 Eobertson v. Wilson, (38 N. H. 48) 446 
 Eobinett's Appeal, (36 Pa. St. 174) 370 
 Eobins v. Embry, (1 Sm. & M. 208) 393 
 Eobins ». Swain, (68 III. 197) 149 
 Robinson v. Atlantic, &c.Ry. (66 Pa. St. 
 
 160) 673 
 Robinson v. Brems, (90111. 351) 407 
 Eobiuson v. Buck, (71 Pa. St. 386) 175 
 
 408 
 Eobinson v. Byron, Lord, (1 Bro. Ch. 
 
 588) 551 
 Eobinsoar. Campbell, (3 Wheat. 213) 31 
 Eobinson v. Chenshaw, (84 Va. 348) 112 
 
784 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Robinson v. Cox, (9 Mod. 263) 27 
 Bobinson v. Cropsey, (2 Edw. Ch. 138) 53 
 Robinson v. Dart, Ex'rs of, (Dudley Eq. 
 
 128) 398 
 Robinson v. Dauchy, (3 Barb. 20) 65 
 Robinson v. Farrelly, (16 Ala. 472) 53 
 Robinson v. Hersey, (60 Me. 225) 373 
 Robinson v. Howes, (20 N. Y. 84) 87 
 Robinson v. Jefferson, (1 Del. Ch. 244) 
 
 551 
 Robinson v. Lakeman, (28 Mo. App. 135) 
 
 411 
 Robinson v. Leavltt, (7 N. H. 73) 153 
 Robinson v. London Hospital, Govs, of, 
 
 (10 Hare, 19) 210 
 Robinson v. Loomis, (1 P. F. Smith, 78) 
 
 33,45 
 Robinson v, Mauldin, (11 Ala. 997) 363 
 Robinson r. Mclver, (63 N. C. 645) 482 
 Robinson v. McWhirter, (52 Tex. 201) 
 
 473 
 Robinson v. Miller, (1 B. Mon. 93) 203 
 Robinson ». O'Neal, (56 Ala. 541) 394 
 Robinson v. Preston, (4 K. & J. 505) 39 
 Robinson v. Rapelye, (3 Stew. 86) 292 
 Robinson v. Ring, (73 Me. 140) 431 
 Robinson v. Robinson, (19 Beav. 494) 207 
 Robinson v. Robinson, (1 De G. M. & G. 
 
 247)204 
 Robinson v. TJhl, (6 Neb. 328) 295 
 Robinson v. TJrquhart, (1 Beasl. 515) 152 
 Robinson v. Urquhart, (1 Deas. 523) 467 
 Robinson v. Wall, (10 Beav. 61) 244, 245 
 Robinson v. Wheeler, (51 N. H. 384) 216 
 Robinson ■». Wheelright, (6 De G. M. & 
 
 G. 535) 175 
 Robinson v. Willoughby, (65 N. C. 520; 
 
 70 N. C. 358) 106, 108 
 Robinson v. Woodson, (33 Ark. 307) 479 
 Robsou V. Mich. Cent. B. R. Co. (37 
 
 Mich. 70) 536 
 Rocchi V. Schwabacker, (33 La. An. 
 
 1364) 353 
 Roch V. Callen, (6 Hare, 531) 191 
 Rochester v. Alfred Bank, (13 Wis. 432) 
 
 219 
 Rochester v. Erickson, (46 Barb. 92) 559 
 Rockafellow v. Baker, (41 Pa. St. 319) 
 
 359 
 Rockdale Canal Co. ;;. King, (3 Sim., n. 
 
 s., 78) 35 
 Rockhill i;. Spraggs, (9 Ind. 32) 290 
 Rockhold V. Blevins, (6 Baxt. 715) 368 
 Rockwell V. Hobby, (2 Sandf. Ch. 9) 467 
 Rockwood V. Wiggin, (16 Gray, 402) 432 
 Rodgers v. Gibson, (4 Yeates, 111) 70 
 Rodgers v. Langham, (1 Sid. 133) 290 
 
 Rodgers v. N. J. Ins. Co. (4 Halst. Ch. 
 
 167) 86 
 Rodgers v. Wallace, (5 Jones L. 182) 378 
 Rodgers v. Wiley, (14 111. 65) 100 
 Rodman v. Thalheimer, (75 Pa. St. 232) . 
 
 248, 253 
 Rodman v. Zilley, (Saxton, 330) 372 
 Roe, In re, (119 N. Y. 509) 363 
 Roe V. Roe, (31 N. J. Eq. 253) 158, 178 
 Roe V. Taylor, (45 111. 485) 287 
 Roeber v. Bowe, (36 Hun, 554) 289 
 Bogan V. Walker, (1 Wis. 537) 53, 488 
 Rogers v. Dare, (Wright, 136) 395 
 Rogers v. Higgins, (57 111. 344) 360 
 Rogers v. Higgins, (48 111. 211) 398 
 Rogers ». Hussey, (36 Iowa, 664) 70 
 Bogers v. Ingham, (L. B. 3 Ch. D. 351) 
 
 225 
 Bogers v. Jones, (8 N. H. 364) 91, 93, 98, 
 
 99, 101, 111, 118, 120, 133 
 Bogers v. Kennard, (54 Tex. 30) 430 
 Bogers v. King, (8 Paige, 210) 419 
 Bogers v. Kingsbury, (39 Ga. 60) 573 
 Rogers v. Lafayette, &c. Works, (53 Ind. 
 
 296) 555 
 Rogers v. Lee Mining Co. (9 Fed. Rep. 
 
 731) 282 
 Rogers v. Lockett, (28 Ark. 390) 379 
 Rogers v. Marshall, (3 McCrary, U. S., 
 
 76) 283 
 Rogers v. McCauley, (23 Minn. 384) 355 
 Rogers v. Meyers, (68 111. 93) 507 
 Rogers v. Michigan, &c. R. Co. (38 Barb., 
 
 N. Y., 539) 547 
 Rogers v. Oxford, &c. Ry. (2 De G. & J. 
 
 663) 555 
 Rogers v. Rathbun, (1 Johns. Ch. 367) 31, 
 
 369, 566 
 Bogers v. Bogers, (87 Mo. 357) 335 
 Rogers V. Saunders, (16 Me. 93) 333, 583 
 Bogers v. Smith, (4 Barr. 93) 398 
 Bogers v. Traders' Ins. Co. (6 Paige, 
 
 583)444 
 Rogier v. Williams, (92 111. 187) 395 
 Rohrschneider v. Knickerbocker Ins. Co. 
 
 (76 N. Y. 316) 241, 354 
 Roland v. Coleman, (76 Ga. 653) 377 
 Rolfe V. Peterson, (3 Bro. P. C. 436) 47 
 Roll V. Ragent, (4 Ohio, 419) 551 
 RoUandv. Callender, (Preem. Ch., Miss. 
 
 295, 113) 113 
 Rolland v. Hart, (L. B. 6Ch. 678) 98, 133, 
 
 134 
 Bomaine v. Hendrickson, (37 N. J. Eq. 
 
 163) 379 
 Boman v. Mali, (43 Md. 513) 383 
 Bona V. Meier, (47 Iowa, 607) 383 
 
TABLE OF CASES CITED. 
 
 785 
 
 REFERENCES ARE TO PAGES. 
 
 Rood V. Chapin, (Walk. Ch. 79) 106, 109 
 Rook V. Worth, (1 Ves. Sen. 460) 207 
 Rooke V. McConville, (4 Redf., N. Y., 291) 
 
 370 
 Roome v. Roome, (3 Atk. 183) 185 
 Rooney v. Soule, (45 Vt. 303) 40 
 Roosevelt v. Davis, (49 Tex. 463) 479 
 Roosevelt v. Draper, (23 N. T. 318) 606 
 Root V. Bancroft, (8 Gray, 619) 261 
 Root V. French, (13 Wend. 570) 65 
 Root V. Ren wick, (15111. 461) 231 
 Roper V. McCook, (7 Ala. 318) 472 
 Roquemore v. Alloway, (33 Tex. 461) 271 
 Rorer Iron Co. v. Trout, (83 Va. 397) 112 
 Rorke, In re. (13 Ir. Ch. R. 273) 
 Roscarrick v. Barton, (1 Cas. In Ch. 217) 
 
 531 
 Rose V. Bates, (12 Mo. 30) 358 
 Rose V. Bevan, (10 Md. 466) 450 
 Rose V. Colter, (76 lud. 590) 294 
 Rose V. Cunynghame, (11 Ves. 5,54) 36 
 Rose V. Maune, (4 Cal. 173) 69 
 Rose V. Nees, (61 Ind. 484) 640 
 Rose V. Porter, (114 Mass. 309) 331 
 Rose V. Rose, (4 Abb. App. Dec. 108) 349 
 Rosebrough v. Ansley, (35 Ohio St. 107) 
 
 141 
 Roseman v. Canovan, (43 Cal. 110) 351, 
 
 353, 353, 258 
 Roseman v. Miller, (84 111. 297) 72 
 Rosenberg v. Frank, (58 Cal. 387) 415, 417 
 Rosenthal v. Martin Bk. (U. S. C. C. 
 
 1879; 34 Am. Rep. 238) 458 
 Rose well v. Bennett, (3 Atk. 77)183 
 Ross V. Harper, (99 Mass. 175) 569 
 Ross V. Hatch, (125 N. Y. 427) 319 
 Rossc. Heintzen, (36 Cal. 313) 640 
 Ross V. Linder, (13 S. C. 592) 404 
 Ross V. Norvell, (1 Wash., Va., 14) 489 
 Ross V. Ross, (123 Mass. 212) 420 
 Ross V. Ross, (6 Hun, 80) 286 
 Ross V. Sedgwick, (69 Cal. 247) 398, 399 
 Ross V. Singleton, (1 Del. Ch. 149)407 
 Ross ■». Southwestern R. R. Co. (53 Ga. 
 
 514) 545 
 Ross V. Watt, (16 111. 99) 331 
 Ross V. Whitson, (6 Yerg. 50) 473 
 Ross V. Wood, (70 N. Y. 8) 365 
 Ross V. Worthington, (11 Minn. 438) 116 
 Roszell V. Roszell, (109 Ind. 354) 339 
 Rothgeb V. Mauck, (35 Ohio St. 503) 
 
 415 
 Rothschild V. Rowe, (44 Vt. 389) 297 
 Rothwell V. Rothwell, (3 Sim. & Stu. 
 
 217) 643 
 Roundell v. Breary, (2 Vern. 482) 197 
 Rourke v. Bullens, (8 Gray, 549) 394 
 
 Rowan v. Sharps', &c. Co. (29 Conn. 282) 
 
 450 
 Rowan v. State Bank, (45 Vt. 160) 40, 41 
 Rowan's Creditors v. Rowan's Heirs, (3 
 
 Duv. 412) 341 
 Rowe V. Bentley, (29 Gratt. 756) 373 
 Rowe V. Ream, (105 Pa. St. 543) 117 
 Rowec.Rowe, (2 DeG. & Sm. 294) 193 
 Rowe V. Wood, (2 J. & W. 553) 497 
 Rowland ». Doty, (Harr. Ch. 3) 640 
 Rowley v. Bigelow, (13 Pick. 307) 65, 248, 
 
 249 
 Rowley v. Rice, (11 Met. 233) 448 
 Roxborough v. Messick, (6 Ohio St. 448) 
 
 67 
 Roy t!. Goings, (6 Bradw. 162) 534 
 Roy V. Haviland, (12 Ind. 364) 596 
 Royal Ins. Co. v. Davis, (40 Iowa, 469) 
 
 441 
 Royall's Adm'r v. McKenzie, (35 Ala. 
 
 663) 371 
 Royan v. Walker, (1 Wis. 537) 50, 54 
 Royce v. Watrous, (73 N. Y. 597) 143 
 Royce v. Watrous, (7 Daly, 871 263 
 Royston v. Royston, (13 Ga. 425) 613 
 Rozier v. Griffith, (31 Mo. 171) 613 
 Rozier v. Williams, (93 111. 187) 298 
 Rubber Co. v. Goodyear, (9 Wall. 788) 137 
 Rubidoex v. Parks, (48 Cal. 215) 279 
 Rublee v. Mead, (3 Vt. 544) 117 
 Rubottom V. Morrow, (24 Ind. 203) 365 
 Ruckman v. Bergholz, (37 N. J. L. 437) 
 
 379 
 Ruckman v. Decker, (23 N. J. Eq. 383) 56 
 Rudd V. Van Der Hagen, (5 S. W. Rep. 
 
 416) 340 
 Ruddell V. Ambler, (18 Ark. 369) 31, 369 
 Ruddle V. Givens, (Cal., 18 Pac. Rep. 431) 
 
 398 
 Rudisell v. Watson, (3 Dev. Eq. 430) 394 
 Ruffln, Ex parte, (6 Ves. Sen. 119; 6 Ves. 
 
 125) 38 
 Ruflner v. McConnel, (17 III . 313) 226, 234 
 Rumfelt 17. Clemens, (10 Wright, 455) 143 
 Rumney u. Keyes, (7 N. H. 571) 440 
 Rumph V. Abercrombie, (13 Ala. 64) 374 
 Runklec. Gaylord, (1 Nev. 133) 112 
 Runyan v. Mersereau, (11 Johns. 534) 
 
 486, 531 
 Runyon v. Groshen, (13 N. J. Eq. 86) 395 
 Rupert V. Mark, (15 111. 540) 90, 96, 114, 
 
 117 
 Ruple V. Bindley, (91 Pa. St. 296) 449, 
 
 454 
 Rupp V. Jarrett, (94 111. 475, 479) 255 
 Rush V. Lewis, (9 Harris, 72} 378 
 Rushim v. Shields, (11 Ga. 636) 107, lltt 
 
 50 
 
T86 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO fAGES. 
 
 Russ V. Mebius, {16 Cal. 350) 353 
 Russell V. Allen, (5 Dillon, 235)345, 349 
 Russell V. Baughman, (94 Pa. St. 400) 
 
 587 
 Russell V. Branham, (SBlackf. 277) 260 
 Russell V. Clark's Ex'rs, (7 Cranch, 69) 
 
 255 
 Russell V. Dickson, (4 H. L. Cas. 304) 
 
 190, 193 
 Russell V. Dickson, (3 Dr. & War. 133) 
 
 191, 193 
 Russell V. Dodson, (6 Baxt. 16) 473 
 Russell V. Eubanks, (84 Mo. 82) 383 
 Russell V. Jackson, (10 Hare, 204) 
 Russell V. Jackson, (9 Hare, 387) 652 
 Russell V. Lewis, (3 Pick. 508) 363 
 Russell V. O'Brien, (127 Mass. 349) 297 
 Russell V. Maloney, (39 Vt. 580) 140 
 Russell V. Moore, (3 Mete. 437) 120 
 Russell V. Petree, (10 B. Mon. 184) 94, 
 
 101 
 Russell V. Peyton, (4 111. App. 473) 363 
 Russell V. Pistor, (7 N. Y. 171) 152 
 Russell V. Ranson, (76 111. 167) 111, 334 
 Russell V. Russell, (13 S. W. Rep. 709) 
 
 355 
 Russell V. Southard, (13 How., U. S., 139) 
 
 276 
 Russell V. St. Aubyn, (L. R. 3 Ch. D. 398) 
 
 189 
 Russell V. Sweezey, (23 Mich. 235) 98, 99, 
 
 118, 133, 129, 131, 133 
 Russell V. Swltzer, (63 Ga. 711) 328 
 Russell V. The Church, (65 Pa. St. 9) 331 
 Russell V. Watt, (41 Miss. 603) 473 
 Rustin V. Oakes, (117 N. Y. 577) 384 
 Rutgers v. Kingland, (3 Halst. Ch. 178, 
 
 658) 77 
 Ruth V. Oberbrunner, (4D Wis. 338) 349 
 Rutherford v. Tracy, (48 Mo. 325) 140 
 Rutherford v. UUman, (43 Mo. 316) 640 
 Rutland v. Brister, (53 Miss. 683) 473 
 Rutland v. Paige, (24 Vt. 181) 239 
 Rutledge v. Smith, (1 Bush, N. C, Eq. 
 
 333) 329 
 Ryall V. Rowles, (1 Ves. Sen. 348) 84 
 Ryan v. Ashton, (42 Iowa, 365) 383 
 Ryan v. Bliint, (1 Dev. Eq. 386) 231 
 Ryan v. Box, (34 N. Y. 307) 350 
 Ryan v. Leavenworth, &c. Ry. (31 Kans. 
 
 365) 376 
 Ryan v. Martin, (16 Wis. 57) 48 
 Ryan v. Newcomb, (33 111. App. 113) 507 
 Ryder v. Sisson, (7 R. I. 341) 373 
 Hjlev. Haggle, (1 J. & W. 334) 17 
 Ryno 1). Darby, (30 N. J. Eq. 331) 233, 
 
 235 
 
 S. 
 
 Sabel V. Slingluff, (52 Md. 132) 409 
 Sabin v. Bank of Woodstock, (21 Vt. 353) 
 
 85 
 Sable V. Maloney, (48 Wis. 331) 334 
 Saekett v. Hillhouse, (5 Day, Conn., 451) 
 
 551 
 Sadlier v. Butler, (1 L. R. Eq. 415) 168 
 Saffold V. People, (85 111. 558) 673 
 Saffold V. Wade's Ex'rs, (51 Ala. 314) 68, 
 
 631 
 Saffron, &c. Soc. v. Rayner, (L. R.14Ch. 
 
 D. 406) 84, 130, 131 
 Sage V. Hammonds, (27 Gratt. 651) 375 
 Sailor v. Hertzog, (4 Whart. 259) 107,109, 
 
 120, 123 
 St. Albans v. Beauclerk, (2 Atk. 638) 
 
 190 
 St. Andrews v. Lockwood, (3 Root, 339) 
 
 106, 108 
 St. Andrew's Church's Appeal, (67 Pa. 
 
 St. 513) 438 
 St. Helen's, &c. v. Tipping, (H. L. Cas. 
 
 543) 563 
 St. James' Church v. Ch. of Redeemer, 
 
 (45 Barb. 356) 370 
 St. John V. Conger, (40 111. 535) 103 
 St. John V. Kendrickson, (SI 111. 350) 263 
 St. John V. Charles, (105 Mass. 363) 454 
 Jt. John V. Roberts, (31 N. Y. 441) 137 
 St. John V. Spalding, (1 T. &. C. 483)65 
 St. Johnsbury v. Morrill, (55 Vt. 165) 117 
 St. Louis v. Clemens, (42 Mo. 69) 445 
 St. Louis Life Ins. Co. v. Alliance Life 
 
 Ins. Co. (33 Minn. 7) 667 
 St. Mary's Church v. Stockton, (4 Halst. 
 
 Ch. 530) 50 
 St. Patrick's Ch. v. Daly, (116 111. 76) 
 
 354 
 St. Paul V. Lord Dudley & Ward, (15 
 
 Ves. 167, 173) 148 
 Sale V. Crutchfield, (8 Bush, 630) 470 
 Salem India Rubber Co. v. Adams, (23 
 
 Pick. 256) 355 
 Salisbury v. Salisbury, (6 Hare, 536) 196 
 Salisbury Mills v. Townsend, (109 Mass. 
 
 115) 659 
 Salkeld v. Vernon, (1 Eden, 64) 384 
 Sailee v. Chandler, (36 Mo. 134) 381 
 Salmon v. Bennett, (1 Conn. 535) 390, 358 
 Salmon v. Claggett, (3 Bland. Ch. 143) 
 
 653 
 Salmon v. Hoffman, (3 Cal. 138) 473 
 Salter v. Maxwell, (6 Wall. 268) 347 
 Salter i;. Williamson, (1 Green Ch. 480) 
 
 413 
 
TABLE OF CASES CITED. 
 
 787 
 
 REFERENCES ARE TO PAGES. 
 
 Saltonstall v. Sanders, (11 Allen, 446) 
 
 348 
 Salts V. Field, {5 T. R. 211) 399 
 Samples v. Barnes, (14 How. 70) 573 
 Sampson v. Sampson, {L. E. 8 Eq. 479) 
 
 233 
 Samson v. Lord, (13 How. 198) 242, 359 
 Samuels v. Borrowscale, (104 Mass. 207) 
 
 103 
 Sanborn v. Bachelder, (51 N. H. 434) 363 
 Sanborn v. Goodhue, (28 N. H. 48) 367 
 Sanborn v. Kittredge, (20 Vt. 632) 17 
 Sanborn v. Magee, (44 N. W. 720) 490 
 Sanborn v. Eobinson, (54 N. H. 339) 114 
 Sanborn v. Sanborn, (7 Gray, 143) 
 Sanborn ■». Woodman, (5 Gush. 360) 53 
 Sandar's Appeal, (65 Pa. St. 314) 158, 178 
 Sanders v. Bolton, (36 Gal. 405) 103 
 Sanders v. Deligne, (Freem. Ch. 123) 78 
 Sanders D. Forgasson, (59Tenn. 249) 379 
 Sanders ■». Lyon, (3 McArthur, 452) 242 
 Sanders r. McAffee, (41 Ga. 684) 476 
 Sanders v. Pope, (13 Ves. 283, 290) 53 
 Sanders v. Village of Yonkers, (63 N. Y. 
 
 489) 643 
 Sanders v. Wagner, (32 N. Y. 506) 228 
 Sanders v. Wagner, (33 X. J. Eq. 506) 230 
 Sanders' Trust, In re, (L. R. 1 Eq. 675) 
 
 233 
 Sanderson v. Sanderson, (20Fla. 292) 367 
 Sanderson v. Walker, (13 Ves. 601) 279 
 Sanderson v. White, (18 Pick. 328) 347 
 Sandford v. Jackson, (10 Paige, 266) 160, 
 
 167, 170, 171 
 San Diego v. San Diego, &c. E. R. (44 
 
 Gal. 106) 369 
 Sandlin v. Ward, (94 N. Gar. 490) 220 
 Saudoe's Appeal, (65 Pa. St. 314) 158, 
 
 178 
 Sands Brewing Go., In re, (3 Biss. 1751 
 
 57 
 Sands v. Sands, (112 111. 225) 220 
 Sanford v. Head, (5 Gal. 397) 417, 419 
 Sanford v. Kane, (24 III. App. 504) 507 
 Sanford v. Sandford, (4 Hun, 753) 429 
 Sanford v. Weeks, (38 Kans. 319) 122 
 Sandfoss i;. Jones, (35 Gal. 481) 358 
 San Francisco v. Lawton, (18 Gal. 465) 
 
 417 
 Sangster v. Love, (11 Iowa, 580) 501 
 Sanquirico v. Benedetti, (1 Barb. 315) 555 
 Sappington ■». Oeschli, (49 Mo. 244) 69, 
 
 71, 129 
 Saratoga, &c. R. R. v. Rowe, (34 Wend. 
 
 74) 385 
 Saratoga Co. Sup. ■». Seabury, (11 Abb. 
 N. C., N. Y., 461) 659 
 
 Sargent v. Howe, (21 111. 148) 343 
 Sargent v. Sturm, (33 Gal. 359) 65, 68,70 
 Sarle v. Arnold, (7 R. I. 582)' 295 
 Sartill 1). Robeson, (3 Jones' Eq. 510) 411 
 Sasser v. Sasser, (73 Ga. 375) 355 
 Satterfield v. John, (53 Ala. 127) 362 
 Satterwhiie?). Rosser, (61 Tex. 166) 121 
 Sauer v. Kansa'^, (69 Mo. 46) 573 
 Saunders D. Albriiton, (37 Ala. 716) 572 
 Saunders v. Cramer, (3 Dr. & W. 87) 343 
 Saunders v. Dehew, (3 Vern. 370) 76 
 Saunders v. Edwards, (3 Jones' Eq. 134) 
 
 334 
 Saunders v. Frost, (5 Pick. 359) 497 
 Saunders v. Schmaelzle, (49 Cal. 59) 328 
 Saunders v. Simpson, (2 Har. & J. 81) 437 
 Saunders v. Smith, (3 My. & Cr. 711) 
 
 563 
 Saunders' Heirs v. Saunders' Ex'rs, (3 
 
 Litt. 314) 418 
 Saunderson v. Ballance, (2 Jones' Eq. 
 
 323) 66 
 Saunderson v. Broadwell, (83 Cal. 132) 
 
 338 
 Savage v. Burnham, (17 N. Y. 561) 160, 
 
 168, 170 
 Savage v. Dooley, (38 Conn. 411) 491 
 Savage v. Hall, (13 Gray, 363) 149, 151 
 Savage v. Jackson, (19 Ga. 305) 359 
 Savage v. Murphy, (34 N. Y. 508) 291 
 Savaee v. Stevens, (126 Mass. 207) 251, 
 
 256 
 Savannah Nat. Bk. v. Haskins, (101 
 
 Mass. 370) 214 
 Savannah E. R. v. Callaghan, (56 Ga. 
 
 331) 49 
 Savannah, &c. R. R. v. Shiels, (33 Ga. 
 
 601) 559 
 Savile v. Savile, (1 P. Wms. 745) 273 
 Savings Bank v. Scott, (10 Neb. 83) 407 
 Sawrey v. Rumney, (5 De G. & Sm. 698) 
 
 190 
 Sawtelle's Appeal, (84 Pa. St. 306) 407 
 Sawyer ». Hanson, (48 Wis. 611) 229 
 Sawyer v. Hovey, (3 Allen, 331) 228, 233, 
 
 234 
 Sawyer v. Nichols, (40 Me. 212) 294 
 Sawyer's Appeal, (16 N. H. 414) 355 
 Saxon V. Ames, (47 Miss. 565) 418 
 Say V. Barnes, (4 Serg. & R. 113) 283 
 Sayre v. Townsend, (15 Wend. 647) 353 
 Scammon v. Kimball, (5 Biss. 431) 28 
 Scarlett v. Gorham, (28 111. 319) 127 
 Scarlett 1). Siein, (40 Md. 512) 587 
 Schade v. Bessenger, (3 Neb. 140) 489 
 Schaefer v. Gildea, (3 Cal. 15) 145 
 SchaefCner, Appeal of, (41 Wis. 260) 415 
 
788 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Schafer v. Keilly, (SON. Y. 61) 81, 82, 87 
 Schafroth v. Ambs, (46 Mo. 114) 405 
 Schaper v. Schaper, (48 111. 603) 596 
 Schell, In re, (53 N. Y. 263) 372 
 Sehell V. Stein, (76 Pa. St. 398) 103, 105 
 Schenck v. O'Neill, (33 Hun, 209) 596 
 Schenck v. Sehenck, (1 C. E. Green, 174) 
 
 371 
 Schettiger v. Hoople, (3 Grant, Pa., 54) 
 
 233 
 Schettler u. Smith, (41 N. Y. 338) 327, 
 
 340 
 Schiefflein v. Stewart, (1 Johns. Ch. 620) 
 
 369 
 Schiffer v. Dietz, (83 N. Y. 300) 252, 253 
 Schlaeffer v. Carson, (52 Barb. 510) 34, 
 
 358 
 Schlessinger v. Mallard, (70 Cal. 326) 
 
 360 
 Schlerssel v. Willett, (34 Barb. 615) 343 
 Schlisenger v. U. S. (1 Ct. of CI. 16) 
 
 219 
 Schmidt v. Gatewood, (2 Rich. Eq. 162) 
 
 358 
 Schmidt v. Hoyt, (1 Edw. Ch. 652) 69, 
 
 139 
 Schmltheimer v. Eiseman, (7 Bush, 298) 
 
 60 
 Schmitt V. Willis, (40 N. J. Eq. 515) 206 
 Schnebly v. Eagan, (7 Gill & J. 120) 472 
 Schneider v. Heath, (3 Camp. 506) 260 
 Scholefield v. Templar, (Johns. 155) 231 
 Scholey v. Halsey, (73 N. Y. 578) 441 
 Scholle V. Scholle, (101 N. Y. 167) 357 
 School District v. Macloon, (4 Wis. 98) 
 
 118 
 School District v. Taylor, (19 Kans. 287) 
 
 57, 106, 110, 117, 118, 123 
 School District v. Weston, (31 Mich. 85) 
 
 658 
 Schooley v. Romain, (31 Md. 574) 45 
 Schramm v. O'Connor, (98 111. 539) 243, 
 
 250 
 Schreyer v. Mayor, (8 J. & S. 255) 449 
 Schroeder v. Gurney, (73 N. Y. 430) 69, 
 
 129 
 Schroeder v. Gurney, (10 Hun, 413) 640 
 Schroeppel v. Hopper, (40 Barb. 425) 36, 
 
 575 
 Schroeppel v. Shaw, (3 N. Y. 446) 572 
 Schuessler v. Hatchett, (58 Ala. 181) 583 
 Schufeldt V. Schnitzler, (21 Hun, 462) 
 
 248, 253 
 Schutt V. Large, (6 Barb. 373) 78, 106, 
 
 109, 111 
 Schuyler v. Pelissler, (3 Edw. Ch. 191) 
 
 566 
 
 Schuylkill, Co. of v. Copley, (67 Pa. St. 
 
 386) 364 
 Schuylkill, Co. of v. Thoburn, (7 Serg. 
 
 & R. 411) 491 
 Schwabacker v. Riddle, (99 111. 343) 342 
 Schwartz v. Wendell, (Walker Ch. 267) 
 
 279 
 Schwarz v. Stein, (29 Md. 113) 479 
 Schwickerath v. Cooksey, (53 Mo. 75) 
 
 329 
 Scofleld V. Adams, (13 Hun, 366) 435 
 Scofield V. Heap, (27 Beav. 93) 186 
 Scofleld V. Lansing, City of, (17 Mich. 
 
 437) 606 
 Scoles V. Wilsey, (11 Iowa, 361) 106, 110 
 Scorpion S. M. Co. v. Marsano, (10 Nev. 
 
 370) 640 
 Scott V. Abercromble, (14 Ala. 270) 418 
 Scott V. Alford, (53 Tex. 83) 293 
 Scott V. Elmore, (10 Hun, 68) 673 
 Scott V. Freeland, (7 Sm. & Mar. 409) 
 
 379 
 Scott V. Gallagher, (14 Serg. & E. 333\ 
 
 119 
 Scott V. Haddock, (11 Ga. 258).374 
 Scott V. Hanson, (1 Sim. 13; 1 Russ. & 
 
 My. 128) 29 
 Scott V. Magloughlin, (111. '90, 24 N. E. 
 
 1030) 79 
 Scott V. Mann, (36 Tex. 157) 379 
 Scott V. Means, (8 Ky. 460) 17 
 Scott V. Orbison, (21 Ark. 202) 472 
 Scott V. Perkins, (28 Me. 23) 381 
 ScotiB. Rand, (118 Mass. 315) 362 
 Scott V. Scott, (33 Ga. 102) 16 
 Scott V. Searles, (5 Sm. & Mar. 35) 418 
 Scott V. Shreeve, (12 Wheat. 605) 569 
 Scott V. Spashett, (3 Macn. & G. 599) 30 
 Scott V. Turner, (15 La. Ann. 346) 501 
 Scott V. TJmbarger, (41 Cal. 410) 279 
 Scott V. Ward, (13 Cal. 458) 174 
 Scott V. Webster, (50 Wis. 53; 44 Wis. 
 
 185) 149, 151 
 Scovill V. Bamey, (4 Oreg. 288) 273 
 Scramm v. O'Conner, (98 111. 538) 259 
 Scribner v. Adams, (73 Me. 541) 631 
 Scribner v. Allen, (13 Minn. 148) 606 
 Scribner v. Collar, (40 Mich. 375) 383 
 Scribner v. Lockwood, (9 Ohio, 184) 70 
 Scroggins v. Dougal, (8 Ala. 382) 123 
 Scroggins v. Hoadley, (56 Ga. 165) 472 
 Scudamore v. Scudamore, (Prec. Chan. 
 
 543) 199, 203 
 Scudder v. Van Amburgh, (4 Edw. Ch. 
 
 29) 126 
 Scudder's Ex'rs c. Vanarsdale, (2 Beasl. 
 
 109) 199 
 
TABLE OF CASES CITED. 
 
 789 
 
 REF^ERENOES ARE TO PAGES. 
 
 Scull V. Eeeves, (3 Green Ch. 4) 360 
 Seabright v. Moore, (33 Mich. 93) 138 
 Seabrook v. Brady, (47 Ga. 650) 134 
 Seaburn's Ex'r v. Seaburn, (15 Gratt. 
 
 433) 348 
 Seagar v. Burns, (4 Minn. 141) 117 
 Seal V. Jones, (3 Bro. P. C. 113) 147 
 Seaman v. Lee, (10 Lans. 607) 563 
 Seattian v. Van Eensselaer, (10 Barb. 81, 
 
 86)36 
 Seaman v. Wright, (13 Abb. Pr. 304) 663 
 Search's Adm'r v. Search's Adm'rs, (37 
 
 N. J. Eq. 137) 419 
 Searles v. Costillo, (13 La. Ann. 203) 640 
 Searles v. Scott, (14 Sm. & Mar. 94) 418 
 Sears •». Dixon, (33 Cal. 336) 53 
 Sears v. Hotchkiss, (35 Conn. 171) 555 
 Sears v. Munson, (23 Iowa, 380) 117, 123 
 Sears v. Shaf ter, (6 N. Y. 268) 286 
 Sears v. Smith, (2 Mich. 243) 473 
 Seat V. Knight, (3 Tenn. Ch. 363) 480 
 Seaving v. Brinkerhoff, (5 Johns. Ch. 
 
 339) 343 
 Second Church v. Disbrow, (53 Pa. St. 
 
 319) 331 
 Second Cong. Soc. v. First Cong. Soc. (14 
 
 N. H. 315) 348 
 Second Nat. Bk. v. Williams, (13 Mich. 
 
 383) 434 
 Secondo Bossio, Estate of, (2 Ashm.,Pa., 
 
 437) 365 
 Secrest v. McKenna, (1 Strobh. Eq. 356) 
 
 29 
 Sedam v. Cincinnati, &c. Canal Co. (2 
 
 Disney, 309) 447 
 Sedgwick v. Laflin, (10 Allen, 432) 316 
 Seeley v. Jago, (1 P. Wms. 389) 207, 208 
 Seely v. Hills, (49 Wis. 473) 370 
 Segar v. Edwards, (11 Leigh, 313) 380 
 .Segondc. Garland, (33 Mo. 547) 397 
 Sehorn v. McWhirter, (6 Baxt. 311) 473 
 Seitz V. Union Pac. Ey. (16 Kans. 133) 
 
 471 
 Selah V. Selah, (23 N. J. Eq. 185) 275 
 Selby V. Alston, (3 Ves. 339) 146, 147 
 Selby ». Geines, (13 111. 69) 307 
 Selby V. Stanley, (4 Minn. 65) 473 
 Seldon's Appeal, (31 Conn. 548) 338 
 Seligman v. Kalkman, (8 Cal. 207) 248 
 Seller v. Clark, (7 Cranch, 69) 255 
 Seller 17. Clelland, (2 Col. 533) 355 
 Sellers v. Sellers, (35 Ala. 335) 415 
 Seltzer v. Brundage, (Pa. 1889; 17 Atl. 
 
 Eep. 9) 631 
 Semple v. Burd, (7 S. & E. 286) 474 
 Seneca Co. Bk. v. Neass, (5 Denio, 339) 
 131 
 
 Senior v. Pawson, (L. E. 3 Eq. 330) 35 
 Senter v. Continental Bank, (7 Mo. App. 
 
 533) 458 
 Senter v. Senter, (70 Cal. 619) 230 
 Senter v. Turner, (10 Iowa, 517) 106, 110 
 Sepulveda v. Sepulveda, (39 Cal. 13) 640 
 Sergeant B. Ingersoll, (7Barr. 340) 77,99, 
 
 111, 120 
 Servis v. Beatty, (32 Miss. 52) 471 
 Sessions v. Moseley, (4 Cush. 87)432 
 Settembre v. Putnam, (30 Cal. 490) 34, 358 
 Sever v. Eussell, (4 Cush. 513) 430 
 Sewall V. Boston W. W. (4 Allen, 277) 82 
 Seward v. Jackson, (8 Cow. 406) 67 
 Sexton V. Wheaton, (1 Am. L. Cas. 17) 
 
 390 
 Seylar v. Carson, (69 Pa. St. 81) 278 
 Seymour v. Belding, (83 111. 233) 596 
 Seymour v. Canandaigua, &c. E. E. (35 
 
 Barb. 284) 449 
 Seymour v. De Lancey, (3 Cow. 445) 272 
 Seymour v. Delancy, (3 Cow. 445) 27 
 Seymour v. M. & C. T. Co. (10 Ohio, 476) 
 
 247 
 Seymour v. Seymour, (4 Johns. Ch. 409) 
 
 419 
 Shackleton v. Sebree, (86 111. 616) 275 
 Shadbolt». Vanderplank, (29 Beav. 405) 
 
 193 
 Shaddle v. Disborough, (.30 N. J. Eq. 370) 
 
 273, 583 
 Shaeffer v. Chambers, (5 Halst. 548) 497 
 Shaeflerc. Sleade, (7 Blackf. 178) 250 
 Shaeffer v. Ward, (5 111. 511) 206 
 Shafer D.Davis, (13111.395) 219 
 Shaferv. Niver, (9 Mich. 253) 587 
 Shaffer v. Whelpley, (37 Wis. 334) 640 
 Shakespeare v. Markham, (72 N. Y. 400) 
 
 275 
 Shall V. Biscoe, (18 Ark. 142) 465 
 Shand v. Hanley, (71 N. Y. 319) 291 
 Shannon v. Bradstreet, (1 Sch. & Lef. 
 
 52) 230 
 Shannon v. Canney, (44 N. H. 593) 407 
 Shannon u. Marmaduke, (14 Tex. 247) 
 
 287 
 Shannon v. Marselis, (Saxt. 413) 526 
 Shannon v. Shannon, (3 Gray, 385) 413 
 Shapley v. Abbott, (42 N. Y. 443) 141 
 Shapland v. Smith, (1 Bro. Ch. 75) 147 
 Shapleigh v. Pilsbury, (1 Me. 271) 316 
 Sharp V. Goodwin, (51 Cal. 219) 364 
 Sharp V. Mayor, (40 Barb. 256) 256, 261 
 Sharp V. Ponce, (74 Me. 476) 250 
 Sharp V. St. Sauveur, (L. E. 7 Ch. 343) 
 
 207 
 Sharp V. Taylor, (2 Phil. 801) 28, 268 
 
T90 
 
 TABLE OF CASES CITED. 
 
 REf^ERENOES ARE TO PAGES. 
 
 Sharp V. Trimmer, (24 N. J. Eq. 433) 587 
 Sharpe v. Foy, (L. R. 4 Ch. 35) 133 
 Sharpe v. Goodwin, (51 Cal. 319) 357 
 Sliarples v. Adams, (33 Beav. 313) 57, 76 
 Sharpsteen v. Tillon, (3 Cow. 651) 383 
 Shartel's Appeal, (64 Pa. St. 25) 224, 227 
 Siiattuck V. Bascom, (55 Hun, 14) 490 
 Shattuclf V. Carson, (2 Cal. 588) 643 
 Shattuck V. Gray, (45 Vt. 87) 233, 234 
 Sliaver ». Kadley, (4 Johns. Ch. 310) 262 
 Shaver v. West. U. Tel. Co. (57 N. Y. 
 
 459) 453 
 Shaw V. Barkart, (17 Ind. 183) 262 
 Shaw V. Barnhart, (17 Ind. 183) 263 
 Shaw V. Carlisle, (9 Heisk. 594) 268 
 Shaw V. Coster, (8 Paige, 339) 657, 663 
 Shaw V. Dwight, (27 N. Y. 244) 618 
 Shaw V. Hoadley, (8 Blackf. 165) 507 
 Shaw V. Levy, (17 S. & E. 99) 296 
 Shaw V. Lindsay, (60 Ala. 344) 566 
 Shaw V. Livermore, (3 Greene, Iowa, 
 
 338) 436 
 Shaw V. Neale, (6 H. L. Cas. 581; 30 
 
 Beav. 157) 138 
 Shaw V. Poor, (6 Pick. 88) 101, 103 
 Shaw V. Read, (47 Pa. St. 103) 355 
 Shaw V. Shaw, (3 Dana, 342) 170 
 Shaw V. Spencer, (100 Mass. 383) 115, 
 
 358 
 Shaw V. Thackray, (1 Sm. & Giff. 537) 
 
 275 
 Shaw V. Vincent, (64 N. C. 690) 29 
 Shawmut, &c. Co. ■». Stevens, (9 Allen, 
 
 332) 261 
 Shay V. Pettes, (35 111. 360) 233 
 Sheafe v. Sheafe, (4 Fost. 564) 413 
 Shearer v. Shearer, (98 Mass. 107) 304 
 Sheboygan v. Sheboygan, &c. E. E. (31 
 
 Wis. 667) 559 
 Shed V. Hawthorne, (3 Neb. 179) 559 
 Sheddon v. Goodrich, (8 Ves. 481) 163, 
 
 164, 166, 167 
 Sheedy v. Eoach, (124 Mass. 473) 431 
 Sheehan v. Hamilton, (3 Keyes, 304) 148 
 Sheehau's Heirs v. Barnett's Heirs, (5 
 
 Hon. 592) 663 
 Sheetz's Appeal, (35 Pa. St. 88, 95) 603 
 Sheffield ». Coventry, (3 Russ.&My. 317) 
 
 136 
 Shegogg V. Perkins, (34 Ark. 117) 419 
 Sheill V. McNitt, (9 Paige, 101) 47 
 Shelby v. Smith, (2 A. K. Marsh. 504) 
 
 229, 236 
 Sheldon v. Hofnagle, (51 Hun, 478) 59 
 Shelden v. Walbridge, (44 Mich. 251) 420 
 Sheldon ». Bliss, (8 N. Y. 31) 170 
 Sheldon v. Dodge, (4 Denio, 217) 343 
 
 Sheldon v. Edwards, (35 N. Y. 279) 149 
 Sheldon v. Eockwell, (9 Wis. 166) 563, 602 
 Sheldon v. School District, (25 Conn. 344) 
 
 606 
 Sheldon v. Sheldon, (3 Eoot, 512) 420 
 Shelley v. Brannan, (4 Fish., Pat. Cas., 
 
 U.S., ,193) 563 
 Shelton v. Johnson, (4 Sneed, 672) 126 
 Shelton v. Lewis, (27 Ark. 190) 357 
 Shelton v. Shelton, (5 Jones' Eq. 392) 335 
 Sheorn v. Eobinson, (23 S. C. 33) 117 
 Shepard v. Akers, (3 Tenn. Ch. 215) 265 
 Shepard v. Shepard, (36 Mich. 173) 234 
 Shepardson v. Stevens, (71 111. 646) 93, 94, 
 
 111 
 Shepardson v. Supervisors, (28 Wis. 593) 
 
 637 
 Shepherd v. Bevin, (9 Gill, 32) 272 
 Shepherd v. McEvers, (4 Johns. Ch. 136) 
 
 339, 360 
 Shepherd v. Ross Co., Comm'rs of, (7 
 
 Ohio, 271) 363 
 Shepherd v. Shepherd, (1 Md. Ch. 244)33» 
 
 437 
 Shepherd v. Temple, (3 N. H. 457) 263 
 Shepherd v. White, (10 Tex. 72) 355 
 Sheratz v. Nicodemus, (7 Yerg. 9) 477 
 Sheridan v. Andrews, (49 N. Y. 478) 128 
 Sherin v. Public Adm'r, (3 Redf., N. Y., 
 
 431) 366 
 Sherman v. Ablfott, (18 Pick. 448) 146 
 Sherman v. Dodge, (38 Vt. 36) 313, 336 
 Sherman v. Parish, (53 N. Y. 483) 374 
 Sherman v. Turpin, (7 Heisk. 383) 406 
 Sherman v. Wright, (49 N. Y. 327) 36 
 Sherrer v. Harris, (13 S. W. 730) 490 
 Sherrill v. Sherrill, (73 N. C. 8) 135 
 Sherry?). Sansberry, (3 Ind. 320) 283 
 Sherwood v. Meadow Val. M. Co. (50 
 
 Cal. 412) 81, 82, 83 
 Sherwood v. Sherwood, (45 Wis. 357) 231 
 Sherwood v. Sutton, (5 Mason, 143) 262, 
 
 563 
 Shewell v. Dwarris, (Johns. 173) 395 
 Shewmake v. Williams, (54 Ga. 206) 596 
 Shields v. McClung, (6 W. Va. 79) 216 
 Shields?). Mitchell, (10 Yerg. 8) 106,110 
 Shields v. Smith, (37 Ark. 47) 138, 141 
 Shields v. Whitaker, (83 N. C. 516) 579 
 Shiell V. McNitt, (9 Paige, 101, 103) 48, 50 
 Shiff V. Johnson, (57 N. H.475) 270 
 Shimer v. Hammond, (51 Iowa, 401) 149 
 Shin ?). Fredericks, (56111.44,3) 146 
 Shine v. Gough, (1 Ball & B. 136) 76 
 Shinn v. Taylor, (38 Ark. 533) 472 
 Shipe V. Repass, (28 Gratt. 716) 472 
 Shlpman v. .^tna Ins. Co. (29 Conn. 245) 86 
 
TABLE OF CASES CITED. 
 
 791 
 
 REFERENCES ARE TO PAGES. 
 
 Shirley o. Shirley, (9 Paige, 363) 392, 400 
 Shirley v. Shirley, (7 Blackf. 452') 478 
 Shirley v. Stratton, (1 Bro. Ch. 440) 257 
 Shirley v. Sugar Ref. Co. (3 Edw. Ch. 
 
 505) 473 
 Shirras v. Craig, (7 Cranch, 34) 56, 60, 63 
 Shish V. Foster, (1 Ves. Sen. 88) 28 
 Shitz V. Dieflfenbach, (3 Barr. 233) 467 
 Shively v. Welch, (3 Or. 288) 233, 234 
 Shivers ■». Simmons, (54 Miss. 520) 640 
 Shockley, Ex parte, (14 Ind. 413) 420 
 Shoemaker v. Brown, (10 Kans. 383) 419 
 Shoemakers. Smith, (Humph. 81) 354 
 Shonk V. Brown, (61 Pa. St. 320) 393 
 Shoot ». Galbreath, (138111.314) 174 
 Short V. Battle. (53 Ala. 456) 68, 397 
 Short V. Mercier, (3 Macn. & G. 205) 
 Short V. Moore, (10 Vt. 446) 30 
 Short V. Stevenson, (63 Pa. St. 95) 287 
 Shortall v. Mitchell, (57 111. 161) 587 
 Shorter v. Frazer, (64 Ala. 74) 473 
 Shotwell V. Harrison, (30 Mich. 179) 93, 
 
 94, 99, 100, 104, 107, 111 
 Shotwell V. Lawson, (30 Miss. 27) 544 
 Shotwell V. Murray, (1 Johns. Ch. 512) 
 
 319, 327 
 Shotwell V. Smith, (5 C. E. Green, 79) 644 
 Shotwell V. Struble, (21 N. J. Eq. 31) 653 
 Showman v. Miller, (6 Md. 479) 233 
 Shreve v. Brereton, (51 Pa. St. 175) 47, 
 
 49 
 Shrewsbury, Countess of v. Earl of 
 
 Shrewsbury, (1 Ves. 227) 148, 151, 152 
 Shriver v. Seiss, (49 Md. 384) 583 
 Shropshire, &c. Ey. v. The Queen, (L. 
 
 R. 7 H. L. 496) 85, 86, 87 
 Shryock v. Waggoner, (4 Casey, 430) 69, 
 
 129 
 Shudall V. Jekyll, (2 Atk. 516) 184 
 Shuford V. Cain, (1 Abb., U. S., 302) 21 
 Shulman v. Fitzpatrick, (62 Ala. 571) 
 
 405 
 Shulter v. Harvey, (65 Cal. 158) 665 
 Shults V. Moore, (1 McLean, 521) 102, 105 
 Shumway v. Eutter, (7 Pick. 56) 294 
 Shurtlefl v. Willard, (19 Pick. 202) 397 
 Shute V. Hamilton, (3 Daly, 462) 46, 49 
 Shute V. Taylor, (5 Mete. 61) 46 
 Shuttleworth 1). Laycock, (1 Vern. 244)38 
 Sibley v. Hulbert, (15 Gray, 509) 343 
 Sibley V. Lefflngwell, (8 Allen, 584) 93, 
 
 118 
 Sicard v. Davis, (6 Pet. 124) 101 
 Siemon v. Schurck, (29 N. Y. 598) 70, 71 
 Sierra Nev. M. Co. v. Sears, (10 Nev. 
 
 346) 551 
 Sieveking v. Litzler, (31 Ind. 13) 350 
 
 Sife V. Earman, (26 Gratt. 566) 293 
 Sigourney v. Munn, (7 Conn. 334) 94, 112, 
 
 114 
 Sillers v. Lester, (48 Miss. 513) 449 
 Silliman v. Cummins, (13 Ohio, 116, 118) 
 
 402 
 Silloway v. Neptune Ins. Co. (13 Gray, 
 
 73) 137 
 Silvery 's Estate, In re, (42 Cal. 311) 160, 
 
 167, 174 
 Silvester v. Wilson, (2 T. E. 444) 147 
 Silveus' Ex'rs v. Porter, (74 Pa. St. 448) 
 
 407 
 Silvey v. Hodgdon, (53 Cal. 363) 336 
 Simar v. Canaday, (53 N. Y. 398) 250, 251 
 Sime V. Norris, (8 Phila. 84) 272 
 Simmons v. Cincinnati Sav. Soc. (31 
 
 Ohio St. 457) 434 
 Simmons v. Hendricks, (8 Ired. Eq. 84) 
 
 415 
 Simmons v. Jenkins, (76 111. 479) 298, 539 
 Simmons v. Simmons' Adm'r, (33 Gratt. 
 
 451) 419 
 Simmons v. Wood, (45 How. Pr. 363) 673 
 Simmons v. Vulcan Oil, &c. Co. (61 Pa.. 
 
 St. 203) 287 
 Slmms V. Richardson, (2 Litt. 274) 73, 74, 
 
 75 
 Simons v. Vulcan Oil Co. (61 Pa. St. 202> 
 
 376 
 Simonton v. Gray, (34 Me. 50) 149 
 Simonton v. Liverpool Co. (51 Ga. 76) 13S 
 Simpson V. Ashworth, (6 Beav. 412) 20O 
 Simpson v. Brown, (33 Beav. 482) 80 
 Simpson v. Field, (2 Ch. Cas. 32) 38 
 Simpson v. Howden, Lord, (3 My. & Cr. 
 
 97) 566 
 Simpson v. McAllister, (56 Ala. 238) 472 
 Simpson v. Mundee, (3 Kans. 173) 102, 
 
 106, 110, 474 
 Simpson v. Pearson, (31 Ind. 1) 137, 142, 
 
 143 
 Simpson v. Vaughan, (2 Atk. 31) 38, 441 
 Simpson v. Westminster P. H. Co. (8 H. 
 
 L.717) 555 
 Sims V. Eiland, (57 Miss. 607) 358 
 Sims V. Sims, (3 Stockt. Ch. 158) 182, 183, 
 
 185, 187, 188 
 Sinclair v. Armitage, (1 Beasl. 174) 465 
 Sinclair v. Jackson, (8 Cow. 543) 230, 371 
 Singer v. Jacobs, (3 McCrary, U. S., 638) 
 
 112 
 Singer v. Union, &c. Co. (1 Holmes, 353) 
 
 555 
 Singleton v. Lowndes, (9 S. C. 465) 366 
 Siron v. Euleraan's Ex'r, (33 Gratt. 215) 
 
 480 
 
.792 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Sismey v. Eley, (17 Sim. 1) 27 
 
 Sisson V. Donelly, (36 N. J. L. 432) 222 
 
 Sisson V. Giles, (32 L. J., ir. s., Ch. 606) 
 
 207, 208 
 Siter V. McClanachan, (2 Gratt. 280) 35, 
 
 58, 202 
 Slter's Appeal, (26 Pa. St. 180) 36 
 Sitwell V. Bernard, (6 Ves. 520) 204 
 Sitz V. Deihl, (55 Mo. 17) 473 
 Six V. Shaner, (26 Md. 415) 406 
 Slceel V. Spraker, (8 Paige, 183) 149 
 Skeggs, In re, (2 De G. J. & S. 533) 205, 
 
 206 
 Skiddy v. Atlantic, &c. E. E. (3 Hughes, 
 
 320) 463 
 Skidmore v. Bradford, (L. E. 8 Eq. 134) 
 
 243 
 Skilbeck v. Hilton, (L. K. S Eq. 587) 384 
 SkUlman v. Teeple, (1 N. J. Eq. 232) 148, 
 
 223 
 .Skinner v. Dayton, (2 Johns. Ch. 535) 43, 
 
 44, 50 
 ■Skinner v. Judson, (8 Conn. 528) 651 
 ;Skinner v. Miller, (5 Litt. 86) 490 
 Skinner v. White, (17 Johns. 357) 569 
 .Skinner's Heirs, Matter of, (2 Dev. & 
 
 Bat. Eq. 63) 613 
 iSkip V. Harwood, (3 Atk. 564) 643 
 .Skipper v. Stokes, (42 Ala. 255) 445, 447 
 Skipwith V. Strother, (3 Eand. 214) 268 
 Skirving v. Williams, (24 Beav. 275) 205 
 Skykes v. Beadon, (L. E. 11 Ch. D. 170, 
 
 183, 197) 27 
 Slack V. Black, (109 Mass. 496) 649 
 Slack V. Wood, (9 Gratt. 40) 566 
 Sladei). Ehodes, (3 Dev. & Bat. Eq.24)446 
 Slade V. Street, (27 Ga. 17) 419 
 Slate V. Laval, (4 McCord, 336) 491 
 Slate Co..«. Tilton, (69 Me. 344) 370 
 Slater v. Maxwell, (6 Wall. 268) 273 
 Slattery v. Schwannecke, (118 N. Y. 543) 
 
 104 
 Slaughter's Adm'r w. Gerson, (3 Wall. 
 
 379) 241, 354, 258, 259, 360 
 Sledge D.Boone, (57 Ind. 222) 375 
 Sledge V. Scott, (56 Ala. 303) 343, 250, 356, 
 
 359, 260 
 Sleeper v. Chapman, (131 Mass. 404) 65, 
 
 87, 115 
 Sllfer V. Beates, (9 S. & R. 166) 230 
 Slim V. Croucher, (1 De G. P. & J. 518) 100, 
 
 137, 138 
 SlinglufE B. Eckel, (24 Pa. St. 472) 346 
 Slingsby v. Grainger, (7 H. L. Cas. 373) 
 
 232 
 Sloat V. McDougall, (9N. Y. S. 631) 153 
 Slocum V. Catlin, (33 Vt. 137 (149, 151 
 
 Slocum V. Slocum, (4 Edw. Ch. 613) 209 
 Sloman /O.Walter, (1 Bro. Ch. 418) 33 
 Slowey V. McMurray, (37 Mo. 113) 489 
 Small «. Herkimer Man. Co. (2 N. Y, 
 
 335) 53 
 Small V. Jones, (6 Watts & S. 123) 378 
 Small V. Jones, (1 Watts & S. 138) 347 
 Small V. Small, (74 N. C. 16) 379 
 Small V. Stagg, (95 111. 39) 473 
 Smallman v. Hatton, (4 Md. Ch. 9.5) 329 
 Smiley v. Wright, (3 Ohio, 513) 303 
 Smite V. Crisman, (91 Pa. St. 428) 396 
 Smith V. Andrews, (3 Ired. 6) 253, 260 
 Smith V. Atkins, (18 Vt. 461) 448 
 Smith ». Auditor-Gen. (30 Mich. 398) 29, 
 
 31 
 Smith V. Ayrault, (71 Mich. 475) 628 
 Smith V. Babcock, (3 Wood & M. 346) 354 
 Smith V. Bangs, (15 111. 399) 559 
 Smith V. Bayright, (34 N. J. Eq. 434) 199 
 Smith V. Black, (115 U. S. 308) 344 
 Smith V. Blaupied, (63 N. H. 652) 153 
 Smith V. Bone, (7 Bush, 367) 171 
 Smith V. Bowen, (35 N. Y. 83) 338 
 Smith V. Bowen, (61 Wis. 358) 393 
 Smith V. Branch Bk. (31 Ala. 125) 107, 
 
 110 
 Smiths. Brannan, (13 Cal. 107) 640 
 Smith V. Brittenham, (98 111. 488) 242, 
 
 263 
 Smith V. .Bromley, (3 Dougl. 696) 270 
 Smith V. Brotherline, (63 Pa. St. 461) 280 
 ' Smith 1). Burnham, (3 Sumn. 435) 33 
 Smith V. Butler, (11 Oreg. 46) 230, 233, 
 
 334 
 Smith V. Butterham, (98 111. 188) 263 
 Smith V. Capron, (7 Hare, 185) 114 
 Smith V. Ceney, (6 Ves. 43) 333 
 Smith V. Clarke, (12 Ves. 477) 244 
 Smith V. Claxton, (4 Madd. 484) 209, 210 
 Smith V. Clay, (3 Bro. Ch. 638) 24 
 Smith V. Coe, (33 N. Y. S. C. 480) 46 
 Smith V. Collamer, (2 Dem., N. Y., 147) 
 
 367 
 Smith V. Countryman, (SON. Y. 655) 242', 
 
 251, 252, 253 
 Smith V. Crisman, (91 Pa. St. 438) 298 
 Smith V. Cuff, (6 M. &S. 160) 370 
 Smith II. Davis, (49 Md. 470) 879 
 Smith V. Denton, (43 Iowa, 48)130,131 
 Smith V. Doe, (26 Miss. 391) 344 
 Smith V. Dorsey, (38 Ind. 451) 431 
 Smith V. Douglass, (16 111. 34) 231 
 Smith «. Drake, (33 N. J. Eq. 303) 470 
 Smith v. Dutton, (43 la. 48) 73 
 Smith V. Evans, (38 Beav. 59) 471 
 Smith V. Everett, (50 Miss. 575) 418 
 
TABLE OF CASES CITED. 
 
 793 
 
 REf'ERENOES ARE TO PAGES. 
 
 Smith V. Fellows, (131 Mass. 30) 483 
 Smith V. Felton, (43 N. Y. 419) 88 
 Smith V. Field, (5 T. R. 211) 402 
 Smith V. Fly, (24 Tex. 345) 218 
 Smith V. Ford, (48 Wis. 115) 327 
 Smith V. Fox, (48 N. Y. 674) 88 
 Smith V. Frost, (70 N. Y. 65) 279 
 Smith V. Gibson, (15 Minn. 89) 106, 109, 
 
 118 
 Smith V. Godfrey, (28 N. H. 379) 270 
 Smith V. Greeley, (14 N. H. 378) 336, 238 
 Smith V. Greenlee, (2 Dev. 136) 347 
 Smith V. Griswold, (6 Oreg. 440) 16 
 Smith V. Guild, (34 Me. 443, 447) 155, 160, 
 
 168, 170 
 Smith u. Harrington, (4 Allen, 576) 326 
 Smith V. Henry, (3 Ball, 118) 295 
 Smith V. Hibbard, (3 Dick. 730) 471 
 Smith V. Hodges, (92 U. S. 183) 291 
 Smith V. Hughes, (L. R. 9 Q. B. 597) 
 
 253 
 Smith V. Hutchinson, (61 Md. 83) 139 
 Smith V. Jackson, (1 Madd. 618) 120 
 Smith V. Jackson, (3 Edw. Ch. 28) 306 
 Smith V. Jewett, (40 N. H. 530) 33, 54 
 Smith?;. Jordan, (13 Minn. 364} 234 
 Smith V. Jordan, (25 Ga. 687) 71 
 Smith u Kane, (2 Paige, 303) 30 
 Smith V. Kinskerri, (4 Johns. Ch. 9) 169, 
 
 171 
 Smith V. Kittredge, (21 Vt. 238) 432 
 Smith V. Koust, (50 Wis. 360) 539 
 Smith V. Lampton, (8 Dana, 69) 426 
 Smith V. Lansing, (23 N. Y. 520) 370 
 Smith V. Lockwood, (13 Barb. 209) 559 
 Smith V. Love, (64 N. C. 439) 363 
 Smith V. Mackin, (4 Lans. 41) 233 
 Smith V. Matthews, (3 De G. F. & J. 139) 
 Smith t). McAtee, (27 Md. 420) 406 
 Smiths. McCann, (24 How. 398) 21 
 Smith f. McCluskey, (45 Barb. 610) 213 
 Smith V. McCrary, (3 Ired. Eq. 204) 35, 
 
 209 
 Smith V. McDougal, (3 Cal. 586) 219 
 Smith V. McElwain, (57 Ga. 247) 555 
 Smith V. McKitterick, (51 Iowa, 548) 422 
 Smith V. Miller, (63 Tex. 73) 120 
 Smiths Mitchell, (6 Ga. 458) 356 
 Smith V. Moore, (3 Green Ch. 485) 
 Smith V. Moore, (36 111. 392) 473 
 Smiths. Moore, (11 N. H. 55) 
 Smith V. Moore, Ex'r of, (3 Green Ch. 
 
 485) 418 
 Smith V. Newton, (38 111. 330)140 
 Smith V. New York Cent. E. Co. (34 N. 
 
 Y. 223) 365 
 Smith V. Ostermyer, (68 Ind. 433) 149 
 
 Smith V. Oliphant, (2 Sandf., Super. Ct. 
 
 N. Y., 306) 440 
 Smith u. Patton, (13 W. Va. 541) 353 
 Smith ?). Penn, (23Gratt. 403) 219, 237 
 Smith V. Phillips, (1 Keen, 694) 148 
 Smith D. Phillips, (47 Wis. 302) 539 
 Smith V. Poythress, (2 Fla. 92) 407 
 Smith V. Rathbun, (22 Hun, 150) 374 
 Smith V. Reese R. M. Co. (L. R. 2 Eq. 
 
 364) 357 
 Smith V. Richards, (13 Pet. 26) 342, 254, 
 
 255, 256 
 Smith V. Robertson, (23 Ala. 313) 254 
 Smith i;. Robinson, (10 Allen, 145, 130) 
 
 31, 269 
 Smith V. Rowland, (13 Kans. 345) 471 
 Smith 0. Rowley, (66 Barb. 502) 596 
 Smith V. Rumsey, (33 Mich, 183) 631 
 Smith V. Scholtz, (63 N. Y. 41) 333 
 Smith V. Sherman, (4 Cush. 408) 444 
 Smith V. Skeary, (47 Conn. 47, 54) 293 
 Smith V. Smith, (L. R. 20 Eq. 500) 563 
 Smith V. Smith, (13 Ohio St. 532) 107, 110 
 Smith «. Smith, (4 Johns. Ch. 281) 368 
 Smith V. Smith, (85 111. 189) 354 
 Smith V. Smith, (14 Gray, 533) 168, 170 
 Smith V. Smith, (1 Allen, 139) 193 
 Smith V. Smith, (12 Cal. 316) 174 
 Smith I). Smith, (11 Tex. 103) 430 
 Smith V. Smith, (9 Abb. Pr., N. s., 420) 
 
 473 
 Smith V. Smith, (8 Ind. 267) 406 
 Smith V. Smith, (62 N. H. 429) 153 
 Smith V. Smith, (21 Pa. St. 367) 249 
 Smith V. Smith, (30 Vt. 139) 263 
 Smith V. Smith, (3 Stew. Eq. 564) 434 
 Smith V. Stephenson, (45 Iowa, 645) 380 
 Smith V. Strahan, (16 Tex. 314) 353 
 Smith V. Sweetser, (32 Mo. 246) 491 
 Smith V. Thompson, (3 MacArthur, 291) 
 
 397 
 Smith V. Townsend, (109 Mass. 500) 384 
 Smith V. Townshend, (27 Md. 368) 380 
 Smith V. Tracey, (36 N. Y. 79) 262 
 Smith V. Walker, (8 Sm. & Mar. 131) 566 
 Smiths. Water Com'rs, (38 Conn. 208) 
 
 130 
 Smith V. Welch, (10 Wis. 91) 295 
 Smith n. White, (L. R. 1 Eq. 636) 368 
 Smith V. Wildman, (39 Conn. 387) 330 
 Smith V. Yule, (31 Cal. 180) 109, 117, 121 
 Smithers v. Hooper, (23 Md. 373) 302 
 Smithson v. Thompson, (1 Atk. 530) 28 
 Smithurst v. Edmunds, (14 N. J. Eq. 
 
 408) 449 
 Smithurst v. Edmunds, (1 McCarter, 408) 
 450 
 
794 
 
 TABLE OF CASES CITED. 
 
 RErERBNCES ARE TO PAGES. 
 
 Smolly V. Ulrich, (Pa. 1890, 19 Atl. 305) 
 
 489 
 Smoot V. Rea, (19 Md. 398) 36, 587 
 Smyles v. Hastings, (23 N. Y. 317) 438 
 Smyth V. Griffin, (13 Sim: 345) 27 
 Smyth V. Oliver, (31 Ala. 39) 405 
 Sneed v. Bradford, (1 Ves. Sen. 501) 194 
 Sneed v. Osborn, (25 Cal 634) 140 
 Sneed's Heirs v. Atherton, (6 Dana, 276) 
 
 613 
 Snelgrove u. Snelgrove, (4 Desau. Eq. 
 
 274) 63, 163, 164, 170, 176, 177, 178 
 Snell V. Atlantic Ins. Co. (8 Otto, 85) 219, 
 
 333 
 Snell V. Mitchell, (65 Me. 48) 27 
 Snell V. Tuttle, (44 Hun, 334) 183 
 Snelson v. Franklin, (6 Munf. 310) 253 
 Snider v. Lehnherr, (5 Oreg. 385) 587 
 Snider v. Snider, (3 Phila. 160) 107, 109 
 Snodgrass v. Butler, (54 Miss. 45) 663 
 Snodgrass v. Ricketts, (13 Cal. 359) 106, 
 
 109 
 Snow V. Foley, (119 Mass. 103) 36 
 Snow V. Stevens, (15 Mass. 278) 491 
 Snowden v. Snowden, (1 Bro. Ch. 583) 34, 
 
 195 
 Snowhill V. Snowhill, (3 Zabr. 447) 383 
 Snyder v. Christ, (39 Pa. St. 499) 291 
 Snyder v. Griswold, (37 111. 316) 53 
 Snyder v. Miller, (67 Iowa, 361) 170 
 Snyder v. Snyder, (6 Mich. 470; 10 Barr. 
 
 423) 149, 395 
 ' Snyder v. Spaulding, (57 III. 480) 54, 587 
 Snyder v. Sponable, (1 Hill, 567) 130 
 Snyder v. Warbasse, (3 Stockt. 463) 331 
 Snyder's Appeal, (93 Pa. St. 504) 400 
 Society, &c. v. Lehigh V. R. R. (33 N. J. 
 
 Eq. 339) 136, 137 
 Soc. of Orphan Boys v. New Orleans, (12 
 
 La. An. 62) 348 
 Sohier v. Burr, (127 Mass. 231) 345, 643 
 Sohier v. Eldredge, (103 Mass. 345) 469 
 Sohier v. St. Paul's Church, (12 Mete. 
 
 350) 348 
 Solinger v. Earle, (83 N. Y. 393) 368 
 Sollee V. Croft, (7 Rich Eq., S. C, 46) 367 
 Solomons. Moral, (53 How. Pr. 343) 290 
 Somer v. Richards, (46 Vt. 170) 250 
 Somerby v. Buntin, (118 Mass. 379) 437, 
 
 575 
 Somers v. Craig, (9 Humph. 467) 394 
 Seiners v. Overhulser, (67 Cal. 337) 354 
 Somers v. Richards, (46 Vt. 170) 343, 343, 
 
 259 
 Somerset v. Somerset, (1 Bro. Ch. 309) 
 
 188 
 Somes V. Brewer, (3 Pick. 184) 77 
 
 Somes V. Skinner, (3 Pick. 53; 16 Mass. 
 
 348) 103 
 Sommerville v. Donaldson, (36 Minn. 75> 
 
 365 
 Soohan v. Philadelphia, (33 Pa. St. 9) 348 
 Sopwith V. Maugham, (30 Beav. 335) 176 
 Sortwell V. Hughes, (1 Curtis, 345) 271 
 Souder v. Morrow, (33 Pa. St. 83) 105, 107 
 Soule V. Shotwell, (52 Miss. 236) 68 
 Soulle V. Gerard, (Cro. Eliz. 535) 332 
 Sounder's Appeal, (57 Pa. St. 498) 17 
 Southard v. Piper, (36 Me. 84) 407 
 Southard v. Plummer, (36 Me. 64) 407 
 Southard v. Sutton, (68 Me. 575) 137, 139, 
 
 143 
 South Car. R. R. v. Steiner, (44 Ga. 546) 
 
 640 
 Southerin v. Mendum, (5 N. H. 430) 501 
 Southerland v. Southerland's Ad'r, (5 
 
 Bush, 591) 431 
 South Wales, &e., In re, (L. R. 3 Ch. D. 
 
 763) 27 
 South wick ti. Morrell, (131 Mass. 530) 430 
 Southworth v. Ashland, (3 Sandf. 448) 
 
 536 
 Soutter v. Miller, (15 Fla. 635) 343 
 Souverbye v. Arden, (1 Johns. Ch. 240) 
 
 338 
 Sowden v. Sowden, (1 Bro. Ch. 583) 196 
 Sowler V. Day, (58 Iowa, 252) 339 
 Spackman v. Ott, (65 Pa. St. 131) 68 
 Spader v. Lawler, (17 Ohio, 371) 107, 110 
 Spadone v. Manvel, (3 Daly, 263) 130 
 Spain D. Hamilton's Ex'rs, (1 Wall. 604) 
 
 84, 269, 453 
 Spalding v. Alexander, (6 Bush, 160) 587 
 Spalding v. Hedges, (2 Barr. 240) 358, 
 
 359 
 Sparhawk v. Bagg, (16 Gray, 583) 491 
 Sparhawk v. Sparhawk, (114 Mass. 356) 
 
 363 
 Sparhawk v. Union Pass. Ry. (54 Pa. 
 
 St. 401) 559 
 Sparhawk v. Willis, (5 Gray, 429) 497 
 Sparks v. Cator, (3 Ves. 530) 189 
 Sparks v. Hess, (15 Cal. 186) 471, 473 
 Sparks v. Liverpool W. W. (13 Ves. 428) 
 
 53 
 Sparks v. Pittman, (51 Miss. 511) 319, 
 
 322 
 Sparks v. State Bank, (7 Blackf. 469) 
 
 58 
 Sparks v. Weedon, (21 Md. 156) 432 
 Sparks v. White, (5 Humph. 86) 330 
 Sparling v. Parker, (9 Beav. 534) 304 
 Sparman v. Keim, (13 Jones & S. 163) 
 
 360 
 
TABLE OF CASES CITED. 
 
 795 
 
 REFERENCES ARE TO PAGES. 
 
 Spaulding v. Brewster, (50 N. Y. 143) 65 
 Spaulding v. Cleghorn, (8 N. Y. S 269) 
 
 355 
 Spaulding v. Strang, (37 N. Y. 135) 343 
 Speakman's Appeal, (71 Pa. St. 35) 407 
 Spear v. Smith, (1 Denio, 465) 50 
 Spears v. Walker, (1 Head, Tenn., 166) 
 
 186 
 Speck V. Kiggin, (40 Mo. 405) 91 
 Speed's Ex'r v. Nelson's Bx'r, (8 B. Mon. 
 
 499) 418 
 Speer v. Evans, (11 Wright, 141) 107, 108 
 Spelman v. Teny, (74 N. Y. 448) 279 
 Spence v. Spencer's Ex'r, (50 Ala. 445) 375 
 Spencer v. Ayrault, (10 N. Y. 202) 149, 
 
 150 
 Spencer v. Carr, (45 N. Y. 406) 139 
 Spencer v. Higgins, (22 Conn. 521) 421 
 Spencer v. Slater, (L. E. 4. Q. B. D. 13) 
 
 289 
 Spencer v. Spencer, (11 Paige, 299) 371 
 Spencer v. St. Paul, &c. R. R. (22 Minn. 
 
 29) 407 
 Spencer v. Tilden, (5 Cow. 144) 48 
 Spencer v. Waterman, (36 Conn. 343) 148, 
 
 153 
 Spencer v. Wilson, (L. R. 16 Eq. 501) 
 
 210 
 Spencer & Newbold's Appeal, (80 Pa. 
 
 St. 317) 281 
 Spencer's Appeal, (80 Pa. St. 317) 285 
 Spicer v. Robinson, (73 111. 519) 65 
 Spicer v. Waters, (65 Barb. 237) 73 
 Spiller V. Spiller, (3 Swanst. 556) 551 
 Spink V. McCall, (52 Iowa, 432) 484 
 Spinks V. Robins, (2 Atk. 491) 186 
 Spinning v. Ohio, &c. Tr. Co. (3 Disney, 
 
 336) 673 
 Spire V. Smith, (1 Beav. 419) 190 
 Spirett e. Willows, (3 De G. J. & S. 393) 
 
 30, 31 
 Spofford V. Kirk, (7 Otto, 484) 446 
 Spofford V. Spofford, (10 N. H. 354) 231 
 Spofford v. Weston, (29 Me. 140) 94, 106, 
 
 110 
 Sporrer v. Eifler, (1 Heisk. 633,636)28,31, 
 
 269 
 Sprague v. Edwards, (48 Cal. 239) 328 
 Sprague v. Graham, (29 Me. 160; 38 Me. 
 
 328) 79 
 Sprague v. Shields, (61 Ala. 438) 395 
 Sprague v. Tyson, (44 Ala. 338) 405 
 Sprague v. West, (127 Mass. 471) 661 
 Sprague v. White, (73 Iowa, 670) 119 
 Spraights v. Hawley, (39 N. Y. 441) 65 
 Spread v. Morgan, (11 H. L. Cas. 588) 158, 
 
 177 
 
 Sprigg V. Bk. of Mt. Pleasant, (14 Pet.. 
 
 201) 489 
 Spring V. S. C. Ins. Co. (8 Wheat. 268), 
 
 665 
 Springer v. Arundel, (64 Pa. St. 218) 400^ 
 Springer v. Berry, (47 Me. 330) 355 
 Springer v. Drosch, (33 Ind. 486) 388 
 Springer v. Walters, (34 Pa. St. 3'28) 474 
 Spring Lake Iron Co. v. Waters, (50 Mich.. 
 
 13) 289 
 Springs v. Harven, (3 Jones' Eq. 96) 222 
 Sproul V. Atchison Nat. Bk. (22 Kans.. 
 
 336) 393 
 Spurgin v. Traub, (65 111. 170) 596 
 Spurlock V. Sullivan, (36 Tex. 511) 66, 95 
 Spurr V. Benedict, (99 Mass. 463) 230 
 Squire v. Campbell, (1 My. & Cr. 459) 239 
 Squire ■«. Harder, (1 Paige, 494) 308 
 Staats V. Bergen, (17 N. J. Eq. 554) 287 
 Stacey v. Dershaw, (7 Hun, 449) 289 
 Stafford v. Ballon, (17 Vt. 329) 60,94, 112 
 Stafford v. Bryan, (1 Paige Ch. 239) 654 
 Stafford v. Van Rensselaer, (9 Cow. 316). 
 
 474 
 Stagg V. Beckman, (2 Edw.Ch. 89) 194 
 Stagg V. Jackson, (1 N. Y. 206) 200 
 Stagg V. Small, (4111. App. 192) 117 
 Staggers v. Mathews, (13 Rich. Eq. 143> 
 
 400 
 Stainback v. Geddy, (1 Dev. & B. Eq. 
 
 479) 507 
 Staines v. Shore, (16 Pa. St. 200) 244, 245 
 Staley v. Howard, (7 Mo. App. 377) 405 
 Stalls. Cincinnati, (160hioSt. 169) 375 
 Stall V. Wilbur, (77 N. Y. 158) 421 
 Stallworth'sAdm'ri). Parnham, (64 Ala. 
 
 359) 418 
 Stamper v. Hawkins, (6 Ired. Eq. 7) 329 
 Standering v. Hall, (L. R. 11 Ch. D. 652> 
 
 207 
 Stanford v. Lyon, (37 N. J. Eq. 94) 17 
 Stanhope v. Manners, (3 Eden, 197) 45 
 Stanhope v. Earl Verney, (3 Eden, 81) 61 
 Stanley v. Stocks, (1 Dev. Eq. 314) 536 
 Stanley's Appeal, (8 Barr. 431) 283 
 Stansell v. Roberts, (13 Ohio, 148) 58, 107, 
 
 110 
 Stanton r. Ala., &c.R. R. (2 Woods, 506) 
 
 673 
 Stanton v. Hall, (2Russ. & My. 175) 30 
 Stanton 17. King, (8 Hun, 4) 373 
 Stanton v. Miller, (58 N. Y. 192) 583 
 Stanton v. Small, (3 Sandf. 230) 448 
 Stanton v. Thompson, (49 N. H. 272) 146, 
 
 148, 149, 150, 151 
 Stapilton v. Stapilton, (1 Atk. 3)224 
 Staples V. Fenton, (5 Hun, 172) 121 
 
T96 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO RAGES. 
 
 Staples V. Parker, (41 Barb. 648) 48 
 Stapylton v. Scott, (13 Ves. 434) 221, 223 
 Star Fire Ins. Co. v. Palmer, (41 N. Y. 
 
 S. C. 267) 279 
 Stark V. Hunton, (Saxton, 217) 168, .170, 
 
 171, 172 
 Stark D. Starrs, (6 Wall. 402) 640 
 Stark V. Wilder, (36 Vt. 752) 579 
 Stark's Ex'rs v. Llttlepage, (4 Band. 
 
 372) 26 
 Starke v. Wilson, (65 Ala. 576) 482 
 Starkweather v. Am. Bible See. (72 111. 
 
 50) 345 
 Starkweather v. Smith, (6 Mich. 377) 
 
 407 . 
 
 Starling v. Brown, (7 Bush, 164) 667 
 Starnes v. Newsom, (1 Tenn. Ch. 239) 
 
 591 
 Starr v. Ellis, (6 Johns. Ch. 393) 148, 149, 
 
 596 
 Starr v. Hamilton, (1 Deady, 268) 407 
 Starr v. Moulton, (97 111. 535) 363 
 Starr v. Starr, (54 Hun, 300) 170 
 State V. Baird, (18 N. J. Eq. 194) 300 
 State •». Benoist, (37 Mo. 500) 343 
 State V. Blakeman, (49 Mo. 604) 271 
 State V. Boston, &c. R. Co. (58 N. H. 410) 
 
 365 
 States. Eau Claire, (40 Wis. 533) 559 
 State V. Frank's Adm'r, (51 Mo. 98) 233 
 State V. Gorman, (4Honst. 624) 407 
 State V. Gott, (44 Md. 341) 437 
 State B. Guilford, (15 Ohio, 593) 371 
 State V. Heffner, (84 N. C. 751) 250 
 State V. Laies, (52 Mo. 396) 142 
 State V. Merritt, (70 Mo. 275) 289 
 State V. Paul, (69 Me. 215) 249 
 State V. Paup, (13 Ark. 129) 219, 231 
 Stater. Phifer, (65 N. C. 321, 326)243, 
 
 359 
 State V. Prewett, (30 Mo. 165) 349 
 State V. Eeigart, (IGill, 1) 219 
 State V. Rottaken, (34 Ark. 144) 419 
 State V. Schulein, (45 Mo. 521) 246 
 State V. Sioux City, &c. E. R. (7 Neb. 
 
 357)640 
 State V. True, (20 Mo. App. 176) 286 
 State u. Uhrig, (14 Mo. App. 413) 17 
 State V. Wertzel, (63 Wis. 184) 138 , 
 State of Mo. v. McKay, (43 Mo. 594, 598) 
 
 17 
 Staton V. Davenport, (95 N. C. 11) 117 
 Stead V. Clay, (1 Sim. 294) 551 
 Stead D.Newdigate, (3 Meriv. 531) 36, 303 
 Steadwell v. Morris, (61 Ga. 97) 638 
 Steamboat New World v. King, (16 How., 
 U. S., 469) 365 
 
 Stearns v. Beckham, (31 Gratt. 379) 596 
 Stearns v. Marsh, (4 Denio, 237) 543 
 Stebbins v. Eddy, (4 Mason, 414) 229, 241 
 Stedwell v. Anderson, (21 Conn. 139) 222, 
 
 229 
 Steedman v. Weeks, (3 Strobh. Eq. 145) 
 
 613 
 Steel 0. Steel, (4 Allen, 417) 488 
 Steele v. Benham, (84 N. Y.634) 295 
 Steele v. Branch, (40 Cal. 3) 54, 587 
 Steele v. Curie, (4 Dana, 385) 271 
 Steele v. Ellmaker, (11 S. & R. 86) 244 
 Steele v. Fish, (2 Minn. 153) 640 
 Steele v. Mansell, (6 Rich. 437) 107, 110 
 Steele u. Miller, (1 Atl. Rep., Pa., 434) 
 
 398 
 Steele v. Steele, (64 Ala. 438) 373, 481, 
 
 483 
 Steele v. White, (3 Paige, 478) 337 
 Steele v. Worthington, (2 Ohio, 182) 272 
 Steele's Appeal, (72 Pa. St. 101) 631 
 Steinbach v. Relief F. Ins. Co. (77N.Y. 
 
 498) 
 Stelzich V. Weldel, (37 111. App. 177) 148 
 Stephen v. Powys, (1 De G. & J. 34) 332 
 Stephens v. Bridges, (6 Madd. 66) 146 
 Stephens v. Brown, (3 Vt. 420) 105 
 Stephens v. Harrow, (26 Iowa, 458) 288 
 Stephens v. Meek, (6 Lea. 226) 621 
 Stephens v. Morse, (47 N. H. 433) 101 
 Stephens v. Stephens, (1 De G. & J. 68; 
 
 3 Drew. 697) 159, 168 
 Stephens v. Tucker, (55 Ga. 543) 448 
 Stephenson v. Clark, (20 Vt. 624) 296 
 Stephenson v. Haines, (16 Ohio St. 478) 
 
 59 
 Stephenson v. Rice, (12 W. Va. 575) 471 
 Stephenson v. Taverners, (9 Gratt. 389) 
 
 633 
 Sterling v. Ripley, (3 Chand. 166) 395 
 Sterne v. Beck, (1 De G. J. & g. 595) 45 
 Stetson V. Cook, (39 Mich. 750) 640 
 Stetson V. Gulliver, (2 Cush. 494) 110 
 Stettheimer v. Killip, (75 N. Y. 282) 628 
 Steven v. Beall, (23 Wall. 329) 279 
 Stevens i;. Board of Education, (79 N. 
 
 Y. 183) 265 
 Stevens v. Brennan, (79 N. Y. 254) 65 
 Stevens v. Chadwick, (10 Kans. 406) 471 
 Stevens v. Cooper, (1 Johns. Ch. 425) 226, 
 
 536 
 Stevens v. Davison, (18 Gratt. 819) 673 
 Stevens v. Dennett, (51 N. H. 324) 135, 
 
 136, 137, 139, 141, 142 
 Stevens v. Ely, (1 Dev. Eq. 497) 
 Stevens v. Fuller, (8 N. H. 463) 353 
 Stevens v. Gage, (55 N. H. 175) 365 
 
TABLE OF CASES CITED. 
 
 79T 
 
 KEF^ERENCBS ARE TO PAGES. 
 
 Stevens v. Goodenough, (26 Vt. 676) 90, 
 
 94, 96, 112 
 Stevens v. Hampton, (46 Mo. 408) 102 
 Stevens v. Irain, (15 Cal. 503) 298 
 Stevens v. Morse, (47 N. H. 532) 102, 105 
 Stevens v. Orman, (10 Fla. 9) 251, 252 
 Stevens v. Rainwater, (4 Mo. App. 292) 
 
 242, 259, 473 
 Stevens v. Reed, (112 Mass. 515) 406 
 Stevens v. Shippen, (28 N. J. Eq. 487) 345 
 Stevens v. Stevens, (1 Ashmead, 190) 84, 
 
 86 
 Stevens v. Stevens, (5 Thomp. & C. 87)431 
 Stevens v. Stevens, (70 Me. 92) 355 
 Stevens v. Stevens, (2 Hun, 470) 433 
 Stevens v. Warren, (101 Mass. 564) 643 
 Stevens v. Watson, (4 Abb. App. Dec. 
 
 302) 56, 58, 62, 69, 129, 463 
 Stevens' Ex'rs Appeal, (38 Pa. St. 9) 474 
 Stevenson v. Black, (Saxt. 338) 569 
 Stevenson u. Buxton, (15 Abb. Pr., N. 
 
 Y., 352) 17 
 Stevenson v. Lesley, (70 N. Y. 512) 340 
 Stevenson v. Thompson, (13 111. 186) 354 
 Stewart, In re, (1 Sm. & Gifl. 32) 206 
 Stewart v. Chadwick, (8 Iowa, 463) 367 
 Stewart v. Clark, (13 Mete. 79) 110 
 Stewart v. Drasha, (4 McLean, 563) 651 
 Stewart v. Duffy, (116 111. 47) 359 
 Stewart v. Emerson, (52 N. H. 301) 249 
 Stewart v. Freeman, (10 Harris, 120) 70, 
 
 107, 109 
 Stewart v. Huff, (19 Iowa, 557) 106, 110 
 Stewart v. Hutchins, (6 Hill, 143) 52, 465 
 Stewart v. Inglehart, (7 Gill & J. 132) 26 
 Stewart v. Ives, (1 Sm. & Mar. 197) 473 
 Stewart v. Lay, (45 Iowa, 604) 673 
 Stewart v. Lee, (56 Ala. 53) 368 
 Stewart v. Lehigh Val. R. R. (9 Vroom, 
 
 505) 370 
 Stewart v. Mather, (32 Wis. 344) 279 
 Stewart v. McSweeney, (14 Wis. 468) 102, 
 
 109, 118 
 Stewart v. Mix, (30 La. Ann. 1036) 139 
 Stewart v. Nelson, (25 Mo. 309) 247 
 Stewart v. Rogers, (25 Iowa, 395) 290 
 Stewart v. Smith, (36 Minn. 82) 59 
 Stewart v. Stewart, (7 Johns. Ch. 229) 401 
 Stewart v. Wood, (63 Mo. 252) 478 
 Stidham v. Mathews, (29 Ark. 650) 114, 
 
 115, 116 
 Stiles V. White, (11 Met. 356) 260 
 Still V. Mayor, &c. (27 Ga. 502) 474 
 Stilley V. Folder, (14 Ohio, 610) 173 
 Stillmari v. Stillman, (21 N. J. Eq. 126) 
 
 152 
 Stillwell V. Adams, (29 Ark. 346) 407 
 
 Stillwell V. McDonald, (39 111. 283) 71 
 Stilt V. Little, (63 N. Y. 427) 255 
 Stilwell V. Carpenter, (3 Abb. N. C. 238) 
 
 365 
 Stilwell V. McDonald, (39 111. 282) 69 
 Stilwell V. McDonald, (59 Mo. 282) 129 
 Stimpson v. Fries, (3 Jones' Eq. 156) 342 
 Stinde v. Ridgway, (55 How. Pr. 301) 415 
 Stiner v. Stiner, (58 Barb. 643) 274 
 Stinson v. Clark, (6 Allen, 340) 298 
 Stinson v. Downsman, (20 How. 461) 31 
 Stinson v. Wrighley, (86 N. Y. 332) 296 
 Stirling, Jn re, (11 Phila. lEO) 400 
 Stirling v. Lawrason, (31 La. An. 169)365 
 Stites V. Wiedmer, (35 Ohio St. 555) 230, 
 
 233 
 Stiver v. Stiver, Heirs of, (8 Ohio, 217) 
 
 419 
 Stockbridge Iron Co. v. Hudson Iron Co. 
 
 (107 Mass. 390) 222 
 Stockbridge Iron Co. v. Hudson Iron Co. 
 
 (102 Mass. 45) 234 
 Stocken v. Stocken, (4 Sim. 152) 193 
 Stocker v. Erockelbank, (3 Macn. & G. 
 
 250) 555 
 Stockett V. Taylor, (3 Md. Ch. 537) 94, 111 
 Stocks V. Van Leonard, (8 Ga. 511) 263 
 Stockton V. Owlings, (Litt. Sel. Cas. 356) 
 
 247 
 Stockton V. Williams, (1 Dougl. 546) 640 
 Stockton V. Wooley, (20 Ohio St. 184) 173 
 Stockton, Bk. olv. Havland, (42 Cal. 129) 
 
 38, 441 
 Stockyards v. Wiggins Ferry Co. (103 HI. 
 
 514) 136 
 Stoddard v. Cutcompt, (41 Iowa, 329) 176 
 Stoddard v. Dennison, (38 How. Pr. 296) 
 
 539 
 Stoddard v. Hart, (33 N. Y. 556) 219, 467 
 Stoddard 1). Johnson, (13 Hun, 606) 483 
 Stoddard v. Rotton, (5 Bosw. 378) 152 
 Stoddart v. Burge, (53 Cal. 394) 640 
 Stoever v. Stoever, (9 Serg. & R. 434) 488 
 Stokes' Appeals, (80 Pa. St. 337) 372 
 Stokes V. Hodges, (11 Rich. Eq. 135) 107, 
 
 110 
 Stokes V. Riley, (131 111. 166) 111 
 Stone V. Bishop, (4 Cliff. C. C. 593) 363 
 Stone V. Covell, (39 Mich. 359) 356 
 Stone V. Denny, (4 Mete. 451) 341, 355, 356 
 Stone V. Elliott, (11 Ohio St. 353) 136 
 Stone I!. Ellis, (9Cush. 55) 53 
 Stone V. Great West. Oil Co. (41 111. 85> 
 
 140 
 Stone V. GrifSn, (3 Vt. 400) 347, 360 
 Stone©. Hackett, (13 Gray, 227) 33, 437 
 Stone V. Hale, (17 Ala. 557) 222 
 
798 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Stone V. King, (7 R. I. 358) 339 
 
 Stone II. Myers, (9 Minn. 311) 291 
 
 Stone V. Pratt, (35 III. 25; 41 Conn. 285) 
 
 27 
 Stone V. Weiser, (24 Iowa, 434) 280 
 Stone V. Wilbern, (83 III. 105) 274, 596 
 Stoney v. Shultz, (1 Hill Ch. 465) 526 
 Stoppelkamp v. Mangeot, (43 Cal. 325) 
 
 417 
 Storer v. Gowen, (18 Me. 177) 365 
 Storm Lake Bk. v. Mo. Val. Ins. Co. (66 
 
 Iowa, 617) 359 
 Storrs V. Barker, (6 Johns. Ch. 166) 59, 
 
 60, 137, 139, 141, 219 
 Story V. Agnew, (3 Bradw. 353) 289 
 Story V. Conger, (36 N. Y. 673) 228 
 Story V. Lord Windsor, (3 Atk. 630) 36 
 Stoat V. Hart, (2 Halst. 414) 422 
 Stout V. Hyatt, (13 Kans. 332) 73 
 Stoutenberg v. Thompkins, (9 N. J. Eq. 
 
 333) 335 
 Stover V. Eyeleshimer, (4 Abb. Pr. Dec. 
 
 309) 446 
 Stoveri). Mitchell, (45111. 213) 237 
 Stover V. Poole, (67 Me. 217) 230, 334 
 Stover, Heirs of v. Bounds, Heirs of, (1 
 
 Ohio St. 107) 465 
 Stow V. Kimball, (28 111. 93) 34 
 Stow c. Taft, (38 N. H. 445) 396 
 Strahan v. Sutton, (3 Ves. 249) 170 
 Straight?). Harris, (14 Wis. 509) 103 
 Strang v. Beach, (11 Ohio St. 283) 229 
 Strange v. Bell, (11 Ga. 103) 657 
 Stratt V. Uhrig, (56 Mo. 482) 352 
 Stratton v. Gold, (40 Miss. 781, 778) 477, 
 
 478 
 Straus V. Kerngood, (21 Gratt. 584) 57 
 Strausburgh v. Mayor, &c. (87 N. Y. 
 
 452) 596 
 Strauss' Appeal, (49 Pa. St. 353) 467 
 Strauss v. Mingesheimer, (78 111. 492) 
 
 295 
 Strayer v. Stone, (47 Iowa, 333) 234 
 Streatfield v. Streatfield, (Cas. temp. 
 
 Talb. 176) 31, 156, 160, 175 
 Streeper v. Williams, (12 Wright, 450) 
 
 46, 47, 48 
 Streeter v. Rush, (35 Cal. 67) 47, 48 
 Stretch v. Gowdey, (3 Tenn. Ch. 565) 673 
 Stretele v. Talmadge, (65 Cal. 510) 628 
 Strickland v. Kirk, (51 Miss. 795) 123 
 Strickland v. Summerville, (55 Mo. 164) 
 
 479 
 Strickney v. Crane, (35 Vt. 89) 343 
 Striplin v. Ware, (36 Ala. 27) 300 
 Strong V. Blanchard, (4 Allen, 538) 497 
 Strong V. Converse, (8 Allen, 557) 59, 153 
 
 Strong V. Dodds, (47 Vt. 343) 284 
 Strong D.Ellsworth, (26 Vt. 366) 66, 139 
 Strong V. Ingram, (6 Sim. 197) 190 
 Strong V. Nat. Mech. Bkg. Ass'n, (45 N. 
 
 Y. 718) 542 
 Strong V. Smith, (3 McLean, 362) 103, 105 
 Strong©. Stewart, (4 Johns. 167) 489 
 Strong V. Strong, (103 N. Y. 69) 363 • 
 Strong V. Van Deursen, (33 N. J. Eq. 369) 
 
 59 
 Strong B. Wilkson, (14 Mo. 116) 365 
 Strong ». Williams, (13 Mass. 389) 193, 
 
 193 
 Strosser^. Fort Wayne, (100 Ind. 443) 138 
 Stroud ». Pace, (35 Ark. 100) 473 
 Stroud's Heirs v. Barnett, (3 Dana, 391) 
 
 418 
 Strubherc. Belsey, (79 111. 307) 415 
 Struthers v. Kendall, (5 Wright, 314) 67, 
 
 68 
 Struthers v. Pearce, (51 N. Y. 3.57) 359 
 Struve V. Childs, (63 Ala. 473) 265 
 Stuart V. Harrison, (53 Iowa, 511) 473 
 Stuart V. Kissam, (3 Barb. 493) 395 
 Stuart 1). Palmer, (74 N. Y. 183) 637 
 Stuart V. Sears, (119 Mass. 143) 231 
 Stub V. Leis, (7 Watts, 43) 224 
 Stubbs V. Johnson, (127 Mass. 319) 351 
 StuU V. Hunt, (9 Gill, Md., 446) 229 
 Stump V. Findlay, (3 Rawle, 168, 174) 155, 
 
 158, 159, 178 
 Stump V. Gaby, (3 De G. M. & G. 633) 36 
 Stumpfer v. Roberts, (18 Pa. St. 383) 353 
 Stumph V. Pfeiffer, Guard, of, (58 Ind. 
 
 473) 304, 375 
 Stunz V. Stnnz, (111., '90; 33 N. E. 407) 
 
 173 
 Sturgis V. Champney, (5 My. & Cr. 97, 
 
 103) 30, 31 
 Sturgis V. Paine, (146 Mass. 354) 331 
 Sturtevant v. Jacques, (14 Allen, 523) 353 
 Stuyvesant v. Hall, (3 Barb. Ch. 151) 103, 
 
 103, 127 
 Stuyvesant v. Hone, (1 Sandf. Ch. 419) 
 
 103, 137, 138 
 Stuyvesant v. Mayor, &c. (11 Paige, 
 
 414) 575, 579 
 Stuyvesant v. Peckham, (3 Edw. Ch. 579) 
 
 653 
 Suarez v. Pumpelly, (3 Sandf. Ch. 337) 
 
 363 
 Sudlow V. Dutch Ry. Co. (21 Beav. 43) 
 
 53 
 Suessenguth v. Bingenheimer, (40 Wis 
 
 370) 341, 250 
 Suisse V. Lowlher, (2 Hare, 424) 184, 186, 
 
 190, 191 
 
TABLE OF CASES CITED. 
 
 799 
 
 REFERENOES ARE TO PAGES. 
 
 Suit V. Woodhall, (113 Mass. 391) 130, 133 
 Suiter v. Turner, (10 Iowa, 517) 130 
 Sullings«. SuUings, (9 Allen, 234) 583 
 Sullivan v. Blackwell, (38 Miss. 737) 379 
 Sullivan v. Davis, (29 Kan. 28) 138 
 Sullivan v. Howard, (20 Md. 194) 366 
 Sullivan v. McLenans, (3 Iowa, 443) 354 
 Sullivan v. Portland, &e. R. R. (4 Otto, 
 
 806) 385 
 Sullivan v. Eedfield, (1 Paine, U. S., 441) 
 
 563 
 Sullivan v. Sweeney, (111 Mass. 366) 449 
 Sully V. Nebergall, (30 Iowa, 339) 176 
 Sulpliine v. Dunbar, (55 Miss. 355) 135, 
 
 139 
 Sultan of Turkey v. Tool Co. (33 Fed. 
 
 Eep. 572) 16 
 Summers v. Coleman, (8 Mo. 488) 239 
 Summers v. Griffiths, (35 Beav. 37) 373 
 Summers v. Kilgus, (14 Bush, 449) 479 
 Sumner v. Dalton, (38 N. H. 295) 295 
 Sumner v. Parker, (36 N. H. 449) 263 
 Sumner v. Powell, (3 Meriv. 30) 38 
 Sumner v. Koas, (43 Miss. 749) 395 
 Sumner v. Ehoda, (14Conn.l35)103, 105, 
 
 106, 108 
 Sumner v. Waugh, (56 111. 531)56,60,62, 
 
 63, 80, 87 
 Sunderland v. Sunderland, (19 Iowa, 338) 
 
 355 
 Superintendent, &c. v. Heath, (3 McCart. 
 
 22) 453 
 Susquehanna Ins. Co. v. Perrine, (7 W. 
 
 & S. 348) 236 
 Suter V. Mathews, (115 Mass. 253) 265 
 Sutherland v. Cooke, (1 Coll. 498) 204 
 Sutherland v. Sutherland, (69 111. 481) 
 
 173, 334 
 Sutphen v. Cushman, (35 III. 186) 489 
 Sutphen v. Fowler, (9 Paige, 380) 545 
 Sutton V. Barlow, (46 Iowa, 577) 295 
 Sutton V. Howard, (33 Ga. 536) 50 
 Sutton V. Sutton, (39 Tex. 549) 287 
 Sutton V. Wilders, (L. K. 12 Eq. 373) 
 Swabey v. Swabey, (15 Sim. 106) 148, 149 
 Swaggerty v. Neilson, (8 Baxt. 32) 330, 
 
 231 
 Swaine v. Perrine, (5 Johns. Ch. 482, 490) 
 
 148, 153, 169 
 Swan V. Benson, (31 Ark. 738) 472, 474 
 Swan V. North Br., &e. Co. (2 H. & C. 
 
 175; 7 H. & N. 603) 135, 357 
 Swarthout v. Curtis, (5 N. Y. 301) 94, 111 
 Swartzer v. Gillette, (1 Chand. 307) 27 
 Swasey v. Am. Bible Soc. (57 Me. 533) 
 
 349 
 Swasey v. Antram, (24 Ohio St. 87) 405 
 
 Sweeney v. Sampson, (5 Ind. 465) 348 
 Sweet V. Jeffries, (67 Mo. 430) 369 
 Sweet V. Parker, (22 N. J. Eq. 453) 489 
 Sweet V. Tinslar, (53 Barb. 271) 268 
 Sweetapple v. Bindon, (3 Vern. 536) 36, 
 
 203 
 Sweeting v. Prideaux, (3 Chand. D. 413) 
 
 333 
 Sweezey v. Collins, (40 Iowa, 540) 140 
 Swetland v. Swetland, (3 Mich. 483) 489 
 Swift 1). Beneficial Soc. (73 Pa. St. 363) 
 
 345 
 Swift V. Castle, (23 111. 309) 398 
 Swifts. Dean, (6 Johns. 533) 654 
 Swift 1). Kraemer, (13 Cal. 526) 153 
 Swift V. Luce, (27 Me. 285) 403 
 Swift V. Railway, &c. Ass'n, (96 111. 309) 
 
 449 
 Swift V. Thompson, (9 Conn. 63, 69) 295 
 Swimm v. Bush, (23 Mich. 99) 352, 257, 
 
 258, 259 
 Swinburne v. Swinburne, (28 N. Y. 568) 
 
 356 
 Swinfen v. Swinfen, (29 Beav. 199) 148, 
 
 149, 150 
 Switzer ». Skiles, (3 Gil m. 539) 247 
 Swoope's Appeal, (3 Casey, 58) 185, 186 
 Swoyer's Appeal, (5 Barr. 377) 368 
 Sydney v. Roberts, (13 Tex. 598) 65 
 Syke's Trusts, In re, (2 J. & H. 415) 
 Sykes v. Beadon, (L. R. 11 Ch. D. 170) 
 
 28, 268 
 Sykes v. Meacham, (103 Mass. 285) 420 
 Sykes «. Sheard, (33 Beav. 114) 199 
 Sylvester v. "Wilson, (2T. R. 444) 
 Sylvius V. Kosck, (117 Pa. St, 67) 234 
 Symes v. Hughes, (L. R. 9 Eq. 475) 268 
 SymondsiJ. Wilkes, (11 Jur., s. s., 659) 
 Symons v. Rutter, (2 Vern. 327) 
 Syms V. Mayor of N. Y. (50 N. Y. Super. 
 
 Ct. 289) 234 
 Sypher v. McHenry, (18 Iowa, 333) 379 
 Syracuse, &c. Co. v. Wing, (85 N. Y. 421) 
 
 394 
 
 Tabb V. Williams, (4 Jones' Eq. 352) 618 
 Taber v. Mich., &c. Ins. Co. (40Mich. 331^ 
 
 242 
 Tact?). Crawford, (IMcCord, 165) 110 
 Tafft». Kessel, (16 Wis. 273) 478 
 Taft V. Taf t, (130 Mass. 461) 328 
 Tafti!. Wildman, (15 Ohio, 123) 263 
 Tagg V. Tenn. Nat. Bk. (9 Heisk. 479) 
 
 130, 134, 161 
 Tainter v. Clark, (5 Allen, 66) 348, 360 
 
800 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Talbert v. Singleton, (42 Cal. 390) 337 
 Talbot V. Shrewsbury, (Prec. Ch. 394) 192 
 Talbot V. Wllkins, (31 Ark. 411) 621 
 Talcott V. Brackett, (5 111. App. 60) 137 
 Talcott77. Henderson, (31 Ohio St. 162) 
 
 348, 349, 253 
 Talleferro v. Barnett, (37 Ark. 511) 478 
 Tallman v. Franklin, (14 N. Y. 584) 583 
 Tallman «. Green, (SSandf., N, Y., 437) 
 
 633 
 Tallman v. Jones, (13 Kans. 438) 407 
 Tally V. Smith, (1 Coldw. 290) 272 
 Talmage v. East River Bk. (26 N. Y. 105) 
 
 438 
 Talmage v. Sill, (21 Barb. 34) 389 
 Tamm v. Lavalle, (93 III. 263) 583 
 Tankard v. Tankard, (79 N. C. 54) 118, 
 
 122, 123 
 Tanner v. European Bk. (L. R. 1 Exoh. 
 
 361). 667 
 Tanner v. Hicks, (4 Sm'. & Mar. 294) 465 
 Tanner v. Skinner, (11 Bush, 120) 329 
 Tantam V. Coleman, (26 N. J. Eq. 128) 
 
 144 
 Tappan v. Deblois, (45 Me. 122) 346 
 Tardy v. Morgan, (3 McLean, 831, 358) 
 
 112 
 Tarr v. Williams, (4 Md. Ch. 68) 398 
 Tash V. Adams, (10 Oush. 252) 25, 144 
 Tate V. Hilbert, '(2 Ves. Ill) 433 
 Tate V. Stooltzfoss, (16 S. & R. 35) 105 
 Tate V. Williamson, (L. R. 3 Ch. 65) 388 
 Tatum i;. Kelly, (25 Ark. 201) 271 
 Tatum V. McLellan,. (50 Miss. 1) 280 
 Tausig V. Hart, (49 N. Y. 301) 279 
 Tauton v. Groh, (4 Abb. Pr. Dec. 358) 
 
 667 
 Tavish ». Carroll, (7 Md. 352) 153 
 Tayloe v. Bond, (Bush Eq. 5) 415, 643 
 Tayloe v. Johnson, (63 N. C. 381) 199, 203 
 Tayloe v. Merchants', &c. Ins. Co. (9 
 
 How., U. S., 390) 579 
 Taylor i>. Baldwin, (10 Barb. 626)475 
 Taylor v. Bates, (5 Cow. 376) 87 
 Taylor v. Benham, (5 How., U. S., 233, 
 
 334) 35, 36, 202 
 Taylor v. Boardman, (24 Mich. 287) 280 
 Taylor v. Boyd, (3 Ohio, 337) 363, 544 
 Taylor v. Brown, (31 K. J. Eq. 163) 137 
 Taylor o. Cartwright, (L. R. 14 Eq. 167) 
 
 186 
 Taylor v. Clark, (56 Ga. 309) 373 
 Taylor v. Dodd, (58 N. Y. 335) 481 
 Taylor ». Eckford, (11 Sm. & Mar. 31) 
 
 117 
 Taylor ». Ely, (35 Conn. 350)137 
 Taylor v. Embry, (16 B. Mon. 349) 640 
 
 Taylor v. Fleet, (1 Barb. 471) 241, 353, 
 
 258, 260 
 Taylor v. Foster's Adm'r, (22 Ohio St. 
 
 255) 469 
 Taylor v. Gilman, (35 Vt. 411) 336 
 Taylor v. Gitt, (10 Pa. St. 428) 87 
 Taylor v. Great Ind. Pen. Ey. (4 De G.& 
 
 J. 559) 
 Taylor v. Guest, (58 N.Y. 262) 258, 259, 261 
 Taylor v. Harris, (5 Eawle, 51) 103 
 Taylors. Harwell, (65 Ala. 1) 481 
 Taylor v. Henry, (48 Md. 550) 329 
 Taylor v. Huber's Ex'rs,- (13 Ohio St. 288) 
 
 419 
 Taylor v. Kelly, (3 Jones' Eq. 240; 3 
 
 Jones' Eq. 9) 118, 121, 133 
 Taylor v. Lanleer, (3 Murphy, 198) 188 
 Taylor v. Lowenstein, (50 Miss. 378) 117 
 Taylor v. Luther, (3 Sumn. 228) 489 
 Taylor v. Lynch, (5 Gray, 49) 445 
 Taylor v. Manners, (L. R. 1 Ch. 48) 33 
 Taylor v. Marcella, (1 Woods, 302) 47, 49 
 Taylor v. Maris, (5 Rawle, 51) 303 
 Taylor v. Martin, (8 Atl. Rep. 938) 331 
 Taylor v. McKinney, (30 Cal. 618) 473 
 Taylor v. Miami Exp. Co. (5 Ohio, 162) 
 
 555 
 Taylor v. Mississippi Mills, (Ark., 1 So. 
 
 Rep. 383) 348, 249 
 Taylor v. Mosely, (57 Miss. 544) 357 
 Taylor v. Obee, (3 Price, 83) 288 
 Taylor v. Page, (6 Allen, 86) 79 
 Taylor v. Porter, (7 Mass. 355) 491 
 Taylor v. Richardson, (4 Houst. 300) 395 
 Taylor ■». Sayre, (34 N. J. L. 647) 331 
 Taylor v. Short's Adm'r, (27 Iowa, 361) 
 
 529 
 Taylor v. Staples, (8 R. 1. 170) 339 
 Taylor v. Taylor, (3 De G. M. &. G. 190) 
 
 210 
 Taylor Orphan Asylum, In re, (36 Wis. 
 
 534) 280 
 Taylour v. Rochfort, (2 Ves. Sen. 281) 
 
 277 
 Taymon 1;. Mitchell, (1 Md. Ch. 496) 254, ' 
 
 256 
 Tazewell v. Smith's Adm'r, (iRand. 313) 
 
 35, 199 
 Teague v. Corbitt, (57 Ala. 539) 418 
 Teague v. Irwin, (127 Mass. 217) 243 
 Teasey v. Dalton, (3 Allen, 380) 252 
 Tedder v. Odom, (3 Heisk. 68) 271 
 Tefft V. Munson, (57 N. Y. 97) 103 
 Tefts V. King, (6 Harris, 18 Pa. St., 157, 
 
 160) 93, 111 
 Telegraph Co. v. Davenport, (97 tJ. S. 
 
 369; 7 Otto, 369) 83 
 
TABLE OF CASES CITED. 
 
 801 
 
 REFERENCES ARE TO PAGES. 
 
 Telford ». Adams, (6 Watts, 429) 388 
 Telford v. Barry, (1 Iowa, 591) 371 
 Tenant v. Elliott, (1 B. & P. 3) 28 
 Tennant v. Ex'rs of Stoney, (1 Rich. Eq. 
 
 332) 342, 394 
 Tennessee Bk. v. Ebbert, (9 Heisk. 153) 
 
 396 
 Terre Haute Ed. v. Eodel, (89 Ind. 138) 
 
 137 
 Terrett v. Bartlett, (21 Vt. 184) 371 
 Terrett v. Sharon, (34 Conn. 105) 606 
 Terry v. Belcher, (1 Bail., S. C, 568) 295 
 Terry v. Chandler, (16 N. Y. 355) 140 
 Terry v. Hammonds, (47 Cal. 33) 407 
 Terry 1). Hopkins, (1 Hill Ch. 1) 408 
 Terry v. Keaton, (58 Ala. 667) 473 
 Terwilliger v. Great Western, &c. Co. (59 
 
 111. 349) 555 
 Tesson v. Atlantic Ins. Co. (40 Mo. 33) 
 
 328, 233, 236 
 Tewksbury v. Spruance, (75 111. 187) 379 
 Texas Land Co. v. Turman, (53 Tex. 619) 
 
 569 
 Thacher v. Phinney, (7 Allen, 146) 291 
 Thacker v. Key, (L. R. 8 Eq. 408) 196 
 Thalimer v. Brinkerhoff, (30 Johns. 386) 
 
 93,446 
 Thames v. Caldwell, (60 Ala. 644) 473 
 Tharpe v. Dunlap, (4 Heisk. 474, 674) 40, 
 
 134 
 Thatcher v. Omans, (3 Pick. 531) 315 
 Thayer v. Daniels, (113 Mass. 129) 84 
 Thayer v. New Bedford E. E. (125 Mass. 
 
 353) 559 
 Thayer v. Turner, (8 Met. 552) 263 
 The Canada, (7 Fed. Eep. 248) 536 
 Theller v. Sutt, (57 Cal. 447) 625 
 Thellusson v. Woodford, (13 Ves. 233) 156, 
 
 163, 164, 165, 166 
 Therrasson v. Hickok, (37 Vt. 454) 343 
 Thlbodaux v. Wright, (3 La. Ann. 130) 
 
 547 
 Thiedemann v. Goldschmidt, (1 De G. 
 
 F. & J. 4, 10) 551 
 Third Ave. E. E. v. Mayor, (54 N. Y. 159) 
 
 569 
 Thistle V. Buford, (50 Mo. 378) 143 
 Thomas' Appeal, (30 Pa. St. 378) 467 
 Thomas v. Bartow, (48 N. Y. 193) 285 
 Thomas v. Bennett, (2 P. Wms. 343) 193 
 Thomas v. Blackemore, (5 Yerg. 113) 110 
 Thomas v. Davenport, (2 Smith's Lead. 
 
 Cas. 347) 346 
 Thomas v. Folwell, (2 Whart. 11, 16) 398 
 Thomas v. Gaboury, (80 Ga. 443) 628 
 Thomas v. Grand Gulf Bk. (9 Sm. & 
 
 Mar. 301) 103, 105 
 
 Thomas v. Harkness, (Bush, 23) 393 
 Thomas D. Kelsey, (30 Barb. 268) 69, 129 
 Thomas v. Kerr, (3 Bush, 619) 245 
 Thomas u. Pullis, (56 Mo. 211) 137 
 Thomas C.Scruggs, (10Yerg.,Tenn.,401) 
 
 371 
 Thomas v. Shepperd, (2 McCord's Eq. 
 
 36) 274 
 Thomas v. Simmons, (103 Ind. 538) 146 
 Thomas v. Standiford, (49 Md. 181) 353 
 Thomas D. Walker, (6 Humph. 93) 357 
 Thomas v. Wood, (1 Md. Ch. 296) 198 
 Thomason v. Fannin, (54 Ga. 361) 216 
 Thompson v. Blanchard, (4 N. Y. 303) 68 
 Thompson v. Boyd, (1 Zabr. 58) 151 
 Thompson v. Brooke, (76 Va. 160) 370 
 Thompson v. Brown, (4 Johns. Ch. 619) 
 
 17, 368, 419 
 " Thompson v. Campbell, (57 Ala. 183) 136 
 Thompsons. Cartwrlght, (33 Beav. 178) 
 
 134 
 Thompson v. Cochrane, (7 Humph. 72) 
 
 206 
 Thompson v. Davenport, (1 Wash., Va., 
 
 125) 52 
 Thompson v. Egbert, (3 Har. 459) 173 
 Thompson v. Engle, (3 Green Ch. 271> 
 
 654 
 Thompson v. FuUinwider, (5 III. App. 
 
 551)234 
 Thompson v. Hawks, (14 Fed. Eep. 903). 
 
 387 
 Thompson v. Heywood, (139 Mass. 401> 
 
 265 
 Thompson v. Hoop, (6 Ohio St. 480) 173 
 Thompson '0. Hudson, (L. E. 4 H. L. ?.; 
 
 L. E.2Ch.355) 44 
 Thompson v. Lee, (31 Ala. 293) 256 
 Thompson v. McDonald, (2 Dev. & Bat. 
 
 Eq. 463) 419 
 Thompson ii. McKay, (41 Cal. 221) 327 
 Thompson v. Peck, (115 Ind. 512) 263 
 Thompson v. Perkins, (3 Mason, 232) 357 
 Thompson v. Pioche, (44 Cal. 508)106, 109, 
 
 117, 120, 123 
 Thompson v. Railroad Co. (6 Wall. 123) 
 
 21 
 Thompson v. Eose, (16 Conn. 81) 248, 249 
 Thompson v. Shakespeare, (1 De G. F. & 
 
 J. 399) 
 Thompson v. Smith, (63 N. Y. 301) 36 
 Thompson v. Taylor, (11 Phila. 250) 248 
 Thompson v. Thompson, (2 Strobh. Eq. 
 
 48) 159 
 Thompson v. Toland, (48 Cal. 99) 82, 83 
 Thompson v. Walker, (39 La. Ann. 892) 
 628 
 
 51 
 
802 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Thompson v. Westbrook, (56 Tex. 265) 
 
 117 
 Thompson b. Whipple, (5 R. I. 144) 43, 50 
 Thompson v. Yeck, (21 111. 73) 295 
 Thompsonville Scale Mfg. Co. ■». Osgood, 
 
 (26 Conn. 16) 226 
 Thomson v. Thomson, (7 Ves. 470) 27, 28 
 Thomson v. Wilcox, (7 Lans. 376) 104 
 Thomson's Exr's v. Norris, (20 N. J. Eq. 
 
 489) 345 
 Thorn v. Helmer, (4 Abb. App. Dec. 408) 
 
 241 
 Thorn v. Newman, (3 Sw. 603) 148 
 Thorndell v. Morrison, (35 Pa. St. 326) 
 
 407 
 Thorndike v. Hunt, (3 De G. & J. 563) 41, 
 
 55,76 
 Thome v. Mosher, (30 N. J. Eq. 257) 143 
 Thorne v. Prentis, (83 111. 99) 255 
 Thornet v. Haines, (15 M. & W. 367) 244, 
 
 245 
 Thornton v. Davenport, (1 Scam. 296) 395 
 Thornton i7.'Ellis, (15 Beav. 193) 204 
 'Thornton ■o. Knox, (6 B. Mon. 74) 115, 
 
 473 \ 
 
 Thornton v. MoNeill, (23 Miss. 369) 628 
 Thornton v. Sttf^vart, (7 Leigh, 128) 214 
 Thornton v. Tandy, (39 Tex. 544) 295 
 Thorp V. Durbon, (45 Iowa, 192) 56 
 Thorp V. McCollum, (1 Gilm. 614) 315, 216 
 Thorpe ». Dunlap, (4 Heisk. 474) 475 
 Thorpe v. Durbon, (45 Iowa, 192) 58 
 Thorpe v. Holdsworth, (L. R. 7 Eq. 139) 
 Thorpe v. Jackson, (2 Y. & C. 553) 38 
 Thrall v. Lathrop, (30 Vt. 307) 139 
 Throckmorton v. Price, (28 Tex. 605) 106 
 ThrustouB. Nimke, (32 Md. 487) 613 
 Thurman ». Stoddard, (63 Ala. 336) 472 
 Thurmond ?». Clark, (47 Ga. 500) 219, 231 
 Thurmond v. Reese, (3 Ga. 449) 618 
 Thurston «. Blanchard, (22Pick.'20) 264 
 Thurston v. Percival, (1 Pick. 415) 446 
 Thynne v. Glengall, (2 H. L. Cas. 131) 
 
 184, 186, 188, 189; 193 
 Tibbitts ». Tibbitts, (19 Ves. 663) 176 
 Tibbie v. Anderson, (63 Ga. 41} 141 
 Tice®. Annin, (2 Johns. Ch. 125) 569 
 Tichenor, In re, (35 Beav. 317) 84 
 Tichenor v. Knapp, (6 Oreg. 205) 640 
 Ticknor v. McClelland, (84 111. 471) 295 
 Tidd V. Lister, (10 Hare, 157, 140; 3 De G. 
 
 M. & G. 857) 30, 32 
 Tiemeyer v. Turnquist, (85 N. Y. 516)404, 
 
 406 
 Tiernan v. Beam, (2 Ohio, 383) 473 
 Tlernan v. Hamman, (16111. 400) 45, 50 
 Tiernan v. Jackson, (5 Pet. 580, 598) 453 
 
 Tiernan v. Rescaniere's Admr's, (10 G. & 
 
 J. 317) 661 
 Tiernan v. Roland, (3 Harris, 430) 158, 
 
 175, 178 
 Tiernan v. Thurman, (14 B. Mon. 224) 
 
 473 
 Tiffin V. Tiffin, (1 Vern. 1) 147 
 Tifft V. Porter, (8.N. Y. 516) 432, 436 
 Tift V. Buffalo, (1 T. & C. 150) 606 
 Til den «. Fiske, (4 Dem. 356) 360 
 Tilden v. Green, (130 N. Y. 29) 347 
 Tilden v. Mayor, &c. (56 Barb. 340) 637 
 Tildesley v. Lodge, (3 Sim. & Giff. 543) 
 
 76 
 Tilford V. Torrey, (53 Ala. 120) 353, 358 
 Tillinghast v. Champlin, (4 B. I. 173) 91, 
 
 111, 113 
 Tillinghast v. Wheaton, (8 R. I. 536) 431 
 Tillinghast v. Coggeshall, (7 R. I. 383) 
 
 334 
 Tillotson V. Gesner, (33 N. J. Eq. 313) 583 
 Tillotson V. Mitchell, (111 111. 518) 138 
 Tilly V. Peers, (10 Ves. 301) 273 
 Tilson V. Terwilliger, (56 N. Y. 373) 395 
 Til ton V. Hunter, (24 Me. 29) 102 
 Tilton V. Nelson, (27 Barb. 595) 137, 143 
 Tilton V. Stein, (87 111. 132) 587 
 Tilton V. Tilton, (9 N. H. 385) 236, 238 
 Timberlake v. Parish, (5 Dana, 345) 160, 
 
 170, 182, 183, 185 
 Timmer v. Bayne, (7 Ves. 508) 182 
 Timms v. Shannon, (19 Md. 296) 487, 633 
 Timson v. Ramsbottom, (3 Keen, 35) .84 
 Tindall v. Harkinson, (19 Ga. 448)259 
 Tiner v. Christian, (27 Ark. 306) 625 
 Tingley v. Cutler, (7 Conn. 291) 46, 48 
 Tinney v. Stebbins, (28 Barb. 290) 613 
 Tinsley v. Tinsley, (52 Iowa, 14) 473 
 Tippecanoe Co. Bd. of v. Reynolds, (44 
 
 Ind. 509) 253 
 Tisdale v. Brabrook, (102 Mass. 374) 640 
 Tison e.Mattair, (8 Fla. 107)407 
 Titchenell v. Jackson, (26 W. Va. 754) 336 
 Titcomb v. Morrill, (10 Allen, 15) 308 
 Titcomb v. Potter, (11 Me. 218) 572 
 Titcomb v. Wood, (38 Me. 563) 245 
 Titsworth v. Stout, (49 111. 78) 151, 152 
 Titterington v. Hooker, (58 Mo. 593) 419 
 Titus V. Great West. T. Co. (61 N. Y. 237) 
 
 261 
 Titus v. Haynes, (9 N. Y. S. 742) 103 
 Titus V. McLanahan, (3 Del. Ch. 200) 433 
 Titus v. Neilson, (5 Johns. Ch. 452) 206, 
 
 491 
 Titus' Adm'r v. Titus, (26 N. J. Eq. Ill) 
 
 427 
 Tobey o. McAllister, (9 Wis. 463) 473 
 
TABLE OF CASES CITED. 
 
 803 
 
 REFERENCES ARE TO PAGES. 
 
 Tobias V. Ketchum, (32 N. Y. 319) 170, 
 
 333 
 Todd V. Fisk, (14 La. An. 13) 573 
 Todd V. Grove, (33 Md. 188) 373 
 Todd V. Lee, (15 "Wis. 365) 407 
 Todd V. Outlaw, (79 N. C. 335) 138 
 Todd V. Sawyer, (Mass. '88; 17N.E.Rep. 
 
 527) 385 
 Todd V. Union Dime Sav. Bk. (118 N. Y. 
 
 337; 23 N. E. 299) 105 
 Tolar V. Tolar, (1 Dev. Eq. 460) 338 
 Tollett V. Tollett, (3 P. Wms. 489) 313, 
 
 215, 330 
 Tolson V. Collins, (4 Ves. 483) 194 
 Tolson V. Tolson, (10 Gill & J. 159) 331 
 Tomkies v. Reynold, (17 Ala. 109) 366 
 Tomkins v. Wyman, (116 Mass. 558) 640 
 Tomlinson v. Lindley, (2 Carter, 569) 654 
 Tomlinson v. Savage, (6Ired. Eq.430) 344, 
 
 245 
 Tompkins ■». Batie, (11 Neb. 147, 151) 530 
 Tompkins v. Henderson, (83 Ala. 391) 
 
 112 
 Tompkins v. Hyatt, (38 N. Y. 347) 385 
 Tompkins v. Mitchell, (2 Rand. 438) 474 
 Tompkins v. Powell, (6 Leigh, 576) 77 
 Tompkins v. Tompkins, (18 S. C. 1) 368 
 Tompkins v. Wheeler, (16 Pet. 106) 292 
 Toms V. Williams, (41 Mich. 552) 327 
 Tone V. Wilson, (63 111. 529) 255 
 Tongue v. Morton, (6 Har. & J. 31) 134 
 Tongue v. Nutwell, (17 Md. 212) 31, 163, 
 
 164 
 Tonville v. Casey, (1 Murphy, N. C, 389) 
 
 536 
 Tooke V. Hardeman, (7 Ga. 30) 170, 172 
 Tooke «. Hastings, (2 Vern. 97) 195, 196 
 Toops V. Snyder, (70 Ind. 554) 218 
 Tooth V. Hallett, (L. K. 4 Ch. 242) 80 
 Topp V. White, (12 Heisk. 165) 546 
 Topp V. Williams, (7 Humph. 569) 17 
 Tosh V. Robertson, (27 Gratt., Va., 370) 
 
 368 
 Toulmin v. Heidelberg, (33 Miss. 268) 640 
 Toulmin v. Steere, (3 Meriv. 210) 147 
 Tourville v. Naish, (3 P. Wms. 306) 57 
 Tower v. Fetz, (26 Neb. 706) 489 
 Towers v. Davys, (1 Vern. 480) 28 
 Towers v. Moore, (3 Vern. 98) 38, 441 
 Towleu. Leavitt, (23 N. H. 360) 344 
 TowleB. Swasey, (106 Mass. 100) 433 
 Towle Towle, (114 Mass. 167) 406 
 Towles V. Fisher, (77 N. C. 437) 144 
 Towles V. Roundtree, (10 Flor. 399) 187 
 Towner v. Lucas, (13 Gratt. 705) 236, 335 , 
 Townley v. Bedwell, (14 Ves. 591) 301 
 Townsend v. Little, (109 U. S. 504) 131 
 
 Townsend, Matter of, (5 Dem. 147) 186 
 Townsend v. Mayor, &c. (77 N. Y. 543) 
 
 596 
 Townsend v. Mostyn, (36 Beav. 72) 191 
 Townsend v. Peterson, (13 Colo. 491) 490 
 Townsend v. Radclifle, (44 III. 446) 418 
 Townsend v. Stearns, (33 N. Y. 209) 343 
 Townsend v. Todd, (47 Conn. 190) 138 
 Townsend v. Townsend, (4 Coldw. 70) 
 
 419 
 Townsend v. Whitney, (75 N. Y. 435) 631 
 Townsend Bank v. Todd, (47 Conn. 190) 
 
 136 
 Townshend v. Stangroom, (6 Ves. 338) 
 
 235, 236 
 Township of Boomer v. French, (40 Iowa, 
 
 601) 263 
 Trabue v. Bankhead, (3 Tenn. Ch. 413) 
 
 87 
 Tracey v. Sacket, (1 Ohio St. 54) 374 
 Tract V. Crawford, (1 McCord, 365) 107 
 Tracy v. CoUey, (55 Cal. 67) 365 
 Tracy v. Craig, (55 Cal. 91) 378 
 Tracy v. Herrick, (35 N. H. 381) 231 
 Tracy v. Keith, (11 Allen, 214) 406 
 Tracy v. Kelley, (52 Ind. 535) 357, 358 
 Tracy v. Talmage, (14 N. Y. 163) 27, 28, 
 
 269 
 Traddell's Appeal, (5 Pa. St. 15) 367 
 Trader v. Lowe, (45 Md. 1) 406 
 Trafford v. Boehm, (3 Atk. 440) 307 
 Trafton V. Hawes, (102 Mass. 541) 291 
 Traill v. Baring, (4 De G. J. & S. 318) 
 
 254, 257 
 Traphagen v. Burt, (67 N. Y. 30) 355, 625 
 Traphagen v. Irwin, (18 Neb. 195) 103 
 Traphagen v. Levy, (45 N. J. Eq. 448) 333 
 Trapnall v. Brown, (19 Ark. 39) 335 
 Trapp V. Moore, (31 Ala. 693) 333, 234 
 Trask v. Bowers, (4 N. H. 309) 295 
 Traveasei;. Hall, (1 McCord, 456) 367 
 Travers v. Blundell, (L. R. 6 Ch. D. 436) 
 
 331 
 Treadwell v. Brown, (44 N. H. 551) 649 
 Treadwell v. Inslee, (130 N. Y. 458) 153 
 Treadwell v. McKeon, (7 Baxt. 201) 359 
 Treat's Appeal, (30 Conn. 113) 347 
 Treadway v. McDonald, (51 Iowa, 663) 
 
 125, 138 
 Tredegar, Lord v. Winders, (L. R. 19 
 
 Eq. 607) 569 
 Tredwell v. Inslee, (120 N. Y. 458) 153 
 Trefts V. King, (6 Harris, 157) 91, 95 
 Trelawny v. Booth, (2 Atk. 307) 36 
 Treman v. Allen, (15 Hun, 4) 144 
 Trenton Banking Co. v. Sherman, (24 
 Alb. L. J. 390) 139 
 
80i 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES, 
 
 Trenton Bank Co. v. Woodruff, (1 
 
 Green's Ch. 117) 393 
 Trexler v. Miller, (6 Ired. Eq. 248) 231 
 Trigg V. Hitz, (17 Abb. Pr. 436) 658 
 Trigg V. Read, (5 Humph. 529) 218, 230, 
 
 233, 227 
 Triguet v. Thornton, {13 Ves. 345) 208 
 Trimble v. Boothby, (14 Ohio, 109) 125, 137 
 Trimble v. Reis, (37 Pa. St. 448) 407 
 Trimmer v. Bayne, (7 Ves. 508) 187, 188 
 Trinity Ch., Rector of i).Higgins,{4 Rob., 
 
 N. Y., 373) 633 
 Tripe v. Marcy, (39 N. H. 439) 105 
 Triplett*. Gill, (7 J. J. Marsh., Ky., 433) 
 
 334 
 Triplett v. Romine's Adm'r, (33 Gratt. 
 
 651) 405 
 Tripp V. Boardman, (49 Iowa, 410) 673 
 Tripp V. Brownell, (13 Cush. 376) 445, 
 
 454 
 Tripp V. Cool£, (26 Wend. 143) 29 
 Tripp V. Hasceig, (20 Mich. 354) 234 
 Tritipo V. Edwards, (35 Ind. 467) 531 
 Tritt's Adm'r v. Coldwell's Adm'r, (7 
 
 Casey, 328) 395 
 Troll V. Carter, (15 W. Va. 567) 357, 358 
 Troops V. Snyder, (70 Ind. 554) 219, 220 
 Trorlicht v. Weizeneclrer, (1 Mo. App. 
 
 482) 431 
 Trotter B. Bloqker, (6 Port. 269) 415 
 Trotter v. Erwin, (37 Miss. 772) 473 
 Trotter v. Hecksher, (42 N. J. Eq. 254) 
 
 16 
 Trotter v. Smith, (59 III. 240) 282 
 Trotter t!. Trotter, (77111.510) 413 
 Troughton v. Johnson, (2 Hayw. 28) 
 
 244 
 Troup V. Hurlburt, (10 Barb., N. Y., 354) 
 
 117 
 Troup V. Rice, (49 Miss. 348) 418 
 Troup V. Wood, (4 Johns. Ch. 228) 247 
 Trout i». Goodman, (7Ga. 383) 234 
 Trover v. Newcome, (3 Meriv. 704) 359 
 Trow V. Shannon, (78 N. Y. 446) 339 
 Trower v. Elder, (77 111. 453) 49 
 Troy City Bk. v. Wilcox, (34 Wis. 671) 
 
 78, 132 
 Truan v. Keiffer, (31 Ala. 136) 142 
 Truebody v. Jacobson, (3 Cal. 369) 472 
 Truesdale v. Ford, (37 111. 310) 118, 121, 
 
 122, 133 
 Truitt V. Truitt,(38 Ind. 16) 125 
 Trull ».' Bigelow, (16 Mass. 406) 77, 101, 
 
 104, 105 
 Trull ». Eastman, (3 Mete. 131) 376 
 Trulls. Skinner, (17 Pick. 216) 53 
 Trull V. Trull, (13 Allen, 407) 369 
 
 Truluek v. Peeples, (3 Kelly, 446) 77 
 Truscott V. King, (6 Barb. 346) 106, 109 
 Trust V. Delaphine, (3 E. D. Smith, 319) 
 
 244,247 
 Trustees v. Chambers' Ex'rs, (3 Jones' 
 
 Eq. 353) 349 
 ^Trustees v. Nicoll, (3 Johns. 566) 569 
 Trustees v. Stewart, (27 Barb. 553) 363 
 Trustees v. Wheeler, (61 N. Y. 88) 81, 83, 
 
 87 
 Trustees v. Wright, (11 111. 603) 473 
 Trustees, B'd of, &c. v. Serrett, (31 La. 
 
 An. 719) 137 
 Trustees, &c. v. Beatty, (38 N. J. Eq. 
 
 570) 348 
 Trustees of Donations v, Streeter, (64 N. 
 
 H. 106) 491 
 Tryon v. Farnsworth, (30 Wis. 577) 430 
 Tryou v. Huntoon, (67 Cal. 325) 353 
 Tryon v. Whitmarsh, (1 Met. 1) 255 
 Tuck V. Calvert, (33 Md. 209),473 
 Tuck V. Downing, (76 111. 71) 350 
 Tucke V. Bucholz, (43 Iowa, 415) 383 
 Tucker v. Andrews, (13 Me. 134) 30, 408 
 Tucker v. Boswell, (5 Beav. 607) 204 
 Tucker v. Crowley, (127 Mass. 400) 149 
 Tucker v. Hadl^, .(52 Miss. 414) 473 
 Tucker v. Madden, (44 Me. 206) 233 
 Tucker v. Palmer, (3 Brev. 47) 363 
 Tucker v. Seaman's Aid Soo. X7 Mete. 
 
 188) 348 
 Tucker v. State, (72 Ind. 243) 368 
 Tucker v. Tilton, (55 N. H. 223) 130 
 Tucker v. Tucker, (33 N. J. Eq. 235) 366* 
 I Tuckey v. Henderson, (33 Beav. 174) 191 
 Tucks i;. Lindsay, (18 la. 505) 53 
 Tudor V. Anson, (2 Ves. Sen. 582) 215 
 Tuer V. Turner, (20 Beav. 560) 207 
 Tufts V. Little, (56 Ga. 316) 671 
 Tunison v. Chamblin, (88 111. 378) 117,118 
 Tuohy V. Martin, (2 MacArthur, 573) 
 
 483 
 Tupper V. Powell, (1 Johns., N. Y., Ch. 
 
 369) 566 
 Tupple V. Viers, (14 Iowa, 515) 473 
 Turman v. Tufts, (8 Jones & S. 284) 260 
 Turner v. Adams, (46 Mo. 95) 618 
 Turner v. Babb, (60 Mo." 343) 124 
 Turner v. Cheesman, (15 N. J. Eq. 243) 
 
 287 
 Turner v. Coffin, (13 Allen, 401) 143, 343 
 Turner v. Crebill, (1 Ohio, 372) 125 
 Turner v. Estabrook, (129 Mass. 425) 431, 
 
 433 
 Turner v. Furguson, (58 Tex. 9) 140 
 Turner v. Horner, (29 Ark. 440) 472 
 Turner v. Hugglns, (14 Ark. 21) 251 
 
TABLR OF CASES CITED. 
 
 805 
 
 REFERBNOES ARE TO PAQES. 
 
 Turner v. Peoria, &c. E. E. Co. (95 111. 
 
 145, 146) 6T7 
 Turner c. Thompson, (58 Ga. 268) 153 
 Turner v. Turner, (57 Miss. 775) 483 
 Turner v. Turner, (44 Mo. 535) 287, 596 
 Turner v. Watkins, (31 Ark. 429) 344 
 Turner's Case, (1 Vern. 7) 30 
 Turnpike Co. v. Jewell, (8 B. Hon., Ky., 
 
 140) 17 
 Turpin v. Thompson, (3 Mete, Ky., 420) 
 
 433 
 Turton v. Turton, (6 Md. 375) 395 
 Tussaud's Estate, In re, (L. E. 9 Ch. 
 
 D. 363) 184, 188 
 Tuttle V. Churchman, (74 Ind. 311) 117, 
 
 119 
 Tuttle V. Holland, (43 Vt. 542) 271 
 Tuttle V. Jackson, (6 Weud. 218) 111, 133 
 Tuttle V. Moore, (16 Minn. 123) 437 
 Tuttle V. Tuttle, (41 Mich. 311) 265 
 Tuxworth V. Willard, (9 Pick. 347) 298 
 Twelves v. 'Williams, (3 Whart. 485) 68 
 Twining v. Morrice, (2 Bro. Ch. 326) 583 
 Twin-Lick Oil Co. v. Marbury, (1 Otto, 
 
 587) 370 
 Twltchell V. Bridge, (43 Vt. 68) 256 
 Twitty ». Houser, (7S. C. 153) 365 
 Twitty V. Logan, (80 N. C. 69) 668 
 Twyne's Case, (1 S. L. Cas. 33) 289 
 Tydings v. Pitcher, (82 Mo. 379) 115, 116 
 Tyler v. Barrows, (6 Eoberts. 104) 448 
 Tyler v. Black, (13 How. 230) 254 
 Tyler v. Gardiner, (33 N. Y. 559) 387 
 Tyler v. Gould, (48 N. Y. 683) 458 
 Tyler v. Hamersley, (44 Conn. 419) 566 
 Tyler v. Herring, (7 So. 840) 344 
 Tyler v. Yates, (L. E. 11 Eq. 265) 278 
 Tynes v. Grinstead, (1 Tenn. Ch. 508) 
 
 379 
 Tyrrell v. Hope, (3 Atk. 558, 562) 33 
 Tyrwhitt v. Tyrwhitt, (33 Beav. 344) 149, 
 
 150 
 Tyson v. McGuineas, (35 Wis. 656) 445 
 Tyson v. Passmore, (2 Barr. 122) 330, 338 
 Tyson v. Tyson, (31 Md. 134) 330 
 Tyns V. Eust, (37 Ga. 574) 663 
 
 u. 
 
 •Udell V. Atherton, (7 H. & N. 172) 261 
 Uhler V. Hutchinson, (23 Pa. St. 110) 70, 
 
 71 
 Uhler V. Semple, (20 N. J. Eq. 288) 243, 259 
 Uhrig V. Horstman, (8 Bush, 172) 406 
 Uhlick V. Muhlke, (61 111. 499) 280 
 Underhill v. Horwood, (10 Ves. 309) 257 
 
 Underhill v. Van Cortland t, (8 Johns. 
 
 Ch. 339) 330 
 Underwood v. Crutcher, (7 J. J. Marsh. 
 
 539) 640 
 Underwood v. New York, &c. E. Co. (17 
 
 How. Pr. 537) 555 
 Underwood v. Sutcliffe, (77 N. Y. 58)355 
 Uuion Bank v. Barker, (3 Barb. Ch. 358) 
 
 651 
 Union Bank v. Bell, (14 Ohio St. 300) 31, 
 
 269 
 Union Bank v. Geary, (5 Pet. 99) 654 
 Union Canal Co. v. Young, (1 Whart. 
 
 410) 63, 67, 71, 107, 109 
 Union Mut. Ins. Co. v. Campbell, (95 111. 
 
 367) 336 
 Union Nat. Bk. v. Bk. of Kansas City, 
 
 (136 U. S. 333) 343 
 Union Nat. Bk. v. Oceanic Co. Bk. (80 
 
 111. 312) 461 
 Union Slate Co. v. Tilton, (69 Me. 244) 
 
 279 
 Union Trust Co. v. Chicago & Lake 
 
 Huron E. E. Co. (7 Fed. Eep. 513) 677 
 United States v. Amedy, (11 Wheat. 393) 
 
 313 
 U. S. V. Ames, (99 U. S. 35) 220 
 United States v. Bank, (8 Eob., La., 262) 
 
 292 
 United States tJ. Conyngham, (4Dall. 358) 
 
 294 
 United States v. Duncan, (4 McLean, 99) 
 
 176, 177 
 United States v. Howe, (3 Craneh, 73) 
 
 394 
 United States v. Howland, (4 Wheat. 
 
 108) 21 
 United States v. Keokuk, (6 Wall., U. 
 
 S., 514) 566 
 United States v. Price, (9 How. 93; 9 
 
 How., U. S., 83) 38 
 United States v. Saline Bank,. (1 Pet. 
 
 100) 651 
 United States o. Sturgess, (1 Paine, U. 
 
 S., 525) 113 
 United States v. Vaughn, (3 Binn. 394) 
 
 84, 86 
 United States v. Victor, (16 Abb. Pr. 
 
 153) 663 
 United States Bank v. Bank of Ga. (10 
 
 Wheat. 333) 225 
 United States Bk. v. Burke, (4 Blackf. 
 
 141) 126 
 United States Bk. v. Huth, (4 B. Mon. 
 
 423) 453 
 United States Bk. v. Schultz, (2 Ohio, 
 
 471) 643 
 
806 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 U. S. Ins. Co. V. Central Nat. Bk. (7 
 
 111. App. 426) 265 
 U. S. Ins. Co. V. Shrlver, (3Md.Ch.381) 
 
 131 
 United States Trust Co. v. Wiley, (41 
 
 Barb. 477) 663 
 Univ. of Penn., Appeal of Trustees of, 
 
 (97 Pa. St. 187) 427 
 Uppington v. Bullen, (2 Dr. & War. 184) 
 
 36 
 Upshaw V. Gibson, (53 Miss. 341) 144 
 UpshawD. Hargrove, (6 Sm. & Mar. 
 
 286) 473, 474 
 Upson V. Badeau, (3 Bradf., Surr. N. Y., 
 
 13) 365 
 Upton V. Moore, (44 Vt. 552) 80 
 Upton V. Prince, (Cas. temp. Talb. 71) 186 
 Upton V. Tribilcock, (1 Otto, 45) 220, 242 
 Uraun v. Coates, (109 Mass. 581) 329 
 Urich's App. (86 Pa. St. 386) 383 
 Urmey's Exr's v. Wooden, (1 Ohio St. 
 
 160) 347 
 Utica, Bk. of v. Mersereau, (7 Paige, 517) 
 
 651 
 Utica Ins. Co. v. Lynch, (11 Paige, 520) 
 
 370 
 Uzzell V. Mack, (4 Humph. 319) 473 
 
 V. 
 
 Vail V. Drexel, (9 111. App. 439) 471 
 Vail V. Foster, (4 N. Y. 313) 476 
 Vail V. Meyer, (71 Ind. 159) 406 
 Vail V. Vail, (4 Paige, 317) 328 
 Valentine i;. Havener, (20 Mo. 133) 69, 71, 
 
 105, 106, 110, 129 
 Valette v. Bennett, (69 111. 632) 364 
 Valle V. North Missouri K. Co. (37 Mo. 
 
 445) 231 
 Van V. Barnett, (19 Ves. 102) 206, 207, 211 
 Van Alenv. Am. Nat. Bk. (69 Ind. 579) 
 
 458 
 Van Amringe v. Morton, (4 Whart. 383) 
 
 56 
 Van Arsdale v. Van Arsdale, (3 Dutch. 
 
 404) 170, 173 
 Vanarsdalen v. Whitaker, (10 Phila. 153) 
 
 566 
 Van Bergen v. Van Bergen, (3 Johns. 
 
 Ch. 272) 572 
 Van Beuren v. Dash, (30 N. Y. 393) 430 
 Van Bibber v. La. Bank, (14 La. Ann. 
 
 481) 458 
 Van Buren v. Olmstead, (5 Paige, 9) 497 
 Van Buskirk v. Hartford Ins. Co. (14 
 
 Conn. 141) 84 
 
 Van Campen v. Knight, (63 Barb. 205> 
 
 587 
 Vance 1). McNairy, (3 Yerg. 176) 105, 106, 
 
 110 
 Vance v. Nogle, (70 Pa. St. 176) 392 
 Vandegraff v. Medlock, (3 Port. 389) 500 
 Vanderhaize v. Haques, (13 N. J. 244) 52, 
 
 488 
 Vanderkemp v. Shelton, (11 Paige, 28) 
 
 149, 513 
 Vandermark v. Vandermark, (55 How. 
 
 Pr. 408) 431 
 Vanderpool v. Brake, (28 Ind. 130) 243 
 Van Deusen v. Sweet, (51 N. Y. 378) 142 
 Van Donge v. Van Donge, (33 Mich. 321) 
 
 286 
 Van Doren v. Mayor, &c., The, (9 Paige» 
 
 388) 596 
 Vandoren v. Todd, (2 Green Ch. 397) 473 
 Van Duyne v. Van Duyne, (1 McCart. 
 
 397) 331 
 Van Duyne v. Vreeland, (1 Beasl. 142) 
 
 90, 96 
 Van Duzer v. Van Duzer, (6 Paige, 366) 
 
 408 
 Van Dyck v. McQuade, (86 N. Y. 38) 376 
 Van Dyke v. Van Dyke, (31 N. J. Eq.l76) 
 
 419 
 Van Dyke's Appeal, (60 Pa. St. 481) 158, 
 
 166, 178, 179 
 Van Epps v. Harrison, (5 Hill, 63) 243, 
 
 350, 351, 259 
 Van Epps v. VauDusen, (4 Paige, 64) 408 
 Van Epps v. Van Epps, (9 Paige, 337) 
 
 278 
 Van Heusen v. Radclifl, (17 N. Y. 580) 68 
 Van Hoozer v. Cory, (34 Barb. 9) 448 
 Vanhorn v. Prick, (3 Serg. & R. 278) 66 
 Van Home, In re, (7 Paige, 46) 283 
 Van Home v. Fonda, (5 Johns. Ch. 388) 
 
 359 
 Van Keuren v. Cent. E. R. (38 N. J. L. 
 
 165) 99, 118, 119 
 Van Keuren v. Corkins, (66 N. Y. 77; 4 
 
 Hun, 139) 80 
 Van Kleech v. Leroy, (37 Barb. 544) 246 
 Van Mat^ v. Sickler, (1 Stockt. 483) 418 
 Vanmeter v. Estill, (78 Ky. 456) 396 
 Van Meter ^.McFaddin, (8B. Mon. 435) 
 
 40, 57, 467 
 Van Ness v. Hadsell, (54 Mich. 560) 140 
 Van Ness v. Washington, (4 Pet. 232) 
 
 233 
 Van Neste v. Conover, (20 Barb. 547) 245 
 Van Nostrand v. Moore, (53 N. Y. 18) 332 
 Van Orden v. Johnson, (1 McCarterj 
 376) 103 
 
TABLE OF CASES CITED. 
 
 807 
 
 FIEFBRENCBS ARE TO PAGES. 
 
 Van Orden v. Van Orden, (10 Johns. 30) 
 
 169 
 Van Renssalaer o. Clark, (17 Wend. 25) 
 
 101, 105 
 Van Rensselaer v. Stafford, (Hopk. Ch. 
 
 569) 87 
 Van Riper t>. Van Riper, (1 Green Ch. 1) 
 
 193, 193 
 Van Rossum v. Walker, (11 Barb. 337) 
 
 393 
 Van Santen v. Standard Oil Co. (81 N. 
 
 Y. 171) 631 
 Van Santen ». Standard Oil Co. (17 Hun, 
 
 N. Y. 140) 338 
 Van Sickel v. Emery, (18 N. J. Eq. 387) 
 
 566 
 Van Slyck v. Skinner, (41 Mich. 186) 116 
 Van Thorniley v. Peters, (26 Ohio St. 471) 
 
 69, 129 
 Vantrees v. Hyatt, (5 Ind. 487) 247 
 Van Valkjnburg v. Smith, (60 Me. 97) 
 
 437 
 Van Vechten v. Keator, (63 N. Y. 52) 
 
 199, 200, 202 
 Van Vronker v. Eastman, (7 Mete. 157) 
 
 206 
 Van Wagenen v. Brown, (26 N. J. L. 196) 
 
 149 
 Van Winkle v. Hinckle, (21 Cal. 343) 640 
 Van Wii.kle •». Van Houten, (3 Green 
 
 Ch.l73) 483 
 Van W\ck v. Seward, (6 Paige, 62) 290 
 Van Wyck v. Waters, (81 N. Y. 352) 263 
 Varick v. Edwards, (1 Hoff. Ch. 382) 
 
 376, 447, 569 
 Varner's Appeal, (80 Pa. St. 140) 392 
 Varnum v Camp, (1 Greenl. 326) 293 
 VarrickD. Briggs, (6 Paige, 333) 63, 77, 
 
 650 
 Vary v. Shea, (36 Mich. 388) 234 
 Vason V. Beall, (58 Ga. 500) 369 
 Vassault v. Austin, (36 Cal. 691) 105, 106, 
 
 109 
 Vasser v. Vasser, (23 Miss. 378) 33, 437 
 Vattier v. Hinde, (7 Pet. 352) 41, 77, 650 
 Vaughan, Ex parte, (Turn. &R. 434) 33 
 Vaughan v. Buck, (13 Sim. 404) 30 
 Vaughan v. Thompson, (17 111. 78) 291 
 Vaughn v. Tracy, (25 Mo. 318) 117, 118 
 Vaughn v. Fuller, (23 Ga. 366) 573 
 Vaux V. Parke, (7 Watts & S. 19) 334 • 
 Veasey v. Doton, (3 Allen, 380) 250, 360 
 Veazie v. Parker, (33 Me. 170) 103, 105, 
 
 106, 131 
 Veazie v. Williams, (8 How., U. S., 134) 
 
 244, 245, 261, 363 
 Vedder v. Saxton, (46 Barb. 188) 170 
 
 Veile V. Blodgett, (49 Vt. 270) 357 
 Veiley v. Thompson, (44 111. 9, 13) 606 
 Venable v. Everett, (63 Ga. 633) 551 
 Veuables v. Morris, (7 T. R. 343) 147 
 Venice, Town of v. Woodruff, (63 N. Y. 
 
 463) 
 Vennum v. Babcock, (13 Iowa, 194) 
 Verdin v. Slocum, \71 N. Y. 345) 340 
 Verges v. Prejean, (24 La. An. 78) 105 
 Vernol v. Vernol, (63 N. Y. 45) 363 
 Vernon v. Keys, (13 East, 637) 349, 251, 
 
 253 
 Vernon v. Vernon, (53 N. Y. 351) 160, 168, 
 
 337, 333 
 Vernor v. Coville, (44 Mich. 281) 384 
 Verplanck v. Van Buren, (76 N. Y. 247) 
 
 241, 254 
 Verplank v. Caines, (1 Johns. Ch. 57) 643 
 Verplank v. Sterry, (12 Johns. 536) 289 
 Vessy V. Graham, (17 Ga. 99) 117 
 Vesy V. Dalton, (3 Allen, 380) 259 
 Vibbard v. Roderick, (51 Barb. 616) 343 
 Vickers'U. Cowell, (1 Beav. 529) 516 
 Vicksburg, &c. R. R. v. Ragsdale, (54 
 
 Miss. 200) 136,145 
 Victor V. Henlein, (33 Hun, 549) 346 
 Vidal V. Girard's Ex'rs, (3 How., U. S., 
 
 137) 310 
 Viele V. Judson, (82 N. Y, 32) 104, 105. 
 
 137 
 Viele V. Troy & B. R. R. (31 Barb. 381) 
 
 273 
 Vigers v. Pike, (8 CI. & Pin. 562) 263 
 Vilas V. Jones, (1 N. Y. 274) 566 
 Villa V. Rodriguez, (12 Wall. 323) 376 
 Villalonga v. Hicks, (13 S. Car. 163) 279 
 Villareal v. Galway, (1 Bro. Ch. 293 n) 
 
 158, 171 
 Villines v. Norfleet, (3 Dev. Eq. 167) 281 
 Vincent u. Martin, (79 Ala. 540) 625 
 Vincent v. Newcombe, (1 Younge, 599) 
 
 305 
 Vinning v. Gilbreth, (39 Me. 496) 394 
 Virgin v. Brubaker, (4 Nev. 31) 59 
 Virgin v. Wingfield, (54 Ga. 451) 73, 90, 96 
 Vizonneau v. Pegram, (3 Leigh, 183) 397 
 Vogler V. Montgomery, (54 Mo. 577) 5.51 
 Volgen V. Yates, (5 Seld. 223) 308 
 Von Phul V. Penn, (31 Mo. 333) 640 
 Voorhees v. Be Meyer, (2 Barb. 37) 436 
 Voorhees v. Earl, (2 Hill, 293) 363 
 Voorhees v. Howard, (4 Abb. App. Dec. 
 
 503) 618 
 Voorhees v. Olmstead, (5 Hun, 744) 137, 
 
 143, 143 
 Voorhees v. Stoothoff, (11 N. J. L. 145) 
 365 
 
808 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Voorhis v. Childs' Ex'rs, (17 N. Y. 354) 
 
 38,441 
 Voorhis ».• Murphy, (26 N. J. Eq. 434) 
 
 218, 236 
 Voris V. State, (47 Ind. 345, 349) 38, 441 
 Vosburgh v. Huntington, (15 Abb. Pr. 
 
 254) 661 
 Vosburgh v. Teator, (32 N. V. 561) 140 
 Vose V. Handy, (2 Greenl. 332) 501 
 Vose V. Trustees, &c. (2 Woods, 647) 364 
 Voshell V. Hynson, (26 Md. 83) 643, 668 
 Vower's Will, In re, (113 N. Y. 569) 175 
 Vreeland v. Bramhall, (28 N. J. Eg. 85) 
 
 234 
 Vreeland v. Van Horn, (17 N. J. Eq. 
 
 137) 338 
 Vreeland v. Vreeland, (16 N. J. Eq. 512) 
 
 406 
 Vreeland's Ex'r v. Eynd's Ex'rs, (26 N. 
 
 J. Eq. 160) 406 
 
 w. 
 
 W V. B , (32 Beav. 574) 268 
 
 Waddell v. Lanier, (62 Ala. 347) 274 
 Waddle v. Terry, (4 Ooldw. 51) 173 
 Wade V. Am. Col. Soc, (7 Sm. & Mar. 
 
 663) 314, 347 
 Wade V. Baldmier, (40 Mo. 486) 148 
 Wade V. Howard, (11 Pick. 389) 150 
 Wade 1!. Kalbflelsch, (58 N. Y. 282) 444 
 Wade V. Withlngton, (1 Allen, 561) 56 
 Wadhams v. Am. Home, &c. Soc (12 
 
 N. Y. 415) 397 
 Wadman v. Calcraft, (10 Ves. 67, 68, 69) 
 
 53 
 Wadsworth v. Davis, (63 N, C. 251) 419 
 Wadsworth u. Gay, (118 Mass. 44) 380 
 Wadsworth v. Wendell, (5 Johns., N. 
 
 Y., Ch. 234) 339 
 Wadsworth v. Williams, (100 Mass. 126) 
 
 148, 152 
 Wade V. Greenwood, (3 Robt. 475) 474 
 Wagenblast o. Washburn, (12 Cal. 308) 
 
 229 
 Wager v. Wager, (31 Hun, 93) 415 
 Waggoner v. Minter, (7 J. J. Marsh. 
 
 173) 231 
 Wagner v. Watts, (2 Cranch C. C. 169) 
 
 534 
 Wagstaffe v. Lowerre, (23 Barb. 309) 373 
 Wagstaffe v. Smith, (9 Ves. 530) 337 
 Wahle V. Eeinbach, (76 111. 322) 563 
 Wailes v. Cooper, (24 Miss. 208) 63, 93, 
 
 111, 113, 115, 116 
 Wainwrlght v. Sawyer, (105 Mass, 168) 
 
 337 
 
 Wake V. Wake, (3 Bro. Ch. 355) 171 
 Wakeman v. Dalley, (51 N. Y. 27) 250 
 Wakeman v. Dodd, (27 N. J. Eq. 564) 378 
 Wakeman v. Orover, (4 Paige, Ch. 23) 292 
 Walcot V. Hall, (2 Bro. Ch. 305) 217 
 Walcott V. Sullivan, (1 Edw. Ch. 399) 103 
 Walden v. Murdock, (23 Cal. 533) 398 
 Waldo V. Russell; (5 Mo, 387) 70 
 Waldrom v. Zacharie, (54 Tex. 503) 473 
 Waldron, In re, (13 Johns. 418) 303 
 Waldron v. Letson, (3 McCart. 136) 333 
 Waldron v. Sloper, (1 Drew. 193) 60 
 Waldy V. Gray, (L. R. 2o Eq. 238) 134 
 Wales V. Coffin, (105 Mass. 328) 32 
 Walker v. Baker, (26 Vt. 710) 151 
 Walker v. Brooks, (135 Mass. 241) 444 
 Walker v. Carrington, (74 111. 446) 282 
 Walker v. Carroll, (65 Ala. 61) 472 
 Walker v. Cheever, (35 N. H. 339) 420 
 Walker v. Collier, (37 111. 362) 295 
 Walker v. Derby, (5 Biss., U. S., 134) 283 
 Walker v. Dreville, (12 Wall. 440) 21 
 Walker u. Hall, (34 Pa. St. 483) 331 
 Walkers. Hill, "(7 C. E. Green, 102, 513) 
 
 25 
 Walker v. Hill's Ex'rs, (22 N. J. Eq. 519) 
 
 358 
 Walker v. King, (44 Vt. 601; 45 Vt. 525) 
 
 148 
 Walker v. Laighton, (31 N. H. Ill) 440 
 Walker v. Locke, (5 Cush. 90) 335, 336 
 Walker v. Mathews, (58 111. 196) 56 
 Walker v. Mauro. (18 Mo, 564) 453 
 Walker v. McKay, (3 Mete, Ky., 394) 87 
 Walker v. Moore, (10 Barn. & C. 431) 264 
 Walker v. Morris, (14 Ga, 323) 17, 419 
 Walker v. Osgood, (98 Mass. 348) 283 
 Walker v. Quigg, (6 Watts. 87) 383 
 Walker v. Reamy. (36 Pa. St. 410) 407 
 Walker v. Russell, (10 S. C. 82) 303 
 Walker ». Sedgwick, (8 Cal. 398) 237 
 Walker v. Simpson, (7 W. & S., Pa., 83) 
 
 440 
 Walker v. State, (53 Miss. 532) 418 
 Walker v. Vaughn, (33 Conn. 577) 448 
 Walker v. Walker, (35 Ga. 420) 347 
 Walker v. Walker, (101 Mass. 169) 379 
 Walker v. Walker, (2 Aik. 98) 308 
 Walker v. Wheeler, (2 Conn. 299) 43, 50 
 Walker c. Williams, (30 Miss. 165) 477 
 Wall V. Arrington, (13 Ga. 88) 239, 333 
 Wall V. Colshead, (3 De G. & J. 683) 202, 
 
 210 
 Wall V. Lakin, (13 Met. 167) 292 
 Wall V. Pulliam. (5 Heisk. 365) 673 
 Wall V. Wall. (15 Sim. 513) 175 
 Wallace v. Berger, (14 Iowa, 183) 631 
 
TABLE OF CASES CITED. 
 
 809 
 
 REF'ERENOES ARE TO PAGES. 
 
 Wallace v. Blair, (1 Grant's Cas. 75) 149 
 Wallace v. Bowens, (28 Vt. 638) 355 
 Wallace e. Caston, (9 Watts, 137) 398 
 Wallace v. Lord Donegal, (1 Dr. & War. 
 
 461) 66 
 Wallace v. Duffleld, (2 Serg. & R. 531) 
 
 354 
 Wallace v. Finberg, (46 Tex. 35) 407 
 Wallace v. Furber, (63 Ind. 103) 111 
 Wallace v. Greenwood, (L. E. 16 Ch. D. 
 
 363) 307 
 Wallace v. Hey wood, &c. Co. (16 Gray, 
 
 309)445 
 Wallaces. Hussey, (63 Pa. St. 34) 318 
 Wallace v. Lark, (13 S. C. 578) 371 
 Wallace v. Moody, (36 Cal. 387) 105 
 Wallace v. Morse, (5 Hill, 391) 246 
 Wallace v. Pomfret, (11 Ves. 542) 183 
 Wallace v. Wainright, (87 Pa. St. 263) 
 
 338, 335 
 Wallace v. Wallace, (33 N. H. 149) 433 
 Wallaces. Wallace, (83 111. 530) 398 
 Wallace v. Wilson, (34 Miss. 357) 363 
 Wallack «. Soc. Eef. Jur. Del. (67 N. Y. 
 
 33) 566 
 Wallers. Armlstead's Adm'rs, (3 Leigh, 
 
 11) 279, 408 
 Walling V. Aiken, (3 McMuUin Eq. 1) 
 
 39, 44,50 
 Wallinger v. Wallinger, (L. R. 9 Eq. 301) 
 
 162 
 Wallingsford®. Wallingsford, (6 Har. & 
 
 J. 485) 413 
 Wallis V. Carpenter, (13 Allen, 19) 46, 48 
 Wallis V. Rhea, (10 Ala. 451) 70, 107, 110 
 Wallis V. Truesdell, (6 Pick. 455) 137, 141 
 Walls V. Stewart, (4 Harris, 275) 426 
 Wallwyn v. Lee, (9 Ves. 24) 41, 64 
 Walmsley v. Child, (1 Ves. Sen. 341) 214 
 Walpole V. Apthorp, (L. R. 4 Eq. 37) 422 
 Walrath v. Handy, (24 How. Pr. 353) 415 
 Walrond v. Rosslyn, (L. R. 11 Ch. D. 640) 
 
 308 
 Wals V. Grosvenor, (31 Wis. 681) 640 
 Walsh V. Barton, (24 Ohio St. 38) 244 
 Walsh V. Boyle, (30 Md. 267) 107, 108 
 Walsh V. McBride, (Md. '90, 19 Atl. 4) 
 
 354 
 Walsh V. Peterson, (3 Atk. 193) 333 
 Walsh V. Rutgers Ins. Co. (13 Abb. Pr. 
 
 33) 497 
 Walsh V. Wright, (101 III. 178) 117 
 Walter v. Ford, (74 Mo. 195) 432 
 Walter v. Gement, (13 Pa. St. 515) 296 
 Walters ». Bailey, (3 Y. & C. Ch. 319) 387 
 Walters v. Walters, (23 N. E. Rep. 1130) 
 
 203 
 
 Walton V. Pollansgee, (33 N. E. 332) 446 
 Walton V. Hargroves, (42 Miss. 18) 473 
 Walton V. Tusten, (49 Miss. 569) 596 
 Walton V. Walton, (7 Johns. Ch. 258) 423 
 Walton V. Wilson, (30 Miss. 576) 587 
 Walworth v. Abel, (53 Pa. St. 370) 337 
 Wambaugh v. Bimer, (25 Ind. 368) 596 
 Wampach v. St. Paul, <S;c. E. R. (33 
 
 Minn. 34). 407 
 Wampler v, Wampler, (30 Gratt. 454) 255, 
 
 358 
 Wanless v. U. S. (6 Ct. of CI. 133) 446 
 Wanmaker «. VanBuskirk, (1 N. J. Eq. 
 
 685) 187 
 Wanner v. Sisson, (29 N. J. Eq. 141) 229 
 Wanzer v. Gary, (76 N. Y. 526) 79 " 
 Wapello, County of v. Bigham, (10 Iowa, 
 
 39) 441 
 Waples V. Marsh, (19 Iowa, 381) 418 
 Warbass v. Armstrong, (2 Stockt. Ch. 
 
 263) 373 
 Warburton v. Lauman, (3 Greene, Iowa, 
 
 420) 239 
 Ward V. Amory, (1 Curtis, 419) 383, 409 
 Ward V. Arch, (15 Sim. 389) 301 
 Ward V. Baugh, (4 Ves. 633) 178 
 Ward V. Coffield, (1 Dev. Eq. 108) 192 
 Ward V. Dewey, (16 N. Y, 519) 637 
 Ward V. Hague, (35 N. J. Eq. 397) 103 
 Ward V. Hobbs, (L. E. 2 Q. B. D. 331) 260 
 Ward V. Morrison, (25 Vt. 593) 84 
 Ward V. Peloubet, (2 Stockt. Ch. 304) 331 
 Wardt;. VanBokkelen, (1 Paige, ,100) 262 
 Ward V. Ward, Estate of, (36 Ark. 586) 
 
 407 
 Ward V. Warren, (82 N. Y. 265) 130 
 Warde v. Warde, (16 Beav. 103' 196 
 Warden v. Adams, (15 Mass. 333) 501 
 Warden v. Eichards, (11 Gray, 377) 362 
 Wardlaw v. Wardlaw, (50 Ga. 544) 330 
 Ware v. Lord Egmont, (4 De G. M. & G. 
 
 460) 91, 97, 98, 116, 133 
 Ware v. Eegents Canal Co. (3 De G. & 3. 
 
 212) 555 
 Ware v. Sharp, (1 Swan, 489) 398 
 Ware v. Thompson, (2 Beasley, 66) 31, 
 
 269 
 Warfield v. English, (11 S. W. Eep. 662) 
 
 333 
 Waring v. Edmonds, (11 Md. 424) 435 
 Waring v. Smyth, (2 Barb. Ch. 119) 56 
 Waring v. Somborn, (82 N. Y. 604) 137, 
 
 143 
 Waring v. Suydam, (4 Edw. Ch. 426) 653 
 Warku. Willard, (13 N. H. 389) 103 
 Warlow V. Harrison, (29 L. J. Q. B. 14) 
 
 344 
 
810 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Warne v. Morris, &c. Co. (5 K. J. Eq. 410) 
 
 547 
 Warner v. Bates, (98 Mass. 274) 331 
 Warner v. Bennett, (31 Conn, 461, 468) 33, 
 
 33,54 
 Warner v. Daniels, (1 Wood. & Min. 90) 
 
 226, 256 
 Warner v. Dove, (33 Md. 579) 406 
 Warner v. Fountain, (28 Wis. 405) 118 
 Warner v. Norton, (20 How. 448) 294 
 Warner v. Peclc, (11 E. I. 431) 406 
 Warner v. Rising, &c. Iron Co. (3 Woods, 
 
 514) 671 
 Warner i;. Van Alstyne, (3 Paige, 513) 
 
 59, 473 
 Warner v. Whittaker, (6 Mich. 133) 106, 
 
 108 
 Warnerford v. Thompson, (3 Ves. 513) 
 
 216 
 Warnock v. Campbell, (25 N. J. Eq. 485) 
 
 596 
 Warnock v. Wightman, (1 Brev. 331) 106 
 Warren v. Copelin, (4 Mete. 594) 84 
 Warren v. Branch, (15 W. Va. 21) 472 
 Warren v. Durfee, (126 Mass, 338) 434 
 Warren v. Fenn, (28 Barb. 333) 472 
 Warren v. Haley, (1 Sm. & Mar. Ch. 647) 
 
 394 
 Warren v. Hawkins, (49 Mb. 137) 280 
 Warren v. Louis, (53 Me. 463) 489 
 Warren?). Richmond. (53 111. 52) 118, 123 
 Warren v. Steer, (112 Pa, St. 634) 353 
 Warren v. Swett, (31 N. H. 332) 91, 93, 
 
 94, 98, 111 
 Warren v. Warren, (30 Vt. 530) 146, 149, 
 
 150, 529 
 Wartemberg ■». Spiegel, (31 Mich. 400) 
 
 275 
 Washband v. Washband, (27 Conn. 424) 
 
 290 
 Washburn v. Merrills, (1 Day, 139) 490 
 Washburn v. Sewall, (9 Mete. 280) 348 
 Washington's Ex'ri). Abraham, (66ratt. 
 
 66) 202 
 Washington Bk. v. Lewis, (22 Pick. 24) 
 
 130 
 Washington, &c. Ins. Co. v, Lawrence, 
 
 (28 How. Pr. 435) 667 
 Wason V. Colburn, (99 Mass. 342) 437 
 Wasson v. Colburn, (99 Mass. 342) 33, 
 
 339 
 Wasson v. Connor, (54 Miss. 351) 
 Wasson v. Davis, (34 Tex. 159) 473 
 Wasson v. English, (13 Mo. 176) 278 
 Wasson v. Garrett, (58 Tenn. 477) 368 
 Waterbury v. Netherland, (6 Heisk. 512) 
 
 176, 177, 178 
 
 Water Co. v. Bucks, (5 Ga. 315) ,573 
 Waterloo Bk. v, Elmore, (52 Iowa, 541> 
 
 149 
 Water Lot Co. v. Bucks, (5 Ga. 315) 563 
 Waters v. Comely, (3 Har. 117) 292 
 Waters v, Howard, (1 Md, Ch. 112) 159,. 
 
 160 
 Waters v. Mattlngly, (1 Bibb, 244) 265 
 Waters v. Randall, (6 Mete. 469) 52 
 Waters v. Stewart, (1 Caines' Cas. 47) 
 
 491 
 Waters v. Tazewell, (9 Md. 291) 400 
 Waters' Patent Heater Co. v. Smith, 
 
 (120 Mass. 444) 262 
 Watertown, Trustees of v, Cowen, (4 
 
 Paige. 510) 559 
 Watkins v. Birch, (4 Taunt. 328) 296 
 Watkins v. Cousall, (1 E. D. Smith, N. 
 
 y., 65) 283 
 Watkins v. Edwards, (23 Tex. 443) 103, 117,, 
 
 118 
 Watkins v. Gregory, (6 Blatehf. 113) 52,. 
 
 53 
 Watkins v. Holman, (16 Pet. 25) 21, 544 
 Watkins v. Owen, (2 J, J. Marsh., Ky., 
 
 1421 633 
 Watkins v. Stoekett, (6 Har. & J, 435) 
 
 219, 234 
 Watkins ■». Vrooman, (51 Hun, 175) 488 
 Watkins v. Wassell, (15 Ark. 73) 68, 129 
 Watkins v. Wyatt, (9 Baxt. 250) 448, 534 
 Watson V. Columbia Bridge Co. (13 S. C. 
 
 433) 484 
 Watson V. Dundee Mortgage, &c. Co» 
 
 (12 Or. 474) 103 
 Watson V. Erb, (33 Ohio St. 35) 265 
 Watson V. Hayes, (5 My. & Cr. 125) 210 
 Watson V. Le Row, (6 Barb. 481) 56, 60, 
 
 62 
 Watson V. Lincoln, (Ambl.327) 186 
 Watson V. Marston, (4 De G. M. & G. 
 
 230) 235 
 Watson V. Mayrant, (1 Rich. Eq. 449) 
 
 350 
 Watsons Mercer, (8 Pet. 88) 105 
 Watson V. Phelps, (40 Iowa, 482) 73 
 Watson V. Rodgers, (53Cal. 401) 295 
 Watson V. Sherman, (84 111, 63) 229 
 Watson V. Smith, (7 Oreg. 448) 579 
 Watson V. Stone, (40 Ala. 451) 371 
 Watson V. Sutherland, (5 Wall. 74) 547 
 Watson V. Thurber, (11 Mich, 457) 407 
 Watson V. Watson, (33 Beav. 574) 186 
 Watson V. Wells, (5 Conn. 468) 106, 108, 
 
 130 
 Watson V. Williams, (4 Blackf. 26) 294 
 Watson «. Wilson, (2 Dana, 406) 125, 126 
 
TABLE OF CASES CITED. 
 
 811 
 
 REFERBNCBS ARE TO PAGES. 
 
 Watson, &c. Co. v. Casteel, (68 Ind. 476) 
 
 596 
 Watson's Interdiction, (31 La. An. 757) 
 
 303 
 Watt V. Mayor, &c. (1 Sandf. 33) 87 
 Watt V. White, (33 Tex. 431) 477 
 Watt V. Watt, (3 Ves. 344) 315 
 Watters v. Connelly, (59 Iowa, 317) 140 
 Watts' Appeal, (78 Pa. St. 371) 385 
 Watts V. Cummins, (59 Pa. St. 84) 320, 
 
 350, 351, 359 
 Watts V. Sheppard, (3 Ala. 435, 445) 49 
 Watts V. Symes, (1 De G. M. & G. 340) 151 
 Watts V. Waddle, (1 McLean, 300) 545 
 Waught!. Schlenk, (33 111. App. 433) 625 
 Way V. Lamb, (15 Iowa, 79) 573 
 Wayland v. Crank, (79 Va. 603) 368 
 Wayland v. Wayland, (79 Va. 603) 365 
 Wayman v. Jones, (4 Md. Ch. 500) 371 
 Weadner v. Phillips, (39 Hun, 1) 250 
 Weakley v. Gurley's Adm'r, (60 Ala. 399) 
 
 418 
 Weakley v. Watkins, (7 Humph. 356, 366) 
 
 25,27 
 Weal V. Lawer, (1 Eq. Abr. 366) 313 
 Weall V. Eice, (2 Kuss. & My. 251) 182, 
 
 183, 189 
 Weare v. Linnell, (39 Mich. 324) 355 
 Weart v. Rose, (16 N. J. Eq. 290) 339 
 Weatherford v. Fishback, (3 Scam., 111., 
 
 170) 360 
 Weathersly v. Weathersly, (40 Miss. 462) 
 
 53 
 Weaver v. Barden, (49 N. Y. 286) 65, 67, 
 
 73 
 Weaver v. McCorkle, (14 Serg. & R. 304) 
 
 80 
 Weaver v. Shryock, (6 Serg. & R. 263, 
 
 2&4) 38 
 Weaver v. Wallace, (9 N. J. L. 251) 260 
 Webb V. Bellinger, (3 Desau., S. C, 483) 
 
 365 
 Webb V. Donaldson, (60 Mo. 394) 640 
 Webb, Estate of, (49 Cal. 541) 33, 339, 
 
 437 
 Webb V. Evans, (1 Binney, 565) 170 
 Webb V. Gay, (74 N. C. 447) 407 
 Webb V. Haselton, (4 Neb. 308) 79, 407 
 Webb V. Kirby, (7 De G. M. & G. 376) 
 
 237 
 Webb V. Meloy, (32 Wis. 319) 149 
 Webb V. Portland Man. Co. (3 Sumner, 
 
 189) 603 
 Webb V. Ridgely, (38 Md. 364) 555 
 Webb V. Eobbins, (77 Ala. 176) 112 
 Webb V. Robinson, (14 Ga. 316) 474 
 Webber v. Donnelly, (33 Mich. 469) 271 
 
 Webber v. Stanley, (16 C. B., n. s., 698) 
 
 233 
 Webber v. Taylor, (2 Jones' Eq. 9) 117, 
 
 118, 123, 123 
 Weber v. Armstrong, (70 Mo. 217) 397 
 Weber v. Weatherby, (34 Md. 656) 137 
 Weber v. Weber, (58 How. Pr. 255) 337 
 Weber v. Weitling, (18 N. J. Eq. 441) 
 
 372 
 Webster v. Bailey, (40 Mich. 641) 294 
 Webster v. Calden, (56 Me. 304) 493 
 Webster v. Clark, (25 Me. 313) 618 
 Webster v. Cooper, (14 How. 488) 327 
 Webster v. Granger, (78 111. 330) 298 
 Webster v. Hall, (60 N. H. 7) 661 
 Webster v. Harris, (16 Ohio, 490) 234, 236. 
 Webster «. Harwinton, (32 Conn. 131, 140) 
 
 606 
 Webster v. Hildreth, (33 Vt. 457) 406 
 Webster v. King, (33 Cal. 348) 359 
 Webster v. Maddox, (6 Me. 256) 119, 123 
 Webster v. Munger, (8 Gray, 584) 271 
 Webster v. Vandeventer, (6 Gray, 438> 
 
 363 
 Webster v. Van Steenbergh, (46 Barb. 
 
 311) 66, 72, 77, 121 
 Webster v. Webster, (33 N. H. 18) 233 
 Wedderburn v. Wedderburn, (4 My. & 
 
 Cr. 41) 284 
 Wedge V. Moore, (6 Cush. 8) 152 
 Weed V. Pierce, (9 Cow. 722) 136 
 Weeding v. Weeding, (1 J. & H. 434) 302 
 Weeks ». Burton, (7 Vt. 67) 255 
 Weeks v. Downing, (30 Mich. 4) 383 
 Weeks v. Patten, (18 Me. 43) 155, 160, 168 
 Weeks v. Prescott, (53 Vt. 57) 296 
 Weeks v. Robie, (34 N. H. 316) 362 
 Weeks v. Sego, (9 Ga. 199) 399 
 Weeks v. Tomes, (16Hiin, 349) 135, 138 
 Weeks v. Weeks, (5 Ired. Eq. Ill; 77 N. 
 
 C. 431) 159 
 Weeks v. Wood, (3 Atk. 64) 396 
 Weems v. Lathrop, (43 Tex. 307) 673 
 Weetjeni;. Vibbard, (5 Hun, 265) 374 
 Weide v. Gehl, (31 Minn. 449) 489 
 Weiderbusch v. Hartenstein, (13 W. Va. 
 
 760) 334 
 Weinberg v. Rempe, (15 W. Va. 839) 405 
 Weinstock v. Bellwood, (12 Bush, 139) 
 
 455 
 Weir V. Mundell, (3 Brews. 594) 579 
 Weire v. Davenport, (11 Iowa, 49) 445 
 Weise's Appeal, (73 Pa. St. 351) 36 
 Weisberger v. Wisner, (55 Mich. 246) 117 
 Weisser v. Denison, (10 N. Y. 68) 130, 131 
 Welborn v. Williams, (9 Ga. 86) 477 
 Welby V. Welby, (3 V. & B. 190) 160 
 
812 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO RAGES. 
 
 Welch ». Gould, (3 Root, 287) 106, 108 
 Welch's Appeal, (28 Pa. St. 663) 426 
 Weld V. Madden, (2 Cliff., U. S., 584) 117 
 Weld V. Eees, (48 III. 428) 272 
 Weld V. Sabin, (20 N. H. 533) 149 
 Welland Canal Co. v. Hathaway, (8 
 
 Wend. 480) 137 
 Wellemin v. Dunn, (93 111. 511) 274 
 Weller v. Smeaton, (1 Cox, 102) 563 
 Weller's Appeal, (103 Pa. St. 594) 218 
 Welles D. Middleton, (1 Cox, 113) 379 
 Welles V. Yates, (44 N. Y. 525) 228, 237 
 Wellesley v. Wellesley, (4 My. & Cr. 561) 
 
 34, 195 
 Wells V. Beale, (3 Gill & J. 458) 609 
 Wells D.Buffalo, City of, (80 N. Y. 253) 
 
 596, 637 
 Wells V. Castles, (3 Gray, 333) 336 
 Wells V. Caywood, (3 Col. 487) 404 
 Wells V. Cruger, (5 Paige, 164) 335 
 Wells V. Doane, (3 Gray, 201) 348 
 Wells V. Erstine, (24 La. Ann. 317) 628 
 Wells V. Barter, (56 Cal. 342) 473 
 Wells V. Heath, (10 Gray, 17) 337 
 Wells V. Lewis, (4 Mete, Ky., 371) 361 
 Wells V. McCall, (64 Pa. St. 307) 400 
 Wells V. Middleton, (1 Cox, 113) 385 
 Wells V. Mlllett, (33 Wis. 64) 260 
 Wells V. Morrow, (38 Ala. 125) 63, 73, 74, 
 
 75, 101 
 Wells V. Neff, (14 Oreg. 66) 237 
 Wells V. Pierce, (37 N. H. 503) 66, 138, 430 
 Wells V. Robinson, (13 Cal. 133) 357 
 Wells V. Smith, (44 Miss. 296) 418, 471 
 Wells V. Tucker, (3 Binn. 366) 432 
 Wells V. Wall, (1 Oreg. 295) 572 
 Wells V. Waterhouse, (23 Me. 131) 361 
 Wells V. Wells, (88 N. Y. 333) 199 
 Welsh, In re, (1 Eedf. 338) 387 
 Welsh V. Bayand, (21 N. J. Eq. 186) 
 Welsh V. Beers, (8 Allen, 151) 529 
 Welsh V. Freeman, (31 Ohio St. 402) 613 
 Welsh V. Phillips, (54 Ala. 309) 146, 147 
 Welsh V. Priest, (8 Allen, 165) 73 
 Welsh V. Usher, (3 Hill Ch. 167) 465 
 Welshbillig v. Dienhart, (65 Ind. 94) 243 
 Welton V. Tizzard, (15 Iowa, 178) 69, 129 
 Wemple v. Stewart, (22 Barb. 154) 236, 
 
 234 
 Wendell v. Van Rensselaer, (1 Johns. 
 
 Ch. 334) 66 
 Werner v. Leisen, (31 Wis. 169) 635 
 Wertz's Appeal, (69 Pa. St. 173) 483 
 Wesco's Appeal, (53 Pa. St. 195) 192 
 Weskett v. Eahy, (2 Bro. P. C. 386) 194 
 Wesley v. Thomas, (6 Har. & J. 24) 236 
 West V. Canthen, (9 S. C. 45) 368 
 
 West V. Cavens, (74 Ind. 265) 431 
 
 West V. Lawday, (11 H. L. Cas. 375) 232 
 
 West V. Mayor, &c.. The, (10 Paige, 539) 
 
 569 
 West V. Snodgrass, (17 Ala. .549) 393 
 West V. Tllghman,(9 Ired., N.C., 163) 136 
 West i;. West's Ex'rs, (3 Rand. 373) 395 
 Westbrook v. Gleason, (79 N. Y. 33) 67, 
 
 72, 106, 108 
 Westbrook v. Harbeson, (3 McCord's 
 
 Eq. 112) 336, .339 
 Westerlo v. De Witt, (35 Barb. 315) 432 
 Westerman v. Westerman, (25 Ohio St. 
 
 500) 405 
 Western Bank v. Addie, (L. R. 1 Sc. App. 
 
 145) 254, 260 
 Western Bank v. Sherwood, (29 Barb. 
 
 383) 79, 80 
 Western R. R. v. Babcock, (6 Mete. 346) 
 
 218, 237, 235 
 West. U. Tel. Co. v. St. Jo., &c. Ry. (1 
 
 McCrary, 565) 555 
 West. U. Tel. Co. v. Union Pac. Ry. (1 
 
 McCrary, 558) 555 
 West. U. Tel. Co. v. West., &c. R. R. (8 
 
 Baxt. 54) 555 
 Western U. T. Co. v. West., &c. R. R. (8 
 
 Baxt. 54) 545 
 Westervelt v. Haff, (2 Sandf. Ch. 98) 129 
 Westervelt v. Matheson, (1 Hoff. Ch. 37) 
 
 273 
 Westminster, Bk. of v. Whyte, (1 Md. 
 
 Ch. 536) 488 
 Weston V. Bear River, &c. Co. (5 Cal. 
 
 186) 83, 86 
 Weston V. Hight, (17 Me. 387) 433 
 Weston V. Johnson, (48 Ind. 1) 185, 186 
 Weston V. Wilson, (31 N. J. Eq. 51) 338, 
 
 339 
 Wethered v. Boon, (17 Tex. 143) 113 
 Wetscott V. Ainsworth, (9 Hun, 53) 355 
 Wetmore v. San Francisco, (44 Cal. 294) 
 
 445 
 Whaley v. Morton, (1 Vern. 482) 27 
 Wharf V. Roberts, (88 111. 436) 255 
 Wharton, In re, (5 De G. M. & G. 33) 
 
 307 
 Wharton v. Stoutenbnrgh, (35 N. J. Eq. 
 
 366) 591 
 Whatley v. Small, (35 Iowa, 188) 105 
 Wheadon v. Olds, (30 Wend. 174) 225, 228 
 Wheatley 1). Strobe, (12 CaL 92) 453, 456 
 Wheaton v. Baker, (14 Barb. 494) 363 
 Wheaton v. Dyer, (15 Conn. 307) 74, 75, 
 
 106,108 
 Wheaton v. Wheaton, (9 Conn. 96) 819, 
 220 
 
TABLE OF CASES CITED. 
 
 813 
 
 REFERBNOBS ARE TO PAGES. 
 
 Whedbee v. Stewart, (40 Md. 414) 293 
 Wheeler u. Conn.Mut. L.I. Co. (82 N. Y. 
 
 543) 216 
 Wheeler v. Gilsey, (35 How. Pr., N. Y., 
 
 139) 438 
 Wheeler v. Klrtland, (23 N. J. Eq. 13) 
 
 330 
 Wheeler v. Klrtland, (24 N. J. Eq. 553) 
 
 68, 69, 129, 230 
 Wheeler v. Love, (31 Tex. 583) 473 
 Wheeler v. Newbould, (16 N. Y. 392) 542 
 Wheeler U.Perry, (18 N. H. 307) 420 
 Wheelers. Reynolds, (66 N. Y. 227) 358 
 Wheeler v. Sage, (1 Wall. 518) 26 
 Wheeler B. Stone, (4 0111,47)457 
 Wheeler v. Smith, (9 How. 55) 220, 221, 
 
 328, 336 
 Wheeler v. WlUard, (44 Vt. 640) 380 
 Wheelock v. Lee, (64 N. Y. 242) 445 
 Whelan v. Eeilly, (3 W. Va. 597) 330 
 Whelan v. Eeilly, (61 Mo. 565) 216 
 Whelan v. Whelan, (3 Cow. 537) 274 
 Whelan's Appeal, (70 Pa. St. 410) 230, 
 
 323 
 Wheldale v. Partridge, (5 Ves. 388, 396; 8 
 
 Ves. 337) 35, 306, 307 
 Whelpley v. Erie Ry. (6 Blatch. 371) 668 
 Whelsel v. Roberts, (31 Ohio St. 503) 473 
 Whetsel v. Roberts, (31 Ohio St. 503) 
 
 474 
 Whiehcote v. Lawrence, (3 Ves. 740) 283 
 Whilden v. Whilden, (Riley Ch. 205) 170 
 Whipple V. Giles, (55 N. H. 139) 407 
 Whistler v. Webster, (2 Ves. 367) 156, 161, 
 
 166 
 Whitaker v. Williams, (20 Conn. 98) 139 
 Whitbeck v. Van Renssalaer, (64 N. Y. 
 
 27) 216 
 Whitbread v. Boulnois, (1 Y. & C. 303) 
 
 97, 99 
 Whitcomb v. Cardell, (45 Vt. 24) 328 
 Whitcomb v. Denio, (58 Vt. 382) 262 
 White V. Arlith, (1 Bond, 319) 46 
 White V. Ashton, (51 N. Y. 280) 138 
 White V. Buss, (3 Gush. 448) 371 
 White V. Carpenter, (3 Paige, 217) 69, 116, 
 
 124 
 White V. Casenave's Heirs, (1 Har. & J. 
 
 106) 473 
 White V. Coleman, (127 Mass. 34) 454 
 White V. Crew, (16 Ga. 416) 26 
 White V. Denman, (1 Ohio St. 110) 69, 
 
 102, 105, 139 
 White V. Downs, (40 Tex. 335, 226) 473 
 White V. Drew, (42 Me. 561) 34, 358 
 White V. Fisk, (22 Conn. 31) 348 
 White V. Fitzgerald, (19 Wis. 480) 328 
 
 White V. Foster, (102 Mass. 375) 93, 140, 
 
 114, 116 
 White V. Franklin Bk. (22 Pick. 181, 186> 
 
 27, 269 
 White V. Garden, (10 C. B. 919) 245 
 White V. Gouldin's Ex'rs, (27 Gratt. -491) 
 
 408 
 White V. Greenish, (11 C. B., n. s., 309> 
 
 146 
 White V. Hale, (S Coldw. 77) 348 
 White V. Hampton, (10 Iowa, 238) 360, 
 
 654 
 White V. Hicks, (33 N. Y. 392) 384, 386 
 White V. Hildreth, (32 Vt. 265) 406 
 White V. Howard, (46 N. Y. 144) 199, 302, 
 
 208 
 White V. Knapp, (8 Paige, 173) 149 
 White 11. McGann, (65 Wis. 86) 631 
 White V. Merritt, (7 N. Y. 352) 256 
 White V. Parker, (8 Barb. 48) 279 
 White V. Perry, (14 W. Va. 66) 128 
 White V. Polleys, (20 Wis. 505) 529 
 White V. Port Huron, &c. R. R. (13 
 
 Mich. 356) 54 
 White V. Rittenmyer, (30 Iowa, 268) 491 
 White V. Sawyer, (16 Gray, 586) 261 
 White V. Sheriff, (32 La. Ann. 130) 640 
 White V. Smith, (51 Ala. 405) 286 
 White V. Stover, (10 Ala. 441) 477 
 White V. Sutherland, (64 111. 181) 80 
 White V. Thompson, (1 Dev. & Bat. 
 
 Eq. 493) 273 
 White V. Wakefield, (7 Sim. 401) 119 
 White V. Walker, (31 111. 422) 138 
 White V. Ward, (36 Ark. 445) 379 
 White V. Warner, (3 Meriv. 459) 32 
 White V. Whaley, (3 Lans. 337) 282 
 White V. White, (89 111. 640) 119 
 White V. White, (L. R. 15 Eq. 247; 105 
 
 III. 313) 117 
 White V. White, (1 Har. 202) 171, 173 
 White V. Williams, (48 Barb. 222) 233 
 White V. Williams, (1 Paige, 503) 473, 
 
 476 
 White Crow v. White King, (3 Kans. 
 
 276) 247 
 White Sulphur Springs v. Holley, (4 
 
 W. Va. 597) 606 
 White's Bank of Buflfalo v. Nichols, (64 
 
 N. Y. 65) 438 
 Whitehead v. Anderson, (9 M. & W. 529) 
 
 299 
 Whitehead v. Fitzpatrlck, (58 Ga. 348) 
 
 453 
 Whitehead v. Peck, (1 Kelly, 140) 269 
 Whitehead v. Thompson, (79 N. C. 450) 
 
 483 
 
814 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Whitehead v. Woodruff, (11 Bush, 209) 
 
 293 
 Whitehurst v. Yandare, (7 Baxt. 238) 471 
 Whiteman ». New York, (21 Hun, 117) 
 
 231 
 Whiteside v. Whiteside, (8 Harris, 473) 
 
 420 
 Whitesides v. Cannon, (23 Mo. 457) 397 
 Whitfield v. Levy, (6 Vroom, 149) 49, 50 
 Whitfield V. Kogers, (26 Miss. 84) 559 
 Whitford o. Daggett, (84 111, 144) 407 
 Whiting V. Beckwith, (31 Conn. 596) 407 
 Whiting V. Beebe, (7 Eng. 431) 124 
 Whiting V. Eichelberger, (16 Iowa, 432) 
 
 465 
 Whiting V. Gould, (2 Wis. 552) 354 
 Whiting V. Root, (53 Iowa, 393) 17 
 Whiting V. Whiting, (4 Gray, 336) 330 
 Whitley v. Whitley, (31 Beav. 173) 177 
 Whitlock V. Vann, (38 Ga. 563) 433 
 Whitman v. Fisher, (74111. 147) 415 
 Whitman v. Goodhand, (26 Md. 95) 387 
 Whitman v. Weston, (30 Me. 285) 65, 214 
 Whitmore v. Learned, (70 Me. 376) 353 
 Whitmore v. Woodward, (38 Me. 393) 388 
 Whitney v. Allaire, (4 Denio, 554) 363 
 Whitney v. Batchelder, (32 Me. 313) 
 
 489 
 Whitney v. Boardman, (118 Mass. 247) 
 
 353, 260 
 Whitney v. Brunette, (3 Wis. 621) 395 
 Whitney v. Cowan, (55 Miss. 636) 
 Whitney v. French, (25 Vt. 663)487, 531 
 Whitney v. Graynor, (74 Wis. 289) 79 
 Whitney v. Monro, (4 Edw. Ch. 5) 419 
 Whitney v. Newhaven, (33 Conn. 634) 579 
 Whitney v. Peddiard, (63 111. 249) 365 
 Whitney v. Smith, (33 Minn. 124) 229 
 Whitney v. Stevens, (97 111. 482) 640 
 Whitney v. Stone, (33 Cal. 275) 50 
 Whiton V. Snyder, (88 N. Y. 299) 412 
 Whitridge v. Parkhurst, (30 Md. 63) 177 
 Whittaker, Ex 'parte, (L. E. 10 Ch. App. 
 
 446) 349, 353 
 Whittaker v. Bond, (63 N. C. 290) 273 
 Whittaker v. Hall, (1 Glyn. & Jam. 213) 
 
 39 
 Whittaker v. Miller, (83 111. 381) 120 
 Whittaker v. Vanschoiack, (5 Oreg. 113) 
 
 339 
 Whittaker v. Whittaker, (52 N. Y. 368) 
 
 434 
 Whittemore v. Farrington, (76 N. Y.453) 
 
 594 
 Whittemore ». Whittemore, (L. E. 8 Eq. 
 
 603) 257 
 Whitten v. Jenkins, (34 Ga. 397) 393 
 
 Whitter v. Webb, (3 Dev.& Bat. Ch., N. 
 
 C, 433) 365 
 Whittick v. Kane, (1 Paige, 200) 73 
 Whittington v. Wright, (9 Ga. 23) 102,103 
 Whittle V. Henning, (2 Phil. 731) 175 
 Whittlesey v. Hartford, &c. R. E. (23 
 
 Conn. 421) 547 
 Whittlesey v. Hughes, (39 Mo. 13) 344 
 Whittlesey v. McMahon, (10 Conn. 141) 
 
 288 
 Whitwell V. Warner, (30 Vt. 425) 359 
 Whitwell V. Winslow, (134 Mass. 343) 138 
 Whitworth v. Stuckey, (1 Rich. Eq., S. 
 
 C, 408) 633 
 Whortoni). Moragne, (59 Ala. 641) 418 
 Wicker v. Hoppock, (6 Wall. 94) 344 
 Wickes». Lake, (25 Wis. 71) 120, 131 
 Wickiser v. Cook, (85 111. 68) 383 
 Wickman v. Robinson, (14 Wis. 493) 478 
 Wicks V. Mitchell, (9Kans. 80) 407 
 Wigg V. Davis, (8 Greenl. 31) 507 
 Wiggin V. Day, (9 Gray, 97) 348, 349 
 Wiggin V. Heyward, (118 Mass. 514) 419 
 Wilbank v. Wilbank, (18 111. 17) 158, 178 
 Wilbraham «. Livesey, (18 Beav. 306) 114 
 Wilbur V. Flood, (16 Mich. 40) 363 
 Wilbur V. Goodrich, (34 Mich. 84) 136 
 Wilbur V. Howe, (8 Johns. 444) 347 
 Wilbur V. Lynde, (49 Cal. 390) 279 
 Wilcocks V. Wilcocks, (2 Vern. 558) 34 
 Wilcox ». Allen, (36 Mich. 160) 45 
 Wilcox V. Bates, (38 Wis. 465) 489 
 Wilcox V. Henderson, (64 Ala. 535) 342, 
 
 359 
 Wilcox V. Hill, (11 Mich. 356) 106, 108, 112 
 Wilcox V. Howell, (44 N. Y. 398) 143, 143 
 Wilcox V. Iowa W. Univ. (32 Iowa, 367) 
 
 256 
 Wilcox V. Wilcox, (13 Allen, 353) 483 
 Wilcox v. Wilcox, (14 N. Y. 575) 301 
 Wilcoxson V. Miller, (49 Cal. 193) 69, 106, 
 
 108, 129 
 Wilday i). Sandys, (L. R. 7 Eq. 455) 204 
 Wilde V. Gibson, (1 H. L. Cas. 605) 131, 
 
 252, 253 
 Wilder Rawlins, (1 Head, 34) 292 
 Wilder v. Brooks, (10 Minn. 50) 407 
 Wilder v. Butterfield. (50 How. Pr. 385) 
 
 68,129 
 Wilder ». Houghton, (1 Pick. 87) 495 
 Wilder v. St. Paul, City of, (12 Minn. 192) 
 
 640 
 Wilderman v. Baltimore, (8 Md. 551) 349 
 Wilen's Appeal, (105 Pa. St. 181) 227 
 Wiles V. Wiles, (3 Md. 1) 409 
 Wiley V. Ewalt, (66 111. 26) 596 
 Wiley V. Ewlng, (47 Ala. 418) 507 
 
TABLE OF CASES CITED. 
 
 815 
 
 REFERENCES ARE TO PAGES. 
 
 Wiley V. Howard, (15 Ind. 169) 260 
 Wiley V. Knight, (27 Ala. 336) 112 
 Wiley V. Lashlee, (8 Humph. 717) 295 
 Wiley's Ex'rs Appeal, (84 Pa. St. 270) 
 
 420 
 Wilhelmi v. Leonard, (13 Iowa, 330) 146, 
 
 148, 149 
 Wllle V. Brooks, (45 Miss. 542) 144 
 Wilkes V. Collins, (L. R. 8 Eq. 338) 150 
 Wilkin v. Barnard, (61 N. Y. 628) 258, 
 
 259 
 Wilkins v. Aiklns, (17 Ves. 422) 563 
 Wilkins v. French, (20 Me. Ill) 491 
 Wilkins v. May, (3 Head, 176) 108 
 Wilkins v. Taylor, (8 Rich. Eq. 291) 202 
 Wilkinson v. Charlesworth, (10 Beav. 
 
 324) 30 
 Wilkinson v. Dent, (L. R. 6 Ch. 339) 
 
 159 
 Wilkinson v. Filby, (24 Wis. 441) 144 
 Wilkinson v. Getty, (13 Iowa, 157) 315 
 Wilkinson v. Henderson, (1 My. & K. 
 
 583) 38 
 Wilkinson t;. Ketler, (69 Ala. 435) 448 
 Wilkinson v. Scott, (17 Mass. 251) 333 
 Wilkinson v. Sherman, (45 N. J. Eq.41)3 
 
 446 
 Wilkinson v. Wilkinson, (1 Desan. 301) 
 
 437 
 Willan V. Willan, (16 Ves. 73) 324 
 Willard, Ex parte, (5 Wend. 94) 507 
 Willard v. Eastham, (15 Gray, 328) 406 
 Willard v. Finnegan, (43 Minn. 476) 507 
 Willard v. Kramer, (36 Iowa, 22) 106, 110 
 Willard v. Randall, (65 Me. 81) 250 
 Willard v. Reas, (26 Wis. 540) 471 
 Willard v. Tayloe, (8 Wall. 557) 26, 31, 575 
 Willard's Ex'rs v. Ramsburg, (22 Md. 
 
 206) 107 
 Willemin v. Dunn, (93 III. 511) 265 
 Wilier V. Bergen thai, (50 Wis. 474) 484 
 Willes V. Greenhill, (39 Beav. 376; 4 De 
 
 G. F. & J. 147) 84, 130 
 Willett V. Beatty, (12 B. Mon. 172) 306 
 Willetts V. Burgess, (34 III. 494) 53 
 Williams' Appeal, (83 Pa. St. 377; 73 Pa. 
 
 St. 349) 188, 336, 334, 363 
 Williams c. Adams, (43 Ga. 407) 107, 110 
 Williams v. Allen, (17 Ga. 81) 331 
 Williams v. Avery, (38 Ala. 115) 394 
 Williams v. Baker, (71 Pa. St. 476) 143 
 Williams v. Baldridge, (66 Ala. 338) 
 
 405 
 Williams v. Bayley, (L. R. 1 H. L. 200) 
 
 28 
 Williams v. Beard, (1 S. C. 309) 78, 107, 
 
 110 
 
 Williams v. 
 
 353 
 Williams v. 
 
 373) 117 
 Williams v. 
 Williams v. 
 Williams v. 
 
 117 
 Williams v. 
 
 408 
 Williams v. 
 
 233 
 Williams v. 
 Williams v. 
 
 488) 394 
 Williams v. 
 Williams v. 
 
 346) 193 
 Williams v. 
 Williams v. 
 
 369 
 Williams v. 
 Williams v. 
 Williams v. 
 
 Beazley, (3 J. J. Marsh. 578) 
 
 Birbeck, (HofP. Ch., N. Y., 
 
 Bradley, (7 Heisk. 54) 344 
 Briggs, (11 R. I. 476) 448 
 Brown, (3 Keys, 486) 87, 111, 
 
 . Carle, (2 Stockt. Ch. 543) 
 
 Champion, (6 Ohio, 169) 320, 
 
 Christian, (23 Ark. 255) 477 
 . Claiborne, (7 Sm. & Mar. 
 
 Crary, (4 Wend. 443) 183 
 Crary, (5 Cow. 368; 8 Cow. 
 
 Dwinelle, (51 Cal. 442) 363 
 Fitzhugh, (37 N. Y. 444) 31, 
 
 Given, (6 Gratt. 268) 345 
 Green, (14 Ark. 313) 47, 48 
 Harden, (1 Barb. Ch. 298) 
 
 Williams v. Hathaway, (19 Pick., Mass., 
 
 387) 239 
 Williams v. Hollingsworth, (1 Strobh. 
 
 Eq. 103) 354 
 Williams v. Hugunin, (69 III. 314) 407 
 Williams v. Ingersoll, (23 Hun, 384) 463 
 Williams v. Jersey, Earl of, (1 Cr. <fc Ph. 
 
 91) 136, 569 
 Williams v. Jones, (10 Sm. & Mar. 108) 
 
 573 
 Williams v. Lambe, (3 Bro. Ch. 263) 64 
 Williams v. Logan, (33 Ga. 165) 107, 110 
 Williams o. Lowe, (4 Humph. 63) 288 
 Williams v. Maitland, (1 Ired. Eq., N. 
 
 C, 92) 365, 
 Williams v. McGrade, (13 Minn. 46) 407 
 Williams v. Mitchell, (30 Ala. 299) 265 
 Williams v. Noland, (2 Tenn. Ch. 151) 
 
 671 
 Williams v. Pearson, (38 Ala. 299) 347 
 Williams v. Perrin, (73 Ind. 57) 420 
 Williams o. Porter, (41 Wis. 433) 395 
 Williams v. Powell, (1 Ired. Eq. 460) 281 
 Williams v. Reed, (3 Mason, 405) 284 
 Williams v. Roberts, (5 Ohio, 35) 473 
 Williams v. Savage Man. Co. (1 Md. Ch. 
 
 306) 277 
 Williams v. Scott's Adm'r, (11 la. 475) 
 
 38, 441 
 Williams v. Shelly, (37 N. Y. 375) 67 
 Williams v. Smith, (10 R. I. 380) 373 
 Williams v. Sneed, (3 Coldw. 533) 237 
 
816 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Williams v. Spriggs, (6 Ohio St. 585) 131, 
 
 133 
 Williams v. Spnrr, (24 Mich. 335) 352, 
 
 353 
 Williams v. Stewart, (56 Ga. 663) 566 
 Williams v. Stratton, (10 Sm. & Mar. 
 
 418) 467 
 Williams v. Thorn, (11 Paige, 459; 70 N. 
 
 Y. 370) 81 
 Williams v. Turner, (7 Ga. 348) 357, 358 
 Williams v. Urmston, (35 Ohio St. 396) 
 
 405 
 Williams v. Vreeland, (39 N. J. Eq. 417) 
 
 358 
 Williams 1). Warren, (21 111. 541) 331 
 Williams v. Wilbur, (67 Ind. 42) 406 
 Williams v. Williams, (8 N. Y. 535) 349 
 Williams v. Williams, (55 Wis. 390) 370 
 Williams v. Winsor, (13 E. I. 9) 449 
 Williams v. Woods, (7 Humph. 408) 306, 
 
 474 
 Williams v. Worthington, (49 Md. 572) 
 
 331 
 Williams v. Young, (31 Cal. 327) 477 
 Williams v. Young, (17 Cal. 403) 473 
 Williamson v. Berry, (8 How,, U. S.,495) 
 
 300 
 Williamson v. Brown, (15 N. Y. 354) 94, 
 
 97, 99, 100, 113, 123, 133 
 Williamson v. Carskadden, (36 Ohio St. 
 
 664) 365 
 Williamson v. Duffy, (19 Hun, 65) 404 
 Williamson v. Hitner, (79 Ind. 233) 220 
 Williamson v. Russell, (39 Conn. 406) 65 
 Williamson v. Steele, (3 Lea. 527) 534 
 Williard v. Reas, (36 Wis. 540) 473 
 Williman v. Holmes, (4 Eieh. Eq. 475) 
 
 395 
 Willin V. Willin, (16 Ves. 73) 331 
 Willis V. Farley, (24 Cal«490, 491) 417, 501 
 Willis V. Gay, (48 Tex. 463) 114, 115 
 Willis D. Henderson, (4 Scam. 13)68 
 Willis V. O'Brien, (35 N. Y. S. C. 536) 45 
 Willis V. Searey, (49 Ala. 222) 471 
 Willis V. Swartz, (4 Casey, 413) 66 
 Willis V. Sweet, (49 Wis. 505) 265 
 Willmott V. Barber, (L. E. 15 Ch. D. 96) 
 
 136 
 Wllloughby V. Moulton, (47 N. H. 305) 
 
 263 
 Willoughby v. Willoughby, (1 T. R. 763) 
 
 66,76 
 Wills' Appeal, (10 Harris, 325) 283 
 Wilmer v. Atlantic, &c. Ry. (2 Woods, 
 
 409) 668 
 Wilmer v. Currey, (3 De G. & S. 347) 38 
 Wilmot V. Woodhouse, (4 Bro. Ch. 227) 194 
 
 Wilson V. Army, (1 Dev. & Bat. Eq. 376, 
 
 377) 1.59 
 Wilson V. Bird, (28 N.J. Eq. 352) 36 
 Wilson V. Cobb, (38 N. J. Eq. 177) 144 
 Wilson V. Conway Fire Ins. Co. (4 K. I. 
 
 141) 130 
 Wilson V. Crook, (17 Ala. 59) 418 
 Wilson V. Deen, (74 N. Y. .531) 596 
 Wilson V. Drumrite, (31 Mo. 335) 488 
 Wilson V. Duncan, (44 Miss. 643) 613 
 Wilson V. Gaines, (9 Rich. Eq. 430) 383 
 Wilson V. Hart, (L. R. 1 Ch. 463; 3 H. & 
 
 M. 551) 113, 121 
 Wilson V. Hayne, (Cheves Eq. 37) 171 
 Wilson V. Herbert, (41 N. J. L. 454) 404 
 Wilson V. Heyward, (3 Fla. 37) 501 
 Wilson V. Hooper, (13 Vt. 653) 296 
 Wilson B. Hunter, (30 Ind. 466) 73, 99, 
 
 111 
 Wilson V. Ivy, (33 Miss. 233) 263 
 Wilson V. Jones, (46 Md. 349) 408 
 Wilson V. Leishman, (12 Met. 316) 430 
 Wilson V. Leslie, (30 Ohio, 389) 397 
 Wilson V. Lott, (5 Fla. 305, 335) 295 
 Wilson V. Lyon, (51 111. 166) 473 
 Wilson V. Major, (11 Ves. 205) 309 
 Wilson V. McCullough, (11 Harris, 440) 
 
 113, 113 
 Wilson V. Miller, (16 Iowa, 111) 111 
 Wilson V. Morley, (L. R. 5 Ch. D. 776) 331 
 Wilson V. Piggot, (2 Ves. 351) 196 
 Wilson V. Piper, (77 Ind. 437) 480 
 Wilson V. Powell, (75 N. Car. 468) 368 
 Wilson V. Roach, (4 Cal. 363) 419 
 Wilson V. Robertson, (21 N. Y. 587) 343 
 Wilson V. Shoneberger, (10 Casey, 131) 70 
 Wilson V. Smith, (53 Hun, 171) 103 
 Wilson V. Towle, (36 N. H. 139) 360 
 Wilson V. Troup, (2 Cow. 236) 379 
 Wilson V. Western, &c. Co. (77 N. C. 445) 
 
 141, 239 
 Wilson V. White, (80 N. C. 280) 248, 249 
 Wilson V. Wilson, (1 H. L. Cas. 538) 164 
 Wilson V. Wilson, (4 Abb. App. Dec. 621) 
 
 280 
 Wilson's Appeal, (9 Atl. Rep. 473) 366 
 Wilson's Estate, In re, (2 Barr. 335) 447 
 Wilter V. Arnett, (8 Ark. 577) 16 
 Wiltman's Appeal, (38 Pa. St. 376) 383 
 Wimmer v. Ficklin, (14 Bush, 193) 136, 
 
 139 
 Winans v. Eaton, (1 Pish. Pat. Cas., U. 
 
 S., 181) 563 
 Winborn v. Garrell, (3 Ired. Eq. 117) 125 
 Winchester v. B. & S. R. R. (4 Md. 331) 
 
 90, 131 
 Winchester v. Ball, (54 Me. 558) 539 
 
TABLE OF CASES CITED. 
 
 817 
 
 REFERENCES ARE TO PAGES. 
 
 Winchester v. Bait., &c. R. R. (4 Md. 
 
 231) 95 
 Winchester v. Charter, (103 Mass. 372) 
 
 291 
 Winchester v. SusquehannaE. R. (4M(i. 
 
 237) 134 
 Windham v. Windham, (Rep. temp. 
 
 Finch, 267) 193 
 Winegar v. Newland, (44 Mich. 367) 420 
 Winfield ». Henning, (21 N. J. Eq. 188) 
 
 438 
 Wing V. Cooper, (37 Vt. 169) 52, 53 
 Wing V. Goodman, (75 III. 159) 473 
 Wing V. Harvey, (5 De G. M. & G. 265) 
 
 216 
 Wing V. Merchant, (57 Me. 383) 433 
 Wing V. Peclf, (54 Vt. 245) 437 
 Wing V. Sherrer, (77 III. 200) 640 
 Wingate v. Haywood, (40 N. H. 437) 566 
 Wingerta v. Wingerta, (71 Cal. 105) 357 
 Winkfield v. Brinkman, (21 Kans. 682) 
 
 358 
 Winkle v. Hinckle, (31 Cal. 342) 640 
 Winkle v. Winkle, (8 Oreg. 193) 420 
 Winn V. Wier, (3 B. Men. 648) 188 
 Winnepesaukee, &c. Ass'n v. Gordon, (63 
 
 N. H. 505) 438 
 Winona, &c. R. R. v. St. Paul, &c. R. 
 
 R. (26 Minn. 179) 357 
 Winshipp v. Jewett, (1 Barb. Ch. 173) 
 
 330 
 Winslow V. Clark, (47 N. Y. 261) 507 
 Winslow V. Cummings, (8 Cush. 365) 
 Winslow V. Cummings, (3 Cush. 358) 348 
 Winslow V. Gilbreth, (50 Me. 90) 407 
 Winslow V. Urquhart, (39 Wis. 260) 484 
 Winslow V. Wood, (79 N. Car. 430) 551 
 Winston u. Browning, (61 Ala. 80) 229 
 Winston V. Gwathmey, (8 B. Mon. 19) 
 
 241 
 Winston v. Westfeldt, (22 Ala. 760) 126 
 Winter v. Anson, Lord, (3 Russ. 488) 476 
 Winter v. Baudel, (30 Ark. 362) 242 
 Winter v. Belmont M. Co. (53 Cal. 428) 
 
 81 
 Winter v. Belmont Min. Co. (53 N. Y. 
 
 428, 432 W.) 82, 83 
 Winter v. Landphere, (42 Iowa, 671) 536 
 Winter v. Wheeler, (7 B. Mon., Ky., 35) 
 
 625 
 Winter's Appeal, (61 Pa. St. 307) 359, 260 
 Wintermute v. Snyder, (2 Green's Ch. 
 
 489) 319, 233 
 Winton v. Hart, (39 Conn. 16) 138 
 Wise V. Wimer, (33 Mo. 337) 117 
 Wise V. Wise, (3 Jo. & Lat. 403) 84 
 Wiseley v. Flndlay, (3 Rand. 361) 170 
 
 Wiseman v. Hutchinson, (20 Ind. 40) 114, 
 
 115 
 Wiseman v. Roper, (1 Ch. Cas. 84; 1 Ch. 
 
 Rep. 158) 33 
 Wistar's Appeal, (54 Pa. St. 60; 80 Pa. 
 
 St. 484) 224 
 Wisuree v. First Cong'l Ch. (14 Ohio St. 
 
 31) 555 
 Withers v. Jenkins, (14 S. C. 577) 411 
 Withers v. Yeadon, (1 Rich. Eq. 324) 216 
 Withington's Appeal, (32 Pa. St. 419) 
 
 381 
 Witkinson v. Getty, (13 Iowa, 157) 330 
 Witman v. Lex, (17 S. & R. 88) 346 
 Witman v. Taylor, (60 Mo. 135) 117 
 Wittbicker v. Walters, (69 Tex. 470) 234 
 Witter t>. Dudley, (43 Ala. 616) 98,114 
 Witthaus V. Schack, (57 How. Pr. 310) 
 
 594 
 Wobb V. Robbins, (77 Ala. 176) 438 
 Woekersham v. Chicago, &e. Co. (18 
 
 Kans. 487) 110 
 Woerz V. Rademacher, (130 N. Y. 63) 354, 
 
 355 
 WoiTord v. Bailey, (57 Miss. 239) 640 
 Wohlsoheid v. Bergrath, (46 Mich. 46) 
 
 379 
 . Wolcott V. Mount, (38 N. J. L. 196) 250 
 Wolcott V. Robbins, (26 Conn. 236) 17 
 Wolcott V. Sullivan, (6 Paige Ch. 117) 
 
 507 
 Wolcott V. Winchester, (15 Gray, 461) 
 
 501 
 Wolf 1). Beaird, (123111.585) 228 
 Wolf V. Kahn, (62 Miss. 814) 298 
 Wolf V. Schaeffner, (51 Wis. 53) 415, 420 
 Wolf Cr. & Co. V. Schultz, (71 Pa. St. 
 
 180) 46, 48 
 Wolfe V. Frost, (4 Sandf. Ch. 72) 438 
 Wolfe V. Luyster, (1 Hall, 146) 244, 247 
 Wolfe V. Pugh, (101 Ind. 294) 261 
 Wolfley V. Rising, (8 Kans. 297) 294 
 Wolford V. Herrington, (86 Pa. St. 39) 
 
 358 
 Wolmsey v. Booth, (2 Atk. 40) 285 
 Woolaston v. King, (L. R. 8 Eq. 165) 163 
 Wollstoncraft, In re, (4 Johns. Ch. 80) 
 
 301 
 Wolverhampton, «fec. Ry. v. London, &c. 
 
 Ey. (L. R. 16 Eq. 433) 555 
 Womack v. Austin, (1 S. C. 412) 283 
 Womack v. Powers, (50 Ala. 5) 566 
 Womack, Succession of, (29 La. Ann. 
 
 577) 368 
 Womble v. Battle, (3 Ired. Eq. 182) 474 
 Wonson v. Fenno, (129 Mass. 405) 587 
 Wood V. Brian t, (2 Atk. 521) 194 
 
 52 
 
818 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Wood V. Bugby, (29 Gal. 466) 295 
 Wood V. Burnham, (6 Paige, 513) 334 
 Wood V. Camden, &e. Trust Co. (14 Atl. 
 
 Kep. 885) 331 
 Wood V. Ghapin, (13 N. Y. 509) 67, 70 
 Wood V. Gone, (7 Paige, 471, 472) 36, 202, 
 
 209, 210 
 Wood V. Dixie, (7 Q. B. 892) 289 
 Wood V. Downes, (18 Ves. 120) 279 
 Wood V. Dudley, (8 Vt. 430) 531 
 Wood V. Dummer, (3 Mason, 308) 
 Woodti.'Farnure, (7 Watts, 382) 103, 119 
 Wood V. Fisk, (63 N. Y. 245) 38 
 Wood V. Ford, (29 Miss. 57) 418 
 Wood V. Hall, (1 Dev. Eq. 415) 244 
 Wood V. Hubbell, (10 N. Y. 479) 213, 596 
 Wood V. Keyes, (8 Paige, 365) 36, 202, 
 
 209 
 WoodB. Krebbs, (30 Gratt. 708) 114 
 Wood V. Lester, (29 Barb. 145) 534 
 Wood V. Little, (35 Me. 107) 613 
 WoodB. Mann, (1 Sumn. 506, 507) 41, 65, 
 
 71, 77, 650 
 Wood V. Mo., &c. Ky. (11 Kans. 323) 640 
 Wood V. Partridge, (11 Mass. 488) 84 
 Wood V. Patterson, (4 Md. Ch. 335) 218, 
 
 226 
 Wood V. Perry, (1 Barb. 114) 79, 359 
 Wood V. Price, (46 111. 439) 219, 233 
 Wood V. Robinson, (22 N. Y. 564) 68 
 Wood V. Searth, (2 K. & J. 33) 235 
 Wood V. Stafford, (50 Miss. 370) 375 
 Wood V. Sutcliffe, (2 Sim., N. s., 163) 25, 
 
 563 
 Wood V. Trask, (7 Wis. 566) 530 
 Wood V. Warner, (2 McCart. 81) 545 
 Wood V. Yeatman, (15 B. Mon. 271) 248 
 Wood V. White, (32 Me. 340) 231, 232 
 Wood V. Wood, (5 Paige, 596, 597, 601) 
 
 170 
 Wood's Appeal, (92 Pa. St. 379) 82 
 Woodbridge v. Perkins, (3 Vt. 364) 84 
 Woodbury, &c. Bk. v. Ins. Go. (31 Conn. 
 
 517) 220, 228 
 Woodbury, Town of v. Bruce, (59 Vt. 
 
 624) 112 
 Woodcock V. Bennett, (1 Cow. 711) 263 
 Wooden e. Haviland, (18 Conn. 101) 233 
 Wooden v. Wampler, (69 Ind. 88) 406 
 Woodfolk V. Blount, (3 Hawy., Tenn., 
 
 147) 112 
 Woodford B. Stephens, (51 Mo. 443) 394 
 Woodland, Bk. of v. Hiatt, (58 Gal. 235) 
 
 262 
 Woodman v. Freeman, (25 Me. 531) 265 
 Woodman v. Good, (6 Watts & S. 169) 
 
 363 
 
 Woodman v. Saltonstall, (7 Gush. 181) 
 
 265 
 Woodrow V. Davis, (2 B. Mon. 298) 296 
 Woodruff V. Boyden, (3 Abb. N. C. 29) 
 
 279, 370 
 Woodruff V. Cook, (2 Edw. Ch. 259) 63 
 Woodruil v. Gook, (47 Barb. 304) 415 
 Woodruff V. Garner, (27 Ind. 4) 596 
 Woodruff V. Kobb, (19 Ohio, 212) 343 
 Woodruff V. Ward, (35 N. J. Eq. 467) 368 
 Woodrum v. Kirkpatrick, (2 Swan, 218) 
 
 394 
 Woods V. Bailey, (3 Fla. 41) 473 
 Woods V. Bugbey, (29 Gal. 466) 298 
 Woods V. Farmere, (7 Watts, 382) 95, 121, 
 
 123 
 Woods V. Hall, (1 Dev. Eq. 415) 244 
 Woods V. Hilderbrand, (46 Mo. 284) 491 
 Woods V. Hill, (81 Pa. St. 451) 298 
 Woods V. Hudson, (5 Munf. 423) 247 
 Woods V. Hyde, (31 L. J. Ch. 295) 202 
 Woods V. Monroe, (17 Mich. 238) 569 
 Woods V. Wallace, (10 Harris, 171) 489 
 Woodside v. Adams, (40 N. J. L. 417) 539 
 Woodson V. Wallace, (22 Pa. St. 171) 53 
 Woodward v. Gyles, (2 Vern. 119) 47 
 Woodward v. Harris, (3 Sandf. 272) 437 
 Woodward v. Miller, (3 Coll. 279) 244 
 Woodward v. Seaver, (38 N. H.-29) 407 
 Woodward v. Sibert, (82 Va. 441) 354 
 Woodworth v. Guzman, (1 Gal. 203) 106, 
 
 108, 488 
 Woodworth v. Paige, (5 Ohio St. 70) 97 
 Woody V. Old Dominion Ins. Co. (31 Gratt. 
 
 362) 579 
 Woolfolk V. Granlteville Mfg. Co. (22 S. 
 
 C. 332) 102 
 Woolridge v. Woolridge, (1 Johns. 63)162 
 Wooster v. Eaton, (11 Mass. 375) 551 
 Wooten V. Bellinger, (17 Fla. 289) 472 
 Wooten V. Hinkle, (30 Mo. 290) 347 
 Wooton V. Hinkle, (20 Mo. 290) 247 
 Wootteu V. Burch, (2 Md. Ch. 190) 653 
 Worcester v. Eaton, (11 Mass. 368) 368 
 Worcester Bank v. Cheeney, (87 111. 603) 
 
 151 
 Worcester Bank v. Gheeney, (87 111. 603) 
 
 147, 149 
 Wordall v. Smith, (IGamp. 333) 296 
 Wordell v. Posdick, (13 Johns. 325) 244 
 Work V. Harper, (24 Miss. 517) 102, 105 
 Workman v. Greening, (115 111. 477) 489 
 Workman v. Guthrie, (5 Casey, 495) 238 
 Worley v. Toggle, (4 Bush, 168) 222, 236, 
 
 238 
 Wormack v. Rogers, (9 6a. 60) 273 
 Worman v. Kramer, (73 Pa. St. 378) 296 
 
TABL,*; OJ!' CASKS (JITJSU. 
 
 REFERENCES ARE TO PAGES. 
 
 Wormley v. Lowry, (1 Humph. 468) 68 
 Wormley v. Wormley, (8 Wheat. 421) 279 
 Wormley v. Wormley, (98 111. .';44) 73, 74 
 Wormouth v. Johnson, (8 Pac. L. J. 
 
 362) 337 
 Worrall v. Munn, (38 N. Y. 139) 36, 203 
 Worrell's Appeal (9 Barr. 508) 368 
 Worrill v. Coker, (.56 Ga. 666) 671 
 Worsley v. Earl of Scarborough, (3 Atk. 
 
 393) 138 
 Worsley v. Worsley, (16 B. Mon. 470) 176 
 Worth V. Case, (42 N. Y. 362) 272 
 Worth V. Hill, (14 Wis. 559) 526 
 Worthen v. Pearson, (33 Ga. 385) 160, 168, 
 
 170, 172 
 Worthington v. Curtis, (L. R. 1 Ch. D. 
 
 419) 27, 28 
 Worthington v. Morgan, (16 Sim. 547) 
 
 60,151 
 Worthington v. Tormey, (34 Md. 183) 543 
 Worthington v. Wigginton, (30 Beav. 
 
 67) 177 
 Worthy v. Caddell, (76 N. C. 82) 67 
 Wragg V. Comptroller-Gen. (3 Desau. 
 
 509) S74 
 Wray v. Field, (2 Russ. 357) 190 
 Wray v. Steele, (3 V. &. B. 388) 354 
 Wray v. Wray, (32 Ind. 126) 374 
 Wrede v. Cloud, (53 Iowa, 371) 133 
 Wright V. Arnold, (14 B. Mon. 513) 279 
 Wright V. Bates, (13 Vt. 341) 119, 490 
 Wright V. Bircher, (5 Mo. App. 327) 448 
 Wright V. Brown, (67 Hun, 4) 248, 253 
 Wright V. Brown, (44 Pa. St. 224) 398, 407 
 Wright V. Brown, (67 N. Y. 1) 348, 353 
 Wright V. Brandis, (1 Ind. 336) 389 
 Wright V. Cormick, (67 Mo. 436) 396 
 Wright V. Dame, (33 Pick. 55) 474 
 Wright V. Delafield, (23 Barb. 498) 229 
 Wright V. Douglass, (7 N. Y. 564) 327 
 Wright V. Dufleld, (3 Baxt. 218) 478 
 Wright V. Eaves, (10 Rich. Eq. 585) 501 
 Wright V. Fleming, (76 N. Y. 517) 419 
 Wright V. Flinn, (33 Iowa, 159) 361 
 Wright V. Grover, (83 Pa. St. 80) 631 
 Wright V. Grover, (27 111. 426) 298 
 Wright V. Gully, (38 Ind. 475) 359 
 Wright V. Hazen, (34 Vt. 143) 143 
 Wright V. Linn, (9 Barr. 433) 349 
 Wright V, Ld. Maidstone, (1 K. & J. 701) 
 
 214 
 Wright V. McCormick, (23 Iowa, 545) 238 
 Wright V. Morley, (11 Ves. 12) 30 
 Wright V. Rose, (3 S. & S. 333) 301, 491 
 Wright V. Ross, (36 Cal. 414) 113, 539 
 Wright V. Shumway, (1 Biss.33) 465 
 Wright V. Snowe, (2 De G. & Sm. 331) 36 
 
 Wright V. Tallmadge, (15 N. Y. 307) 380, 
 
 386 
 Wright V. Trustees, &c. (Hoff. Ch. 302) 
 
 209, 210 
 Wright V. Vanderplank, (8 De G. M. & 
 
 G. 133) 25 
 Wrights. Walker, (30 Ark. 44) 280 
 Wright V. Wood, (11 Harris, 120) 131, 122 
 Wright V. Wright, (2 McCord, S. C, Ch. 
 
 185) 
 Wright V. Wright, (41 N. J. Eq. 382) 381 
 Wright V. Wright, (1 Cow. 598) 434 
 Wright's Appeal, (99 Pa. St. 435) 140 
 WuesthofE V. Seymour, (23 N. J. Eq. 66) 
 
 260 
 Wundell v. Van Rensselaer, (1 Johns. 
 
 Ch. 344) 138 
 Wurts' Ex'rs v. Page, (19 N. J. Eq. 365) 
 
 200, 302 
 Wurzburger v. Merle, (30 La. An. 415) 
 
 333 
 Wyatt V. Elam, (19 Ga. 335) 107, 110, 117 
 Wyatt V. Steward, (34 Ala. 716) 294 
 Wyatt 1J. Stewart, (34 Ala. 716) 70, 107, 
 
 110 
 Wyble V. McPheters, (53 Ind. 393) 339 
 Wjche V. Greene, (11 Ga. 159) 234 
 Wyche v. Gneul, (16 Ga. 49) 222 
 Wycherly v. Wycherly, (2 Eden, 177) 33 
 Wyckoff V. Hulse, (33 N. J. Eq. 697) 375 
 Wycombe Ry. v. Donnington Hospital, 
 
 (L. R. 1 Ch. 268) 235 
 Wykham v. Wykham, (18 Ves. 418) 147 
 Wyllie V. Pollen, (3 De G. J. & S. 596) 130 
 Wylly V. Collins, (9 Ga. 223) 397 
 Wyman v. Brown, (50 Me. 139) 315 
 Wyman v. Hooper, (2 Gray, Mass., 141) 
 
 379 
 Wynkoop v. Cowing, (21 111. 570) 53, 489 
 Wynne v. Callender, (1 Russ. 393) 268 
 Wynne v. Lumpkin, (35 Ga. 308) 640 
 Wynstanley v. Lee, (3 Swanst. 333) 559 
 Wythe «. City of Salem, (4 Sawy. 88) 141 
 
 Yale V. Dederer, (18 N. Y. 265) 318, 397 
 Yancey v. Mauck, (ISGratt. 300) 471 
 Yarborough v. Newell, (lOYerg. 376)488 
 Yarborough v. Thompson, (3 Sm. & 
 
 Mar. 291) 658 
 Yarborough v. Wood, (43 Tex. 91) 473 
 Yardi;. Yard, (27 N. J. Eq. 114) 596 
 Yaryan v. Shriner, (36 Ind. 364) 473 
 Yates V. Cole, (1 Jones' Eq. 110) 331, 332 
 Yates V. Compton, (3 P. Wms. 308) 36 
 Yates V. Hambly, (3 Atk. 337) 17 
 
820 
 
 TABLE OF CASES CITED. 
 
 REFERENCES ARE TO PAGES. 
 
 Yates 1). Hofeman, (5 Hun, 113) 38,441 
 Yates V. Hurd, (8 Coll. 343) 138 
 Yates V. Monroe, (13 111.212) 650 
 Yates V. Tisdale, (3 Edw. Ch. 71) 658 
 Yazel V. Palmer, (81 111. 82) 407 
 Ybarra v. Lorenzaua, (53 Cal. 197) 288 
 Yeasin v. Irwin, (127 Mass. 217) 242, 259 
 Yenner v. Hammond, (36 Wis. 277) 46 
 YeomansD. Williams, (L. R. 1 Eq. 184) 
 
 33 
 Yerkes v. Wilson, (81 Pa. St. 9) 245 
 Yocum V. Foreman, (14 Bush, Ky., 494) 
 
 234 
 Yolo Co. V. Sacramento, City of, (36 Cal. 
 
 195) 417 
 York V. Gregg, (9 Tex. 85) 256 
 York V. Landis, (65 N. C. 535) G21 
 York V. Merritt, (77 N. C. 213) 268 
 York Co. Bk. v. Carter, (38 Pa. St. 446, 
 
 453) 293 
 Youle V. Richards, (1 N. J. Eq. 534) 52 
 Youmans v. Youmans, (26 N. J. Bq. 149) 
 
 415 
 Young V. Bradley, (68 111. 553) 295 
 Young V. Broadman, (97 Mo. 181) 175 
 Young V. Cabell, (27 Gratt. 761) 368 
 Young V. Colt, (2 Blatch. 373) 651 
 Young V. Covin, (8 Johns. 23) 255 
 Young V. Devries, (31 Gratt. 304) 70 
 Young V. Frost, (1 Md. 377) 544 
 Young V. Graff, (28 111. 20) 398 
 Young V. Guilbeau, (3 Wall. 640) 102 
 Young V. Harris, (36 Ark. 162) 472 
 Young V. Heermanns, (66 N. Y. 374) 289 
 Young V. Hughes, (32 N. J. Eq. 372) 252, 
 
 262 
 Young V. Miller, (10 Ohio St. 85) 79, 222 
 Young V. Morgan, (9 Neb. 169) 230 
 Young V. Pate, (4 Yerg. 164) 295 
 Young V. Pickens, (49lnd. 23) 160 
 Young V. Eingo, (1 B. Mon. 30) 102 
 Young V. Smith, (9 Bush, 421) 406 
 Young V. Tarbell, (37 Me. 509) 59 
 Young V. Vaugh, (23 N. J. Eq. 325) 137 
 Young V. White, (5 Watts, 460) 49 
 Young V. Wood, (11 B. Mon. 123) 476 
 
 Young V. Young, (L. E. 3 Eq. 801) 76 
 Young V. Young, (3 Jones' E4. 216) 395 
 Young V. Young, (7 Coldw. 461) 406 
 Young V. Young, (5 I. Eep. Eq. 615) 196 
 Young V. Young, (80 N. Y. 422) 329 
 Young V. Young, (45 N. J. Eq. 27) 203 
 Young V. Young, (4 Cranch, 499) 363 
 Youngblood v. Sexton, (33 Mich. 406) 606 
 Youngblood v. Vastine, (46 Mo. 239) 104 
 Youngblood v. Youngblood, (54 Ala. 486). 
 
 16 
 Youngs V. Lee, (12 N. Y. 551) 67, 68 
 Youst V. Martin, (3 Serg. & R. 423) 71 
 Yule V. Yule, (3 Stockt. Ch. 138) 413 
 Yundt's Appeal, (1 Harris, 575) 186 
 
 Zabriskie v. Cleveland E. R. (23 How. 
 
 381) 145 
 Zabriskie v. Jersey City, &c. E. E. (2 
 
 Beasl. 314) 559 
 Zabriskie v. Smith, (13 N. Y. 323) 444 
 Zabriskie's Ex'rs v. Wetmore, (26 N. J^ 
 
 Eq. 18) 364 
 Zane v. Cawley, (21 N. J. Eq. 130) 219 
 Zaver v. Lyons, (40 Iowa, 510) 328 
 Zechtmann v. Eoberts, (109 Mass. 53) 137 
 Zeigler v. Beasley, (44 Ga. 56) 551 
 Zeigler v. Eckert, (6 Barr. 13) 183, 183,. 
 
 194 
 Zeigler v. Hughes, (55 111. 388) 380 
 Zeigler v. Hughes, (55 111. 388) 282 
 Zeisweiss v. James, (63 Pa. St. 465) 345 
 Zeiter v. Zeiter, (4 Watts, 212) 186 
 Zell u. German Sav. Inst. (4 Mo. App. 
 
 401) 459 
 Zenor v. Johnson, (107 Ind. 69) 220 
 Zentmeyer v. Mittower,(5 Pa. St. 403) 474 
 Zetelle v. Myers, (19 Gratt. 62) 17 
 Zimmerman v. Anders, (6 W. & S. 218) 
 
 349 
 Zollman v. Moore, (21 Gratt. 313) 58, 63, 
 
 73, 76, 78, 219, 323 
 Zuver ». Lyons, (40 Iowa, 510) 489 
 
INDEX 
 
 References are to Sections. 
 
 A. 
 
 ABATEMENT, 
 
 of legacies, 354. 
 ACCIDENT, 
 
 limitation of jurisdiction, 175. 
 
 cases in which the court will not grant relief from accident, 176. 
 
 equitable relief in suits on lost instruments, 177. 
 
 defective executions of power, 178. 
 
 equitable relief in non-execution of powers, 179. 
 
 accidental forfeitures, 180. 
 
 judgments at law, 181. 
 
 failure of subject-matter of the contract or bequest, 182. 
 
 distinguished from mistake, 183. 
 
 remedies in cases of, 195, 196. 
 
 ACCOirSTT, 
 
 trustee's duty to, 323. 
 
 ACCOUNTING, 
 
 by the mortgagee, 435. 
 what are lawful debts, 436. 
 what are lawful credits, 437. 
 making rests, 438. 
 balance due, 439. 
 suits for, 533. 
 between partners, 534. 
 account stated, 535. 
 taking the account, 536. 
 
 ACQUIESCENCE, 
 
 as a ground for quasi-estoppel, 115. 
 as a defense to constructive fraud, 231. 
 
 ACTIONS AT LAW, 
 
 restrained by injunctions, 488-491. 
 
 ACTIVE TRUSTS, 275, 288, 303. See Trusts. 
 
 ACTIVE USES AND TRUSTS, 275. See Uses, Trusts. 
 
 ACTUAL FRAUD. See Pbaud, Actual. 
 
 ACTUAL NOTICE. See Notice. 
 
 ADEMPTION, 
 
 distinguished from satisfaction, 147. 
 
 of legacies by portions and advancements, 148. 
 
 donoTin loco parentis, 149. 
 
 823 
 
824 INDEX. 
 
 References are to Sections. 
 
 ADEMPTION— Continued. 
 
 where subsequent portion or advancement is less than legacy, 150. 
 circumstances affecting presumption of, 161. 
 in case of gift to husband of legatee, 162. 
 effect of a subsequent codicil, 153. 
 Csee satisfaction.) 
 
 ADMINISTKATION OF DECEDENTS' ESTATES, 
 foundation for jurisdiction of equity, 347. 
 
 effect of establishment of probate courts upon the equitable jurisdiction, 348. 
 kinds of legacies, 349. 
 ademption of specific legacies, 350. 
 general legacies, 351. 
 demonstrative legacies, 362. 
 annuities, 353. 
 abatement of legacies, 364. 
 effect of appropriation of funds by executor, 355. 
 lapsed legacies, 356. 
 when placed in the hands of receivers, 579. 
 
 ADVANCEMENTS, 
 
 operating as ademption of legacy, 148-153. 
 (see ademption.) 
 
 ..ffiQUITAS, 
 
 in the Boman law, 2. 
 
 AFTER-ACQUIRED PROPERTY. See Future- Acquired Propertt. 
 
 AGENT. See Principai, and Agent. 
 
 liability of principals, partners and joint owners for fraud of, 220. 
 
 interpleader by, 572. 
 ALIENATION, 
 
 of trust estate, 294, 296, 297. 
 
 when words of limitation are required in conveyance of trust estate, 298. 
 
 by married woman of her separate estate, 334. 
 
 ALIMONY, 345. 
 ANCIENT USES. See Uses. 
 ANNUITIES, 353. 
 ANTECEDENT DEBTS, 
 as consideration, 63, 54. 
 
 ANTICIPATION, 
 
 of income, restraint upon married women, 335. 
 
 APPOINTEE, 
 of power, 3301. 
 
 APPOINTMENT, 
 
 powers of. See Powers op Appointment. 
 
 AEBITRATION, 
 
 controlled by injunction, 483. 
 
 ASSESSMENTS FOR LOCAL IMPROVEMENTS, 
 bill of peace for restraining illegal, 518. 
 injunction against illegal, 483. 
 
INDEX. 
 
 825 
 
 References are to Sections. 
 
 ASSIGNEES. See Assignment. 
 
 ASSIGNMENT FOR BENEFIT OF CREDITORS, 
 when fraudulent, 237. 
 
 ASSIGNMENT IN EQUITY, 
 
 assignment of choses in action at law and in equity — present state of the 
 
 law in respect to the same, 361. 
 what things in action are not assignable, 372. 
 assignment of mere possibilities and expectancies, 373. 
 assignments of property to be acquired in the future— the rule in law, 374. 
 
 the rule in equity, 375. 
 lequisites of an assignment of after-acquired property — the extent of the 
 
 doctrine, 376. 
 rationale of the doctrine, 377. 
 
 equitable assignment of a fund by order or otherwise— general doctrine, 378. 
 the effect of a bill of exchange, 379. 
 
 bill of exchange for a part of fand, 380. 
 
 bill of exchange for whole of fund, 881. 
 the right of check-holder to sue the bank, 382. 
 
 ASSIGNMENT OF DOWER, 
 in equity, 522. 
 
 ASSIGNMENT OF MORTGAGES, 427. 
 under the lien theory, 428. 
 of mortgagor's interest, 429. 
 when payment will work, 431. 
 
 ASSIGNMENT OF THINGS IN ACTION, 
 as affecting doctrine of priority, 61-71. 
 
 ASSIGNORS. See Assignment. 
 
 AUCTION SALES, 
 frauds in, 205, 207. 
 
 B. 
 
 BAILEES, 
 
 interpleader by, 572. 
 
 BENEFIT, 
 
 independent, and substantial, necessary to election, 128. 
 
 BETTERMENT LAWS, 
 create implied lien, 395. 
 
 BIDDERS, 
 
 combination of, when fraudulent, 207. 
 
 BILL OP EXCHANGE, 
 
 when operative as an equitable assignment, 379. 
 for a part of a fund, 380. 
 for whole of a fund, 381. 
 
 BILLS OF DISCOVERY, , . . ^. 
 
 and equitable suits for taking testimony— general explanation of jurisdic- 
 tion, 649. 
 bills of discovery, 550. 
 
826 INDEX. 
 
 References are to Sections. 
 
 BILLS OF BISGOrmiY— Continued. 
 
 the eflfect of modern statutes in suits for discovery, 551. 
 what judicial proceedings will be aided by discovery, 552. 
 who can file a bill for discovery, 553. 
 from whom can discovery be required? 554. 
 what matters the bill of discovery may include, 555. 
 privileged communication, 556. 
 manner of making discovery, 557. 
 production and inspection of documents, 558. 
 
 to what extent the answer in the suit for discovery may be used as evi- 
 dence, 559. 
 equitable provisions for examination of witnesses, 560. 
 suits to take testimony of witnesses de bene esse, 561. 
 suits to examine witnesses in foreign countries, 562. 
 
 BILLS OF PEACE, 
 
 multiplicity of suits as a ground for equitable jurisdiction, 511. 
 original application of the principle bijls of peace and to quiet title, 512. 
 cases in which the principle will now be applied, 513. 
 first class of cases, 514. 
 
 second class, 515. 
 
 third and fourth classes, 516. 
 several proprietors injured by the one wrong, 517. 
 equitable relief from illegal taxes and assessments, 518. 
 additional cases under the third and fourth classes, 519. 
 
 BILLS TO PERPETUATE TESTIMONY, 542. 
 
 BILLS TO REMOVE CLOUD FROM TITLE, 543. 
 
 BONA FIDE PURCHASE, 
 superior equity of, 46. 
 as modified by recording acts, 47. 
 cases of, 48. 
 in case of, 50. 
 what constitutes a, 51. 
 
 what consideration needed to make a, 52-55. 
 eflfect of notice, 56, 58. 59. 
 time of giving notice, 57. 
 good faith necessary, 60. 
 
 In assignment of things in action, 61, 66, 69, 71. 
 in assignments by cestui que trust, 67. 
 in assignments of shares of stock, 68. 
 (see priority.) 
 
 BONA FIDE PURCHASER. See Bona Fide Purchase. 
 
 BONDS, 
 
 of indemnity in bills quia timet, 540. 
 
 BOUNDARIES, 
 
 establishment of disputed, in equity, 525. 
 
 BREACH OF TRUST, 
 liability for, 326. 
 
iXDEx. 327- 
 
 References are to Sections. 
 
 BUYER, 
 
 fraudulent misrepresentation of, 206, 207. 
 fraudulent concealment of, 213. 
 fraudulent Intent not to pay, 208. 
 expression of opinion, when not fraudulent, 210. 
 
 C. 
 
 CANCELLATION AND REFORMATION, 
 
 general statement as to nature and object of remedy, 506. 
 
 reformation and execution of instruments, 507. 
 
 cancellation and surrender of instrument, 508. 
 
 when granted as a remedy in cases of accident and mistake, 195. 
 
 as a remedy in cases of fraud, 222. 
 
 (see accident, mistake and fraud.) 
 
 CAUSA MORTIS, 
 
 gifts. See Gifts Causa Mortis. 
 
 CERTIFICATES OF STOCK. See Sharks of Stock, 
 
 CERTIFICATES, RECEIVER'S, 
 how far negotiable, 588. 
 
 CESTUI QUE TRUST. See Uses aud Trusts. 
 priority of assignment by, 67. 
 
 CESTUI QUE USE. See Uses. 
 
 CHARGES, 
 
 liens arising from, by wiU or deed, 405. 
 liens by express, 406. 
 liens by implied, 407. 
 
 CHARITABLE TRUSTS, 306. 
 
 certainty and uncertainty in creation of, 307. 
 
 CHATTEL MORTGAGES IN EQUITY, 463. 
 
 chattel mortgages defined — conflict of common law and equitable theories 
 
 — equity of redemption, 463. 
 parol defeasance, when enforcible, 464. 
 can a chattel mortgage cover after-acquired property? 465. 
 how far mortgage of after-acquired property is invalid — the mortgage in 
 
 equity, 466. 
 the mortgagor's right of redemption, 467. 
 the mortgagee's right of possession after forfeiture, 468. 
 foreclosure of the mortgagor's equity of redemption in equity and at law, 469 
 
 CHATTELS, 
 
 future uses in, 283. 
 
 CHECK, 
 
 when operative as an equitable assignment, 382. 
 
 CHOSES IN ACTION. Sbb TniNas in Action. 
 
 doctrine of bona fide purchase applied to assignment of, 61-71. 
 
 equities in favor of debtor, 62. 
 
 notice to debtor of assignment necessary, 63. 
 
 equities between successive assignors and assignees of, 64. 
 
828 INDEX. 
 
 References are to Sections. 
 
 CHOSE& EST ACnO^— Continued. 
 
 acquisition of legal title by subsequent assignee of, 65. 
 assigned to successive assignees by same assignor, 66. 
 diligence of assignee of, 69. 
 
 equities in favor of third persons in assignment of, 70. 
 statutory provisions concerning assignment of, 71. 
 assignment of, in law and in equity, 371. 
 when assignable, 372. 
 (see assignment in equity.) 
 
 CLOUD FROM TITLE, 
 bill to remove, 543. 
 
 CODICIL, 
 
 as an ademption of legacy in will, 153. 
 
 COMPENSATION, 
 
 trustee's claim to, 325. 
 
 COMPROMISE, 
 
 how affected by mistake of law, 190. 
 and mistake of fact, 194. 
 
 CONCEALMENT, 
 
 in estoppel must have influenced o her party, 113. 
 when fraudulent, 211. 
 of seller, 212. 
 of buyer, 213. 
 
 CONFIDENTIAL RELATIONS, 
 
 as ground of constructive fraud, 233, 235. 
 
 CONSIDERATION, 
 
 as affecting doctrine of bona fide purchase, 52-53. 
 
 antecedent debts as, 53, 54. 
 
 constructive fraud arising out of inadequacy of, 229. 
 
 fraud on creditors by conveyances of debtor's property without, 236. 
 
 resulting trust to party paying, 311. 
 
 seal imports a, when, 362 
 
 CONSTRUCTION OF WILLS, 
 
 suits for interpretation and, 545. 
 
 CONSTRUCTIVE FRAUD. See Fraud, Consteuctivb. 
 
 CONSTRUCTIVE NOTICE. See Notice. 
 
 CONSTRUCTIVE TRUSTS, 312. 
 
 CONTRACT, 
 
 failure of subject-matter of, as grounds for relief from, 182. 
 
 of speculative character, how affected by mistake of fact, 194. 
 
 for necessaries when implied, 365. 
 
 liens arising from express, 385. 
 
 injunction to prevent violation of, 481. 
 
 for personal service when enforced by injunction, 482. 
 
 CONTRACT OF SALE. See Sale. 
 conversion'in a, 166. 
 
INDEX. 829' 
 
 References are to Sections. 
 
 CONTRACTS IN EQUITY, 
 
 a general statement as to contracts in law and in equity, 361. 
 
 whether a seal imports a consideration, 362. 
 
 equitable easements arising from covenants, 363. 
 
 equitable contracts by representation and acts, 364. 
 
 contracts for necessaries supplied to parties under legal disability, 365. 
 
 liability of the estate of a deceased joint debtor in equity, 366. 
 
 equitable remedies for the enforcement of contracts, 367. 
 
 CONTRACTS OF MARRIED WOMEN, 
 general doctrinej 338. 
 state of law in the United States, 337, 339. 
 
 CONTINGENT USES, 
 how supported, 279. 
 defined and classified..278. 280. 
 
 CONTRIBUTION, 
 
 right of, among trustees, 327. 
 
 to redeem mortgage — general statement, 451. 
 
 mortgagor v. assignees, 452. 
 
 between assignee of mortgagor — effect of a release of one of them, 453. 
 
 between surety and mortgagor, 454. 
 
 between heirs, widow and devisees of the mortgagor, 455. 
 
 between mortgaged property and mortgagor's personal estate, 456. 
 
 special agreements afiecting right of, 457. 
 and exoneration, distinguished, 530. 
 
 CONATERSION. See Equitable Conversion. 
 
 CONVEYANCES, 
 
 relief against forfeitures, 35. 
 
 without consideration, when fraudulent as to creditors, 236. 
 
 by which separate estate of married women may be settled, 333. 
 
 COPYRIGHTS, 
 
 protected by injunction, 486. 
 
 CORPORATIONS, 
 
 enjoined from doing acts ultra vires, 483. 
 
 officers of, when enjoined, 483. 
 
 suits against, to compel transfer or issue of stock, 504. 
 
 bills of peace, to settle disputes over shares of stock, 519. 
 
 liability of, for acts of receivers, 585. 
 
 receivers appointed to take charge of property of, 580. 
 
 CO-TRUSTEES. See Trustees. 
 
 COVENANTS, 
 
 giving rise to equitable easements, 363. 
 to indemnify, in bills quia timet, 540. 
 
 CREDITORS, 
 
 equities of, against unrecorded mortgages, 54. 
 
 against assignees of thing in action, 370. 
 satisfaction, when debtors leave legacy to, 157-159. 
 satisfaction, when debtors receive legacy from, 160. 
 frauds on, by conveyances of debtor's property, 236, 237. 
 
830 INDEX. 
 
 References are to Sections. 
 
 CSEDITORS— Continued. 
 
 delivery, how far necessary as against vendor's, 238. 
 what delivery is sufHcient as against, 239. 
 conflicting claims of vendor's and vendee's, 240. 
 rights of donee's, in power of appointment, 330 v. 
 rights of appointee's, in power of appointment, 330 w. 
 
 CREDITOR'S SUITS, 529. 
 
 CURTESY, 
 
 in married women's separate estate, 342. 
 
 D. 
 
 DAMAGES, 
 
 to party deceived, necessary element in fraud, 219. 
 
 judgment for, when given in place of decree of speciflp performance, 502. 
 
 DEBT, 
 
 when satisfied by legacies, 157-159. 
 liability of trust estates for, 302. 
 deeds of trust to secure, 305. 
 
 DEBTOR, 
 
 satisfaction, when creditor is made legatee of, 157-159. 
 liability in equity of estate of deceased joint, 366. 
 receiver, when appointed to take oliarge of property of, 579, 580. 
 DECEDENTS' ESTATES. See Administration. 
 when placed in hands of receiver, 579. 
 
 DECEIT, 
 
 must be successful to make actual fraud, 217. 
 must be reasonable and plausible, 218. 
 
 DEEDS, 
 
 registration of. See Registration. 
 doctrine of election applies to, 125. 
 (see election.) 
 
 equitable conversion arising by, 174. 
 mortgage by deposit of title, 388-391. 
 liens arising from charges by, 405-407. 
 
 DEEDS OP TRUST TO SECURE DEBTS, 305, 450. 
 
 DEFEASANCE, 
 
 clause in equity, 416. 
 
 admissibility of parol evidence to prove, 417. 
 
 parol, when enforceable in chattel mortgages, 464. 
 
 DEFECTIVE EXECUTION, 
 of powers, 330 t, 178. 
 
 DELAY, 
 
 as a defense to constructive ftaud, 231. 
 
 as aflfecting priority in assignment of choses in action, 69. 
 
 DELEGATION OF AUTHORITY, 
 by trustee, 322. 
 
INDEX. 831 
 
 References are to Sections. 
 
 DELIVERY, 
 
 how far necessary as against creditors and subsequent purchasers, 238. 
 when sufficient as against creditors and subsequent purchasers, 239. 
 
 DEPOSIT OF TITLE DEEDS, MORTGAGE BY, 388. 
 effect of notice to subsequent purchasers, 389. 
 their recognition in this country, 390. 
 foreclosure of, 391. 
 
 DESCENT, 
 
 of wife's separate estate upon her death, 336. 
 
 DESTRUCTION OF POWERS, 330 c. 
 
 DEVELOPMENT OF EQUITY JURISPRUDENCE, 1-11. See Origin and 
 
 Development. 
 
 DEVICES, FRAUDULENT, 
 of buyers, 206. 
 of sellers, 204, 205. 
 combination of bidders, 207. 
 
 DEVISE, 
 
 widow's election between dower and, 133. 
 of a mortgage, 420. 
 
 DILIGENCE, 
 
 of assignee, as affecting priority of assignment, 69. 
 
 how far needed to support relief from constructive fraud, 231. • 
 
 DISCOVERY, BILLS OF. See Bills of Discovery. 
 
 DOCUMENTS, 
 
 when subject to biU of discovery, 558. 
 
 DONATIO MORTIS CAUSA. See Gifts causa mortis. 
 distinction from testamentary disposition, 357; 
 equitable jurisdiction over, 358. 
 characteristics, of, 359. 
 
 DOUBLE CONVERSION, 
 
 defined 172. See Equitable Conversion. 
 
 DOWER, 
 
 widow has election between testamentary provision and, 133. 
 election between statutory provision as heir and, 137. 
 assignment of, in equity, 522. 
 
 DURESS, 
 
 as ground for constructive fraud, 232. 
 
 EASEMENTS, 
 
 equitable law of merger applied to, 121. 
 arising from covenants, 363. 
 protected by Injunction, 485. 
 
832 ixDEX. 
 
 References are to Sections. 
 
 EJECTMENTS, 
 
 when restrained by bill of peace, 512, 515. 
 
 ELECTION, 
 
 to pay penalties or liquidated damages, 30. 
 
 distinguished from satisfaction and ademption, 145. 
 
 the fundamental principles of the doctrine, 123. 
 
 the scope and effect of the doctrine, 124. 
 
 doctrine applies both to wills and deeds, 125. 
 
 intention to convey another's property essential, 126. 
 
 intention where donor has partial interest in property disposed of, 127. 
 
 an independent substantial benefit necessary, 128. 
 
 ordinary cases of election where grantor has no interest in property, 129. 
 
 cases of election arising under powers of appointment, 130. 
 
 cases of election where the testator has attempted to dispose of his property 
 
 by will which is inoperative, 131. 
 cases in which the donor has a partial interest in property donated, 132. 
 election by widow between her dower and the testamentary provision, 133. 
 from what circumstances intention of election may be implied, 134. 
 statutory changes in this rule, 135. 
 election and devise of community property, 136. 
 election in the case of statutory provisions for widow's share in inheritance 
 
 of husband's property, 137. 
 who may elect — persons under disabilities, 138. 
 time of election, 139. 
 mode of election, 140. 
 efiTect of election, 141, 
 equitable jurisdiction in matters of election, 142. 
 
 EMBEZZLEMENT. See Bkeach of Trust. 
 
 EQUITABLE ASSIGNMENT. See Assignment in Equity. 
 
 EQUITABLE CONVERSION AND RECONVERSION, 
 definition and general explanation, 164. 
 what words are sufficient to produce conversion, 165. 
 conversion in a contract of sale, 166. 
 time from which conversion takes place, 167. 
 effect of conversion, 168. 
 
 conversion as between life tenant and remainder-man, 169. 
 conversion by paramount authority, 170. 
 reconversion defined, 171. 
 double conversion, 172. 
 
 resulting trust upon failure of purpose of conversion, 178. 
 conversion by deeds, 174. 
 
 EQUITABLE EASEMENT'S. See Easements. 
 
 EQUITABLE ESTATES AND INTERESTS, 
 protected by injunction, 480. 
 
 EQUITABLE ESTOPPEL. See Estoppbl. 
 
 EQUITABLE JURISDICTION. See Jurisdiction. 
 
 EQUITABLE MERGER See Merger 
 
INDEX 833 
 
 References are to Sections. 
 
 EQUITABLE REMEDIES. See Rkmbdibs. 
 
 EQUITY JURISPRUDENCE, 
 
 origin and development, 1-11. 
 
 principles and maxims, 13-24 
 
 penalties, 25-30. 
 
 forfeitures, 31-37. 
 
 priority, doctrine of, 40-71. 
 
 bona fide purchasers, 40-71. 
 
 doctrine of notice, 73-102. 
 
 equitable estoppel, 106-115. 
 
 merger, 117-121. 
 
 election, 123-142. 
 
 satisfaction, ademption and performance, 145-161. 
 
 equitable conversion and reconversion, 164^174. 
 
 accidents as a ground for equitable relief, 175-182. 
 
 mistake as a ground for equitable relief, 183-199. 
 
 actual fraud, 202-222 , 
 
 constructive fraud, 226-240. 
 
 jurisdiction over persons non sui juris, 244-249. 
 
 ancient uses and the Statute of Uses, 252-285. 
 
 modern trusts, 286-312. 
 
 powers, duties and liabilities of trustees, 313-329. 
 
 powers of appointment, 330-330 w. 
 
 rights of property and contractual powers of married women, 331-345. 
 
 administration of decedents' estates, and herein of gifts causa mortis, 
 347-359. 
 
 contracts in equity, 361-367. 
 
 equitable assignment, 371-382. 
 
 equitable liens, 384-407. 
 
 mortgages of real estate, 411-458. 
 
 chattel mortgages and pledges in equity, 463-470. 
 
 general explanation of equitable remedies, 472-475. 
 
 injunctions, 478-^91. 
 
 specific performance of contracts and fiduciary obligations, 492-504. 
 
 reformation and cancellation of legal instruments, 506-508. 
 
 bills of peace, or cases of equitable jurisdiction in avoidance of a multi- 
 plicity of suits, 511-519. 
 
 coBcurrent remedies for enforcement of legal rights, assignment of dower, 
 partition, establishment of disputed boundaries, 521-525. 
 
 equitable suits for recovery of pecuniary relief, 527-536. 
 
 bills quia timet, including bills to perpetuate testimony and to remove 
 clouds from title, 539-546. 
 
 bills of discovery and equitable suits for taking testimony, 549-562. 
 
 interpleader, 566-574. 
 
 receivers, 577-588. 
 
 EQUITIES, 
 
 priority of, 40-71. See Pkiobity. 
 when superior and inferior, 44-46. 
 
 EQUITY OP REDEMPTION, 
 in real estate mortgages, 412. 
 
834 INDEX. 
 
 References are to Sections. ' 
 
 EQUITY OF REDEMPTION -ConMnwed. 
 in chattel mortgages, 463. 
 (see redemption, mortgages.) 
 
 ESTATES 
 
 capable of being created in uses, 263. 
 
 distinguished from powers in trust, 330 e. 
 
 and interests of equitable nature, how protected by injunction, 480. 
 
 ESTOPPEL, EQUITABLE DOCTRINE OF, 
 equitable estoppel defined, 106. 
 essentials of an equitable estoppel in pais, 107. 
 what conduct necessary to constitute an estoppel, 108. 
 how far fraud is necessary to estoppel in pais, 109. 
 knowledge of the truth by the party estopped, 110. 
 Ignorance of the truth by the other party. 111. 
 the party estopped must have intended to Influence the conduct of others, 
 
 112. 
 the representation or concealment must have influenced the conduct of 
 
 another, 113. 
 operation and extent of estoppel as to persons, 114. 
 ^uasi-estoppel in the case of acquiescence, 115. 
 
 IJVIDENCE, 
 
 admissibility of parol evidence in satisfaction and ademption, 146. 
 to what extent answer to bill of discovery may be used as, 559. 
 
 EXCESSIVE EXECUTION, 
 of powers, 330 n. 
 
 EXECUTED AND EXECUTORY TRUSTS, 293. 
 
 EXECUTED USES, 286, 293. See Usks and Statute of Usbs. 
 
 EXECUTION, 
 
 of uses. See Statute of Uses. 
 
 of powers of appointment. See Powers. 
 
 EXONERATION, 
 
 right of, as between mortgagor and his assignees, 452. 
 
 as between successive assignees of mortgagor, 453. 
 
 between surety and mortgagor, 454. 
 
 between mortgaged property and mortgagor's personal estate, 456. 
 
 special agreements afiecting, 457. 
 and contribution distinguished, 530. 
 
 EXPECTANCIES, 
 
 assignment in equity of, 373. 
 
 EXPRESS TRUSTS. See Trusts. 
 how created, 290. 
 
 how affected by Statute of Frauds, 296, 297. 
 inferred by construction, 291. 
 distinguished from powers in trust, 292. 
 
 EXTRINSIC EVIDENCE. See Parol Evidence. 
 
INDEX. 835 
 
 References are to Sections. 
 F. 
 
 :pact, 
 
 mistake of. See Mistake. 
 
 riDUCIAKY RELATION. See Trust. 
 
 mistake of law by parties standing in a, 187. 
 as ground of charge of constructive fraud, 233. 
 liability as trustee of parties occupying, 329. 
 
 I'ORECLOSUEE, 
 in equity, 528. 
 
 of mortgage by disposal of title deeds, 391. 
 of grantor's, vendor's and vendee's liens, 404. 
 statutory and mechanics' liens, 408. 
 of real estate mortgages, nature and kinds of, 440. 
 continued — who should be made parties, 441, 442. 
 effect of decree in, upon the land, 443. 
 effect of decree in, upon the debt, 444. 
 in mortgages with power of sale, 445. 
 continued — character of mortgagee in relation to power, 446. 
 
 purchase by mortgagee at his own sale, 447. 
 
 extinguishment of the power, 448. 
 of deeds of trust, 305, 450. 
 of chattel mortgages, 409. 
 of pledges, 470. 
 
 rOEFEITUEES, EQUITABLE RELIEF AGAINST, 
 penalties and forfeitures distinguished, 25. 
 general principle governing relief against, 31. 
 relief against, in mortgages, 32. 
 
 in agreements to repurchase, 33. 
 arising from sale of shares of stock, 34. 
 in conveyances and leases, 35. 
 In contract for the sale of land, 36. 
 not enforced by equity, 37. 
 relief against accidental, 180. 
 
 FRAUD. See Fraud, Actual, and Fraud, Constructive. 
 how far necessary to estoppel in pais, 109. 
 distinguished from mistake and negligence, 183. 
 upon husband and wife's ante-nuptial settlement, 340. 
 
 IHAUD, ACTUAL, 
 
 definition and general statement— kinds of fraud, 202. 
 material misrepresentation of facts, 203. 
 material misrepresentation by the seller, 204. 
 special fraud in auction sales, 205. 
 fraudulent devices of buyers, 206. 
 combination of bidders, 207. 
 fraudulent intent not to pay, 208. 
 
 seller's expression of opinion— dealer's talk— his statements as to value and 
 price, 209. 
 
836 INDEX, 
 
 References are to Sections. 
 
 FRAUD, A(yrVAL— Continued. 
 
 expressions of opinion by buyer, 210. 
 
 when concealment is fraudulent, 211. 
 
 seller's concealment or silence, when a fraud, 212. 
 
 concealment of material facts by the buyer, 213. 
 
 intention to influence the conduct of another, 214. 
 
 when and how far fraudulent intent is necessary in actual fraud, 215. 
 
 misrepresentation or concealment as defense in actions of specific perform- 
 ance, 216. 
 
 reliance upon representations — deceit must be successful, 217. 
 
 parties must be justified in relying upon misrepresentations, 218. 
 
 damage to parties deceived, 219. 
 
 liability of principals, partners, and joint owners for agent's fraudulent mis- 
 representation, 220. 
 
 remedies in general for actual fraud, 221. 
 
 equity jurisdiction over fraud — cancellation and reformation, 222. 
 
 FRAUD, CONSTRUCTIVE, 
 
 definition, essential elements and classification, 226. 
 
 constructive fraud arising out of illegal contracts— equitable jurisdiction for 
 
 relief in cases of illegal contracts, 227. 
 constructive fraud in cases of sales for an unlawful purpose, 228. 
 constructive fraud arising out of inadequacy of consideration, 229. 
 constructive fraud inferred from the condition and the relation of the 
 
 immediate parties to the contract, 230. 
 constructive fraud arising from the mental incapacity of the party to the 
 
 transaction, 231. 
 duress and undue influence, 232. 
 constructive fraud implied from confidential and fiduciary relations between 
 
 parties, 233. 
 constructive fraud, how affected by acquiescence and lapse of time, 234. 
 gifts made between parties in confidential relation to each other, 235. 
 frauds on creditors — transfers without consideration — voluntary conveyances 
 
 — transfers for the purpose of hindering or delaying creditors, 236. 
 preferences by insolvents in transfer of property in payment of debts, when 
 
 fraudulent— voluntary assignments for benefit of creditors, 237. 
 delivery, how far essential to transfer of title as against creditors and sub- 
 sequent purchasers, 238. 
 what delivery is sufiicient as against creditors and subsequent purchasers, 
 
 239. 
 confiicting claims of vendor and vendee's creditors, 240. 
 
 FRAUDS, STATUTE OF. See Statute of Frauds. 
 
 FUTURE-ACQUIRED PROPERTY, 
 assignment of, rule in law, 374. 
 assignment of, rule in equity, 375. 
 assignment of, requisites of, 376. 
 assignment of, extent of doctrine, 376. 
 assignment of, rationale of doctrine, 377. 
 equitable lien on, 386. 
 can chattel mortgage cover, 465, 466. 
 
INDEX. 837 
 
 References are to Sections. 
 
 G. 
 
 GIFTS, 
 
 between parties in confidential relations, when fraudulent as to each other- 
 
 235. 
 gifts causa mortis; distinguished from testamentary disposition, 357. 
 equitable jurisdiction over gifts causa mortis, 358. 
 the characteristics of donatio mortis causa, 859. 
 
 GOOD FAITH, 
 
 necessary element in doctrine of bona fide purchase, 60. 
 in dealing with trust property, 321. 
 
 GRANTOR, LIEK OF, 
 
 distinguished from vendor's lien, 397. 
 characteristics of, 399. 
 discharge or waiver, 400. 
 in whose favor raised, 401. 
 by express reservation, 403, 
 foreclosure of, 404. 
 
 H. 
 
 HISTORY OF EQUITY JURISPRUDENCE, 1-11. 
 
 HUSBAND, 
 
 gift to legatee's, when an ademption, 152. 
 
 curtesy of, in wife's equitable estate, 342. 
 
 rights of, in wife's property at law, 332, 341. 
 
 rights of, in wife's separate property, 333-341. 
 
 duty of, in respect to wife's maintenance, 343. 
 
 duty of, in respect to wife's pin-money and paraphernalia, 344. 
 
 alimony, 345. 
 
 (see married women.) 
 
 IGNORANCE, 
 
 of the truth by party influenced as element of estoppel. 111. 
 
 IGNORANTIA LEGIS NON EXCUSAT 185. 
 
 ILLEGAL ASSESSMENTS AND TAXES, 
 when restrained by bill of peace, 518. 
 
 ILLEGAL CONTRACTS, 
 
 as ground for charge of constructive fraud, 227. 
 constructive fraud in sales for illegal purpose, 228. 
 
 IMPLICATION OF LAW, 
 trusts arising by, 308. 
 implied trust, 309. 
 resulting trust to donor, 310. 
 
 resulting trust to parties paying consideration, 311. 
 constructive trusts, 312. 
 powers executed by, 330 m. 
 
838 INDEX. 
 
 References are to Sections. 
 
 IMPLIED CONTKACTS, 
 
 arising by representations and acts, 364. 
 
 from supply of necessaries to disabled persons, 365. 
 
 liens arising from, 392. 
 
 IMPLIED TRUST, 
 
 one phase of equitable conversion, 309. See Equitable Conversion. 
 defined, 308-309. 
 
 IMPROVEMENTS, 
 
 by life tenant, when lien created thereby, 394. 
 
 on land of another, when lien created thereby, 395. 
 
 INCAPACITY OF MIND, 
 
 of parties as ground for constructive fraud, 231. 
 
 as ground for assuming jurisdiction over persons, 249. 
 
 as ground for implied contract for necessaries, 365. 
 
 INCUMBRANCES, 
 
 law of merger applied to, 119, 120 
 
 INEQUITABLE CONDUCT, 
 
 of one party affecting another's mistake of law, 186. 
 
 INEANTS, 
 
 origin of equitable jurisdiction over, 245. 
 
 conditions of acquiring jurisdiction, 246. 
 
 extent and mode of exercising jurisdiction, 247. 
 
 jurisdiction over custody of, 248. 
 
 contract implied from supply of necessaries to, 365. 
 
 estates of, when placed in charge of receiver, 579. 
 
 INFLUENCE, 
 
 intention to, as element of estoppel, 112. 
 must be successful in estoppel, 113. 
 
 INJUNCTION, 
 
 fundamental principles and general nature of injunction, 478. 
 kinds of injunctions — interlocutory, perpetual and mandatory, 479. 
 Injunction when resorted to for the protection of equitable interests and in 
 
 aid of equitable remedies, 480. 
 injunction to prevent violation of contracts, 481. 
 contracts for personal service, 482. 
 
 private rights protected by injunction — miscellaneous cases, 483. 
 nuisance when restrained by injunction, 484. 
 violation of easements enjoined, 485. 
 injunctions for restraining violation of patents, copyrights, rights in liters 
 
 ary property in general — trade-marks, 486. 
 slander or libel ; wrongful use of names, 487. 
 to restrain actions or judgments at law, 488. 
 
 when jurisdiction is not exercised for restraining actions at law, 489. 
 when the jurisdiction may be exercised, 480. 
 equitable jurisdiction to restrain actions at law under modern procedure, 481. 
 
INDEX. 839 
 
 References are to Sections. 
 
 INSANE, 
 
 when under jurisdiction of courts of equity, 249. 
 contract implied from supply of necessaries to, 365. 
 estates of, when placed in hands of receiver, 579. 
 
 INSOLVENT CREDITORS, 
 
 preferential assignments by, when fraudulent, 237. 
 INSPECTION, 
 
 of documents, when secured by bill of discovery, 558. 
 INSURANCE, 
 
 equitable lien on policy, 396. 
 
 of mortgaged premises, 426. 
 
 INTERPLEADER 
 
 general principles, 566. 
 
 essential requisites of an action for interpleader, 567. 
 
 the same thing, debt or duty, 568. 
 
 the adverse claims must be derived from the same source, 569. 
 
 plaintiff must be a disinterested party, 570. 
 
 independent liability in one's claimant, 571. 
 
 interpleader by bailees, agents, tenants, and parties to contracts, 572. 
 
 what the biU of interpleader should contain, 573. 
 
 interpleader in legal actions under modern statutes, 574. 
 
 INTENTION, 
 
 to influence, as an element of estoppel, 112. 
 
 how far necessary to actual fraud, 214, 215 
 to convey another's property essential to election, 126, 127. 
 of election, from what circumstances implied, 184, 135. 
 
 INTEREST, 
 
 in property, how far it affects doctrine of election, 127, 129, 132. 
 
 INTERLOCUTORY INJUNCTION, 479. See Injukctions. 
 
 INTERPRETATION OF WILLS, 
 suits for construction and, 545. 
 
 INVESTMENTS, 
 
 duty of trustees as to, 320. 
 
 INVOLUNTARY SALES. See Sams. 
 when create equitable conversion, 170. 
 
 J. 
 
 JOINT DEBTOR, 
 
 liability in equity of estate of deceased, 366. 
 
 JOINT INTERESTS, 
 
 when sufficient to support bill of peace, 516, 517. 
 
 JOINT OWNERS, 
 liens upon, 393. 
 receiver appointed to take charge of property of, 579. 
 
 JOINT TENANTS, 
 liens upon, 393. 
 receiver to take charge of property of, 579. 
 
840 INDEX. 
 
 References are to Sections. 
 
 JUDGMENTS, 
 
 in the matter o.. priority over unrecorded mortgages, 54. 
 
 constructive notice by, 99. 
 
 at law, when relieved against on the ground of accident, 181. 
 
 when restrained by injunction, 488-490. 
 for damages, when given in place of decree of specific performance, 502. 
 
 JUKISDICTION OF EQUITY, 
 nature and extent, 7. 
 exclusive, concurrent and auxiliary, 8. 
 in the United States, 9. 
 in the Federal courts, 10. 
 distinguished from equity jurisprudence, 7. 
 in matters of election, 142. 
 in cases of fraud, 222. 
 in cases of illegal contracts, 227. 
 over persons non sui juris, 244^249. 
 
 (see non sui juris.') 
 in administration of decedents' estates, 347-356. 
 in gifts causa mortis, 357-859. 
 of probate courts affecting equity jurisdiction, 348. 
 ex-territorial, in respect to remedies in personam, 475. 
 in specific performance, 492-499. 
 
 (see specific performance.) 
 in reformation and cancellation, general statement, 506-508. 
 
 (see reformation, cancellation.) 
 in avoidance of a multiplicity of suits — bills of peace, 511-519. 
 
 (see bills of peace.) 
 concurrent in assignment of dower, partitions and establishment of dis- 
 puted boundaries, 521-525. 
 in suits for recovery of pecuniary relief, 527-536. 
 bills quia timet, including bills to perpetuate testimony and to remove 
 
 clouds from title, 539-546, 
 bills of discovery, and equitable suits for taking testimony, 549-562. 
 interpleader, 566-574. 
 receivers, 577-588. 
 
 K. 
 
 KNOWLEDGE, 
 
 distinguished from notice, 74. 
 
 of the truth by party estopped, when necessary to estoppel, 110. 
 
 L.. 
 
 LAPSED LEGACIES, 356. 
 
 LAPSE OF TIME, 
 
 as affecting constructive fraud, 231. 
 
 LAW, 
 
 mistakes of. See Mistake. 
 
 LEASES, 
 
 forfeitures arising in, 35. 
 
 696 
 
INDEX. g4J 
 
 References are to Sections. 
 
 LEGACIES, 
 
 ■when adeemed by subsequent advancement, 148-152. 
 
 (see ademption or satisfaction.) 
 ■when satisfied between strangers, 154. 
 operating as satisfaction of portions or advancements, 155. 
 ■when satisfied by subsequent legacy, 156. 
 ■when working satisfaction of debts, 157-169. 
 by creditqr to debtor, when a satisfaction, 160. 
 by debtor to creditor, when a satisfaction, 157. 
 kinds of, 349. 
 
 ademption of specific, by disposition of subject-matter, 350. 
 
 general, 851. 
 
 demonstrative, 352. 
 
 abatement of, 352. 
 
 effect of appropriation of funds by executor on, 355. 
 
 lapsed, 356. 
 
 LEGAL, MERGER, 117. 
 
 LIBEL, 
 
 when restrained by injunction, 487. 
 
 LIElSrS, EQUITABLE, 
 
 their general nature and definition, 384. 
 
 liens arising from express contract, 385. 
 
 equitable lien on property to be acquired in the future, 386. 
 
 form and nature of the agreement, 387. 
 
 lien or mortgage by deposit of title deeds, 388. 
 
 continued — notice to subsequent purchasers, 389. 
 
 continued— their recognition in this country, 390. 
 
 continued— foreclosure, 391. 
 
 liens arising from implied contracts, 392. 
 
 liens upon joint owners and co-tenants, 393. 
 
 expenditure by a life tenant, 394. 
 
 improvements made upon the land of another — betterment laws, 395. 
 
 equitable lien on life insurance policies, 396. 
 
 vendor's and grantor's liens distinguished, 397. 
 
 characteristics of the vendor's lien, 398. 
 
 grantor's lien, 399. 
 
 continued — discharge of waiver of the lien, 400. 
 
 continued — in whose favor raised, 401. 
 
 vendee's lien, 402. 
 
 grantor's lien by express reservation, 403. 
 
 enforcement of grantor's, vendor's and vendee's lien, 404. 
 
 liens arising from charges by will or by deed, 405. 
 
 liens by express charges, 406. 
 
 liens arising from the implied charges, 407. 
 
 mechanics' and maritime liens— statutory liens, 408. 
 
 LIFE INSURANCE, 
 
 equitable lien on policy of, 396. 
 
 LIFE TENANT, 
 
 conversion between remainder-man and, 169. 
 lien arising from expenditure by, 394. 
 
842 INDEX. 
 
 References are to Sections. 
 
 LIQUIDATED DAMAGES, 
 
 distinguished from penalties, 26-30. 
 (see penalties.) 
 
 LIS PENDENS, 
 
 as constructive notice, 95. 
 notice of, applied to what estates, 96. 
 what persons affected by notice of, 97. 
 statutory notice of, 98. 
 
 LITERARY PROPERTY, 
 
 protected by injunction, 486. 
 
 LOCO PARENTIS, IN, 
 
 as affecting ademption, 149. 
 
 LOST INSTRUMENTS, 
 
 equitable relief in suits on, 177. 
 
 LUNATICS. See Insane, Incapacity of Mind. 
 
 M. 
 
 MAINTENANCE, 
 
 wife's claim to, 343. 
 
 MANDATORY INJUNCTIONS, 479. See Injunctions. 
 
 MARITIME LIENS, 408. 
 
 MARRIED WOMEN, 
 uses to, 276 . 
 rights of, protected by injunction, 483. 
 
 MARRIED WOMEN, RIGHTS OF, IN EQUITY, 
 legal status of, 331. 
 
 a married woman's equitable separate estate, 332. 
 by what modes and instruments separate property may be settled, 333. 
 her power of disposition, 334. 
 restraint upon anticipation, 335. 
 disposition of separate estate on death of wife, 336. 
 the condition of the law in the American states, 337. 
 contracts of married women — general doctrine, 338. 
 married women's power to contract in the United States, 339. 
 settlement by wife in fraud of the marriage, 340. 
 wife's equity to a settlement, 341. 
 
 husband's estate by the curtesy in the wife's equitable estate, 242. 
 maintenance, 343. 
 pin-money and paraphernalia,, 344. 
 alimony, 345. 
 when receiver may be appointed to take charge of property of, 580. 
 
 MARSHALING OP ASSETS, 532. 
 
 between successive mortgagees, 458. 
 
 MAXIMS OP EQUITY, 13-24. See Principles and Maxims. 
 
 MECHANICS' LIENS, 408. 
 
 MENTAL INCAPACITY. See Incapacity op Mlnd, Insanity. 
 
INDEX. 343 
 
 References are to Sections. 
 
 MEEGEE, THE EQUITABLE DOCTRINE OF, 
 legal merger, 117. 
 equitable doctrine of merger, 118. 
 merger in cases of Incumbrances, 119. 
 
 cases of merger -where the mortgage or incumbrance is ttaid, 120. 
 law of merger as applied to equitable easements, 121. 
 of interests in trust estate, 295. 
 
 MISREPRESElSrTATIOlSr, 
 
 of fact must be material to be a fraud, 203. 
 
 by seller, 204. 
 
 in auction sales, 205. 
 
 by buyer, 206. 
 
 distinguished from dealer's talk, 209. 
 
 and expressions of opinion distinguished, 209, 210 
 
 must have actually influenced other party, 217. 
 
 must be reasonable, 218. 
 
 MISTAKE AS A GROUND FOR EQUITABLE RELIEF, 
 
 mistake defined and distinguished from accident, fraud and negligence, 183. 
 
 kinds of mistakes, 184. 
 
 mistakes of law — general rule — ig nor antia juris non exeusat, 185. 
 
 mistake of law accompanied by inequitable conduct of the other party, 186. 
 
 mistake of law between parties in relations of trust, 187. 
 
 mistakes common to all parties— mistakes as to legal effect of written in- 
 struments, 188. 
 
 relief where mistake is as to existent legal rights, 189. 
 
 compromises and settlements of disputes over legal rights as affected by 
 mistakes of law, 190. 
 
 payment of money under mistake of law, 191. 
 
 mistakes of fact— general statement, 192. 
 
 the requisites to relief in mistakes of fact, 193. 
 
 compromises and speculative contracts, 194. 
 
 remedies and nature of relief, 195. 
 
 illustrations of cases in which affirmative relief may be granted — relief in 
 cases of wills, 196. 
 
 how mistakes may be proven — when parol evidence is admissible, 197. 
 
 parol evidence in suits for specific performance, 198. 
 
 effect of the Statute of Frauds upon the admissibility of parol evidence, 199. 
 
 MODE OF ELECTION, 140. 
 
 MONEY, 
 
 payment of, when liquidated damages, 27. 
 paid under mistake of law, 191. 
 
 MORTGAGEE, See Moktgagbs. 
 nature of interest of, 419. 
 liability of, for rents and profits, 425. 
 when enjoined from misusing mortgaged property, 483. 
 
 MORTGAGES, 
 
 relief against forfeiture, 32. 
 
 law of merger as applied to, 119, 120. 
 
 by deposit of title deeds, 388. 
 
8M 
 
 INDEX. 
 
 References are to Sections. 
 
 MOETGAGE&— Con^iMwed . 
 
 continued — notice to subsequent purchasers, 389 
 their recognition in this country, 390. 
 foreclosure, 391. 
 when receiver may be appointed to take charge of mortgaged property, 580, 
 422. 
 
 MORTGAGES OF CHATTELS. See Chattbl Mortgages. 
 
 MORTGAGES OP PERSONAL PROPERTY. See Chattel Moktgagbs. 
 
 MORTGAGES OP REAL ESTATE, 
 mortgage at common law, 411. 
 equity of redemption, 412. 
 the mortgage in equity, 413. 
 influence of equity upon the law, 414. 
 the form of a mortgage, 415. 
 the defeasance clause in equity, 416. 
 the admissibility of parol evidence, 417. 
 the mortgagor's interest, 418. 
 the mortgagee's interest, 419. 
 devise of the mortgage, 420 
 merger of interests, 421 
 possession of the mortgaged premises, 422. 
 special agreements In respect to possession, 423. 
 rents and profits, 424. 
 
 mortgagee's liability for rents received, 425. 
 Insurance of the mortgaged premises, 426. 
 assignment of the mortgage, 427. 
 assignment under the lien theory, 428. 
 assignment of the mortgagor's interest, 429. 
 the effect of a discharge, 430. 
 when payment will work an assignment, 431. 
 actions for waste, 432. 
 process to redeem, 433. 
 who may redeem, 434. 
 accounting by the mortgagee, 435. 
 continued — what are lawful debits? 436. 
 continued — what are lawful credits? 437. 
 making rests, 438. 
 balance due, 439. 
 
 foreclosure — nature and kinds of, 440. 
 continued — who should be made parties? 411. 
 parties to foreclosure — continued, 442. 
 effect of decree In foreclosure upon the land, 443. 
 the effect of foreclosure upon the debt, 444, 
 mortgages with power of sale, 445. 
 
 character of the mortgagee in relation to the power, 446. 
 purchase by mortgagee at his own sale, 447. 
 extinguishment of the power, 448. 
 application of the purchase money, 449. 
 deed of trust, 450. 
 contribution to redeem — ^general statement, 451. 
 
INDEX. g45 
 
 References are to Sections. 
 
 MORTGAGES OK REAL ESTATE— Conimwed. 
 mortgagor v. his assignees, 452. 
 contribution between the assignees of the mortgagor — effect of release of 
 
 one of them, 453. 
 contribution between the surety and the mortgagor, 454. 
 
 between heirs, widow, and devisees of the mortgagor, 455. 
 between the mortgaged property and the mortgagor's personal estate, 456. 
 special agreements afifecting the rights of contribution and exoneration, 457. 
 marshaling of assets between successive mortgagees, 458. 
 
 MORTGAGOR. See Mortgages. 
 nature of interest of, 418. 
 when enjoined from misusing mortgaged property, 483. 
 
 MORTIS, CAUSA, GIFTS. See Guts Causa Mortis. 
 
 MULTIPLICITY OF SUIT, 
 
 avoidance of, as ground of jurisdiction, 511-619. See Bills of Peace. 
 
 MUNICIPAL CORPORATIONS, 
 restrained by injunction, 483. 
 
 MUNIMENTS OF TITLE, 
 
 constructive notice from recitals in, 90. 
 
 N 
 
 NAMES, 
 
 injunction against wrongful use of, 487. 
 
 NECESSARIES, 
 
 implied contract for, 365. 
 
 NEGLIGENCE, 
 
 distinguished from mistake and fraud, 183. 
 
 NON-EXECUTION OF POWER, 330 t, 179. 
 
 NON SUI JURIS, JURISDICTON OVER PERSONS, 
 who are persons non sui juris ? 244, 
 origin of the equitable jurisdiction over infants, 245. 
 conditions of acquiring jurisdiction, 246. 
 extent and mode of exercising jurisdiction, 247. 
 jurisdiction over the custody of infants, 248. 
 jurisdiction over persons of unsound mind, 249. 
 
 NOTICE, 
 
 effect of notice, in doctrine of bona fide purchase, 56-69. See Priority. 
 
 general statement and definition of notice, 73. 
 
 notice distinguished from knowledge, 74. 
 
 kinds of notice, actual and constructive, 75. 
 
 actual notice established by direct and indirect evidence, 76. 
 
 what amount of information necessary to constitute actual notice, 77. 
 
 by whom may the information be given? 78. 
 
 when presumption from constructive notice is conclusive, 79 
 
 when presumption from constructive notice is rebuttable, 80. 
 
 what constitutes a due inquiry, 81. 
 
 how far one can rely upon information received, 82. 
 
846 INDEX. 
 
 References are to Sections. 
 
 NOTICE— Continued. 
 
 registration of deeds and other instruments, 83. 
 
 requisites of a proper record, 84 
 
 to ■whom is record constructive notice, 85. 
 
 of what is record constructive notice? 86. 
 
 from what time does priority take effect? 87. 
 
 effect of other kinds of notice in the absence of registration, 88. 
 
 constructive notice arising from extraneous facts, 89. 
 
 recital in muniments of title, 90. 
 
 constructive notice arising from possession, 91. 
 
 extent and effect of the notice, 92. 
 
 nature and time of possession, 93. 
 
 whether presumption of notice from possession is conclusive, 94. 
 
 lis pendens as constructive notice of rights, 95. 
 
 to what kinds of statutes' does the notice lis pendens apply? 96. 
 
 what persons are affected by the notice? 97. 
 
 a statutory notice of lis pendens, 98. 
 
 notice by judgment, 99. 
 
 notice as between principal and agent— general statement of ttie scope and 
 
 appHcation of the doctrine, 100. 
 essential requisites of the constrnctlve notice to principal, 101. 
 presumption of notice to principal not conclusive, 102. 
 
 NUISANCES, 
 
 when restraiDed by injunction, 484. 
 when restrained by bill of peace, 513, 514. 
 
 O. 
 
 ORDER, 
 
 equitable assignment by, 378. See Bill of Exchange and Check. 
 
 ORIGIN AND DEVELOPMENT OF EQUITY JURISPRUDENCE, THE, 
 the meaning of equity in general, 1. 
 the (Bquitas in the Roman law, 2. 
 equity in the English law, 3. 
 
 establishment of separate court of equity and system of jurisprudence, 4. 
 the meaning of equity as a branch of American and English jmispiudence, 5. 
 subdivision of equity jurisprudence, 6. 
 nature and extent of equity jurisprudence, 7. 
 exclusive, concurrent and auxiliary jurisdiction, 8. 
 equity jurisdiction in the United States, 9. 
 equity jurisdiction in the United States court, 10. 
 divisions of the subject of equity jurisprudence, and order of discussion, 11. 
 
 P. 
 
 PAIS, ESTOPPEL IN, 107. See Estoppel. 
 
 PARAPHERNALIA, 344. 
 
 PARENTIS, IN LOCO. See Loco Parentis. 
 
 PAROL CONTRACTS, 
 
 of sale of land, when enforcible in equity, 495. 
 
INDEX. g^ij 
 
 References are to Sections. 
 PAROL EVIDENCE, 
 
 when admissible in satisfaction and ademption, 146. 
 
 In cases of mistake, 197. 
 
 in cases of mistake in suits for specific performance, 198. 
 
 in cases of mistake, how affected by Statute of Frauds, 199. 
 when admissible to prove defeasance clause of mortgage, 417. 
 PAETIES, 
 
 to contract constructive fraud arising from condition or relation of, 230. 
 to contract constructive fraud arising from mental incapacity of, 231. 
 to suits for redemption of mortgages of real estate, 434. 
 to suits for foreclosure of mortgages of real estate, 441, 442. 
 
 PARTITION, 
 
 of land in equity, 523. 
 of personal property, 524. 
 
 PARTISTERS, 
 
 accounting between, 534. See Accounting. 
 
 PARTNERSHIP AFFAIRS, 
 
 when protected by injunction, 583. 
 
 receiver, when appointed to take charge of, 579. 
 
 PASSIVE TRUSTS, 275-288. See Usbs, Trusts. 
 
 PASSIVE USES, 275. -See Uses, Trusts. 
 
 PATENTS, 
 
 protected by injunction, 486. 
 
 PAYMENT OF MONEY, 
 
 when liquidated damages, 27. 
 
 of consideration, as affecting doctrine of priority, 55. 
 
 of money under mistake of law, 191. 
 
 PEACE, BILLS OP. See Bnxs of Pe4Cb. 
 
 PERFORMANCE, 
 
 defined and distlng^uished from satisfaction, 161. 
 
 PENALTIES, EQUITABLE RELIEF AGAINST, 
 penalties and forfeitures defined, 25. 
 
 penalties defined and distinguished from liquidated damages, 26. 
 to secure payment of money or loan, 27. 
 liquidated damages — general description, 28. 
 rule for determining liquidated damages and penalties, 29. 
 election to pay penalties or liquidated damages, 30. 
 
 PERPETUAL INJUNCTIONS, 479. See Injunctions. 
 
 PERPETUATION OP TESTIMONY, 
 bill for, 542. 
 
 PERPETUITY, RULE OF, 
 as applied to powers, 330 u. 
 
 PERSONAL PROPERTY. See Pkopebty, Chattels. 
 contracts for sale of, as to specific performance, 493. 
 
848 INDEX. 
 
 References are to Sections. 
 
 PERSONAL SERVICE, 
 
 contracts for, when enforced by injunction, 482. 
 
 PERSONAM, IN, 
 
 equitable remedies operating, 474. 
 beyond territorial jurisdiction, 475. 
 
 PERSONS, 
 
 affected by estoppel, 114. 
 
 who may elect, 138. 
 
 under disabilities, 138. 
 
 constructive fraud inferred from condition and relation of, 230. 
 
 PIN-MONEY, 344. 
 
 PLEDGES, 
 
 when enforced in equity, 470. 
 
 POSSESSION, 
 
 constructive notice arising from, 91. 
 extent and effect of notice from, 92. 
 nature and time of, 93. 
 
 presumption of notice from, when conclusive, 94. 
 of mortgaged premises, who entitled to, 422. 
 of mortgaged premises, special agreements In respect to, 423. 
 Of mortgaged premises, as affecting right to rents and profits, 424. 
 of mortgaged premises, mortgagee's liability for rents, 425. 
 of personal property covered by mortgage, mortgagee's right thereto, 468. 
 of property, how far considered to justify decree of specific performance of 
 parol contracts, 495. 
 
 POSSIBILITIES, 
 
 assignment in equity of, 373. 
 
 PORTION. See Advakcembnt. 
 
 POWERS OP APPOINTMENT, 
 nature of powers in general, 380. 
 defined and explained, 330 a. 
 classified, 330 b. 
 
 suspension and destruction, 380 c. 
 how created, 330 d. 
 
 distinguished from trust estates, 330 e. 
 
 enlarging interest or estate, with which they are coupled, 330 f. 
 who can be donees of, 330 g. 
 by whom executed, 330 h. 
 mode of execution, 880 k. 
 who may be appointees, 330 1. 
 execution by implication, 330 m. 
 excessive execution, 880 n. 
 successive execution, 330 p. 
 revocation of appointment, 380 s. 
 
 defective execution and non-execution, how and when cured, 330 t, 178, 179. 
 rule of perpetuity, 880 u. 
 rights of donee's creditors in, 330 v. 
 rights of creditors of beneficiary, 330 w. 
 
INDEX. g^9 
 
 References are to Sections. 
 
 POWERS OF APPOINTMENT^ Cow^wMed. 
 cases of election arising under, 130. 
 (see power of sale in mortgages of real estate.) 
 
 POWER OF SALE, 
 
 in mortgages of real estate, 445. 
 character of mortgagee in relation to, 446. 
 purchase by mortgagee at his own sale under, 447. 
 extinguishment of the power, 448. 
 application of the purchase money, 449. 
 
 PRmCIPAL AND AGENT, 
 
 effect of notice received by agent, 100. 
 
 essential requisites of the constructive notice to principal, 101. 
 
 presumption of notice not conalusive, 102. 
 
 liability for agent's fraud, 220. 
 
 interpleader, 572. 
 
 PRINCIPLES AND MAXIMS OF EQUITY JURISPRUDENCE, 
 
 general propositions, 13. 
 
 ubijus, ibi remedium — where there is a right, there is a remedy, 14. 
 
 equity follows the law, 15. 
 
 vigilantibus non dormientibus, CBquitas subvenit — equity relieves the 
 vigilant, not those who sleep upon their rights, 16. 
 
 he who comes into equity must come with clean bands — he that hath com- 
 mitted iniquity shall not have equity, 17. 
 
 he who seeks equity must do equity, 18. 
 
 equity looks to the intent rather than to the form, 19. 
 
 equity imputes an intention to fulfill an obligation, 20. 
 
 equity looks upon that as done which ought to have been done, 21. 
 
 equality is equity, 22. 
 
 where the equalities are in aU other respects equal, the first in order of time 
 shall prevail, 23. 
 
 where there is equal equity, the law must prevail, 24. 
 
 applied to doctrine of priority, 40. 
 
 PRIORITY, 
 
 equitable doctrine of, and herein of the rights of bona fide purchasers, 40-71. 
 
 fundamental principles of the doctrine of priority, 40. 
 
 to what estates and interests the doctrine applies— not to legal estates, 41. 
 
 subsequent equity protected by the legal title, 42. 
 
 priority of time among equal equities, 43. 
 
 superior and inferior equities, 44. 
 
 inequality of equity determined by collateral circumstances, 46. 
 
 superior equity of a bona fide purchaser— general doctrine, 46. 
 
 the doctrine otbonafide purchaser as modified by the recording acts, 47. 
 
 cases to which the doctrine otbonafide purchaser applies, 48. 
 
 suits by holder of an equity, 49. 
 
 aflflrmative relief to a bona fide purchaser, 60. 
 
 what constitutes a bona fide purchaser, 51. 
 
 what is a valuable consideration, 52. 
 
 antecedent debts as consideration, 53. 
 
 priority of unrecorded mortgages over judgment creditors, 54. 
 
 payment of consideration, 55. 
 
 45 
 
850 INDEX. 
 
 References are to Sections. 
 
 TBIORITY— Continued. 
 effect of notice, 56. 
 time of giving notice, 57. 
 
 effect of notice on purchaser of equitable interest, 58. 
 effect of purchase without notice from an earlier purchaser, 69. 
 good faith necessary, 60. 
 the doctrine of bona fide purchase applied to assignments of things in 
 
 action, 61. 
 equities in favor of the debtor, 62. 
 notice to debtor necessary, 63. 
 
 equities between successive assignors and assignees, 64. 
 acquisition by subsequent assignee of the legal title, 65. 
 assignment of things in action to successive assignees by same assignor, 66. 
 some principles applying to successive assignments by cestui que trust, 67. 
 principles applying to assignments of certificates of stock, 68. 
 diligence of the assignee, 69. 
 equities in favor of third persons, 70. 
 effect of statutory provisions concerning assignments of things in action, 71. 
 
 PEIVILEGED COMMUNICATIONS, 
 not subject to bill of discovery, 656. 
 
 PROOF OF MISTAKES, 197-199. 
 
 PROPERTY, 
 
 assignment of after-acquired, 374-377. See Futdbk-Acquirbd Property. 
 real and personal, distinguished as to decrees for spectflc performance, 493 
 
 PUBLIC NUISANCE, 
 
 when bill of peace will lie for, 513 
 
 PUBLIC TRUSTS, 306. 
 
 certainty and uncertainty in creation of, 307. 
 
 Q. 
 
 QUASI-ESTOPPEL, 
 
 in case of acquiescence, 115. 
 
 QUASI-TRUSTEES, 
 liability of, 329. 
 
 QUIA TIMET BILLS, 
 
 including bills to perpetuate testimony and to remove clouds from title, 
 
 539-546. 
 general statement, 539. 
 covenants to indemnify and securities, 540. 
 trust estates and estates for life, 541. 
 bills to perpetuate testimony, 542. 
 bills to remove cloud from title, 543. 
 statutory suits to quiet title, 544. 
 suits to interpret and construe wills, 545. 
 relief granted in bills quia timet, 546. 
 
 QUIET TITLE, 
 
 bill to, 512. See Bills of Peace. 
 statutory suit to, 544. 
 
INDEX. 851 
 
 References are to Sections. 
 
 R. 
 
 REAL ESTATE MORTGAGES. See Mortgages of Real Estate. 
 spQcUic performance of contracts for sale of, 493 
 
 REBUTTAL, 
 
 of presumption in constructive notice, 79. 
 
 RECEIVERS, 
 
 general statement as to jurisdiction of equity, 577. 
 
 exercise of power discretionary, 578. 
 
 cases in which a receiver may be appointed, 579. 
 
 continued — cases in which a receiver may be appointed, 580. 
 
 effect of appointment of receivers, 581. 
 
 duties of receivers, 582. 
 
 powers and authority of receivers, 583. 
 
 suits against receivers, 584. ' 
 
 liability of the corporation for the acts of the receiver, 585. 
 
 power of removal by receiver, 686. 
 
 compensation of receiver, 587. 
 
 the receiver's certificate, how far negotiable, 588. 
 
 RECITALS EST MUNIMENTS OF TITLE, 
 constructive tiotice from, 90. 
 
 RECONVERSION DEFINED, 171. See Equitable Convebsion. 
 
 RECORDING LAWS, 
 
 affecting doctrine of bona fide purchase, 47. 
 
 as furnishing constructive notice, 83-88. 
 
 (see notice, registration.) 
 
 RECORD OF LEGAL INSTRUMENTS. See Registration and Notice. 
 
 REDEEM, PROCESS TO. See Redemption. 
 
 REDEMPTION, 
 
 of real estate mortgages, 412. 
 process for, 433. 
 who may redeem, 434. 
 accounting by mortgagee, 435. 
 continued — what are lawful debits, 436. 
 continued — what are lawful credits, 437. 
 continued- making rests, 438. 
 continued — balance due, 439. 
 of chattel mortgages, 463, 467. 
 
 RE-EXECUTION, 
 
 of legal instruments by judicial decree, 507. See Reformation. 
 
 REFORMATION AND CANCELLATION, 
 
 general statement as to the nature and object of the remedy, 506. 
 
 reformation and re-execution of instruments, 507. 
 
 cancellation and surrender of instruments, 508. 
 
 as a remedy in cases of accident and mistake, 195, 196. 
 
 as a remedy in cases of fraud, 222. 
 
 REGISTRATION OF LEGAL INSTRUMENTS, 
 as furnishing constructive notice, 83. 
 
862 INDEX. 
 
 References are to Sections. 
 
 REGISTRATION OF LEGAL INSTRUMENTS— Coniinwed. 
 requisites of a proper record, 84. 
 to whom is record constructive notice, 85. 
 of what is record constructive notice, 86. 
 from what time does priority take effect in, 87. 
 effect of other kinds of notice in absence of, 88. 
 (see notice.) 
 
 REM, IN, 
 
 equitable remedies, 474. 
 
 REMAINDER, 
 
 conversion arising between tenants of life estate and, x69. 
 doctrine of, applied to trusts, 299. 
 
 REMEDIES, 
 
 in cases of accident and mistake, 193, 196. 
 at law in cases of fraud, 221. 
 in equity in cases of fraud, 222. 
 
 for enforcement of contracts, 367. 
 general explanation of equitable, 472, 473. 
 in equity, operating in personam, and in rem, 474. 
 j/ipersowa/w beyond territorial jurisdiction, 475. * 
 
 in practicability or want of legal ground for decree of specific performance, 494. 
 injunctions, 478-491. 
 specific performance, 492-504. 
 reformation and cancellation, 506-508. 
 bills of peace, or cases of equitable jurisdiction in avoidance of multiplicity 
 
 of suits, 511-519. 
 equitable remedies for assignment of dower, 522. 
 
 partition of land, 523. 
 
 partition of personal property, 524. 
 
 establishment of disputed boundaries, 525. 
 equitable suits for the recovery of pecuniary relief, 527-536. 
 bills quia timet including bills to perpetuate testimony and to remove 
 
 clouds from title, 539-546. 
 bills of discovery, and equitable suits for taking testimony, 549-562. 
 interpleader, 566-574. 
 receivers, 677-588. 
 
 REMEDIES FOR THE RECOVERY OF PEQUNIARY RELIEF, 
 subdivision of subjsct, 527. 
 suits for foreclosure, 528. 
 creditor's. suits, 529. 
 
 exoneration and contribution distinguished, 630. 
 subrogation, 631. 
 marshaling of securities, 632. 
 suits for accounting, 633. 
 accounting between partners, 534. 
 accounting stated, 535. 
 taking the account, 536. 
 
 REMOVAL OF TRUSTEE, 316. 
 
INDEX 
 
 References are to Sections. 
 
 RENTS AND PROFITS, 
 
 of mortgaged estate, collected by whom, 424. 
 mortgagee's liability for, 425. 
 
 REPRESENTATION, 
 
 in estoppel, must have influenced other party, 113. 
 
 REPURCHASE, AGREEMENTS TO. 
 relief against forfeiture, 33. 
 
 RESULTING TRUST, 
 
 upon failure of purpose of conversion, 173. 
 
 from donor, 310. 
 
 to party paying consideration, 311. 
 
 "RESULTING USE, 257, 277, note. 
 
 S. 
 
 SALE OF LAND, 
 
 forfeiture in contract for, 36. 
 
 SALES, 
 
 contract of, when creating an equitable conversion, 166. 
 
 Involuntary, as affecting equitable conversion, 170. 
 
 for illegal purpose, when ground for charge of constructive fraud, 228. 
 
 SATISFACTION, ADEMPTION AND PERFORMANCE, 
 election distinguished from the subject of this chapter, 145. 
 admissibility of parol or extrinsic evidence, 146. 
 satisfaction and ademption distinguished, 147. 
 ademption of legacies by portions and ademptions, 148. 
 donor in loco parentis, 149. 
 
 subsequent portion or advancement less than the legacy, 150. 
 circumstances which affect and do not affect the presumption, 151. 
 gift to husband of legatee, 152. 
 effect of a subsequent codicil, 163. 
 satisfaction of legacies between strangers, 154. 
 satisfaction of portions or advancements by legacies, 155. 
 satisfaction of legacy by subsequent legacy, 156. 
 satisfaction of debts by legacy— legacy by debtor to his creditor, 157. 
 what prevents the presumption of satisfaction of debts by legacies, 158. 
 debt owing to a child or wife, 159. 
 legacy by a creditor to his debtor, 160. 
 equitable doctrine of performance distinguished from satisfaction, 161. 
 
 SEAL, 
 
 importing consideration, in equity, 362. 
 
 SEISIN, 
 
 doctrine of, as affecting the operation of the Statute of Uses, 269-273. 
 
 SELLER, 
 
 fraudulent misrepresentation of, 204. 
 
 special frauds in auction sales, 205. 
 
 expression of opinion, dealer's talk, when not fraudulent, 209. 
 
 SEPARATE ESTATE OF MARRIED WOMEN. See Makeikd Women. 
 a use. 276. 
 disposition of, upon death, 336. 
 
 863 
 
854 NDEX. 
 
 References are to Sections. 
 
 SERVICE, 
 
 contract for personal, when enjoined, 482. 
 
 SHARES OP STOCK, 
 
 forfeitures arising from sale of, 34. 
 
 assignment of, as affecting doctrine of priority, 68. 
 
 disputes over, settled by bill of peace, 519. 
 
 SHIFTING USES, 
 explained, 282. 
 how defeated, 284. 
 incidents of, 285, 
 
 SLANDER, 
 
 when restrained by injunction, 487. 
 
 SPECIFIC PERFORMANCE OF CONTRACTS AND LEGAL OBLIGATIONS, 
 general statement as to ground for jurisdistion in, 492. 
 inadequacy of action for damages for breach of contract — distinction be- 
 tween sales of real estate and personal property, 493. 
 impracticability, or want of a legal remedy, 494. 
 specific performance of verbal contracts partly performed, 495. 
 jurisdiction discretionary, 496. 
 essential elements in the exercise of jurisdiction, 497. 
 performance by plaintiff how. far a condition precedent, 498. 
 when tender of performance by plaintiff necessary, 499. 
 how far right to specific performance is affected by time, 500. 
 the effect of events occurring without the agency of the parties in contract 
 
 for the sale of lands, 501. 
 damages when given in place of decree for specific performance, 502. 
 specific performance of trustees, 503. 
 
 suits against corporations to compel transfer or issue of stock, 504. 
 parol evidence in suits for, 195. 
 fraud as defense in actions for, 216. 
 
 SPECLUATIONS, 
 
 how affected by mistake of fact, 194. 
 
 SPECULATIVE CONTRACTS, 
 mistake of fact, 194. 
 
 SPRINGING USES, 
 explained, 281. 
 how defeated, 284. 
 incidents of, 285. 
 (see uses.) 
 
 STATUTE OF FRAUDS, 
 
 effect of, on admissibility of parol evidence in mistakes, 199. 
 as to trusts, 296, 297. 
 
 STATUTE OF USES, 
 its history, 266. 
 when operative, 267-277. 
 a person seised to a use and in esse, 268. 
 freehold necessary, 269. 
 use upon a use, 270. 
 
INDEX. 865 
 
 Keferences are to Sections. 
 
 STATUTE OF VSES— Continued. 
 
 feoffee and cestui que use, same person, 271 
 
 use in esse, 272. 
 
 cestui que use in esse, 273. 
 
 words of creation and limitation, 274. 
 
 active and passive uses and trusts, 275. 
 
 uses to married women, 276. 
 
 inoperative in what cases, recapitulation, 277. 
 
 STATUTORY LIENS, 408. 
 
 STOCK. See Shares of Stock. 
 
 SUBROGATION, 531. 
 
 SUCCESSIVE EXECUTION OF POWERS, 330 p. 
 
 SURETIES, 
 
 right to file bill quia timet, 540. 
 
 SURRENDER, 
 
 of trust property at termination of trust, 324. 
 of legal instruments by eouitable decree, 508. 
 (see cancellation.) 
 
 SURVIVING TRUSTEES, 
 rights and powers of, 315. 
 
 SUSPENSION OF POWERS, 330 c. 
 
 T. 
 
 TAX, 
 
 injunction against illegal, 483. 
 
 bill of peace for restraining illegal, 518. 
 
 TESTAMENTARY PROVISION, 
 
 widow's election between dower and, 133. 
 
 TESTIMONY, 
 
 biU to perpetuate, 542. 
 suits to take, de bene esse, 561. 
 in foreign countries, 562. 
 
 THINGS IN ACTION. 
 
 assignment of, in the matter of priority, 61-71. See Choses in Action. 
 
 TIME, 
 
 as an element in doctrine of priority, 43. 
 
 of priority in recorded instruments, 87. 
 
 of election, 134. 
 
 of conversion, 167. 
 
 as an element in determining right to speoific performance, 500. 
 
 TITLE, 
 
 bill to remove cloud from, 543. 
 statutory suit to quiet, 544. 
 
 TITLE DEEDS. See Dkeds. 
 
 mortgage by deposit of. See Deposit op TnxB Deeds. 
 
856 INDEX. 
 
 Keferences are to Sections. 
 
 TRADE-MARKS, 
 
 protected by injunction, 486. 
 
 TRUST, 
 
 mistake of law in relations of, 187. 
 
 distinguished from use before the Statute of Uses, 255. 
 
 active uses and, as affected by Statute of Uses, 275. 
 
 specific performance of, when enforced, 503. 
 
 bills quia timet when employed in enforcement of, 541. 
 
 when receiver appointed to take charge of, 580. 
 
 TRUSTEES, 
 
 how trusts are affected by want of a trustee, 313. 
 
 refusal of trustee to serve, 314. 
 
 rights and powers of surviving trustees, 315. 
 
 removal of trustees, 316. 
 
 duties and liabilities of trustees in general, 317. 
 
 trustees must conform to the directions of the trust, 318. 
 
 trustees must use due care and diligence, 319. 
 
 duty of trustees as to investments, 320. 
 
 good faith In dealing with trust property, 321. 
 
 trustee cannot delegate his authority, 322. 
 
 trustee's duty to account, 323. 
 
 duty to surrender trust property, 324. 
 
 right to compensation and allowance for expenses, 325. 
 
 breach of trust and liability therefor, 326. 
 
 right of contribution among co-trustees, 327. 
 
 liability of third persons for performance of the trust, 328. 
 
 liability of gwasi-trustees or other fiduciary persons, 329. 
 
 decree of specific performance against, 503. 
 
 TRUSTS. See Uses, Trustees. 
 what is a trust? 286. 
 
 classes of trusts — modem legislation in regard to the same, 287. 
 active and passive trusts, 288. 
 modern statutory changes, 289. 
 how express trusts were created, 290. 
 express trusts inferred by construction, 291. 
 powers in trust distinguished from trust estates, 292. 
 executed and executory trusts, distinguished, 293. 
 alienation of trust estate, 294. 
 merger of interests, 295. 
 
 Statute of Frauds as to trusts in real estate, 296. 
 trusts of personalty when within the Statute of Frauds, 297. 
 words of limitation in the creation of trusts in lands, 298. 
 doctrine of remainders applied to trusts, 299. 
 voluntary trusts, 300. 
 interest of the cestui que trust, 301. 
 liability for debts,.302. 
 classes of active trusts, 303. 
 
 voluntary assignments for the benefit of creditors, 804. 
 deeds of trust to secure debts, 306. 
 public and charitable trusts, 306. 
 certainty or uncertainty in the creation of a charitable trust, 307. 
 
INDEX. cgY 
 
 References are to Sections. 
 
 TRUSTS— Continued. 
 
 trusts arising by operation of law— classes, 308. 
 
 implied trusts, .309. 
 
 resulting trusts to donor, 310. 
 
 resulting trusts to parties paying considerations, 311 . 
 
 constructive trusts, 312. 
 
 U. 
 
 UBT JUS, IBI REMEDIUM, 14. 
 
 UNDUE nSTFLUENCE, 
 
 as ground for constructive fraud, 232. 
 
 implied from confidential relations of parlies, 233. 
 
 UNRECORDED MORTGAGES. See Registration, Priorxtt. 
 priority of, over judgments, 54. 
 
 USES, 
 
 origin and history, 252. 
 
 what is a use, 253. 
 
 enforcement of a use, 254. 
 
 distinction between uses and trusts, 255. 
 
 how uses may be created, 256. 
 
 same — resulting use, 257. 
 
 same — by simple declaration, 258. 
 
 who might be feoffees to use and oe-^tui que use, 259. 
 
 what might be conveyed to uses, 260. 
 
 incidents of uses, 261. 
 
 sklienation of uses, 262. 
 
 estates capable of being created in uses, 263. 
 
 disposition of uses by will, 264. 
 
 how lost or defeated, 265. 
 
 history of the Statute of Uses, 266. 
 
 when statute wiU operate, 267. 
 
 a person seised to a use and in esse,, 268. 
 
 freehold necessary, 269. 
 
 use upon a use, 270. 
 
 feoffee and cestui que use — same person, 271. 
 
 a use in ease, 272, 
 
 cestui que use in esse, 273. 
 
 words of creation and limitation, 274. 
 
 active and passive uses and trusts, 275. 
 
 uses to married women, 276. 
 
 cases in which the statute will not operate, 277. 
 
 future uses, 278. 
 
 contingent future uses— how supported, 279. 
 
 contingent uses, 280. 
 
 springing uses, 281. 
 
 shilting uses, 282. 
 
 future uses in chattel Interests, 283. 
 
 shifting and springing uses, how defeated, 284. 
 
 Incidents Of springing and shifting uses, 285. 
 
858 INDEX. 
 
 References are to Sections. 
 
 V. 
 
 TENDEE. See Buyer. 
 
 conflicting claims of creditors of vendor and, 240. 
 lien of, 402. 
 
 lien of, how enforced, 404. 
 
 receiver appointed to take clxarge of property pending dispute of vendor 
 with, 580. 
 
 VENDOR. See Sklleh. 
 
 conflicting claims of creditors of vendee and, 240. 
 lien of, distinguished from grantor's lien, 397. 
 (see grantor's lien.) 
 characteristics of, 398. 
 foreclosure, 404. 
 receiver appointed to take charge of property pending dispute of vendee 
 with, 580. 
 
 VEGILANTIBUS NON DORMIENTIBUS, ^QUITAS SUBVENIT, 16. 
 
 VOLUNTARY CONVETANCES, 
 
 when fraudulent as to creditors, 236. 
 
 VOLUNTARY TRUSTS, 300. 
 
 W. 
 
 WASTE, 
 
 action for, against parties to mortgage, 432. 
 
 WIDOW, 
 
 has right of election between dower and testamentary provision, 133. 
 statutory provision, 137. 
 
 WILLS, 
 
 doctrine of election applied to, 125. See Election. 
 
 inoperativeness of, how far afiects election, 131. 
 
 mistakes in, nature of relief, 196. 
 
 liens arising from charges in, 405. 
 
 liens by express charges in, 406. 
 
 liens by implied charges in, 407. 
 
 suits to interpret and construe, 545. 
 
 WITNESSES, 
 
 equitable provisions for examination of, 560. 
 suits to take testimony de bene esse of, 561. 
 suits to examine in foreign countries, 662.